RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 89
Events giving rise to the Reviews
In our view, none of the three cases which sparked controversy—the Afghani
hijackers’ judgment, the Anthony Rice case and the failure to consider foreign
prisoners for deportation—demonstrates a clear need to consider amending the
Human Rights Act. The Lord Chancellor agrees and confirms it is the view of the
Government as a whole that none of them justifies amendment or repeal of the
HRA. We very much welcome the Lord Chancellor’s assurance that there is now
an unequivocal commitment to the Human Rights Act across the Government,
but, in our view, public misunderstandings will continue so long as very senior
Ministers make unfounded assertions about the Act and use it as a scapegoat for
administrative failings in their departments (paragraphs 9–41).
The DCA Review
We welcome the DCA Review which in our view makes a fair and balanced
contribution to the debate, and the Home Office’s unequivocal acceptance that the
HRA has not impeded in any way the Government’s ability to protect the public
against crime. Although the Review does conclude that the HRA has had a impact
on the Government’s counter-terrorism legislation, mainly because of the Chahal
case, we also welcome the Lord Chancellor’s conclusion that the HRA has not
significantly inhibited the state’s ability to fight terrorism. We believe the
Government has policy options to counter the terrorist threat in a way compatible
with the UK’s human rights obligations. We welcome the Lord Chancellor’s
acceptance that the HRA has not had any adverse impact on the Government’s
policy on immigration or asylum (paragraphs 42–48).
The DCA review records a significant beneficial effect of the HRA on
development of policy by Government. We welcome the Review’s
acknowledgment of the importance of good guidance on human rights
compatibility in policy-making, the DCA’s embrace of a championing role in
relation to human rights and its publication of guidance for officials in public
authorities. We also welcome the Lord Chancellor’s commitment to consult us on
draft human rights guidance in future (paragraphs 49–59).
The DCA Review concludes that the HRA has not significantly altered the
constitutional balance between Parliament, the Executive and the Judiciary. We
welcome the Lord Chancellor’s acknowledgment that it should be possible to give
fuller reasons explaining the Government’s view of the compatibility with human
rights obligations of proposed new legislation. We favour a free-standing Human
Rights Memorandum based on the existing ECHR memorandum edited if
necessary to protect the Government’s legal professional privilege (paragraphs 60–66).
The DCA Review states that the HRA has been widely misunderstood by the
public and seeks to debunk some myths. We agree that there clearly exists a public
perception that the HRA protects only the undeserving, at the expense of the lawabiding
majority. We welcome the Review’s proposal to be proactive in debunking myths.
In our view, the public’commitment to human rights, and to the HRA,depends on
wider dissemination of positive examples the HRA is making in practice,e.g.
for those in residential homes,the disabled, carers and council tenants
(paragraphs 67–80).
The DCA Review rules out withdrawing from the ECHR or repealing the HRA
but does not rule out amending the HRA. We welcome the fact that the Lord
Chancellor sees no current need to amend the HRA as contemplated in the
Review and are clear that there is no need to amend the HRA or introduce specific
legislation to clarify that public safety comes first (paragraphs 81–85).
90 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
We asked the Lord Chancellor to consider primary legislation to clarify the
interpretation of “public authority” under the HRA. Though not ruling out the
possibility, he preferred a case-by-case-approach. We were disappointed by the
Government’s new concern about driving private providers out of the market by
widening the definition of “public authority”. It seems seriously at odds with the
Government’s avowed intention elsewhere in the Review to make a positive case
for the HRA. We do not see insuperable obstacles to drafting a simple statutory
formula which makes clear that any person or body providing goods, services or
facilities to the public, pursuant to a contract with a public authority, is a public
authority for the specific purposes of the HRA (paragraphs 86–92).
We were very surprised the DCA’s “strategic review” of 2004 on implementing the
HRA has not been published and welcome the Lord Chancellor’s promise to think
about making a copy available confidentially to the Committee (paragraphs 93–96).
The Home Office Review
This Review has not been published. Baroness Scotland drew our attention to the
CJS Rebalancing Report. Most agencies in the criminal justice system found the
HRA helpful but also identified a “risk-averse culture” based on a “sometimes
cautious interpretation” of the ECHR and HRA. But there are few concrete
examples. We welcome proposals for practical steps to improve understanding of
how to implement the HRA and for a proactive approach to myth-busting. But in
our view the Home Office Review should be published. (paragraphs 97–107).
Rebalancing the Criminal Justice System
The premise of many of the Government’s proposals is that the HRA has led to
public safety being treated as of less importance than the human rights of terrorists
or criminals, or at least is perceived by the public to have had this effect. We
welcome the acceptance by Baroness Scotland that rebalancing must not be unfair
or unjust to the offender but better represent and support victims. Our concerns
about the Government’s attempt to overturn the Chahal case in the European
Court of Human Rights remain unalloyed. Attempting to distinguish between
inhuman and degrading treatment on the one hand and torture on the other is
unlikely to find favour, is unattractive and fails to solve the Government’s central
problem. We welcome the Government’s recognition that there is a question
whether the criminal justice system contains any in-built discrimination on racial
grounds. We also welcome the Government’s recognition that too many non dangerous
people with mental health problems continue to be imprisoned (paragraphs108–125).
Reforming the IND
We consider human rights issues raised by the Home Secretary’s proposals,
notably over the intention to bring in a presumption that various categories of
foreign criminals will be deported. We are concerned by the Prime Minister’s
announcement of an automatic presumption of deportation, which raises the
prospect of deportation to a country where there is a real risk of treatment contrary
to Article 3 of the ECHR. On deportation of EU and EEA nationals, we are also
concerned that the Home Secretary may be blaming the courts for something laid
down by EU law. Finally, Baroness Scotland assured us there was no racial
profiling in deciding IND activity on high risk routes (paragraphs 126–137).
Building a Human Rights Culture
We believe that a culture of respect for human rights is a goal worth striving for.
We see the DCA Review as an important milestone in bringing one about. It RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 91
cannot be achieved exclusively through the courts, but needs shifts in public
perception. This in turn requires wider knowledge of the benefits of the HRA. But,
with the establishment of the Commission for Equality and Human Rights
pending, there remain unresolved questions about how far a culture of human
rights is developing. We will pursue these issues during the remainder of this
Parliament (paragraphs 138–146).
ANNEX 2
Extract from oral evidence given to the House of Commons’ Constitutional
Affairs Committee, 4 July 2006
Q250 Jeremy Wright: Although you are no longer head of the judiciary, we know
that you still have an interest in the judiciary and are responsible for what happens
there. We also know that what has happened in the press recently has been a very
public and apparent argument between politicians and members of the judiciary.
Does it concern you that as a result of that very public spat the public may take a
different view of judges and lose a degree of confidence in them?
Lord Falconer of Thoroton: I think you are wrong to say that the problem was
necessarily a spat between the Government and judges. What has been happening
over a period of time is that a lot of people have been saying that part of the
problem in relation to sentencing is the judges. A variety of parts of the media has
been explicitly critical in blaming the judges for a number of things that have
happened in sentencing. I believe that that has had an impact in undermining
confidence in the judiciary. Separately from that, there have been reports of rows
between the judges and the executive. I should make it clear that neither the
judges nor the executive wants such rows, nor do they believe that there is any
such row going on between them. They are both as concerned as they could be to
ensure that public confidence in the judiciary is maintained. But it goes deeper
than that. If people think there are rows going on between different bits of the
state that undermines their confidence in the ability of the state as a whole to deal
with the problems that it has to face, for example terrorism and crime.
Q251 Jeremy Wright: Do you accept that clearly the judges are worried about this?
Several senior judges have expressed concerns about politicians—I do not refer
specifically to the Government but politicians generally—interfering in judicial
matters and making comments upon decisions in individual cases. Do you not
believe that that is causing a potential problem of public confidence?
Lord Falconer of Thoroton: Judges have been careful not to criticise politicians at
any stage. I have made comments to the effect that the judges should not be made
the whipping boys for various problems. For example, the other day there was a
rather graphic piece in either the Daily Telegraph or The Times in which a judge
said that it might be time for him to resign and go off into the Thames or
something like that. Earlier in the same article it was said that an unnamed part time
judge was thinking of resigning.I know of such judge.I know of no judges who
are thinking of resigning because of that. Everybody involved, judges and executive
alike,is concerned to ensure that confidence is not lost but equally is
aware that these events occur from time to time and the important thing is to cool
the temperature, identify the policy issues and get on with solving them.
92 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
ANNEX 3
Letter from the Lord Chief Justice, Lord Phillips of Worth Matravers, to
Circuit judges, 19 June 2006
On behalf of the senior judiciary I want to share with you our grave concern at
recent media coverage of sentencing issues.
The judiciary—and circuit judges in particular—have unfairly borne the brunt of
this criticism. As we all know, much of it is unbalanced and plainly wrong, and the
principles which judges are required to apply when making their sentencing
decisions have been ignored. We have great sympathy for those judges who
individually have been singled out for intemperate personal attack.
The President of the Queen’s Bench Division and I … have been addressing and
continue to address these issues with the Lord Chancellor. Some of you will have
seen his answers during the Question Time programme on Wednesday evening,
and others will have heard his interview on the Today programme on Thursday
morning. These will have contributed to an improved public understanding of the
issues related to sentencing and we are grateful to him for putting the record
straight.
It is quite legitimate for the media and commentators to criticise any particular
sentence and the judiciary recognise and accept that. But they are entitled to
expect such criticism to be accurate and objective. Personal and unmerited attacks
on the characters of individual judges can only damage the public’s understanding
of, and confidence in, the criminal justice system as a whole. We will continue to
do what we can to counter such unfair and damaging criticism.
I and the senior judiciary would like to reassure you that judges who have been the
subject of unfounded media criticism have our sympathy and full support.
Further Paper by Professor Anthony Bradley
Summary
This paper has been written to consider whether and to what extent the content of
my earlier paper, “The new constitutional relationship between the judiciary,
Government and Parliament”, has been affected by the Government’s decision to
create the Ministry of Justice. While that decision is of constitutional significance,
and it affects the relationship between the Government and the judiciary that
resulted from the Constitutional Reform Act 2005, many of the expressed
concerns are about the practical consequences of the decision, and there is no clear
argument to be made against the proposed Ministry of Justice on constitutional
grounds. If adequate assurances are given by the Government that meet these
concerns, the assurances should be placed on the public record.
1. The Committee have given me the opportunity to consider whether changes or
additions are needed to my paper, “The new constitutional relationship between
the judiciary, Government and Parliament”, in light of the Government’s decision,
announced on 29 March 2007, to move responsibility for prisons and the
probation service from the Home Office to the Department for Constitutional
Affairs (to be re-named the Ministry of Justice), the changes to take effect on
9 May 2007.
2. The main aim of that earlier paper was to discuss the structure of relations
between the judiciary, on the one hand, and Government and Parliament, on the
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 93
other, resulting from the Constitutional Reform Act 2005. While the paper
assumed that the ministerial and departmental arrangements resulting from that
Act would continue, it did not discuss the manner in which the new statutory
functions of the Lord Chancellor would be performed within the Department for
Constitutional Affairs. However, the creation of a Ministry of Justice and the range
of functions of the Ministry will have implications for the position of the courts
and the judiciary that the Committee may wish to address.
3. The idea of a Ministry of Justice has received attention at various times since it
was recommended by the Haldane Report on the machinery of government in
1918.
166
Proposals for such a Ministry in the years since then were usually blocked
by the argument that this was not necessary (or not desirable) because of the office
of Lord Chancellor, whose responsibilities were both executive and judicial in
character. Fears were expressed that the judiciary would be prejudiced were their
affairs to be handled by an ordinary Whitehall department. The idea of a Ministry
of Justice encountered opposition from the Home Office, because of the latter’s
historic responsibility for criminal justice and criminal law. Indeed, the difficulty of
how to locate responsibility in government for the criminal justice system
(including criminal law) has probably been the decisive factor that explains why a
Ministry of Justice for England and Wales has not been created until now.
4. The Constitutional Reform Act 2005 both brought to an end the historic
combination of the Lord Chancellor’s judicial and executive functions, and
maintained the office in being but with defined statutory responsibilities relating to
the judiciary. It is significant that the Act gave special protection to these
responsibilities by excluding them from the customary “machinery of government”
power of the Prime Minister to re-organise Whitehall departments; in law, this
power is exercised by means of Orders in Council under the Ministers of the
Crown Act 1975. Primary legislation would be needed if the office of Lord
Chancellor in its new form were to be abolished or the powers and duties of that
office were to be transferred. But the office of Secretary of State for Constitutional
Affairs is not so protected, and primary legislation is not needed to give effect to
the Government’s recent decision. The office of Lord Chancellor will continue in
being, as required by the 2005 Act, but it will be held with the position of
Secretary of State for Justice, rather than that of Secretary of State for
Constitutional Affairs.
5. There was certainly a case to be made in 2003 for the decision then taken to
replace the former Lord Chancellor’s Department by the Department for
Constitutional Affairs (despite the inept way in which the re-organisation was
handled). There is also now a case to be made for re-naming the department and
for extending its responsibilities for criminal justice. But it is unfortunate that the
immediate cause of the Government’s decision appears to have been concern
about the administrative and political problems of the Home Office, rather than a
long-established and fully reasoned commitment to creating a Ministry of Justice.
It has long been the practice in British government for departmental structure to
change in response to political judgments made by the Prime Minister and in
166 Cd 9230, 1918. For comment on that report, and the controversy that it created, see R Stevens, The
Independence of the Judiciary: the view from the Lord Chancellor’s Office (1993, chap 2). In 1981 the Home Affairs Committee of the House of Commons recognised the advantages of unifying the component parts of the criminal justice system in a Ministry of Justice but Lord Hailsham, then Lord Chancellor, said: “I
regard myself as the Minister of Justice but I would not desire to have either the prosecuting process or the
penal treatment process under my responsibility because I think that they are incompatible”: quoted in J L
Edwards, The Attorney-General, Politics and the Public Interest (1984), p 193.
94 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
response to changing political circumstances. A further instance of this practice
was seen with the decision announced on 29 March 2007. Whereas departments
in Whitehall and their ministers must accept that their tasks may be re-shuffled at
short notice, the added factor here is the impact of the re-organisation on the
judiciary and the courts. At the least, it would appear that there was a lack of full
consultation with the judiciary before the decision was announced. Arguably,
private communication involving the Lord Chief Justice and his most senior
colleagues is not sufficient in a matter that may be seen as affecting the
constitutional position of the courts, so recently established by the 2005 Act. A
fuller and more open consultation could, for instance, have confirmed that the
changes do not in fact pose a threat to that position.
6. To move on from the question of consultation, while it will be a novelty in
British government to have a Ministry of Justice by that name, I do not consider
that there is a case to be made against such a ministry based on fears that this
might endanger the position of the judiciary. Reasons for this view include the fact
that many countries in western Europe have a Ministry of Justice, as indeed do
numerous Commonwealth countries (where the positions of Minister of Justice
and Attorney-General may be held together, as for instance in New Zealand).
Moreover, the relationship between judiciary and executive was placed on a new
statutory basis in 2005. In my view, the essential features of that relationship are
not affected by the new departmental structure.
167 Indeed, but for the problem presented by the Home Office’s responsibility
for criminal justice, “Ministry of Justice” would have been a suitable name for
what in 2003 was created as the Department for Constitutional Affairs.
7. What may have caused the greatest current concern is the placing of
responsibility for prisons and the probation service within the Ministry of Justice.
These matters are of an operational kind that distinguishes them from
responsibility for criminal law, relations with the courts and so on.
168 The case for moving these services to the Ministry of Justice appears in part to be the wish to
enable the Home Office’s remit to be re-focussed, and in part to enable there to be
a “joined-up” system of criminal justice. The points made for questioning that
approach include the following: (a) the Minister for Justice, who will also hold the
position of Lord Chancellor, will in all probability be appointed from the House of
Commons, and may have no legal qualifications; (b) resources available to the
courts and judicial system will suffer if within the same department they are
competing with funding for prisons; (c) administration of prisons will call for an
approach that is incompatible with the leading role played by the Ministry of
Justice in respect of human rights legislation, and will erode the Lord Chancellor’s
statutory commitment to maintain the rule of law; (d) the Ministry may wish for
political reasons to influence judicial practice on sentencing (for example, to
reduce the prison population), thus undermining the statutory commitment to
maintain judicial independence; (e) the ministerial attention that will need to be
given to the prisons may as a practical matter cause less time to be spent on other
aspects of the Ministry’s remit. Concerns of this kind about the future operation of
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 95
the new arrangements are of a practical kind and are difficult to assess by
constitutional criteria.
8. Evidence dealing with these matters has been given by the Lord Chancellor
(Lord Falconer) to committees in the House of Commons.
169 Thereafter, he
assured the House that the Lord Chief Justice, Lord Phillips, had made it clear
“that the senior judiciary have no objections in principle to the creation of a
Ministry of Justice, subject to the provision of safeguards to protect the
independent administration of justice”.
170 However, Lord Woolf has given evidence about his concerns to the Home Affairs Committee,
171 in the course of which, before expressing reservations about the decision, he said: “Obviously,
there is logic in having a ministry of justice”. Lord Woolf explained the importance of the departmental changes by saying that there is “much more interplay between the departments and courts than is sometimes appreciated”; and it had been difficult to establish an effective sentencing policy “because of the highly political nature of sentencing”. 9. It is, certainly, in the area of criminal justice, including sentencing, that the
most difficult questions for the structure of the justice system arise. As Lord Falconer emphasised to the Commons’ Constitutional Affairs Committee on 17 April 2007, there will continue to be a trilateral relationship in government involving (1) Home Office responsibility for protecting the public against crime,
for the incidence of crime, and for police and crime-detection; (2) the functions of the Attorney-General in supervising the Crown Prosecution Service; and (3)
Ministry of Justice responsibility for the criminal law (both substance and
procedure, including evidence and modes of trial), criminal courts and judicial
process, and the penal system. In the course of his evidence, he said that one of the
strongest lessons learned by government since 1997 is that “all of the bits of the
criminal justice system – the police, the prosecutors, the courts and the prisons
and probation – have to work together as closely as possible” (emphasis supplied).
The qualification “as closely as possible” is from a constitutional viewpoint all important.
The reason that the criminal justice system comprises distinct components of police, prosecutors,
courts and penal institutions is that a criminal justice founded upon the rule of law
and on the due separation of powers requires both the existence of distinct functions,
and also the development of separate institutional and professional skills. Some
forms of“working together” or institutional co-operation would blur lines of demarcation
(such as the process of a fair criminal trial, where judicial impartiality is required as between the
prosecution and the defence).10. It is essential that the judiciary and the
criminal courts should not be drawn into endorsing a simplistic approach to
criminal justice in which current administrative or executive wishes cause harm
to the public image of the criminal process. From this viewpoint,
the leading role to be played by the Ministry of Justice may be given a cautious welcome. It should, for instance, reduce the tendency for government ministers to appear to blame the judges for problems
caused by recent legislation or by government policies.
172 And it must be hoped that it will curb the excessive tendency in recent years for the Home Office to
96 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
resort to legislation by Parliament as a panacea for dealing with every new concern
in the media and public opinion over crime and sentencing decisions. What would
be less welcome would be a situation in which the Ministry of Justice is nominally
the lead department on matters relating to the criminal law, but the driving
political force remains with the Home Office. And it would be unfortunate if
problems arising in the operation of prisons were to cause the Ministry of Justice
to seek to place responsibility for the problems on the judges’ sentencing decisions.
It is relevant here to note that, as a result inter alia of European human rights law,
discretionary decisions determining the release of long-term prisoners are now
made by the Parole Board or by the judiciary, no longer by the Secretary of State.
11. I have already (in paragraph 8 above) quoted from the Lord Chancellor’s
recent statement confirming that the senior judiciary “have no objections in
principle to the creation of a Ministry of Justice, subject to the provision of safeguards
to protect the independent administration of justice” (emphasis supplied). The
Committee may wish to inform itself as to the concerns that gave rise to the need
for such safeguards and as to the safeguards that have been or will be given.
Assuming that adequate assurances are given to the Lord Chief Justice, it would be
appropriate for these to be placed on record, and this might possibly be best done
by the preparation of a revised form of the Concordat, that could take full account
of the creation of the Ministry of Justice.
173.12. To conclude, my earlier paper remains relevant in the new situation caused by
the decision to create a Ministry of Justice, a decision that was made before the
new relationships resulting from the Constitutional Reform Act 2005 have had
time to settle down and stand the test of experience. The decision to create the
new Ministry is of some constitutional significance, and understandable fears have
been expressed about it, particularly in view of possible adverse effects upon the
judiciary and the machinery of justice, and the apparent lack of full consultation
with the judiciary. If acceptable assurances are given by the Government about the
future, they should become a matter of public record. 30 April 2007
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