36 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
not have any greater authority really than Home Office lawyers in that
situation” (Q 128). A committee of legal grandees also risks duplicating the
work already carried out by the JCHR, which has an important role in
scrutinising the compatibility of bills with Convention rights and drawing
concerns to the attention of both Parliament and the executive. Moreover,
the House of Lords as currently constituted has an abundance of
distinguished members of the kind outlined above, and can therefore bring
this expertise to bear during the passage of legislation through the House.
108. We do not believe that a committee of distinguished lawyers tasked
with scrutinising legislation for compatibility with Convention rights
is desirable at this time. If, however, at some future time the
composition of the House of Lords changes, this is an idea that may
well merit further consideration.
Advisory Declarations
109. We have already explained why we do not believe that a system of “abstract
review” would not be appropriate in this country. However, this is not to say
that the courts could not exercise a jurisdiction to make advisory
declarations about the compatibility (or otherwise) of legislative provisions
promptly after enactment. Claims for advisory declarations differ from
“abstract review” in that they are brought using ordinary legal procedures,
arise out of a practical situation and the court hears submissions from two or
more parties. The English courts have long been wary of adjudicating on
hypothetical issues, but in 1994 the Law Commission of England and Wales
recognised that advisory declarations had a role to play and Lord Woolf’s
major review of the civil justice system in 1996 recommended that the High
Court should have “an express power to grant advisory declarations when it
is in the public interest to do so. However, this should be limited to cases
where the issue was of public importance and was defined in sufficiently
precise terms, and where the appropriate parties were before the court”.
110. Advisory declarations will be inappropriate in some circumstances. Thus the
High Court recently held that it had no jurisdiction to issue an advisory
declaration (in a case brought by the Campaign for Nuclear Disarmament)
on whether Resolution 1441 of the United Nations Security Council (an
instrument of international rather than national law) authorised states to take
military action in the event of non-compliance by Iraq with its terms.
In
other situations, however, the courts have been willing and able to give
guidance on matters of general public importance. For example, the House
of Lords made a declaration on whether a departmental circular was correct
to state that a pregnancy was “terminated by a registered medical
practitioner”, and therefore lawfully under the Abortion Act 1967, when the
termination is prescribed and initiated by a medical practitioner who remains
in charge of it, and is carried out in accordance with his instructions by
qualified nursing staff.
56
Moreover, the Government has recently shown itself
open to the possibility of identifying a test case to bring an issue of
importance about the HRA to the courts.
57
Therefore, although not a
54 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 37
panacea, it is possible to envisage situations in which an advisory declaration
may provide an opportunity for the courts to give guidance on a question
relating to a Convention right.
111. We recommend that the Government and the judiciary give further
consideration to how advisory declarations might be used to provide
guidance on questions relating to Convention rights.
5538 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
CHAPTER 3: PARLIAMENT AND JUDICIARY
Introduction
112. Section 137 of the CRA, when it is brought into force, will disqualify all
senior serving judges from sitting and voting in the House of Lords.
Although in recent years it has become increasingly rare for the Law Lords
and other senior serving members of the judiciary who hold peerages to
participate in debates in the House of Lords, section 137 will be
constitutionally significant. Moreover, proposals to reform the composition
of the House of Lords may result in there being fewer retired judges in the
House, or possibly none at all. Against this changing background, it is
necessary to consider how the senior judiciary might convey to Parliament
any concerns about legislation or policy.
Laying Written Representations before Parliament
113. The most obvious mechanism to convey such concerns is set out in section 5
of the CRA, which allows the Lord Chief Justice (and the Lord Chief Justice
of Northern Ireland and the Lord President of the Court of Session in
Scotland) to “lay before Parliament written representations on matters that
appear to him to be matters of importance relating to the judiciary, or
otherwise to the administration of justice”.
114. When we asked the current Lord Chief Justice about the circumstances in
which this power should be used, he told us that “this is a power to be
exercised when I really want to draw attention to something that is really
important, not something to be done as a matter of routine. I see this really
as a substitute for what the Lord Chief Justice has been able to do and has
done in the past, which is to address the House on a matter which is
considered sufficiently important to justify that step” (Appendix 8, Q 38).
He went on to describe the power as “a nuclear option” and suggested that it
might be used “if something was proposed by way of legislation that was so
contrary to the rule of law that judges would feel: ‘We have got to step in and
make plain our objection to this’” (QQ 48, 50). Appearing before the House
of Commons Constitutional Affairs Committee on 22 May 2007, the Lord
Chief Justice indicated that in relation to the failure (as he saw it) of the then
Lord Chancellor, Lord Falconer, to provide safeguards following the creation
of the MoJ, he was getting near the point of considering it necessary to use
his section 5 power.
58
115. Perhaps unsurprisingly, Lord Falconer also thought that this power should
be a “nuclear option” and “a rarely used power” which would only come into
play if the judiciary failed to obtain satisfaction through prior discussions
with the executive (Q 61). Indeed, he warned that “if the representations
were used on a routine basis … then I think that would greatly reduce the
effect of the power” (Q 65). He also suggested that the Lord Chief Justice
should only use this power in relation to issues “that touch … the
independence or the position of the judiciary”, including inadequate
resourcing of the court system or undue interference in the judicial RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 39
appointments system (Q 61). Clearly, however, it would be for the
Lord Chief Justice to decide when to use his “nuclear option”.
116. This leads us to ask a question which appears to have received remarkably
little attention: how should the executive and legislature respond if the Lord
Chief Justice were to exercise his right to lay written representations before
Parliament?
117. First, it would seem essential for the executive promptly to present
Parliament with a formal written response to the Lord Chief Justice’s
concerns, probably in the form of a written ministerial statement.
Lord Falconer seemed to accept this, saying “I would have thought there
would have to be a government response” (Q 63). Furthermore, if the
Lord Chief Justice’s concerns relate to a piece of legislation being considered
by Parliament, it might be considered appropriate for the response to be
made before the bill has progressed too far in either House, in order that the
deliberations of MPs and peers can properly be informed.
118. Second, it is clear that Parliament should now give some serious thought in
advance as to how it might treat any written representations from the
Lord Chief Justice, because it would be inadvisable to wait until a
constitutional crisis arises before choosing an appropriate process to
scrutinise the concerns in question. In our view, it would be desirable for
such representations to be published in Hansard and for the bill or policy in
question to be debated on the floor of the House. It might also be useful for
there to be more in-depth scrutiny of the Lord Chief Justice’s concerns in
order to aid the deliberations of the House. In his paper, Professor Bradley
suggested that “when the chief justice … exercises his new right to lay written
representations before … Parliament, this should lead to a hearing before a
committee” (Appendix 4). It might perhaps be appropriate for this
Committee to undertake such a hearing in this House, and for the
Constitutional Affairs Select Committee (or its successor committee) to do
so in the House of Commons. These hearings might include oral evidence
from the Lord Chief Justice himself, the relevant minister and other key
stakeholders.
119. We recommend that any written representations received from the
Lord Chief Justice under section 5 of the Constitutional Reform Act
2005 should be published in Hansard; that the business managers
should find time for the issue to be debated in the House at the
earliest possible opportunity; and that the Government should
respond to such representations in good time before either House has
finished considering the bill or initiative in question. Further, this
Committee will endeavour to scrutinise any such representations in
time to inform deliberations in the House.
Other Ways of Communicating with Parliament
120. Since the Lord Chief Justice’s power to lay written representations before
Parliament is likely to be a rarely-used “nuclear” option, there need to be other
more routine ways in which lesser concerns can be conveyed to Parliament.
The Lord Chief Justice asked, “might there not be a machinery, if there was a
particular topic that I thought it desirable to ventilate, whereby I could let the
appropriate committee know that if they were interested in hearing about this I
would be happy to discuss it?” (Appendix 8, Q 43). Lord Mackay of Clashfern
agreed with this approach, telling us that “more informal procedures such as 40 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
speaking to committees … are more likely to be productive” (Q 180). We
agree that select committees offer a suitable arena for the Lord Chief Justice,
or other senior judges, to air concerns about the administration of justice and
the impact of legislation and other policy proposals upon the courts and the
judiciary. The Lord Chief Justice already appears before this Committee
annually, but we would always be open to additional appearances as necessary
by him and other senior colleagues, and we trust that other committees of both
Houses would take a similar approach.
The Question of Accountability
121. It is now necessary to ascertain how the judiciary should be held accountable.
Professor Bradley warned that “judicial independence requires that judges
are not directly accountable either to the executive or to Parliament for their
decisions. The primary form of accountability comes from four aspects of
judicial process: (a) most court hearings take place in public; (b) judicial
proceedings are usually adversarial; (c) judicial decisions must deal with the
submissions of the parties; and (d) most decisions may be challenged by
appeal to a higher court” (Appendix 4). Therefore, as Professor Vernon
Bogdanor has pointed out, “it is not for Parliament to consider the conduct
of individual judges, nor to hold judges to account for their judgments, nor
to examine the merits of individual appointments or complaints against
judges”.
59
In fact, according to Erskine May, “reflections” may only be cast
upon the conduct of judges in Parliament if there is “a substantive motion,
drawn in proper terms”.
60
122. Nonetheless, subject to these caveats, Professor Bogdanor noted that “it is a
fundamental principle of a democratic society … that those with power
should be accountable to the people, through their elected representatives”.
We would add that the House of Lords has special responsibilities as a
guardian of constitutional values and should thus play a role here as well.
Professor Bogdanor suggested that judges should not be “answerable” to
Parliament in terms of justifying their decisions, but should “answer” to
Parliament through committee appearances—in other words, they should be
accountable to Parliament not in the “sacrificial” sense, but in the
“explanatory” sense. We find this an interesting argument.
61 123. In a previous report, we noted that Parliament was the “apex” of
accountability in the political process.
62 This principle is apt here, since the
public is the judiciary’s key stakeholder and Parliament represents the
people. We have therefore sought to identify ways in which Parliament can
help the judiciary to remain accountable. Since the Lord Chancellor is no
longer head of the judiciary and therefore cannot answer to Parliament on its
behalf, Parliament must hold the judiciary accountable in other ways.
The Role of Select Committees
124. Select committees, especially this Committee and the Constitutional Affairs
Select Committee (or its successor committee) in the House of Commons,
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 41
can play an important role in holding the judiciary to account by questioning
judges in public. Our Committee has already adopted the practice of inviting
the Lord Chief Justice to appear before us on an annual basis, and there is
scope for taking evidence from other senior judges. Committees must be
sensitive to the caveats mentioned above, and the need for the judiciary not
to become involved in overtly political questions, but judges themselves
should be aware of which subject areas they can appropriately discuss.
Indeed, Parliament and the judiciary have agreed a set of internal guidelines
to help judges appearing before committees.
125. It is clearly acceptable for committees to question judges on the
administration of the justice system and the way in which the judiciary is
managed. In addition, it may be desirable for discussions to range beyond
such issues, with judges being asked about their opinions on broad legal
questions such as the use of comparative law, the distinction between
sections 3 and 4 of the HRA and the wider interpretation of the Pepper v
Hart judgment.
63
Indeed, given that many judges’ views on issues such as
these are already in the public domain in the form of articles and speeches, it
would be odd if Parliament was denied the opportunity to probe such
opinions in more detail. As Professor Bogdanor commented, judges “should
not object to discussing [their] views in a parliamentary forum, in the cause
of greater public understanding”.
64
However, it would be inappropriate for
committees to question judges on the pros and cons of particular judgments.
126. We believe that select committees can play a central part in enabling
the role and proper concerns of the judiciary to be better understood
by the public at large, and in helping the judiciary to remain
accountable to the people via their representatives in Parliament. Not
only should senior judges be questioned on the administration of the
justice system, they might also be encouraged to discuss their views
on key legal issues in the cause of transparency and better
understanding of such issues amongst both parliamentarians and the
public. However, under no circumstances must committees ask
judges to comment on the pros and cons of individual judgments.
A Parliamentary Committee on the Judiciary
127. This leads us to the question of whether there should be a committee tasked
solely with scrutinising the judiciary. In 2004, the Select Committee on the
Constitutional Reform Bill concluded: “the Committee agrees that it is
desirable for a committee of Parliament to act as a bridge between
Parliament and the judiciary, particularly in the event of the senior judges
being excluded from the House. Such a committee should not seek to hold
individual judges to account. The advantages of a statutory committee were
not obvious to the Committee and a clear majority preferred the joint
committee option. We recognise that Parliament itself will wish to consider
this issue further.”
65
Three years later, no such committee has been formed.
128. The Lord Chief Justice, when asked about the possible creation of such a
committee, felt that it was “an option that merits consideration” because
63
64
65
See http://www.parliament.uk/commons/lib/research/notes/snpc-00392.pdf for further information.
See http://www.ukpac.org/bogdanor_speech.htm.
Select Committee on the Constitutional Reform Bill, First Report of Session 2003–04 (HL Paper 125-I),
para 420.
42 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
“Parliament is certainly justified in expecting some way of communicating
with the judiciary” (Appendix 8, Q 40). Good communications are indeed
both desirable and necessary, because there must be a mechanism for
effective parliamentary oversight of, and two-way dialogue with, the judiciary
now that there is essentially no judicial representation in the legislature.
However, given that judicial affairs are an important element of the
constitution, it might be argued that this Committee and the Constitutional
Affairs Committee (or its successor committee) in the House of Commons
could provide the fora for such communications. On the other hand, a new
joint committee could lighten the burden on both the judiciary itself and the
two constitution committees.
129. We are not currently convinced of the need for a joint committee on
the judiciary, but we shall keep the situation under review, not least in
evaluating our Committee’s effectiveness in providing the necessary
oversight and contact. The Constitutional Affairs Select Committee
in the House of Commons also has an important role to play.
Post-legislative Scrutiny
130. A recent and interesting development in Parliament is select committee
inquiries into the way in which the courts are interpreting and applying
legislation. In the past three years, the Joint Committee on Human Rights
have twice investigated the courts’ approach to defining the terms “public
authority” and “function of a public nature” in section 6 of the HRA.
The
Joint Committee reached the conclusion that the leading judgments of the
courts had given those terms an overly narrow meaning and as a result the
true intention of Parliament was not being given effect. With growing
awareness of the importance of post-legislative scrutiny,
67
it is likely that in
future similar inquiries will consider the judicial interpretation of
parliamentary legislation in other contexts. However, we are concerned that
post-legislative scrutiny has still not become the “common feature” that we
concluded it should be in an earlier report.
68
We repeat our earlier
conclusion that post-legislative scrutiny is highly desirable and should
be undertaken far more generally. This would boost the level of
constructive dialogue between Parliament and the courts.
Confirmation Hearings
131. Our inquiry has not focused on judicial appointments as it would have been
premature to do so: the Judicial Appointments Commission of England and
Wales has only recently begun to operate and the selection commission that
will seek Justices of the Supreme Court of the United Kingdom will not
begin its work until some time after October 2009 (the anticipated date on
which Part 3 of the CRA will come into force, transferring functions from the
Appellate Committee of the House of Lords to the new court).
66 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 43
132. No account of communications between the judiciary and Parliament would
be complete, however, without mention of confirmation hearings. In a
number of constitutional systems there is a requirement or convention that
appointees to high judicial office appear in front of a committee of the
legislature before being confirmed in their post. However, the possibility of
confirmation hearings (or appearances before a select committee soon after
appointment) was canvassed during the passage of the Constitutional Reform
Bill and firmly rejected.
69
133. Nonetheless, we note three developments. The first is the proposed creation
for the first time in the United Kingdom of a statutory requirement for
confirmation hearings, albeit in the very different context of appointments
made by the Mayor of London.
70
The second is the announcement in 2006
by the Prime Minister of Canada that his candidate for a Supreme Court of
Canada vacancy (Justice Marshall Rothstein of the Federal Court of Appeal)
had agreed to appear before an ad hoc committee of the Canadian House of
Commons, chaired by a judge and law professor who were not MPs. A
televised hearing was held in which Justice Rothstein answered questions
about himself and his view of the role of the Supreme Court of Canada.
134. The third and most important development is the proposal of the MoJ in
their Green Paper The Governance of Britain to introduce pre-appointment or
post-appointment committee hearings for certain key public posts. The
Green Paper also refers to judicial appointments in the following terms: “The
Government is willing to look at the future of its role in judicial
appointments: to consider going further than the present arrangement,
including conceivably a role for Parliament itself, after consultation with the
judiciary, Parliament and the public, if it is felt there is a need”.
However,
when asked about this point, Baroness Ashton, Leader of the House of
Lords, told peers that “to my knowledge there is absolutely no intention” of
introducing pre-appointment hearings for judges.
73
Whilst we embrace this
assurance from Baroness Ashton, we are concerned that it does not tally with
the wording of the Green Paper.
135. We urge the Government to clarify their position on the introduction
of appointment hearings for judges at the earliest opportunity, since
this would be an innovation with very profound implications for the
independence of the judiciary and the new judicial appointments
system.
An Annual Report on the Judiciary
136. An additional device to facilitate effective scrutiny would be an annual report
by the judiciary of England and Wales to be laid before Parliament. Although
numerous different parts of the judiciary already produce annual reports,
there would also be value in having one consolidated report on behalf of the
judiciary as a whole. The Lord Chief Justice told us in May 2006 that this “is
something we are considering” (Appendix 8, Q 39) and then on 17 July 2007
72
7144 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
he announced that the Judicial Executive Board had agreed to produce such
an annual report to be laid before Parliament. Although the mechanism for
laying such a report has yet to be determined, we suggest that it should be
laid under section 5 of the CRA so that it has a formal status.
137. The question of what should be contained in the report is primarily a matter
for the judiciary. However, it might make sense for it to contain an overview
of issues relating to the administration of justice—including the funding of
the courts and the activities of the Judicial Office—and perhaps an account of
concerns amongst the senior judiciary on matters such as sentencing policy.
138. Once the report is laid before Parliament, both Houses should debate it,
perhaps after the report has been considered and commented upon by our
Committee and the Constitutional Affairs Select Committee (or its successor
committee) in the House of Commons. Moreover, Lord Mackay of
Clashfern suggested that upon publication of the report, “the Lord Chief
Justice would probably give a press conference, explaining the report and
answering any questions that might be raised about it by the press” (Q 180).
139. We welcome the Judicial Executive Board’s decision that the Lord
Chief Justice should lay an annual report before Parliament, an
innovation which this Committee had discussed with the Lord Chief
Justice and other senior judges in the course of our deliberations. We
suggest that the annual report should be formally laid under section 5
of the Constitutional Reform Act. We further suggest that the report
might encompass administrative issues and—where appropriate—
areas of concern about the justice system, provided that there is no
discussion of individual cases. We believe that the report will provide
a useful opportunity for both Houses of Parliament to debate these
matters on an annual basis, and for the Lord Chief Justice to engage
effectively with parliamentarians and the public.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 45
CHAPTER 4: JUDICIARY, MEDIA AND PUBLIC
Introduction
140. It is essential that the judiciary should engage effectively with the public in
order to maintain confidence in judges and the parts of the justice system for
which they are responsible. Before considering how this can best be done, it
is sensible to assess how the judiciary are currently perceived by the public.
Public Perceptions
141. Unfortunately, as Professor Dame Hazel Genn explained, there is “little
information … about attitudes to the judiciary in England and Wales”
because “there has been no sustained tradition of investment in research”
(Q 308). However, on the basis of what limited information there is, she told
us that “the public believe or know that the judiciary are not corrupt, that
they do not tell lies, that they are independent, the public trusts them to
apply the law impartially”. And whilst the public also believe that judges are
somewhat out-of-touch, Dame Hazel rightly pointed out that “the fact that
people say, ‘I think they seem a bit out-of-touch, I am not sure that they
really know what goes on in the real world’ is not inconsistent with saying ‘I
trust them’ and I think they do trust them and what we see from … polls is
that by comparison with other institutions they trust the judiciary very much”
(Q 306). Moreover, the advent of the Judicial Appointments Commission,
bringing greater transparency to the selection of judges and attempting to
encourage applicants “from the widest range of backgrounds”, should help to
increase public confidence in the judiciary still further (Q 327).
142. However, whilst public confidence in judges appears generally to be holding
up, attitudes may be shifting. A panel of legal journalists told us that judges
are increasingly seen as “too left-wing, too bleeding liberal, too wet” and
“too pro-human rights and too soft”. They also pointed to a perception that
“the Government tries to get tough and do things to help the public and the
judges sabotage it” (Q 95). Frances Gibb, Legal Editor of The Times, added
that people are more willing to speak out nowadays because “it is not off
limits to attack anyone in authority in the way it might have been 30 years
ago” (Q 100).
143. Similarly, Paul Dacre, editor of the Daily Mail, felt that whilst “the public
still have huge faith in the independence and integrity and incorruptibility of
the British judiciary”, they are becoming “slightly confused” because they see
“political judgments being made by judges which fly in the face of what they
perceive as national interests” and “an increasingly lenient judiciary, handing
down lesser and lesser sentences”. In his view, the public “still have great
faith in the judiciary but there are worries that it is not reflecting their values
and their instincts” (Q 335). To support these claims, Mr Dacre
commissioned an ICM poll in advance of his appearance which found that,
of the more than 1,000 members of the public questioned, only 18 per cent
had faith that the sentences they wanted passed against criminals would be
reflected by the courts whilst 75 per cent felt that sentences were too lenient
(Q 353).
144. In some cases, public attitudes towards the judiciary—whether positive or
negative—can stem from ignorance of how the justice system works. As
46 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
Dame Hazel said, “people are [not] taught properly about the justice system,
about the judiciary and about the difference between civil and criminal
courts at school, it is not something that we are brought up on”. As a result,
“people grow up in relative ignorance about what the justice system is there
for and what it does”. Whilst some people will have first hand experience of
the justice system, most people draw their knowledge of the judiciary and
their opinions from the media, and “the danger with that is, of course, that
the reporting in the media and representations on the television are very
selective, they are rather haphazard” (Q 308). Indeed, media coverage of the
judiciary tends to focus on controversial or damaging stories and cases,
because “a story about a judge behaving with outstanding levels of
professionalism in court is not going to make news in the same way as a
doctor performing an operation absolutely beautifully does not make news”
(Q 309).
145. Given their important role in shaping attitudes towards the judiciary and the
justice system, the media have a duty to report proceedings accurately and
fairly. However, certain sections of the media might be said to abuse this
position of responsibility by attacking individual judges or the judiciary as a
whole for carrying out their obligations by implementing the HRA or
following sentencing guidelines. For example, the High Court ruled in May
2006 that the nine Afghan nationals who had hijacked an aeroplane should
have discretionary leave to remain in the United Kingdom under the HRA.
The following day, the Daily Express printed a leader in the following terms:
“Using the European Convention on Human Rights as cover, Mr Justice
Sullivan made a ruling which many will regard as tantamount to a judicial
coup against Parliament … Britain’s out-of-touch judges are increasingly
using the Human Rights Act as a means of asserting their will over our
elected representatives”.
74
Similarly, a Daily Mail editorial in 2003 asserted
that “Britain’s unaccountable and unelected judges are openly, and with
increasing arrogance and perversity, usurping the role of Parliament, setting
the wishes of the people at nought and pursuing a liberal, politically correct
agenda of their own, in their zeal to interpret European legislation”.
This
kind of rhetoric is misleading and wholly inappropriate, showing no regard
for the consequences. As Lord Falconer has said, it has “an impact in
undermining confidence in the judiciary”.
76 146. We believe that the media, especially the popular tabloid press, all too
often indulge in distorted and irresponsible coverage of the judiciary,
treating judges as “fair game”. A responsible press should show
greater restraint and desist from blaming judges for their
interpretation of legislation which has been promulgated by
politicians. If the media object to a judgment or sentencing decision,
we suggest they focus their efforts on persuading the Government to
rectify the legal and policy framework. In order to ensure more
responsible reporting, we recommend that the Editors’ Code of
Practice, which is enforced by the Press Complaints Commission, be
regularly updated to reflect these principles.
75 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 47
147. Furthermore, as discussed in Chapter 2, Ministers can on occasion worsen
the situation by making inappropriate comments about judges or their
judgments, even though the judges are striving to follow sentencing
guidelines and to apply Government legislation. This kind of behaviour by
any minister is unacceptable. In addition, Frances Gibb of The Times told us
that ministers are all too often “peddling the wrong image” of the HRA
(Q 116), a view which echoes the finding of the Joint Committee on Human
Rights that ministers are making “unfounded assertions about the Act” and
using the Act as “a scapegoat for administrative failings in their
departments”.
77
This can increase the public pressure on judges charged with
interpreting an Act which was introduced by this Government, with the
result that, in the words of Paul Dacre, “the perception is that it is the
judges’ fault” (Q 358).
148. It will be clear that we believe it is incumbent on the media as well as
politicians to exercise restraint when commenting on judges or their
judgments. However, this is not to say that the judiciary, particularly with
their greater independence from the executive, can merely stand aloof,
refusing to engage with the media and the public outside the courtroom.
With this in mind, we were disappointed at the reaction of Sir Igor Judge,
President of the Queen’s Bench Division, who told us that he was “very
troubled” about the Judicial Communication Office’s (JCO) ambition to
enhance public confidence in judicial officeholders, explaining that:
“enhancing public confidence is a most difficult concept and it is
particularly difficult … for judges who actually are not in the business of
trying to sell themselves to anyone. If our judgments do not speak for
themselves there is nothing that the Communications Office or the press
office can do” (Q 235).
149. Whilst Sir Igor is of course correct that the words of the judge in the
courtroom are by far the most important way in which the judiciary interact
with the public and the media, Joshua Rozenberg of The Daily Telegraph
commented that “the judges have to work for [respect]. I do not think they
can assume, as perhaps they used to, that it comes automatically with the
role and with the knighthood. That is why public relations is so important
and that is why perhaps it is in the judges’ interests for them to be doing
more in order to retain—and even regain—the public’s confidence” (Q 101).
We have sympathy with this view. The key question is that posed by Lord
Falconer: “how do [the judiciary] connect with, and retain the confidence of
the public, without forfeiting either their independence or their very role in
deciding cases in accordance with the facts before them”?
78 The Role of Individual Judges
150. We now consider the ways in which the judiciary can, do and should
communicate with the public and the media. First, to take individual judges
and their judgments, the Lord Chief Justice warned us that “it ought to be
clear from the judgments in question the process of reasons that has led the
judge or judges to reach their conclusions … and it would not be appropriate
for those who have given the judgment or, indeed, for me to go beyond that”
not have any greater authority really than Home Office lawyers in that
situation” (Q 128). A committee of legal grandees also risks duplicating the
work already carried out by the JCHR, which has an important role in
scrutinising the compatibility of bills with Convention rights and drawing
concerns to the attention of both Parliament and the executive. Moreover,
the House of Lords as currently constituted has an abundance of
distinguished members of the kind outlined above, and can therefore bring
this expertise to bear during the passage of legislation through the House.
108. We do not believe that a committee of distinguished lawyers tasked
with scrutinising legislation for compatibility with Convention rights
is desirable at this time. If, however, at some future time the
composition of the House of Lords changes, this is an idea that may
well merit further consideration.
Advisory Declarations
109. We have already explained why we do not believe that a system of “abstract
review” would not be appropriate in this country. However, this is not to say
that the courts could not exercise a jurisdiction to make advisory
declarations about the compatibility (or otherwise) of legislative provisions
promptly after enactment. Claims for advisory declarations differ from
“abstract review” in that they are brought using ordinary legal procedures,
arise out of a practical situation and the court hears submissions from two or
more parties. The English courts have long been wary of adjudicating on
hypothetical issues, but in 1994 the Law Commission of England and Wales
recognised that advisory declarations had a role to play and Lord Woolf’s
major review of the civil justice system in 1996 recommended that the High
Court should have “an express power to grant advisory declarations when it
is in the public interest to do so. However, this should be limited to cases
where the issue was of public importance and was defined in sufficiently
precise terms, and where the appropriate parties were before the court”.
110. Advisory declarations will be inappropriate in some circumstances. Thus the
High Court recently held that it had no jurisdiction to issue an advisory
declaration (in a case brought by the Campaign for Nuclear Disarmament)
on whether Resolution 1441 of the United Nations Security Council (an
instrument of international rather than national law) authorised states to take
military action in the event of non-compliance by Iraq with its terms.
In
other situations, however, the courts have been willing and able to give
guidance on matters of general public importance. For example, the House
of Lords made a declaration on whether a departmental circular was correct
to state that a pregnancy was “terminated by a registered medical
practitioner”, and therefore lawfully under the Abortion Act 1967, when the
termination is prescribed and initiated by a medical practitioner who remains
in charge of it, and is carried out in accordance with his instructions by
qualified nursing staff.
56
Moreover, the Government has recently shown itself
open to the possibility of identifying a test case to bring an issue of
importance about the HRA to the courts.
57
Therefore, although not a
54 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 37
panacea, it is possible to envisage situations in which an advisory declaration
may provide an opportunity for the courts to give guidance on a question
relating to a Convention right.
111. We recommend that the Government and the judiciary give further
consideration to how advisory declarations might be used to provide
guidance on questions relating to Convention rights.
5538 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
CHAPTER 3: PARLIAMENT AND JUDICIARY
Introduction
112. Section 137 of the CRA, when it is brought into force, will disqualify all
senior serving judges from sitting and voting in the House of Lords.
Although in recent years it has become increasingly rare for the Law Lords
and other senior serving members of the judiciary who hold peerages to
participate in debates in the House of Lords, section 137 will be
constitutionally significant. Moreover, proposals to reform the composition
of the House of Lords may result in there being fewer retired judges in the
House, or possibly none at all. Against this changing background, it is
necessary to consider how the senior judiciary might convey to Parliament
any concerns about legislation or policy.
Laying Written Representations before Parliament
113. The most obvious mechanism to convey such concerns is set out in section 5
of the CRA, which allows the Lord Chief Justice (and the Lord Chief Justice
of Northern Ireland and the Lord President of the Court of Session in
Scotland) to “lay before Parliament written representations on matters that
appear to him to be matters of importance relating to the judiciary, or
otherwise to the administration of justice”.
114. When we asked the current Lord Chief Justice about the circumstances in
which this power should be used, he told us that “this is a power to be
exercised when I really want to draw attention to something that is really
important, not something to be done as a matter of routine. I see this really
as a substitute for what the Lord Chief Justice has been able to do and has
done in the past, which is to address the House on a matter which is
considered sufficiently important to justify that step” (Appendix 8, Q 38).
He went on to describe the power as “a nuclear option” and suggested that it
might be used “if something was proposed by way of legislation that was so
contrary to the rule of law that judges would feel: ‘We have got to step in and
make plain our objection to this’” (QQ 48, 50). Appearing before the House
of Commons Constitutional Affairs Committee on 22 May 2007, the Lord
Chief Justice indicated that in relation to the failure (as he saw it) of the then
Lord Chancellor, Lord Falconer, to provide safeguards following the creation
of the MoJ, he was getting near the point of considering it necessary to use
his section 5 power.
58
115. Perhaps unsurprisingly, Lord Falconer also thought that this power should
be a “nuclear option” and “a rarely used power” which would only come into
play if the judiciary failed to obtain satisfaction through prior discussions
with the executive (Q 61). Indeed, he warned that “if the representations
were used on a routine basis … then I think that would greatly reduce the
effect of the power” (Q 65). He also suggested that the Lord Chief Justice
should only use this power in relation to issues “that touch … the
independence or the position of the judiciary”, including inadequate
resourcing of the court system or undue interference in the judicial RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 39
appointments system (Q 61). Clearly, however, it would be for the
Lord Chief Justice to decide when to use his “nuclear option”.
116. This leads us to ask a question which appears to have received remarkably
little attention: how should the executive and legislature respond if the Lord
Chief Justice were to exercise his right to lay written representations before
Parliament?
117. First, it would seem essential for the executive promptly to present
Parliament with a formal written response to the Lord Chief Justice’s
concerns, probably in the form of a written ministerial statement.
Lord Falconer seemed to accept this, saying “I would have thought there
would have to be a government response” (Q 63). Furthermore, if the
Lord Chief Justice’s concerns relate to a piece of legislation being considered
by Parliament, it might be considered appropriate for the response to be
made before the bill has progressed too far in either House, in order that the
deliberations of MPs and peers can properly be informed.
118. Second, it is clear that Parliament should now give some serious thought in
advance as to how it might treat any written representations from the
Lord Chief Justice, because it would be inadvisable to wait until a
constitutional crisis arises before choosing an appropriate process to
scrutinise the concerns in question. In our view, it would be desirable for
such representations to be published in Hansard and for the bill or policy in
question to be debated on the floor of the House. It might also be useful for
there to be more in-depth scrutiny of the Lord Chief Justice’s concerns in
order to aid the deliberations of the House. In his paper, Professor Bradley
suggested that “when the chief justice … exercises his new right to lay written
representations before … Parliament, this should lead to a hearing before a
committee” (Appendix 4). It might perhaps be appropriate for this
Committee to undertake such a hearing in this House, and for the
Constitutional Affairs Select Committee (or its successor committee) to do
so in the House of Commons. These hearings might include oral evidence
from the Lord Chief Justice himself, the relevant minister and other key
stakeholders.
119. We recommend that any written representations received from the
Lord Chief Justice under section 5 of the Constitutional Reform Act
2005 should be published in Hansard; that the business managers
should find time for the issue to be debated in the House at the
earliest possible opportunity; and that the Government should
respond to such representations in good time before either House has
finished considering the bill or initiative in question. Further, this
Committee will endeavour to scrutinise any such representations in
time to inform deliberations in the House.
Other Ways of Communicating with Parliament
120. Since the Lord Chief Justice’s power to lay written representations before
Parliament is likely to be a rarely-used “nuclear” option, there need to be other
more routine ways in which lesser concerns can be conveyed to Parliament.
The Lord Chief Justice asked, “might there not be a machinery, if there was a
particular topic that I thought it desirable to ventilate, whereby I could let the
appropriate committee know that if they were interested in hearing about this I
would be happy to discuss it?” (Appendix 8, Q 43). Lord Mackay of Clashfern
agreed with this approach, telling us that “more informal procedures such as 40 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
speaking to committees … are more likely to be productive” (Q 180). We
agree that select committees offer a suitable arena for the Lord Chief Justice,
or other senior judges, to air concerns about the administration of justice and
the impact of legislation and other policy proposals upon the courts and the
judiciary. The Lord Chief Justice already appears before this Committee
annually, but we would always be open to additional appearances as necessary
by him and other senior colleagues, and we trust that other committees of both
Houses would take a similar approach.
The Question of Accountability
121. It is now necessary to ascertain how the judiciary should be held accountable.
Professor Bradley warned that “judicial independence requires that judges
are not directly accountable either to the executive or to Parliament for their
decisions. The primary form of accountability comes from four aspects of
judicial process: (a) most court hearings take place in public; (b) judicial
proceedings are usually adversarial; (c) judicial decisions must deal with the
submissions of the parties; and (d) most decisions may be challenged by
appeal to a higher court” (Appendix 4). Therefore, as Professor Vernon
Bogdanor has pointed out, “it is not for Parliament to consider the conduct
of individual judges, nor to hold judges to account for their judgments, nor
to examine the merits of individual appointments or complaints against
judges”.
59
In fact, according to Erskine May, “reflections” may only be cast
upon the conduct of judges in Parliament if there is “a substantive motion,
drawn in proper terms”.
60
122. Nonetheless, subject to these caveats, Professor Bogdanor noted that “it is a
fundamental principle of a democratic society … that those with power
should be accountable to the people, through their elected representatives”.
We would add that the House of Lords has special responsibilities as a
guardian of constitutional values and should thus play a role here as well.
Professor Bogdanor suggested that judges should not be “answerable” to
Parliament in terms of justifying their decisions, but should “answer” to
Parliament through committee appearances—in other words, they should be
accountable to Parliament not in the “sacrificial” sense, but in the
“explanatory” sense. We find this an interesting argument.
61 123. In a previous report, we noted that Parliament was the “apex” of
accountability in the political process.
62 This principle is apt here, since the
public is the judiciary’s key stakeholder and Parliament represents the
people. We have therefore sought to identify ways in which Parliament can
help the judiciary to remain accountable. Since the Lord Chancellor is no
longer head of the judiciary and therefore cannot answer to Parliament on its
behalf, Parliament must hold the judiciary accountable in other ways.
The Role of Select Committees
124. Select committees, especially this Committee and the Constitutional Affairs
Select Committee (or its successor committee) in the House of Commons,
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 41
can play an important role in holding the judiciary to account by questioning
judges in public. Our Committee has already adopted the practice of inviting
the Lord Chief Justice to appear before us on an annual basis, and there is
scope for taking evidence from other senior judges. Committees must be
sensitive to the caveats mentioned above, and the need for the judiciary not
to become involved in overtly political questions, but judges themselves
should be aware of which subject areas they can appropriately discuss.
Indeed, Parliament and the judiciary have agreed a set of internal guidelines
to help judges appearing before committees.
125. It is clearly acceptable for committees to question judges on the
administration of the justice system and the way in which the judiciary is
managed. In addition, it may be desirable for discussions to range beyond
such issues, with judges being asked about their opinions on broad legal
questions such as the use of comparative law, the distinction between
sections 3 and 4 of the HRA and the wider interpretation of the Pepper v
Hart judgment.
63
Indeed, given that many judges’ views on issues such as
these are already in the public domain in the form of articles and speeches, it
would be odd if Parliament was denied the opportunity to probe such
opinions in more detail. As Professor Bogdanor commented, judges “should
not object to discussing [their] views in a parliamentary forum, in the cause
of greater public understanding”.
64
However, it would be inappropriate for
committees to question judges on the pros and cons of particular judgments.
126. We believe that select committees can play a central part in enabling
the role and proper concerns of the judiciary to be better understood
by the public at large, and in helping the judiciary to remain
accountable to the people via their representatives in Parliament. Not
only should senior judges be questioned on the administration of the
justice system, they might also be encouraged to discuss their views
on key legal issues in the cause of transparency and better
understanding of such issues amongst both parliamentarians and the
public. However, under no circumstances must committees ask
judges to comment on the pros and cons of individual judgments.
A Parliamentary Committee on the Judiciary
127. This leads us to the question of whether there should be a committee tasked
solely with scrutinising the judiciary. In 2004, the Select Committee on the
Constitutional Reform Bill concluded: “the Committee agrees that it is
desirable for a committee of Parliament to act as a bridge between
Parliament and the judiciary, particularly in the event of the senior judges
being excluded from the House. Such a committee should not seek to hold
individual judges to account. The advantages of a statutory committee were
not obvious to the Committee and a clear majority preferred the joint
committee option. We recognise that Parliament itself will wish to consider
this issue further.”
65
Three years later, no such committee has been formed.
128. The Lord Chief Justice, when asked about the possible creation of such a
committee, felt that it was “an option that merits consideration” because
63
64
65
See http://www.parliament.uk/commons/lib/research/notes/snpc-00392.pdf for further information.
See http://www.ukpac.org/bogdanor_speech.htm.
Select Committee on the Constitutional Reform Bill, First Report of Session 2003–04 (HL Paper 125-I),
para 420.
42 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
“Parliament is certainly justified in expecting some way of communicating
with the judiciary” (Appendix 8, Q 40). Good communications are indeed
both desirable and necessary, because there must be a mechanism for
effective parliamentary oversight of, and two-way dialogue with, the judiciary
now that there is essentially no judicial representation in the legislature.
However, given that judicial affairs are an important element of the
constitution, it might be argued that this Committee and the Constitutional
Affairs Committee (or its successor committee) in the House of Commons
could provide the fora for such communications. On the other hand, a new
joint committee could lighten the burden on both the judiciary itself and the
two constitution committees.
129. We are not currently convinced of the need for a joint committee on
the judiciary, but we shall keep the situation under review, not least in
evaluating our Committee’s effectiveness in providing the necessary
oversight and contact. The Constitutional Affairs Select Committee
in the House of Commons also has an important role to play.
Post-legislative Scrutiny
130. A recent and interesting development in Parliament is select committee
inquiries into the way in which the courts are interpreting and applying
legislation. In the past three years, the Joint Committee on Human Rights
have twice investigated the courts’ approach to defining the terms “public
authority” and “function of a public nature” in section 6 of the HRA.
The
Joint Committee reached the conclusion that the leading judgments of the
courts had given those terms an overly narrow meaning and as a result the
true intention of Parliament was not being given effect. With growing
awareness of the importance of post-legislative scrutiny,
67
it is likely that in
future similar inquiries will consider the judicial interpretation of
parliamentary legislation in other contexts. However, we are concerned that
post-legislative scrutiny has still not become the “common feature” that we
concluded it should be in an earlier report.
68
We repeat our earlier
conclusion that post-legislative scrutiny is highly desirable and should
be undertaken far more generally. This would boost the level of
constructive dialogue between Parliament and the courts.
Confirmation Hearings
131. Our inquiry has not focused on judicial appointments as it would have been
premature to do so: the Judicial Appointments Commission of England and
Wales has only recently begun to operate and the selection commission that
will seek Justices of the Supreme Court of the United Kingdom will not
begin its work until some time after October 2009 (the anticipated date on
which Part 3 of the CRA will come into force, transferring functions from the
Appellate Committee of the House of Lords to the new court).
66 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 43
132. No account of communications between the judiciary and Parliament would
be complete, however, without mention of confirmation hearings. In a
number of constitutional systems there is a requirement or convention that
appointees to high judicial office appear in front of a committee of the
legislature before being confirmed in their post. However, the possibility of
confirmation hearings (or appearances before a select committee soon after
appointment) was canvassed during the passage of the Constitutional Reform
Bill and firmly rejected.
69
133. Nonetheless, we note three developments. The first is the proposed creation
for the first time in the United Kingdom of a statutory requirement for
confirmation hearings, albeit in the very different context of appointments
made by the Mayor of London.
70
The second is the announcement in 2006
by the Prime Minister of Canada that his candidate for a Supreme Court of
Canada vacancy (Justice Marshall Rothstein of the Federal Court of Appeal)
had agreed to appear before an ad hoc committee of the Canadian House of
Commons, chaired by a judge and law professor who were not MPs. A
televised hearing was held in which Justice Rothstein answered questions
about himself and his view of the role of the Supreme Court of Canada.
134. The third and most important development is the proposal of the MoJ in
their Green Paper The Governance of Britain to introduce pre-appointment or
post-appointment committee hearings for certain key public posts. The
Green Paper also refers to judicial appointments in the following terms: “The
Government is willing to look at the future of its role in judicial
appointments: to consider going further than the present arrangement,
including conceivably a role for Parliament itself, after consultation with the
judiciary, Parliament and the public, if it is felt there is a need”.
However,
when asked about this point, Baroness Ashton, Leader of the House of
Lords, told peers that “to my knowledge there is absolutely no intention” of
introducing pre-appointment hearings for judges.
73
Whilst we embrace this
assurance from Baroness Ashton, we are concerned that it does not tally with
the wording of the Green Paper.
135. We urge the Government to clarify their position on the introduction
of appointment hearings for judges at the earliest opportunity, since
this would be an innovation with very profound implications for the
independence of the judiciary and the new judicial appointments
system.
An Annual Report on the Judiciary
136. An additional device to facilitate effective scrutiny would be an annual report
by the judiciary of England and Wales to be laid before Parliament. Although
numerous different parts of the judiciary already produce annual reports,
there would also be value in having one consolidated report on behalf of the
judiciary as a whole. The Lord Chief Justice told us in May 2006 that this “is
something we are considering” (Appendix 8, Q 39) and then on 17 July 2007
72
7144 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
he announced that the Judicial Executive Board had agreed to produce such
an annual report to be laid before Parliament. Although the mechanism for
laying such a report has yet to be determined, we suggest that it should be
laid under section 5 of the CRA so that it has a formal status.
137. The question of what should be contained in the report is primarily a matter
for the judiciary. However, it might make sense for it to contain an overview
of issues relating to the administration of justice—including the funding of
the courts and the activities of the Judicial Office—and perhaps an account of
concerns amongst the senior judiciary on matters such as sentencing policy.
138. Once the report is laid before Parliament, both Houses should debate it,
perhaps after the report has been considered and commented upon by our
Committee and the Constitutional Affairs Select Committee (or its successor
committee) in the House of Commons. Moreover, Lord Mackay of
Clashfern suggested that upon publication of the report, “the Lord Chief
Justice would probably give a press conference, explaining the report and
answering any questions that might be raised about it by the press” (Q 180).
139. We welcome the Judicial Executive Board’s decision that the Lord
Chief Justice should lay an annual report before Parliament, an
innovation which this Committee had discussed with the Lord Chief
Justice and other senior judges in the course of our deliberations. We
suggest that the annual report should be formally laid under section 5
of the Constitutional Reform Act. We further suggest that the report
might encompass administrative issues and—where appropriate—
areas of concern about the justice system, provided that there is no
discussion of individual cases. We believe that the report will provide
a useful opportunity for both Houses of Parliament to debate these
matters on an annual basis, and for the Lord Chief Justice to engage
effectively with parliamentarians and the public.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 45
CHAPTER 4: JUDICIARY, MEDIA AND PUBLIC
Introduction
140. It is essential that the judiciary should engage effectively with the public in
order to maintain confidence in judges and the parts of the justice system for
which they are responsible. Before considering how this can best be done, it
is sensible to assess how the judiciary are currently perceived by the public.
Public Perceptions
141. Unfortunately, as Professor Dame Hazel Genn explained, there is “little
information … about attitudes to the judiciary in England and Wales”
because “there has been no sustained tradition of investment in research”
(Q 308). However, on the basis of what limited information there is, she told
us that “the public believe or know that the judiciary are not corrupt, that
they do not tell lies, that they are independent, the public trusts them to
apply the law impartially”. And whilst the public also believe that judges are
somewhat out-of-touch, Dame Hazel rightly pointed out that “the fact that
people say, ‘I think they seem a bit out-of-touch, I am not sure that they
really know what goes on in the real world’ is not inconsistent with saying ‘I
trust them’ and I think they do trust them and what we see from … polls is
that by comparison with other institutions they trust the judiciary very much”
(Q 306). Moreover, the advent of the Judicial Appointments Commission,
bringing greater transparency to the selection of judges and attempting to
encourage applicants “from the widest range of backgrounds”, should help to
increase public confidence in the judiciary still further (Q 327).
142. However, whilst public confidence in judges appears generally to be holding
up, attitudes may be shifting. A panel of legal journalists told us that judges
are increasingly seen as “too left-wing, too bleeding liberal, too wet” and
“too pro-human rights and too soft”. They also pointed to a perception that
“the Government tries to get tough and do things to help the public and the
judges sabotage it” (Q 95). Frances Gibb, Legal Editor of The Times, added
that people are more willing to speak out nowadays because “it is not off
limits to attack anyone in authority in the way it might have been 30 years
ago” (Q 100).
143. Similarly, Paul Dacre, editor of the Daily Mail, felt that whilst “the public
still have huge faith in the independence and integrity and incorruptibility of
the British judiciary”, they are becoming “slightly confused” because they see
“political judgments being made by judges which fly in the face of what they
perceive as national interests” and “an increasingly lenient judiciary, handing
down lesser and lesser sentences”. In his view, the public “still have great
faith in the judiciary but there are worries that it is not reflecting their values
and their instincts” (Q 335). To support these claims, Mr Dacre
commissioned an ICM poll in advance of his appearance which found that,
of the more than 1,000 members of the public questioned, only 18 per cent
had faith that the sentences they wanted passed against criminals would be
reflected by the courts whilst 75 per cent felt that sentences were too lenient
(Q 353).
144. In some cases, public attitudes towards the judiciary—whether positive or
negative—can stem from ignorance of how the justice system works. As
46 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
Dame Hazel said, “people are [not] taught properly about the justice system,
about the judiciary and about the difference between civil and criminal
courts at school, it is not something that we are brought up on”. As a result,
“people grow up in relative ignorance about what the justice system is there
for and what it does”. Whilst some people will have first hand experience of
the justice system, most people draw their knowledge of the judiciary and
their opinions from the media, and “the danger with that is, of course, that
the reporting in the media and representations on the television are very
selective, they are rather haphazard” (Q 308). Indeed, media coverage of the
judiciary tends to focus on controversial or damaging stories and cases,
because “a story about a judge behaving with outstanding levels of
professionalism in court is not going to make news in the same way as a
doctor performing an operation absolutely beautifully does not make news”
(Q 309).
145. Given their important role in shaping attitudes towards the judiciary and the
justice system, the media have a duty to report proceedings accurately and
fairly. However, certain sections of the media might be said to abuse this
position of responsibility by attacking individual judges or the judiciary as a
whole for carrying out their obligations by implementing the HRA or
following sentencing guidelines. For example, the High Court ruled in May
2006 that the nine Afghan nationals who had hijacked an aeroplane should
have discretionary leave to remain in the United Kingdom under the HRA.
The following day, the Daily Express printed a leader in the following terms:
“Using the European Convention on Human Rights as cover, Mr Justice
Sullivan made a ruling which many will regard as tantamount to a judicial
coup against Parliament … Britain’s out-of-touch judges are increasingly
using the Human Rights Act as a means of asserting their will over our
elected representatives”.
74
Similarly, a Daily Mail editorial in 2003 asserted
that “Britain’s unaccountable and unelected judges are openly, and with
increasing arrogance and perversity, usurping the role of Parliament, setting
the wishes of the people at nought and pursuing a liberal, politically correct
agenda of their own, in their zeal to interpret European legislation”.
This
kind of rhetoric is misleading and wholly inappropriate, showing no regard
for the consequences. As Lord Falconer has said, it has “an impact in
undermining confidence in the judiciary”.
76 146. We believe that the media, especially the popular tabloid press, all too
often indulge in distorted and irresponsible coverage of the judiciary,
treating judges as “fair game”. A responsible press should show
greater restraint and desist from blaming judges for their
interpretation of legislation which has been promulgated by
politicians. If the media object to a judgment or sentencing decision,
we suggest they focus their efforts on persuading the Government to
rectify the legal and policy framework. In order to ensure more
responsible reporting, we recommend that the Editors’ Code of
Practice, which is enforced by the Press Complaints Commission, be
regularly updated to reflect these principles.
75 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 47
147. Furthermore, as discussed in Chapter 2, Ministers can on occasion worsen
the situation by making inappropriate comments about judges or their
judgments, even though the judges are striving to follow sentencing
guidelines and to apply Government legislation. This kind of behaviour by
any minister is unacceptable. In addition, Frances Gibb of The Times told us
that ministers are all too often “peddling the wrong image” of the HRA
(Q 116), a view which echoes the finding of the Joint Committee on Human
Rights that ministers are making “unfounded assertions about the Act” and
using the Act as “a scapegoat for administrative failings in their
departments”.
77
This can increase the public pressure on judges charged with
interpreting an Act which was introduced by this Government, with the
result that, in the words of Paul Dacre, “the perception is that it is the
judges’ fault” (Q 358).
148. It will be clear that we believe it is incumbent on the media as well as
politicians to exercise restraint when commenting on judges or their
judgments. However, this is not to say that the judiciary, particularly with
their greater independence from the executive, can merely stand aloof,
refusing to engage with the media and the public outside the courtroom.
With this in mind, we were disappointed at the reaction of Sir Igor Judge,
President of the Queen’s Bench Division, who told us that he was “very
troubled” about the Judicial Communication Office’s (JCO) ambition to
enhance public confidence in judicial officeholders, explaining that:
“enhancing public confidence is a most difficult concept and it is
particularly difficult … for judges who actually are not in the business of
trying to sell themselves to anyone. If our judgments do not speak for
themselves there is nothing that the Communications Office or the press
office can do” (Q 235).
149. Whilst Sir Igor is of course correct that the words of the judge in the
courtroom are by far the most important way in which the judiciary interact
with the public and the media, Joshua Rozenberg of The Daily Telegraph
commented that “the judges have to work for [respect]. I do not think they
can assume, as perhaps they used to, that it comes automatically with the
role and with the knighthood. That is why public relations is so important
and that is why perhaps it is in the judges’ interests for them to be doing
more in order to retain—and even regain—the public’s confidence” (Q 101).
We have sympathy with this view. The key question is that posed by Lord
Falconer: “how do [the judiciary] connect with, and retain the confidence of
the public, without forfeiting either their independence or their very role in
deciding cases in accordance with the facts before them”?
78 The Role of Individual Judges
150. We now consider the ways in which the judiciary can, do and should
communicate with the public and the media. First, to take individual judges
and their judgments, the Lord Chief Justice warned us that “it ought to be
clear from the judgments in question the process of reasons that has led the
judge or judges to reach their conclusions … and it would not be appropriate
for those who have given the judgment or, indeed, for me to go beyond that”
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