RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 29
will find themselves in the invidious position of making decisions which
directly impact on the Lord Chancellor’s ability to fulfil his duty under
section 1 of the Courts Act 2003 [‘to ensure that there is an efficient and
effective system to support the carrying on of the business’ of the courts]”.
Sir Igor Judge warned that in 20 years a Minister of Justice may “wonder
why on earth one bit of his department is ordering another bit of his
department to spend money and he may take the view that spending the
money is for him”, thus risking a possible breach of judicial independence.
Moreover, he said, an individual whose judicial review fails may suspect that
“the judge was influenced in his decision against him by the fact that there
would be a huge cost imposed on the Ministry, of which the judiciary formed
a part in financial terms” (Q 378).
79. Lord Justice Thomas set out the reassurances sought by the judiciary in
relation to the funding of the courts as follows:
“there must be a fixed mechanism to set the budget and operating plan
with provision for capital expenditure; and, in the event of a dispute
between the judicial and executive branches of government as to the
resources necessary, the arbiter must be the legislature which of course
ultimately votes the budget in accordance with their view as to priorities
of overall expenditure. It is also necessary to ensure that if adjustments
are proposed to the budget during the year (for example by taking
money from the agreed budget to remedy shortfalls elsewhere in the
Ministry), there is a similar open and transparent mechanism which
must be followed before a change is made” (Q 374).
80. When we asked Lord Falconer about the issue of funding, he said, “I
completely accept the need for a properly funded court system” and pointed
to the statutory protections in section 1 of the Courts Act 2003 and sections
1 and 3 of the Constitutional Reform Act 2005 (Q 420). As for the financial
impact of judgments concerning the MoJ, he commented: “the principle that
I [already] deal with is, from time to time, the courts have to make decisions
about the granting or refusal of legal aid that can potentially have an effect on
legal aid funding and that can in its turn have an effect on funding available
to the courts. The judges obviously make these decisions completely in
accordance with the law and the facts. So far as I am concerned, it gives rise
to absolutely no difficulty in my relationship with the judges” (Q 431).
81. Nonetheless, Alex Allan, Permanent Secretary at the MoJ, demonstrated to
the House of Commons Constitutional Affairs Committee that he was taking
the judiciary’s concerns seriously. He revealed that “we have been working
through quite detailed processes to ensure that there is judicial involvement
in all stages [of the budget-setting process] so that some of their concerns
about the Lord Chancellor arbitrarily raiding the court budget to fund some
other portion of the Ministry of Justice’s budget would be alleviated”. He
also said, “we have produced a solution through this process which meets the
particular concerns to ensure transparency of the budget-setting process and
full involvement of the judiciary”, though at the time of writing it was not
clear that agreement with the judiciary on this point had been reached.
45
4430 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
82. Whilst greater judicial involvement in setting the courts budget might seem
desirable, we do draw attention to a caveat set out by Professor Terence
Daintith. He warned us that he would expect “judges always to be saying
that they wanted more money for the Courts Service than the department or
the Treasury were prepared ab initio to give”, resulting in “a situation where
there was at least an odour of disagreement floating around”. He felt that
there could be “a quite difficult constitutional situation, year by year, in
relation to the fixing of this budget” and suggested that if the judges “can
stay out of it somehow … that would be perhaps the best way through, but
my understanding is that they do not really want to stay out of it” (Q 494).
83. The integrity of the legal system depends on it being properly funded.
We consider it one of the vital tasks of the Lord Chancellor to ensure
that the Courts Service and Legal Aid budgets uphold that integrity.
Whilst it is not for us to suggest how the courts budget should be
agreed in future, we do urge the Lord Chancellor to ensure that it
receives maximum protection from short-term budgetary pressures
upon and within the new Ministry. Moreover, the budget-setting
process must be transparent and the judiciary must be fully involved,
both in determining the process and in its implementation.
84. Finally, we consider the status of Her Majesty’s Courts Service (HMCS), an
issue which has been highlighted by the judiciary in the context of
discussions over the MoJ even though the issue was excluded from the remit
of the working group. Indeed, the Lord Chief Justice felt that the question of
the status of HMCS “has become a fundamental difference between [the
judiciary and the Government]”. He told the House of Commons
Constitutional Affairs Committee that HMCS “owes a duty to its minister,
but we have urged that the duty it owes to its minister is to discharge the
duty that the minister owes to us; that is to provide the judiciary with the
resources that they need to provide the public with an efficient and effective
system of justice”. Therefore, “its primary loyalty really ought to be to us”.
85. Lord Justice Thomas expanded on this point, telling us that in Ireland, the
Netherlands and Denmark an “autonomous court administration with a
greater degree of judicial participation” had been “very successful”, and
concluding that “a new structure akin to these models is, in the view of the
judiciary, a constitutional safeguard made necessary by the Ministry of
Justice” (Q 374).
86. Reflecting on the motivation behind the concerns expressed by the senior
judiciary in relation to HMCS, Professor Robert Hazell told us that “the
gradual separation between the executive and the judiciary … was always
going to be a process and not a single event, and I believe that it was bound
in time to lead to demands from the judiciary for further separation, and
those demands are now beginning to emerge, so although the Ministry of
Justice has provided the occasion for those demands to be formulated by the
judiciary, I do not myself believe that the Ministry of Justice is itself the
cause”. He also reminded us that “there is a recent trend throughout
northern Europe to introduce greater separation of powers between the
executive and the judiciary, and as part of that to give the judges greater
responsibility and control for managing the court service” (Q 472).
46 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 31
87. We are not convinced by the judiciary’s claims that the creation of the
Ministry of Justice lends any additional urgency to their desire for an
autonomous court administration. However, the status of Her
Majesty’s Courts Service is of central importance to the
administration of justice, and we urge the Government to engage
meaningfully with the judiciary on this issue in order to find a
mutually acceptable way forward.
Human Rights Act
“Dialogue” in Relation to Convention Rights
88. The HRA creates a dispensation under which the executive, Parliament and
the judiciary each has a distinctive role in ensuring that policy and legislation
complies with the European Convention on Human Rights. In relation to bills
introduced to Parliament, the HRA requires ministers to make a statement
that the bill is (or is not) compatible with Convention rights. This statement is
then tested by the Joint Committee on Human Rights (JCHR) and other
committees, and through scrutiny of the bill on the floor of both Houses. After
enactment, aggrieved citizens who allege that they are victims of a violation of
a Convention right may start legal proceedings in the appropriate court. The
interaction between the different branches of the state about Convention rights
can be regarded as a form of “dialogue”, as Dr Matthew Palmer explained
(QQ 502–504). During the course of our inquiry we identified a number of
criticisms about the efficacy of this dialogue, to which we now turn.
Ministerial Compatibility Statements and Parliamentary Scrutiny
89. Section 19 of the HRA requires the minister in charge of a bill in each House
to make a statement, which is in practice published on the face of the bill,
that in his view the provisions of the bill “are compatible with the
Convention rights” or (something that has not yet occurred) to make a
statement to the contrary. Section 19 statements were envisaged to be an
important part of the HRA, enabling the executive to signal to Parliament
and—important from the perspective of our inquiry—to the courts that a
proper assessment of the human rights implications of legislation had been
carried out. Although the terms of the government’s advice as to the
compatibility of proposed legislation are not disclosed, the explanatory notes
to bills summarise the government’s view of which rights are in issue and why
the bill does not breach them.
90. Notwithstanding ministerial statements under section 19, there have been
cases in which it is clear that ministers have initially adopted a far too
optimistic view about the compatibility of provisions in a bill. Although few
statutory provisions enacted since the HRA came into force have been
subject to declarations of incompatibility by the courts on a number of
47 Three provisions enacted after the HRA came into force (in October 2000) have been subject to declarations of
incompatibility, though in one case the declaration was overturned by the Court of Appeal: (i) A and others
32 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
occasions the Government has had to make or accept major amendments to
bills to bring them into line with Convention rights (as Parliament views
them). For example, they replaced the “ouster” clause in the Asylum and
Immigration (Treatment of Claimants etc.) Act 2004 after strong
representations from the JCHR and others. Where a department has any
doubt about compatibility of a bill with Convention rights, ministers
should seek the involvement of the Law Officers at a formative stage
of policy-making and legislative drafting.
91. Reports of the JCHR are vital in drawing the attention of both Houses to
possible compatibility problems. It is not, however, always clear that the
Committee has sufficient time or information from the Government to carry
out its role as effectively as it would wish. For example, reporting on the
Prevention of Terrorism Bill in Session 2004–05, the Committee said “we
regret that the rapid progress of the Bill through Parliament has made it
impossible for us to scrutinise the Bill comprehensively for human rights
compatibility in time to inform debate in Parliament”.
48
The limits of
parliamentary scrutiny also need to be recognised. In many situations the
issue is not so much whether the terms on the face of the bill are compliant,
but whether a minister will subsequently exercise powers conferred by the
bill in a manner which respects Convention rights. Parliament’s control over
the use of such powers, once conferred, is necessarily limited.
92. Parliament’s scrutiny of the executive in relation to human rights is always
likely to be subject to the problems outlined above. The courts have the
central constitutional role in upholding respect for human rights. Is there a
way in which they can help ensure compliance with human rights obligations
and indeed the rule of law? We consider four options in the following pages:
discussions between the Law Lords and members of the executive on issues
of principle; a system of “abstract review” of legislation; the creation of a
committee of “distinguished lawyers” to scrutinise legislation; and greater
use of advisory declarations.
Greater Guidance to the Executive from the Courts?
93. Charles Clarke MP, the former Home Secretary, made it clear to us that he
was angered that the courts had overturned a number of Control Orders
issued under the Prevention of Terrorism Act 2005. He complained that
“after the most intense Parliamentary discussions [on the Act], followed by
the Home Secretary’s decision taken on the basis of detailed legal advice, and
then a series of legal actions up to the Court of Appeal, the Home Secretary
[was] then simply asked to take another stab with no guidance whatsoever as
to how the highest courts would view the legality of his complicated and
difficult decisions”. With the appeal process ongoing, he noted that “more
than five years after 9/11 the legal and Parliamentary circus still moves on”
and claimed that “this is a ludicrous way of proceeding which dangerously
undermines confidence in every aspect of the police and criminal justice
system” (Q 123). He added that “you could end up with a state of affairs
where we end up leaving the European Convention [on Human Rights] as a
result of public pressure” (Q 137).
94. Mr Clarke’s main concern was that “the judiciary bears not the slightest
responsibility for protecting the public, and sometimes seems utterly unaware
will find themselves in the invidious position of making decisions which
directly impact on the Lord Chancellor’s ability to fulfil his duty under
section 1 of the Courts Act 2003 [‘to ensure that there is an efficient and
effective system to support the carrying on of the business’ of the courts]”.
Sir Igor Judge warned that in 20 years a Minister of Justice may “wonder
why on earth one bit of his department is ordering another bit of his
department to spend money and he may take the view that spending the
money is for him”, thus risking a possible breach of judicial independence.
Moreover, he said, an individual whose judicial review fails may suspect that
“the judge was influenced in his decision against him by the fact that there
would be a huge cost imposed on the Ministry, of which the judiciary formed
a part in financial terms” (Q 378).
79. Lord Justice Thomas set out the reassurances sought by the judiciary in
relation to the funding of the courts as follows:
“there must be a fixed mechanism to set the budget and operating plan
with provision for capital expenditure; and, in the event of a dispute
between the judicial and executive branches of government as to the
resources necessary, the arbiter must be the legislature which of course
ultimately votes the budget in accordance with their view as to priorities
of overall expenditure. It is also necessary to ensure that if adjustments
are proposed to the budget during the year (for example by taking
money from the agreed budget to remedy shortfalls elsewhere in the
Ministry), there is a similar open and transparent mechanism which
must be followed before a change is made” (Q 374).
80. When we asked Lord Falconer about the issue of funding, he said, “I
completely accept the need for a properly funded court system” and pointed
to the statutory protections in section 1 of the Courts Act 2003 and sections
1 and 3 of the Constitutional Reform Act 2005 (Q 420). As for the financial
impact of judgments concerning the MoJ, he commented: “the principle that
I [already] deal with is, from time to time, the courts have to make decisions
about the granting or refusal of legal aid that can potentially have an effect on
legal aid funding and that can in its turn have an effect on funding available
to the courts. The judges obviously make these decisions completely in
accordance with the law and the facts. So far as I am concerned, it gives rise
to absolutely no difficulty in my relationship with the judges” (Q 431).
81. Nonetheless, Alex Allan, Permanent Secretary at the MoJ, demonstrated to
the House of Commons Constitutional Affairs Committee that he was taking
the judiciary’s concerns seriously. He revealed that “we have been working
through quite detailed processes to ensure that there is judicial involvement
in all stages [of the budget-setting process] so that some of their concerns
about the Lord Chancellor arbitrarily raiding the court budget to fund some
other portion of the Ministry of Justice’s budget would be alleviated”. He
also said, “we have produced a solution through this process which meets the
particular concerns to ensure transparency of the budget-setting process and
full involvement of the judiciary”, though at the time of writing it was not
clear that agreement with the judiciary on this point had been reached.
45
4430 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
82. Whilst greater judicial involvement in setting the courts budget might seem
desirable, we do draw attention to a caveat set out by Professor Terence
Daintith. He warned us that he would expect “judges always to be saying
that they wanted more money for the Courts Service than the department or
the Treasury were prepared ab initio to give”, resulting in “a situation where
there was at least an odour of disagreement floating around”. He felt that
there could be “a quite difficult constitutional situation, year by year, in
relation to the fixing of this budget” and suggested that if the judges “can
stay out of it somehow … that would be perhaps the best way through, but
my understanding is that they do not really want to stay out of it” (Q 494).
83. The integrity of the legal system depends on it being properly funded.
We consider it one of the vital tasks of the Lord Chancellor to ensure
that the Courts Service and Legal Aid budgets uphold that integrity.
Whilst it is not for us to suggest how the courts budget should be
agreed in future, we do urge the Lord Chancellor to ensure that it
receives maximum protection from short-term budgetary pressures
upon and within the new Ministry. Moreover, the budget-setting
process must be transparent and the judiciary must be fully involved,
both in determining the process and in its implementation.
84. Finally, we consider the status of Her Majesty’s Courts Service (HMCS), an
issue which has been highlighted by the judiciary in the context of
discussions over the MoJ even though the issue was excluded from the remit
of the working group. Indeed, the Lord Chief Justice felt that the question of
the status of HMCS “has become a fundamental difference between [the
judiciary and the Government]”. He told the House of Commons
Constitutional Affairs Committee that HMCS “owes a duty to its minister,
but we have urged that the duty it owes to its minister is to discharge the
duty that the minister owes to us; that is to provide the judiciary with the
resources that they need to provide the public with an efficient and effective
system of justice”. Therefore, “its primary loyalty really ought to be to us”.
85. Lord Justice Thomas expanded on this point, telling us that in Ireland, the
Netherlands and Denmark an “autonomous court administration with a
greater degree of judicial participation” had been “very successful”, and
concluding that “a new structure akin to these models is, in the view of the
judiciary, a constitutional safeguard made necessary by the Ministry of
Justice” (Q 374).
86. Reflecting on the motivation behind the concerns expressed by the senior
judiciary in relation to HMCS, Professor Robert Hazell told us that “the
gradual separation between the executive and the judiciary … was always
going to be a process and not a single event, and I believe that it was bound
in time to lead to demands from the judiciary for further separation, and
those demands are now beginning to emerge, so although the Ministry of
Justice has provided the occasion for those demands to be formulated by the
judiciary, I do not myself believe that the Ministry of Justice is itself the
cause”. He also reminded us that “there is a recent trend throughout
northern Europe to introduce greater separation of powers between the
executive and the judiciary, and as part of that to give the judges greater
responsibility and control for managing the court service” (Q 472).
46 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 31
87. We are not convinced by the judiciary’s claims that the creation of the
Ministry of Justice lends any additional urgency to their desire for an
autonomous court administration. However, the status of Her
Majesty’s Courts Service is of central importance to the
administration of justice, and we urge the Government to engage
meaningfully with the judiciary on this issue in order to find a
mutually acceptable way forward.
Human Rights Act
“Dialogue” in Relation to Convention Rights
88. The HRA creates a dispensation under which the executive, Parliament and
the judiciary each has a distinctive role in ensuring that policy and legislation
complies with the European Convention on Human Rights. In relation to bills
introduced to Parliament, the HRA requires ministers to make a statement
that the bill is (or is not) compatible with Convention rights. This statement is
then tested by the Joint Committee on Human Rights (JCHR) and other
committees, and through scrutiny of the bill on the floor of both Houses. After
enactment, aggrieved citizens who allege that they are victims of a violation of
a Convention right may start legal proceedings in the appropriate court. The
interaction between the different branches of the state about Convention rights
can be regarded as a form of “dialogue”, as Dr Matthew Palmer explained
(QQ 502–504). During the course of our inquiry we identified a number of
criticisms about the efficacy of this dialogue, to which we now turn.
Ministerial Compatibility Statements and Parliamentary Scrutiny
89. Section 19 of the HRA requires the minister in charge of a bill in each House
to make a statement, which is in practice published on the face of the bill,
that in his view the provisions of the bill “are compatible with the
Convention rights” or (something that has not yet occurred) to make a
statement to the contrary. Section 19 statements were envisaged to be an
important part of the HRA, enabling the executive to signal to Parliament
and—important from the perspective of our inquiry—to the courts that a
proper assessment of the human rights implications of legislation had been
carried out. Although the terms of the government’s advice as to the
compatibility of proposed legislation are not disclosed, the explanatory notes
to bills summarise the government’s view of which rights are in issue and why
the bill does not breach them.
90. Notwithstanding ministerial statements under section 19, there have been
cases in which it is clear that ministers have initially adopted a far too
optimistic view about the compatibility of provisions in a bill. Although few
statutory provisions enacted since the HRA came into force have been
subject to declarations of incompatibility by the courts on a number of
47 Three provisions enacted after the HRA came into force (in October 2000) have been subject to declarations of
incompatibility, though in one case the declaration was overturned by the Court of Appeal: (i) A and others
32 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
occasions the Government has had to make or accept major amendments to
bills to bring them into line with Convention rights (as Parliament views
them). For example, they replaced the “ouster” clause in the Asylum and
Immigration (Treatment of Claimants etc.) Act 2004 after strong
representations from the JCHR and others. Where a department has any
doubt about compatibility of a bill with Convention rights, ministers
should seek the involvement of the Law Officers at a formative stage
of policy-making and legislative drafting.
91. Reports of the JCHR are vital in drawing the attention of both Houses to
possible compatibility problems. It is not, however, always clear that the
Committee has sufficient time or information from the Government to carry
out its role as effectively as it would wish. For example, reporting on the
Prevention of Terrorism Bill in Session 2004–05, the Committee said “we
regret that the rapid progress of the Bill through Parliament has made it
impossible for us to scrutinise the Bill comprehensively for human rights
compatibility in time to inform debate in Parliament”.
48
The limits of
parliamentary scrutiny also need to be recognised. In many situations the
issue is not so much whether the terms on the face of the bill are compliant,
but whether a minister will subsequently exercise powers conferred by the
bill in a manner which respects Convention rights. Parliament’s control over
the use of such powers, once conferred, is necessarily limited.
92. Parliament’s scrutiny of the executive in relation to human rights is always
likely to be subject to the problems outlined above. The courts have the
central constitutional role in upholding respect for human rights. Is there a
way in which they can help ensure compliance with human rights obligations
and indeed the rule of law? We consider four options in the following pages:
discussions between the Law Lords and members of the executive on issues
of principle; a system of “abstract review” of legislation; the creation of a
committee of “distinguished lawyers” to scrutinise legislation; and greater
use of advisory declarations.
Greater Guidance to the Executive from the Courts?
93. Charles Clarke MP, the former Home Secretary, made it clear to us that he
was angered that the courts had overturned a number of Control Orders
issued under the Prevention of Terrorism Act 2005. He complained that
“after the most intense Parliamentary discussions [on the Act], followed by
the Home Secretary’s decision taken on the basis of detailed legal advice, and
then a series of legal actions up to the Court of Appeal, the Home Secretary
[was] then simply asked to take another stab with no guidance whatsoever as
to how the highest courts would view the legality of his complicated and
difficult decisions”. With the appeal process ongoing, he noted that “more
than five years after 9/11 the legal and Parliamentary circus still moves on”
and claimed that “this is a ludicrous way of proceeding which dangerously
undermines confidence in every aspect of the police and criminal justice
system” (Q 123). He added that “you could end up with a state of affairs
where we end up leaving the European Convention [on Human Rights] as a
result of public pressure” (Q 137).
94. Mr Clarke’s main concern was that “the judiciary bears not the slightest
responsibility for protecting the public, and sometimes seems utterly unaware
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