HOUSE OF LORDS
Select Committee on the Constitution 6th Report of Session 2006–07
Relations between the executive, the judiciary and
Parliament
Report with Evidence
Ordered to be printed 11 July 2007 and published 26 July 2007
Select Committee on the Constitution
The Constitution Committee is appointed by the House of Lords in each session with the following
terms of reference:
To examine the constitutional implications of all public bills coming before the House; and to keep
under review the operation of the constitution.
Current Membership
Viscount Bledisloe
Lord Goodlad
Lord Holme of Cheltenham (Chairman)
Lord Lyell of Markyate
Lord Morris of Aberavon
Baroness O’Cathain
Lord Peston
Baroness Quin (from 19 February 2007)
Lord Rowlands
Lord Smith of Clifton
Lord Windlesham
Lord Woolf
Publications
The reports and evidence of the Committee are published by The Stationery Office by Order of the
House. All publications of the Committee are available on the internet at:
http://www.parliament.uk/hlconstitution
Parliament Live
Live coverage of debates and public sessions of the Committee’s meetings are available at
www.parliamentlive.tv
General Information
General Information about the House of Lords and its Committees, including guidance to
witnesses, details of current inquiries and forthcoming meetings is on the internet at:
http://www.parliament.uk/parliamentary_committees/parliamentary_committees26.cfm
Contact Details
All correspondence should be addressed to the Clerk of the Select Committee on the Constitution,
Committee Office, House of Lords, London, SW1A 0PW.
The telephone number for general enquiries is 020 7219 1228/5960
The Committee’s email address is: constitution@parliament.uk
CONTENTS
Paragraph Page
Chapter 1: Introduction and Background 1 7
Introduction 1 7
Acknowledgements 4 7
Mapping the Changing Constitutional Landscape 6 7
Human Rights Act 1998 8 8
The Constitutional Reform Act 2005 and the Concordat 12 9
Creation of the Ministry of Justice 19 11
Criteria for Assessing the Changing Landscape 22 11
The Rule of Law 23 12
Independence of the Judiciary 27 13
The Scope of our Inquiry 30 14
Chapter 2: Executive and Judiciary 31 15
Introduction 31 15
Strained Relationships? 34 15
Managing the Tensions 37 16
Table 1: The Craig Sweeney case: sequence of events 19
General Channels of Communication 54 22
Constitutional Change 57 23
Human Rights Act 88 31
“Dialogue” in Relation to Convention Rights 88 31
Ministerial Compatibility Statements and Parliamentary
Scrutiny 89 31
Greater Guidance to the Executive from the Courts? 93 32
Should there be a System of Abstract Review? 98 33
Review of Bills by a Committee of Distinguished Lawyers 107 35
Advisory Declarations 109 36
Chapter 3: Parliament and Judiciary 112 38
Introduction 112 38
Laying Written Representations before Parliament 113 38
Other Ways of Communicating with Parliament 120 39
The Question of Accountability 121 40
The Role of Select Committees 124 40
A Parliamentary Committee on the Judiciary 127 41
Post-legislative Scrutiny 130 42
Confirmation Hearings 131
42 An Annual Report on the Judiciary 136 43
Chapter 4: Judiciary, Media and Public 140 45
Introduction 140 45
Public Perceptions 141 45
The Role of Individual Judges 150 47
The Role of the Lord Chief Justice 156 49
The Role of the Judicial Communications Office 161 50
Chapter 5: Conclusions and Recommendations 172 54
Appendix 1: Select Committee on the Constitution 58
Appendix 2: List of witnesses 59
Appendix 3: Paper by Professor Kate Malleson: The Effect
of the Constitutional Reform Act 2005 on the Relationship
between the Judiciary, the Executive and Parliament 60
Appendix 4: Paper by Professor Anthony Bradley: The New
Constitutional Relationship between the Judiciary
Government and Parliament; and further paper: Changes
in the Machinery of Government affecting the Department
for Constitutional Affairs and the Home Office 69
Appendix 5: Paper by Professor Paul Craig: The Rule of Law 97
Appendix 6: Declarations of incompatibility made under
section 4 of the Human Rights Act 1998 107
Appendix 7: Comparison of Responsibilities of the Ministry of
Justice and the Department for Constitutional Affairs; and
breakdown of duties of the Lord Chancellor and Secretary of
State for Justice 116
Appendix 8: Evidence by the Lord Chief Justice, 3 May 2006 118
Oral Evidence
Rt Hon Lord Falconer of Thoroton QC
Oral Evidence, 22 November 2007 1
Ms Clare Dyer, Legal Editor, The Guardian, Ms Frances Gibb, Legal Editor,
The Times, and Mr Joshua Rozenberg, Legal Editor, The Daily Telegraph
Oral Evidence, 6 December 2007 15
Rt Hon Charles Clarke MP
Oral Evidence, 17 January 2007 25
Rt Hon Lord Mackay of Clashfern
Oral Evidence, 24 January 2007 38
Rt Hon Lord Lloyd of Berwick
Oral Evidence, 24 January 2007 45
Rt Hon Sir Igor Judge, President of the Queen’s Bench Division and Head of
Criminal Justice, Mr Mike Wicksteed, Head of Judicial Communications,
Judicial Communications Office, and Mr Peter Farr, Chief Public Information
Officer, Judicial Communications Office
Oral Evidence, 21 February 2007 50
Professor Dame Hazel Genn
Oral Evidence, 7 March 2007 63
Mr Paul Dacre, Editor, Daily Mail
Oral Evidence, 7 March 2007 70
Rt Hon Lord Justice Thomas and Rt Hon Sir Igor Judge, President of the Queen’s
Bench
Division
Oral Evidence, 1 May 2007 77
Rt Hon Lord Falconer of Thoroton QC
Oral Evidence, 1 May 2007 85
Professor Robert Hazell, Professor Terence Daintith and Professor Alan Page
Oral Evidence, 9 May 2007 93
Dr Matthew Palmer
Oral Evidence, 9 May 2007 99
Relations between the executive,
the judiciary and Parliament
CHAPTER 1: INTRODUCTION AND BACKGROUND
Introduction
1. Constructive relationships between the three arms of government—the
executive, the legislature and the judiciary—are essential to the effective
maintenance of the constitution and the rule of law. In recent years, the
character of these relationships has changed significantly, both because of
changes in governance and because of wider societal change.
2. We therefore decided to take the annual appearances by the Lord Chancellor
and the Lord Chief Justice in front of our Committee as the starting point for
a broad assessment of the impact of the changes in these relationships. In
particular, we set out to identify points of friction or uncertainty and to offer
suggestions to the Government, Parliament and the judiciary as to how these
might be tackled.
3. As if to illustrate the importance of conducting such an assessment, midway
through our inquiry a serious dispute erupted between the Government and
the judiciary over the new Ministry of Justice. This dispute, which was
ongoing at the time this report went to print, demonstrates that there are still
disagreements and uncertainties about the relationships between the three
arms of government. We hope that this report will help point the way to
more balanced and harmonious relationships in the future.
Acknowledgements
4. We thank all our witnesses (listed in Appendix 2) for their invaluable oral
evidence, and we also express gratitude to Professor Anthony Bradley,
Professor Kate Malleson and Professor Paul Craig for their helpful papers.
5. We are also most grateful to our Specialist Adviser on this inquiry,
Professor Andrew Le Sueur.
Mapping the Changing Constitutional Landscape
6. In this report we examine the evolving constitutional relationships between
the judiciary, the executive and Parliament. The various reforms that have
been introduced and the changes that have come about in recent years may
be better thought of as a process rather than an event. However, for the
purposes of this inquiry we have focused on three milestones that have been
particularly influential in defining and influencing the changing character of
the relationships.
• The coming into force of the Human Rights Act 1998 (HRA) in October
2000.
• The passage of the Constitutional Reform Act 2005 (CRA) and the
formation of the concordat between the then Lord Chief Justice of
England and Wales (Lord Woolf) and the then Lord Chancellor (Lord
Falconer of Thoroton).
• The creation of the Ministry of Justice (MoJ), which formally came into
being on 9 May 2007.
7. This is not to imply that all the changes have come about as a result of
developments in legislation and governance arrangements. The relationships
have also been shaped by changing attitudes and perceptions. Since the
revocation of the “Kilmuir Rules” in 1987, judges have been more open in
speaking to the news media. For their part, some ministers have felt able to
break with previously understood conventions and make robust and public
comments critical of judges and judgments. Moreover, the news media play
an increasingly important role in reporting and commenting on the judiciary,
and—as in other contexts—there has been a decline in the culture of
deference. Individual judges and the judiciary as a whole are seen as “fair
game” by columnists and headline writers in the tabloid press. Broadsheet
journalists also chart closely the intrigues of discussions and disagreements
between the senior judiciary and ministers.
Human Rights Act 1998
8. It was always clear that the Human Rights Act would have constitutional
importance as well as giving citizens a practical right to use the European
Convention on Human Rights (ECHR) in litigation in our national courts.
Though careful to preserve the essence of parliamentary sovereignty (that no
court may question the validity of an Act of Parliament), the HRA
nonetheless gives the judiciary significant new powers. Section 3 places a
duty on courts in relation to the way in which they carry out their function of
interpreting legislation: “So far as it is possible to do so, primary legislation
and subordinate legislation must be read and given effect in a way which is
compatible with the Convention rights”.
9. A variety of views have been expressed as to what exactly this requires—to
what extent should words be “stretched”, or new words implied, in order to
make a provision fit with the requirements of the ECHR and the case law of
the European Court of Human Rights? Where the words of an enactment are
so plainly contrary to Convention rights that no amount of interpretation can
make them fit, the courts are empowered to make a declaration of
incompatibility under section 4 of the HRA. Such a declaration does not
affect the validity and enforceability of the provision in question and so offers
little practical help to the aggrieved citizen; rather, it is intended to signal to
the executive and Parliament the view of the courts that remedial action
should be taken to repeal or amend the legislation.
Thus far the Government have accepted the outcome of court proceedings
which result in a declaration of incompatibility by undertaking to remedy the
clash between national law and Convention rights.
10. To date, 17 declarations of incompatibility have been made by the courts.
2
Most declarations of
incompatibility related to statutory provisions enacted before the HRA came
into force in October 2000, at which point Parliament began systematic
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 9
scrutiny for possible incompatibility through the Joint Committee on Human
Rights (JCHR) and ministers started issuing “statements of compatibility” to
accompany all government bills introduced to Parliament. Since then, some
bills have been amended by Parliament to address human rights concerns,
and two enacted provisions have been subject to declarations of
incompatibility. This may call into question the efficacy of the executive’s
self-scrutiny of policy proposals and, in relation to the incompatible
provisions, parliamentary examination of bills (see Chapter 2).
11. Later in our report, we examine several ways in which the HRA is having an
impact on relations between the judiciary, the executive and Parliament, and
how this situation may develop in the future. In particular, we consider
whether the judiciary should be able to evaluate the general compliance of
bills or recently enacted statutes for their compatibility with Convention
rights in a process of “abstract review”, a procedure that is common in many
jurisdictions throughout Europe. We also consider whether there might be a
greater role for “advisory declarations”, in which the courts could be called
upon to give guidance to the government on Convention rights, or whether a
“committee of distinguished lawyers” could be of use.
The Constitutional Reform Act 2005 and the Concordat
12. In previous reports we have expressed our dismay about circumstances in
which the Government have announced policy or introduced a bill without
apparently being sufficiently aware of the impact of the initiative upon the
fundamentals of the constitution.
3
A prime example of confusion about
whether an initiative is a simple “machinery of government” change or a
major constitutional reform was the announcement in June 2003—in the
midst of a Cabinet reshuffle—that the office of Lord Chancellor was to be
abolished and that a Supreme Court of the United Kingdom was to be
established. That announcement took place without any apparent
understanding of the legal status of the Lord Chancellor and without
consultation with the judiciary (or anyone else outside government).
13. Soon after that announcement, Lord Woolf (then Lord Chief Justice) and
Lord Falconer (then Lord Chancellor) started negotiations over the key
principles and principal arrangements that should govern the new situation in
which the Lord Chief Justice rather than the Lord Chancellor would be head
of the judiciary. The outcome of those talks was set out in January 2004 in an
agreement known as “the Concordat” (formally entitled “The Lord
Chancellor’s judiciary-related functions: Proposals”).
4
Many aspects of the
Concordat were put on a statutory footing by the CRA, but it is clear to us
that the Concordat continues to be of great constitutional importance.
14. Lord Falconer agreed with this: “it seems to me to be a document of
constitutional significance because, although much of it was then enacted in
the Constitutional Reform Act, it sets out the basic principles on which the
judges and the executive will relate to each other in the future. I have never
known any piece of legislation to be utterly comprehensive; there are bound
to be issues that come up in the future where it is the principle that matters
rather than precise detailed legislation and I believe the Concordat will be
Select Committee on the Constitution 6th Report of Session 2006–07
Relations between the executive, the judiciary and
Parliament
Report with Evidence
Ordered to be printed 11 July 2007 and published 26 July 2007
Select Committee on the Constitution
The Constitution Committee is appointed by the House of Lords in each session with the following
terms of reference:
To examine the constitutional implications of all public bills coming before the House; and to keep
under review the operation of the constitution.
Current Membership
Viscount Bledisloe
Lord Goodlad
Lord Holme of Cheltenham (Chairman)
Lord Lyell of Markyate
Lord Morris of Aberavon
Baroness O’Cathain
Lord Peston
Baroness Quin (from 19 February 2007)
Lord Rowlands
Lord Smith of Clifton
Lord Windlesham
Lord Woolf
Publications
The reports and evidence of the Committee are published by The Stationery Office by Order of the
House. All publications of the Committee are available on the internet at:
http://www.parliament.uk/hlconstitution
Parliament Live
Live coverage of debates and public sessions of the Committee’s meetings are available at
www.parliamentlive.tv
General Information
General Information about the House of Lords and its Committees, including guidance to
witnesses, details of current inquiries and forthcoming meetings is on the internet at:
http://www.parliament.uk/parliamentary_committees/parliamentary_committees26.cfm
Contact Details
All correspondence should be addressed to the Clerk of the Select Committee on the Constitution,
Committee Office, House of Lords, London, SW1A 0PW.
The telephone number for general enquiries is 020 7219 1228/5960
The Committee’s email address is: constitution@parliament.uk
CONTENTS
Paragraph Page
Chapter 1: Introduction and Background 1 7
Introduction 1 7
Acknowledgements 4 7
Mapping the Changing Constitutional Landscape 6 7
Human Rights Act 1998 8 8
The Constitutional Reform Act 2005 and the Concordat 12 9
Creation of the Ministry of Justice 19 11
Criteria for Assessing the Changing Landscape 22 11
The Rule of Law 23 12
Independence of the Judiciary 27 13
The Scope of our Inquiry 30 14
Chapter 2: Executive and Judiciary 31 15
Introduction 31 15
Strained Relationships? 34 15
Managing the Tensions 37 16
Table 1: The Craig Sweeney case: sequence of events 19
General Channels of Communication 54 22
Constitutional Change 57 23
Human Rights Act 88 31
“Dialogue” in Relation to Convention Rights 88 31
Ministerial Compatibility Statements and Parliamentary
Scrutiny 89 31
Greater Guidance to the Executive from the Courts? 93 32
Should there be a System of Abstract Review? 98 33
Review of Bills by a Committee of Distinguished Lawyers 107 35
Advisory Declarations 109 36
Chapter 3: Parliament and Judiciary 112 38
Introduction 112 38
Laying Written Representations before Parliament 113 38
Other Ways of Communicating with Parliament 120 39
The Question of Accountability 121 40
The Role of Select Committees 124 40
A Parliamentary Committee on the Judiciary 127 41
Post-legislative Scrutiny 130 42
Confirmation Hearings 131
42 An Annual Report on the Judiciary 136 43
Chapter 4: Judiciary, Media and Public 140 45
Introduction 140 45
Public Perceptions 141 45
The Role of Individual Judges 150 47
The Role of the Lord Chief Justice 156 49
The Role of the Judicial Communications Office 161 50
Chapter 5: Conclusions and Recommendations 172 54
Appendix 1: Select Committee on the Constitution 58
Appendix 2: List of witnesses 59
Appendix 3: Paper by Professor Kate Malleson: The Effect
of the Constitutional Reform Act 2005 on the Relationship
between the Judiciary, the Executive and Parliament 60
Appendix 4: Paper by Professor Anthony Bradley: The New
Constitutional Relationship between the Judiciary
Government and Parliament; and further paper: Changes
in the Machinery of Government affecting the Department
for Constitutional Affairs and the Home Office 69
Appendix 5: Paper by Professor Paul Craig: The Rule of Law 97
Appendix 6: Declarations of incompatibility made under
section 4 of the Human Rights Act 1998 107
Appendix 7: Comparison of Responsibilities of the Ministry of
Justice and the Department for Constitutional Affairs; and
breakdown of duties of the Lord Chancellor and Secretary of
State for Justice 116
Appendix 8: Evidence by the Lord Chief Justice, 3 May 2006 118
Oral Evidence
Rt Hon Lord Falconer of Thoroton QC
Oral Evidence, 22 November 2007 1
Ms Clare Dyer, Legal Editor, The Guardian, Ms Frances Gibb, Legal Editor,
The Times, and Mr Joshua Rozenberg, Legal Editor, The Daily Telegraph
Oral Evidence, 6 December 2007 15
Rt Hon Charles Clarke MP
Oral Evidence, 17 January 2007 25
Rt Hon Lord Mackay of Clashfern
Oral Evidence, 24 January 2007 38
Rt Hon Lord Lloyd of Berwick
Oral Evidence, 24 January 2007 45
Rt Hon Sir Igor Judge, President of the Queen’s Bench Division and Head of
Criminal Justice, Mr Mike Wicksteed, Head of Judicial Communications,
Judicial Communications Office, and Mr Peter Farr, Chief Public Information
Officer, Judicial Communications Office
Oral Evidence, 21 February 2007 50
Professor Dame Hazel Genn
Oral Evidence, 7 March 2007 63
Mr Paul Dacre, Editor, Daily Mail
Oral Evidence, 7 March 2007 70
Rt Hon Lord Justice Thomas and Rt Hon Sir Igor Judge, President of the Queen’s
Bench
Division
Oral Evidence, 1 May 2007 77
Rt Hon Lord Falconer of Thoroton QC
Oral Evidence, 1 May 2007 85
Professor Robert Hazell, Professor Terence Daintith and Professor Alan Page
Oral Evidence, 9 May 2007 93
Dr Matthew Palmer
Oral Evidence, 9 May 2007 99
Relations between the executive,
the judiciary and Parliament
CHAPTER 1: INTRODUCTION AND BACKGROUND
Introduction
1. Constructive relationships between the three arms of government—the
executive, the legislature and the judiciary—are essential to the effective
maintenance of the constitution and the rule of law. In recent years, the
character of these relationships has changed significantly, both because of
changes in governance and because of wider societal change.
2. We therefore decided to take the annual appearances by the Lord Chancellor
and the Lord Chief Justice in front of our Committee as the starting point for
a broad assessment of the impact of the changes in these relationships. In
particular, we set out to identify points of friction or uncertainty and to offer
suggestions to the Government, Parliament and the judiciary as to how these
might be tackled.
3. As if to illustrate the importance of conducting such an assessment, midway
through our inquiry a serious dispute erupted between the Government and
the judiciary over the new Ministry of Justice. This dispute, which was
ongoing at the time this report went to print, demonstrates that there are still
disagreements and uncertainties about the relationships between the three
arms of government. We hope that this report will help point the way to
more balanced and harmonious relationships in the future.
Acknowledgements
4. We thank all our witnesses (listed in Appendix 2) for their invaluable oral
evidence, and we also express gratitude to Professor Anthony Bradley,
Professor Kate Malleson and Professor Paul Craig for their helpful papers.
5. We are also most grateful to our Specialist Adviser on this inquiry,
Professor Andrew Le Sueur.
Mapping the Changing Constitutional Landscape
6. In this report we examine the evolving constitutional relationships between
the judiciary, the executive and Parliament. The various reforms that have
been introduced and the changes that have come about in recent years may
be better thought of as a process rather than an event. However, for the
purposes of this inquiry we have focused on three milestones that have been
particularly influential in defining and influencing the changing character of
the relationships.
• The coming into force of the Human Rights Act 1998 (HRA) in October
2000.
• The passage of the Constitutional Reform Act 2005 (CRA) and the
formation of the concordat between the then Lord Chief Justice of
England and Wales (Lord Woolf) and the then Lord Chancellor (Lord
Falconer of Thoroton).
• The creation of the Ministry of Justice (MoJ), which formally came into
being on 9 May 2007.
7. This is not to imply that all the changes have come about as a result of
developments in legislation and governance arrangements. The relationships
have also been shaped by changing attitudes and perceptions. Since the
revocation of the “Kilmuir Rules” in 1987, judges have been more open in
speaking to the news media. For their part, some ministers have felt able to
break with previously understood conventions and make robust and public
comments critical of judges and judgments. Moreover, the news media play
an increasingly important role in reporting and commenting on the judiciary,
and—as in other contexts—there has been a decline in the culture of
deference. Individual judges and the judiciary as a whole are seen as “fair
game” by columnists and headline writers in the tabloid press. Broadsheet
journalists also chart closely the intrigues of discussions and disagreements
between the senior judiciary and ministers.
Human Rights Act 1998
8. It was always clear that the Human Rights Act would have constitutional
importance as well as giving citizens a practical right to use the European
Convention on Human Rights (ECHR) in litigation in our national courts.
Though careful to preserve the essence of parliamentary sovereignty (that no
court may question the validity of an Act of Parliament), the HRA
nonetheless gives the judiciary significant new powers. Section 3 places a
duty on courts in relation to the way in which they carry out their function of
interpreting legislation: “So far as it is possible to do so, primary legislation
and subordinate legislation must be read and given effect in a way which is
compatible with the Convention rights”.
9. A variety of views have been expressed as to what exactly this requires—to
what extent should words be “stretched”, or new words implied, in order to
make a provision fit with the requirements of the ECHR and the case law of
the European Court of Human Rights? Where the words of an enactment are
so plainly contrary to Convention rights that no amount of interpretation can
make them fit, the courts are empowered to make a declaration of
incompatibility under section 4 of the HRA. Such a declaration does not
affect the validity and enforceability of the provision in question and so offers
little practical help to the aggrieved citizen; rather, it is intended to signal to
the executive and Parliament the view of the courts that remedial action
should be taken to repeal or amend the legislation.
Thus far the Government have accepted the outcome of court proceedings
which result in a declaration of incompatibility by undertaking to remedy the
clash between national law and Convention rights.
10. To date, 17 declarations of incompatibility have been made by the courts.
2
Most declarations of
incompatibility related to statutory provisions enacted before the HRA came
into force in October 2000, at which point Parliament began systematic
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 9
scrutiny for possible incompatibility through the Joint Committee on Human
Rights (JCHR) and ministers started issuing “statements of compatibility” to
accompany all government bills introduced to Parliament. Since then, some
bills have been amended by Parliament to address human rights concerns,
and two enacted provisions have been subject to declarations of
incompatibility. This may call into question the efficacy of the executive’s
self-scrutiny of policy proposals and, in relation to the incompatible
provisions, parliamentary examination of bills (see Chapter 2).
11. Later in our report, we examine several ways in which the HRA is having an
impact on relations between the judiciary, the executive and Parliament, and
how this situation may develop in the future. In particular, we consider
whether the judiciary should be able to evaluate the general compliance of
bills or recently enacted statutes for their compatibility with Convention
rights in a process of “abstract review”, a procedure that is common in many
jurisdictions throughout Europe. We also consider whether there might be a
greater role for “advisory declarations”, in which the courts could be called
upon to give guidance to the government on Convention rights, or whether a
“committee of distinguished lawyers” could be of use.
The Constitutional Reform Act 2005 and the Concordat
12. In previous reports we have expressed our dismay about circumstances in
which the Government have announced policy or introduced a bill without
apparently being sufficiently aware of the impact of the initiative upon the
fundamentals of the constitution.
3
A prime example of confusion about
whether an initiative is a simple “machinery of government” change or a
major constitutional reform was the announcement in June 2003—in the
midst of a Cabinet reshuffle—that the office of Lord Chancellor was to be
abolished and that a Supreme Court of the United Kingdom was to be
established. That announcement took place without any apparent
understanding of the legal status of the Lord Chancellor and without
consultation with the judiciary (or anyone else outside government).
13. Soon after that announcement, Lord Woolf (then Lord Chief Justice) and
Lord Falconer (then Lord Chancellor) started negotiations over the key
principles and principal arrangements that should govern the new situation in
which the Lord Chief Justice rather than the Lord Chancellor would be head
of the judiciary. The outcome of those talks was set out in January 2004 in an
agreement known as “the Concordat” (formally entitled “The Lord
Chancellor’s judiciary-related functions: Proposals”).
4
Many aspects of the
Concordat were put on a statutory footing by the CRA, but it is clear to us
that the Concordat continues to be of great constitutional importance.
14. Lord Falconer agreed with this: “it seems to me to be a document of
constitutional significance because, although much of it was then enacted in
the Constitutional Reform Act, it sets out the basic principles on which the
judges and the executive will relate to each other in the future. I have never
known any piece of legislation to be utterly comprehensive; there are bound
to be issues that come up in the future where it is the principle that matters
rather than precise detailed legislation and I believe the Concordat will be
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