CHAPTER 2: EXECUTIVE AND JUDICIARY
Introduction
31. As explained in Chapter 1, the nature of the relationship between the
executive and the judiciary has changed substantially since the Constitutional
Reform Act (CRA) and the Human Rights Act (HRA) were passed. The
CRA was intended to represent a move away from the traditional “fusion”
model of the British constitution and towards what was said to be a more
explicit separation of powers, with relations between executive and judiciary
thenceforth being governed by the Act itself and the Concordat agreed
between the then Lord Chancellor, Lord Falconer, and the then Lord Chief
Justice, Lord Woolf. The senior judiciary now has an identity which is
distinct from the executive: as the Lord Chief Justice told us, “we, as judges,
are now patently freestanding. The division of powers is quite clear. Now our
negotiations with ministers, in particular with the Lord Chancellor, are
negotiations between the judiciary and the executive and clearly seen to be
so” (Appendix 8, Q 3). Although many of the principles regulating the new
relationship between the judiciary and executive are set down in the
Concordat, it would not be unreasonable to expect that such profound
structural changes, with the judiciary assuming a more distinct identity,
would lead to increased tensions between these two branches of the state.
32. The impact of the HRA upon the relationship between the executive and the
judiciary has been equally significant. As Professor Anthony Bradley argued
in his paper, “the HRA extended the jurisdiction of the courts to deal with
matters that previously were not arguable before a judge … [and] takes the
courts into the examination of questions that, apart from the HRA, would
have been regarded as political questions” (Appendix 4). Similarly,
Professor Vernon Bogdanor has predicted that “issues which, in the past,
were decided by ministers accountable to Parliament will now come to be
decided by the courts”.
11 Charles Clarke MP, the former Home Secretary,
agreed that the HRA had “shifted the balance of power towards the
judiciary” (Q 141). The possible ways of resolving the tensions that this
change has created, particularly with regard to anti-terrorism legislation, are
discussed later in this chapter.
33. Summing up the way in which the role of the judiciary has changed in recent
years, Professor Kate Malleson wrote, “the senior judges are now required to
police constitutional boundaries and determine sensitive human rights issues
in a way which would have been unthinkable forty years ago. This new
judicial role is still developing, but … the effect of this trend will be to
reshape the relationship between the judiciary and the other branches of
government” (Appendix 3).
Strained Relationships?
34. None of the witnesses doubted that there had been periods of strain in the
relationship between the executive and judiciary in recent years. Opinion was
however divided on whether these tensions should so far as possible be
avoided, or whether they should be accepted as part of the new checks and
balances of modern constitutional life. Charles Clarke told us that “there is a
constitutional tension which is not properly resolved and which it would be
beneficial to resolve” (Q 134) and Paul Dacre, editor of the Daily Mail,
believed that “the relationship between the executive and the judiciary has
become a story and it is possibly creating a gladiatorial sense about some of
the reporting that might be causing anxieties on the judicial side” (Q 337).
35. By contrast, Sir Igor Judge, President of the Queen’s Bench Division,
thought that “a degree of tension is healthy” (Q 297). The former Lord
Chancellor, Lord Mackay of Clashfern, agreed with this: “a certain degree of
tension between the judiciary and the executive is inevitable and healthy
because from time to time the judiciary are called upon to adjudicate under
the judicial review procedure and in other ways on actions of the executive,
and there are not many people who completely welcome their activities being
judged, particularly if they are found to have failed”. Indeed, he felt that “the
present situation between the judiciary and the executive is in fact quite a
good relationship; I do not think that, generally speaking, the relationship is
in crisis or anything of that sort” (Q 165).
36. Lord Bingham of Cornhill, the senior Law Lord, took a similar approach in a
recent speech, stating that “there is an inevitable, and in my view entirely
proper, tension between the two [branches]”. He also explained that the
tension “is greater at times of perceived threats to national security, since
governments understandably go to the very limit of what they believe to be
their lawful powers to protect the public, and the duty of the judges to
require that they go no further must be performed if the rule of law is to be
observed”.
12
Managing the Tensions
37. Whether or not the current levels of tension in this relationship are
predictable and in general acceptable, they nevertheless have to be managed
and kept in proportion if public confidence is to be maintained in the
independence of the judiciary and the integrity of government. The Lord
Chancellor, with his traditional position as a “bridge” between the executive
and the judiciary, has a particular responsibility to ensure that neither the
government as a whole nor individual ministers exacerbate these tensions
inappropriately. This responsibility is reflected in his key statutory duties as
set out in the oath that he must take under section 17 of the CRA:
• to “respect the rule of law”;
• to “defend the independence of the judiciary”; and
• to “ensure the provision of resources for the efficient and effective support
of the courts”.
We now consider the first and second of these duties; the funding of the
courts is discussed in the next section on constitutional change.
38. The first of these duties was explained by Lord Falconer in the following
terms: “where the Lord Chancellor is faced, within government, with action
which is contrary to the rule of law, national or international, then he has an
obligation to take steps to prevent that action … the office is intended to be a
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 17
check on activity which might have political attractions but would either
contravene the law, or offend widely accepted constitutional principles”.
This duty is absolutely central to the role of Lord Chancellor.
39. The second duty is an important component of the first: the Lord Chancellor
must ensure that the principle of judicial independence is not violated. His
duty to “defend” the independence of the judiciary is stronger than the
duty
14
of all other ministers to “uphold” that independence, giving him a
special enforcement role in relation to the rest of the government. Lord
Lloyd of Berwick, a former Law Lord, told us that there were two key aspects
to defending judicial independence. The first is “where there is an attempt …
by Government … to restrict in some way the jurisdiction of the courts”, for
example the proposed “ouster” clause in the Asylum and Immigration
(Treatment of Claimants, etc.) Bill in 2004. In such cases, “the Lord
Chancellor’s duty is absolute; he must point out in Cabinet that this would
undermine the independence of the judiciary” (Q 197). Even though the
Lord Chancellor is no longer head of the judiciary, it is essential that he
should remain a jealous guardian of judicial independence in Cabinet.
40. The second aspect of defending the independence of the judiciary, Lord
Lloyd said, was dealing with ministers who attack individual judges. We have
already mentioned that section 3 of the CRA places all ministers under a
duty to “uphold” the independence of the judiciary. Lord Falconer explained
how this duty applied to the question of ministers commenting on individual
cases:
“If you disagree with a decision, say what you are going to do; if you are
going to appeal, say you will appeal; if you are going to change the law,
say you will change the law. If you cannot appeal and cannot change the
law then my advice would be to keep quiet because there is not much
you can do about it … It is a pretty unwise thing for a minister to say
that there is something [wrong with the law] but we are not going to do
anything about it” (QQ 45, 51).
41. Therefore, it is acceptable for ministers to comment on individual cases, but
as Lord Falconer told us, “what is objectionable … is something which
expressly or impliedly says that there is something wrong with these judges
for reaching this conclusion” (Q 50). Lord Lloyd of Berwick agreed with this
approach, saying that “it is open to ministers to say they disagree with
judgments … What I think is intolerable … is a personal attack on judges”
(Q 201). Similarly, Sir Igor Judge said, “if a minister finds there is an adverse
judgment against his department in the administrative court, commenting on
the judge seems to me to be completely unacceptable, but of course the
minister is allowed to say ‘we disagree with the judge’s position and we
intend to appeal’” (Q 284).
42. It seems there is widespread agreement on the limits of what ministers should
and should not say about individual cases, but this does not mean that
ministers will always behave accordingly. The Lord Chancellor’s duty, as the
defender of judicial independence in the Cabinet, is both to ensure that
ministers are aware of the need to avoid attacking individual judges and to
reprimand them if they breach this principle. As Lord Falconer told us, “the
13 18 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
effect of the Constitutional Reform Act is that I have got an obligation to
speak out both privately and, if necessary, publicly to defend the
independence of the judges” (Q 30). As to whether his performance of this
role had been adversely affected by the fact that he was no longer a judge or
head of the judiciary, he insisted “emphatically not” (Q 3).
43. The Lord Chief Justice has emphasised that this kind of intervention by the
Lord Chancellor is “a most valuable constitutional protection of judicial
independence”, because the only alternative would be for the Lord Chief
Justice himself to intervene publicly, which would risk a high-profile dispute
that would not be “in the interests of the administration of justice”.
Lord
Mackay of Clashfern added that “the sooner a response is made [by the Lord
Chancellor] the better” (Q 174).
44. So how effectively has this duty been performed by Lord Chancellors since
the advent of the CRA? In fact, it is only quite rarely that ministers attack
individual judges so it may be too soon to pass a definitive judgment on this
point. Nonetheless, there are a number of examples of ministers attacking
judges over the last two decades, suggesting that such situations will arise
again in future. For example, David Blunkett MP (then Home Secretary)
implicitly criticised a judge in 2003 for upholding the right of six asylumseekers
to receive
support
from the National
Asylum Support Service,
writing
a
strongly-worded
article
under the headline
“It’s time for judges to learn
their
place”.
16
Similarly, in 1995 Michael Howard MP (Home Secretary at
the time) reacted to a ruling by Mr Justice Dyson in relation to IRA prisoners
by commenting on the radio that “the last time this particular judge found
against me, which was in a case which would have led to the release of a large
number of immigrants, the Court of Appeal decided unanimously that he
was wrong”.
17
45. There has moreover been one case since the CRA was enacted where the
then Lord Chancellor, Lord Falconer, was forced to speak out publicly. The
case concerned the convicted paedophile Craig Sweeney, who was given a
life sentence with a minimum tariff of five years and 108 days. When passing
sentence in the Crown Court at Cardiff in June 2003, Judge Griffith
Williams, the Recorder of Cardiff, explained very clearly how he reached this
tariff and emphasised that Sweeney would only be released “when and if
there is no risk of you re-offending”.
18
Nonetheless, the then Home Secretary
(John Reid MP) attacked the sentence as “unduly lenient” and asked the
then Attorney General (Lord Goldsmith) to examine the case as the tariff
“does not reflect the seriousness of the crime”, thereby inappropriately
casting aspersions on the competence of Judge Williams.
19
Lord Goldsmith’s
spokesman responded sharply to Dr Reid’s comments, pledging that “the
Attorney will make a decision [on whether to appeal] purely on the merits of
the case and not in response to political or public pressure”.
20
46. A detailed timeline of the ensuing events is set out in Box 1. In short, Lord
Falconer did not publicly defend Judge Williams until appearing on the
15 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 19
BBC’s Question Time programme three days after the sentence was handed
down. Even then, he defended Dr Reid’s intervention.
21
Lord Falconer
subsequently had to rebuke and extract an apology from his junior minister,
Vera Baird MP, for directly criticising the judge when appearing on a radio
programme.
22
The Lord Chief Justice later labelled the attacks “intemperate,
offensive and unfair”,
23
whilst the Secretary of the Council of Circuit Judges,
Judge Keith Cutler, told the BBC that “some of the judges felt that there was
quite a silence, and there was no-one actually speaking on behalf of the
judges … We are thinking that we must perhaps change that”.
Ultimately,
Judge Williams was vindicated when Lord Goldsmith decided not to appeal.
TABLE 1
The Craig Sweeney case: sequence of events
Mon 12 June 2006 Craig Sweeney sentenced to life imprisonment for
abducting and sexually assaulting a three-year-old girl;
eligible for parole in 5 years and 108 days.
24 Home Secretary John Reid attacks sentence as “unduly
lenient” and asks the Attorney-General to examine the
case as the tariff “does not reflect the seriousness of the
crime”.
The Attorney-General’s spokesman states that “the
Attorney will make a decision purely on the merits of the
case and not in response to political or public pressure”.
He adds that “calling for the file in no way implies that
there will be a reference by the Attorney—still less does it
imply any criticism of the sentencing judge”. It is also
widely reported that the Attorney-General feels that John
Reid’s comments are “not terribly helpful”.
The Chief Crown Prosecutor for South Wales explains the
sentencing guidelines in the context of the Sweeney case.
Tues 13 June The sentence handed down to Craig Sweeney generates
hostile media coverage. The Sun criticises “the arrogance
of judges in their mink-lined ivory towers who leave the
rest of us to cope with the real crisis of soaring crime” and
adds that “judges are a law unto themselves”.
25 The Daily Express brands the judiciary as “deluded, out-of-touch and
frankly deranged” and “combining arrogance with
downright wickedness”, suggesting that “our legal system
has not only lost touch with public opinion but with
natural justice itself … [sentencing] now bears no relation
at all to the seriousness of the crime”.
26 The Prime Minister’s spokesman defends John Reid,
suggesting that it was right “to articulate the concern the
public has”. Jack Straw MP, Leader of the House of
Commons, agrees that it was “perfectly appropriate” for
John Reid to have intervened.
Lord Morris of Aberavon, the former Attorney General,
states that “our courts are not run by Government
ministers … As far as sentencing is concerned, they
[judges] are independent. If he [John Reid] has a concern
… he can amend the acts of Parliament”.
Alun Michael, a Cardiff MP, calls on judges to “wake up
and smell the coffee” and suggests that “some judges
simply aren’t getting it”.
Thurs 15 June The Lord Chancellor appears on the BBC’s Question
Time. He says “we need to be extremely careful that we
don’t attack the judges on these issues where it is the
system” and “the whipping boys for this have become the
judges and that is completely wrong … If we attack the
judges, we attack an incredibly important part of the
system when it is not their fault … it wasn’t the judge’s
fault”. But he also defends John Reid and claims that he
“did not attack the judge”.
Fri 16 June Vera Baird QC, Parliamentary Under-Secretary of State at
the DCA, appears on the BBC’s Any Questions? She says,
“it seems to me that this judge has just got this formula
wrong, so I’m critical of the judge for three reasons—one,
starting too low; two, deducting too much for the guilty
plea; and three, getting the formula wrong”.
Sun 18 June Judge Keith Cutler, Secretary of the Council of HM
Circuit Judges, appears on the BBC’s Broadcasting House.
He says that his colleagues are feeling “pretty low” about
the Sweeney case and adds, “some of the judges felt that
there was quite a silence, and there was no-one actually
speaking on behalf of the judges”. He concludes, “we are
thinking that we must perhaps change that”.
Mon 19 June Vera Baird is forced to apologise for her comments on
Any Questions? The Lord Chancellor accepts her apology.
Tues 4 July The Lord Chancellor gives evidence to the House of
Commons Constitutional Affairs Committee. He accepts
that the Sweeney case “has had an impact on
undermining confidence in the judiciary”.
Mon 10 July The Attorney General decides not to challenge the
sentence imposed by the trial judge, concluding that it was
not “unduly lenient”.
Tues 18 July The Lord Chief Justice, speaking at the Lord Mayor of
London’s annual judges’ dinner, labels the recent attacks
on judges as “intemperate, offensive and unfair”.
47. When we asked the panel of legal editors about this case, they were highly
critical of the then Lord Chancellor. Frances Gibb, Legal Editor of The
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 21
Times, told us that “the Lord Chancellor should have stepped in much more
quickly to defend judges in the face of some of his colleagues’ comments”,
and Joshua Rozenberg, Legal Editor of The Daily Telegraph, said that the
Lord Chancellor had left the judges “to swing in the wind”. Astonishingly,
Mr Rozenberg had been told by a DCA press officer that it was for the Lord
Chief Justice rather than the Lord Chancellor to speak out on these matters
(Q 92).
48. Although the Lord Chief Justice could have publicly criticised Dr Reid, this
would probably have exacerbated tensions between the executive and the
judiciary at a sensitive time. In fact, the Lord Chief Justice was in Poland at
the time and the responsibility for dealing with the controversy fell to Sir Igor
Judge. He did not speak to Lord Falconer until two days after the sentence
was handed down, and in retrospect admitted that he should have contacted
him “more quickly” (Q 272). The Lord Chief Justice should also have been
more proactive in ensuring that the matter was being dealt with promptly.
49. The Sweeney case was the first big test of whether the new
relationship between the Lord Chancellor and the judiciary was
working properly, and it is clear that there was a systemic failure.
Ensuring that ministers do not impugn individual judges, and
restraining and reprimanding those who do, is one of the most
important duties of the Lord Chancellor. In this case, Lord Falconer
did not fulfil this duty in a satisfactory manner. The senior judiciary
could also have acted more quickly to head off the inflammatory and
unfair press coverage which followed the sentencing decision.
50. It would not be necessary for the Lord Chancellor to reprimand fellow
ministers at all if they always adhered to the principle of not commenting on
decisions of individual judges in an inaccurate and intemperate manner. One
possible way of achieving this would be to amend the Ministerial Code (the
code of conduct and guidance on procedures for ministers, published by the
Cabinet Office) to include reference to the constitutional conventions which
ought to govern public comment by ministers on judges. Dr Matthew Palmer
told us that such rules were included in the New Zealand Cabinet Manual
(Q 522). Although the new Prime Minister has just issued a new Ministerial
Code which does not refer to ministerial comment on judges, he could make
the appropriate additions when the Code is next revised. Lord Mackay of
Clashfern said that this was “an important matter for consideration”,
although he was wary of making the Code too long (Q 170). Lord Falconer
was non-committal, saying that “I am open to that as a suggestion but I do
not think it is that critical” (Q 5). Charles Clarke felt that “getting the
codification of this into a better situation is not the answer” (Q 155).
51. The key to harmonious relations between the judiciary and the
executive is ensuring that ministers do not violate the independence
of the judiciary in the first place. To this end, we recommend that
when the Ministerial Code is next revised the Prime Minister should
insert strongly worded guidelines setting out the principles governing
public comment by ministers on individual judges.
52. Just as ministers ought to demonstrate restraint in commenting on the
judiciary, so judges should (and generally do) avoid becoming
inappropriately involved in public debates about government policy, matters
of political controversy or individual politicians. As the Lord Chief Justice
told us, “Essentially, you would not expect judges to comment on political
Introduction
31. As explained in Chapter 1, the nature of the relationship between the
executive and the judiciary has changed substantially since the Constitutional
Reform Act (CRA) and the Human Rights Act (HRA) were passed. The
CRA was intended to represent a move away from the traditional “fusion”
model of the British constitution and towards what was said to be a more
explicit separation of powers, with relations between executive and judiciary
thenceforth being governed by the Act itself and the Concordat agreed
between the then Lord Chancellor, Lord Falconer, and the then Lord Chief
Justice, Lord Woolf. The senior judiciary now has an identity which is
distinct from the executive: as the Lord Chief Justice told us, “we, as judges,
are now patently freestanding. The division of powers is quite clear. Now our
negotiations with ministers, in particular with the Lord Chancellor, are
negotiations between the judiciary and the executive and clearly seen to be
so” (Appendix 8, Q 3). Although many of the principles regulating the new
relationship between the judiciary and executive are set down in the
Concordat, it would not be unreasonable to expect that such profound
structural changes, with the judiciary assuming a more distinct identity,
would lead to increased tensions between these two branches of the state.
32. The impact of the HRA upon the relationship between the executive and the
judiciary has been equally significant. As Professor Anthony Bradley argued
in his paper, “the HRA extended the jurisdiction of the courts to deal with
matters that previously were not arguable before a judge … [and] takes the
courts into the examination of questions that, apart from the HRA, would
have been regarded as political questions” (Appendix 4). Similarly,
Professor Vernon Bogdanor has predicted that “issues which, in the past,
were decided by ministers accountable to Parliament will now come to be
decided by the courts”.
11 Charles Clarke MP, the former Home Secretary,
agreed that the HRA had “shifted the balance of power towards the
judiciary” (Q 141). The possible ways of resolving the tensions that this
change has created, particularly with regard to anti-terrorism legislation, are
discussed later in this chapter.
33. Summing up the way in which the role of the judiciary has changed in recent
years, Professor Kate Malleson wrote, “the senior judges are now required to
police constitutional boundaries and determine sensitive human rights issues
in a way which would have been unthinkable forty years ago. This new
judicial role is still developing, but … the effect of this trend will be to
reshape the relationship between the judiciary and the other branches of
government” (Appendix 3).
Strained Relationships?
34. None of the witnesses doubted that there had been periods of strain in the
relationship between the executive and judiciary in recent years. Opinion was
however divided on whether these tensions should so far as possible be
avoided, or whether they should be accepted as part of the new checks and
balances of modern constitutional life. Charles Clarke told us that “there is a
constitutional tension which is not properly resolved and which it would be
beneficial to resolve” (Q 134) and Paul Dacre, editor of the Daily Mail,
believed that “the relationship between the executive and the judiciary has
become a story and it is possibly creating a gladiatorial sense about some of
the reporting that might be causing anxieties on the judicial side” (Q 337).
35. By contrast, Sir Igor Judge, President of the Queen’s Bench Division,
thought that “a degree of tension is healthy” (Q 297). The former Lord
Chancellor, Lord Mackay of Clashfern, agreed with this: “a certain degree of
tension between the judiciary and the executive is inevitable and healthy
because from time to time the judiciary are called upon to adjudicate under
the judicial review procedure and in other ways on actions of the executive,
and there are not many people who completely welcome their activities being
judged, particularly if they are found to have failed”. Indeed, he felt that “the
present situation between the judiciary and the executive is in fact quite a
good relationship; I do not think that, generally speaking, the relationship is
in crisis or anything of that sort” (Q 165).
36. Lord Bingham of Cornhill, the senior Law Lord, took a similar approach in a
recent speech, stating that “there is an inevitable, and in my view entirely
proper, tension between the two [branches]”. He also explained that the
tension “is greater at times of perceived threats to national security, since
governments understandably go to the very limit of what they believe to be
their lawful powers to protect the public, and the duty of the judges to
require that they go no further must be performed if the rule of law is to be
observed”.
12
Managing the Tensions
37. Whether or not the current levels of tension in this relationship are
predictable and in general acceptable, they nevertheless have to be managed
and kept in proportion if public confidence is to be maintained in the
independence of the judiciary and the integrity of government. The Lord
Chancellor, with his traditional position as a “bridge” between the executive
and the judiciary, has a particular responsibility to ensure that neither the
government as a whole nor individual ministers exacerbate these tensions
inappropriately. This responsibility is reflected in his key statutory duties as
set out in the oath that he must take under section 17 of the CRA:
• to “respect the rule of law”;
• to “defend the independence of the judiciary”; and
• to “ensure the provision of resources for the efficient and effective support
of the courts”.
We now consider the first and second of these duties; the funding of the
courts is discussed in the next section on constitutional change.
38. The first of these duties was explained by Lord Falconer in the following
terms: “where the Lord Chancellor is faced, within government, with action
which is contrary to the rule of law, national or international, then he has an
obligation to take steps to prevent that action … the office is intended to be a
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 17
check on activity which might have political attractions but would either
contravene the law, or offend widely accepted constitutional principles”.
This duty is absolutely central to the role of Lord Chancellor.
39. The second duty is an important component of the first: the Lord Chancellor
must ensure that the principle of judicial independence is not violated. His
duty to “defend” the independence of the judiciary is stronger than the
duty
14
of all other ministers to “uphold” that independence, giving him a
special enforcement role in relation to the rest of the government. Lord
Lloyd of Berwick, a former Law Lord, told us that there were two key aspects
to defending judicial independence. The first is “where there is an attempt …
by Government … to restrict in some way the jurisdiction of the courts”, for
example the proposed “ouster” clause in the Asylum and Immigration
(Treatment of Claimants, etc.) Bill in 2004. In such cases, “the Lord
Chancellor’s duty is absolute; he must point out in Cabinet that this would
undermine the independence of the judiciary” (Q 197). Even though the
Lord Chancellor is no longer head of the judiciary, it is essential that he
should remain a jealous guardian of judicial independence in Cabinet.
40. The second aspect of defending the independence of the judiciary, Lord
Lloyd said, was dealing with ministers who attack individual judges. We have
already mentioned that section 3 of the CRA places all ministers under a
duty to “uphold” the independence of the judiciary. Lord Falconer explained
how this duty applied to the question of ministers commenting on individual
cases:
“If you disagree with a decision, say what you are going to do; if you are
going to appeal, say you will appeal; if you are going to change the law,
say you will change the law. If you cannot appeal and cannot change the
law then my advice would be to keep quiet because there is not much
you can do about it … It is a pretty unwise thing for a minister to say
that there is something [wrong with the law] but we are not going to do
anything about it” (QQ 45, 51).
41. Therefore, it is acceptable for ministers to comment on individual cases, but
as Lord Falconer told us, “what is objectionable … is something which
expressly or impliedly says that there is something wrong with these judges
for reaching this conclusion” (Q 50). Lord Lloyd of Berwick agreed with this
approach, saying that “it is open to ministers to say they disagree with
judgments … What I think is intolerable … is a personal attack on judges”
(Q 201). Similarly, Sir Igor Judge said, “if a minister finds there is an adverse
judgment against his department in the administrative court, commenting on
the judge seems to me to be completely unacceptable, but of course the
minister is allowed to say ‘we disagree with the judge’s position and we
intend to appeal’” (Q 284).
42. It seems there is widespread agreement on the limits of what ministers should
and should not say about individual cases, but this does not mean that
ministers will always behave accordingly. The Lord Chancellor’s duty, as the
defender of judicial independence in the Cabinet, is both to ensure that
ministers are aware of the need to avoid attacking individual judges and to
reprimand them if they breach this principle. As Lord Falconer told us, “the
13 18 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
effect of the Constitutional Reform Act is that I have got an obligation to
speak out both privately and, if necessary, publicly to defend the
independence of the judges” (Q 30). As to whether his performance of this
role had been adversely affected by the fact that he was no longer a judge or
head of the judiciary, he insisted “emphatically not” (Q 3).
43. The Lord Chief Justice has emphasised that this kind of intervention by the
Lord Chancellor is “a most valuable constitutional protection of judicial
independence”, because the only alternative would be for the Lord Chief
Justice himself to intervene publicly, which would risk a high-profile dispute
that would not be “in the interests of the administration of justice”.
Lord
Mackay of Clashfern added that “the sooner a response is made [by the Lord
Chancellor] the better” (Q 174).
44. So how effectively has this duty been performed by Lord Chancellors since
the advent of the CRA? In fact, it is only quite rarely that ministers attack
individual judges so it may be too soon to pass a definitive judgment on this
point. Nonetheless, there are a number of examples of ministers attacking
judges over the last two decades, suggesting that such situations will arise
again in future. For example, David Blunkett MP (then Home Secretary)
implicitly criticised a judge in 2003 for upholding the right of six asylumseekers
to receive
support
from the National
Asylum Support Service,
writing
a
strongly-worded
article
under the headline
“It’s time for judges to learn
their
place”.
16
Similarly, in 1995 Michael Howard MP (Home Secretary at
the time) reacted to a ruling by Mr Justice Dyson in relation to IRA prisoners
by commenting on the radio that “the last time this particular judge found
against me, which was in a case which would have led to the release of a large
number of immigrants, the Court of Appeal decided unanimously that he
was wrong”.
17
45. There has moreover been one case since the CRA was enacted where the
then Lord Chancellor, Lord Falconer, was forced to speak out publicly. The
case concerned the convicted paedophile Craig Sweeney, who was given a
life sentence with a minimum tariff of five years and 108 days. When passing
sentence in the Crown Court at Cardiff in June 2003, Judge Griffith
Williams, the Recorder of Cardiff, explained very clearly how he reached this
tariff and emphasised that Sweeney would only be released “when and if
there is no risk of you re-offending”.
18
Nonetheless, the then Home Secretary
(John Reid MP) attacked the sentence as “unduly lenient” and asked the
then Attorney General (Lord Goldsmith) to examine the case as the tariff
“does not reflect the seriousness of the crime”, thereby inappropriately
casting aspersions on the competence of Judge Williams.
19
Lord Goldsmith’s
spokesman responded sharply to Dr Reid’s comments, pledging that “the
Attorney will make a decision [on whether to appeal] purely on the merits of
the case and not in response to political or public pressure”.
20
46. A detailed timeline of the ensuing events is set out in Box 1. In short, Lord
Falconer did not publicly defend Judge Williams until appearing on the
15 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 19
BBC’s Question Time programme three days after the sentence was handed
down. Even then, he defended Dr Reid’s intervention.
21
Lord Falconer
subsequently had to rebuke and extract an apology from his junior minister,
Vera Baird MP, for directly criticising the judge when appearing on a radio
programme.
22
The Lord Chief Justice later labelled the attacks “intemperate,
offensive and unfair”,
23
whilst the Secretary of the Council of Circuit Judges,
Judge Keith Cutler, told the BBC that “some of the judges felt that there was
quite a silence, and there was no-one actually speaking on behalf of the
judges … We are thinking that we must perhaps change that”.
Ultimately,
Judge Williams was vindicated when Lord Goldsmith decided not to appeal.
TABLE 1
The Craig Sweeney case: sequence of events
Mon 12 June 2006 Craig Sweeney sentenced to life imprisonment for
abducting and sexually assaulting a three-year-old girl;
eligible for parole in 5 years and 108 days.
24 Home Secretary John Reid attacks sentence as “unduly
lenient” and asks the Attorney-General to examine the
case as the tariff “does not reflect the seriousness of the
crime”.
The Attorney-General’s spokesman states that “the
Attorney will make a decision purely on the merits of the
case and not in response to political or public pressure”.
He adds that “calling for the file in no way implies that
there will be a reference by the Attorney—still less does it
imply any criticism of the sentencing judge”. It is also
widely reported that the Attorney-General feels that John
Reid’s comments are “not terribly helpful”.
The Chief Crown Prosecutor for South Wales explains the
sentencing guidelines in the context of the Sweeney case.
Tues 13 June The sentence handed down to Craig Sweeney generates
hostile media coverage. The Sun criticises “the arrogance
of judges in their mink-lined ivory towers who leave the
rest of us to cope with the real crisis of soaring crime” and
adds that “judges are a law unto themselves”.
25 The Daily Express brands the judiciary as “deluded, out-of-touch and
frankly deranged” and “combining arrogance with
downright wickedness”, suggesting that “our legal system
has not only lost touch with public opinion but with
natural justice itself … [sentencing] now bears no relation
at all to the seriousness of the crime”.
26 The Prime Minister’s spokesman defends John Reid,
suggesting that it was right “to articulate the concern the
public has”. Jack Straw MP, Leader of the House of
Commons, agrees that it was “perfectly appropriate” for
John Reid to have intervened.
Lord Morris of Aberavon, the former Attorney General,
states that “our courts are not run by Government
ministers … As far as sentencing is concerned, they
[judges] are independent. If he [John Reid] has a concern
… he can amend the acts of Parliament”.
Alun Michael, a Cardiff MP, calls on judges to “wake up
and smell the coffee” and suggests that “some judges
simply aren’t getting it”.
Thurs 15 June The Lord Chancellor appears on the BBC’s Question
Time. He says “we need to be extremely careful that we
don’t attack the judges on these issues where it is the
system” and “the whipping boys for this have become the
judges and that is completely wrong … If we attack the
judges, we attack an incredibly important part of the
system when it is not their fault … it wasn’t the judge’s
fault”. But he also defends John Reid and claims that he
“did not attack the judge”.
Fri 16 June Vera Baird QC, Parliamentary Under-Secretary of State at
the DCA, appears on the BBC’s Any Questions? She says,
“it seems to me that this judge has just got this formula
wrong, so I’m critical of the judge for three reasons—one,
starting too low; two, deducting too much for the guilty
plea; and three, getting the formula wrong”.
Sun 18 June Judge Keith Cutler, Secretary of the Council of HM
Circuit Judges, appears on the BBC’s Broadcasting House.
He says that his colleagues are feeling “pretty low” about
the Sweeney case and adds, “some of the judges felt that
there was quite a silence, and there was no-one actually
speaking on behalf of the judges”. He concludes, “we are
thinking that we must perhaps change that”.
Mon 19 June Vera Baird is forced to apologise for her comments on
Any Questions? The Lord Chancellor accepts her apology.
Tues 4 July The Lord Chancellor gives evidence to the House of
Commons Constitutional Affairs Committee. He accepts
that the Sweeney case “has had an impact on
undermining confidence in the judiciary”.
Mon 10 July The Attorney General decides not to challenge the
sentence imposed by the trial judge, concluding that it was
not “unduly lenient”.
Tues 18 July The Lord Chief Justice, speaking at the Lord Mayor of
London’s annual judges’ dinner, labels the recent attacks
on judges as “intemperate, offensive and unfair”.
47. When we asked the panel of legal editors about this case, they were highly
critical of the then Lord Chancellor. Frances Gibb, Legal Editor of The
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 21
Times, told us that “the Lord Chancellor should have stepped in much more
quickly to defend judges in the face of some of his colleagues’ comments”,
and Joshua Rozenberg, Legal Editor of The Daily Telegraph, said that the
Lord Chancellor had left the judges “to swing in the wind”. Astonishingly,
Mr Rozenberg had been told by a DCA press officer that it was for the Lord
Chief Justice rather than the Lord Chancellor to speak out on these matters
(Q 92).
48. Although the Lord Chief Justice could have publicly criticised Dr Reid, this
would probably have exacerbated tensions between the executive and the
judiciary at a sensitive time. In fact, the Lord Chief Justice was in Poland at
the time and the responsibility for dealing with the controversy fell to Sir Igor
Judge. He did not speak to Lord Falconer until two days after the sentence
was handed down, and in retrospect admitted that he should have contacted
him “more quickly” (Q 272). The Lord Chief Justice should also have been
more proactive in ensuring that the matter was being dealt with promptly.
49. The Sweeney case was the first big test of whether the new
relationship between the Lord Chancellor and the judiciary was
working properly, and it is clear that there was a systemic failure.
Ensuring that ministers do not impugn individual judges, and
restraining and reprimanding those who do, is one of the most
important duties of the Lord Chancellor. In this case, Lord Falconer
did not fulfil this duty in a satisfactory manner. The senior judiciary
could also have acted more quickly to head off the inflammatory and
unfair press coverage which followed the sentencing decision.
50. It would not be necessary for the Lord Chancellor to reprimand fellow
ministers at all if they always adhered to the principle of not commenting on
decisions of individual judges in an inaccurate and intemperate manner. One
possible way of achieving this would be to amend the Ministerial Code (the
code of conduct and guidance on procedures for ministers, published by the
Cabinet Office) to include reference to the constitutional conventions which
ought to govern public comment by ministers on judges. Dr Matthew Palmer
told us that such rules were included in the New Zealand Cabinet Manual
(Q 522). Although the new Prime Minister has just issued a new Ministerial
Code which does not refer to ministerial comment on judges, he could make
the appropriate additions when the Code is next revised. Lord Mackay of
Clashfern said that this was “an important matter for consideration”,
although he was wary of making the Code too long (Q 170). Lord Falconer
was non-committal, saying that “I am open to that as a suggestion but I do
not think it is that critical” (Q 5). Charles Clarke felt that “getting the
codification of this into a better situation is not the answer” (Q 155).
51. The key to harmonious relations between the judiciary and the
executive is ensuring that ministers do not violate the independence
of the judiciary in the first place. To this end, we recommend that
when the Ministerial Code is next revised the Prime Minister should
insert strongly worded guidelines setting out the principles governing
public comment by ministers on individual judges.
52. Just as ministers ought to demonstrate restraint in commenting on the
judiciary, so judges should (and generally do) avoid becoming
inappropriately involved in public debates about government policy, matters
of political controversy or individual politicians. As the Lord Chief Justice
told us, “Essentially, you would not expect judges to comment on political
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