54 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
CHAPTER 5: CONCLUSIONS AND RECOMMENDATIONS
Executive and Judiciary
Managing the Tensions
172. The Sweeney case was the first big test of whether the new relationship
between the Lord Chancellor and the judiciary was working properly, and it
is clear that there was a systemic failure. Ensuring that ministers do not
impugn individual judges, and restraining and reprimanding those who do, is
one of the most important duties of the Lord Chancellor. In this case, Lord
Falconer did not fulfil this duty in a satisfactory manner. The senior judiciary
could also have acted more quickly to head off the inflammatory and unfair
press coverage which followed the sentencing decision. (Paragraph 49)
173. The key to harmonious relations between the judiciary and the executive is
ensuring that ministers do not violate the independence of the judiciary in
the first place. To this end, we recommend that when the Ministerial Code is
next revised the Prime Minister should insert strongly worded guidelines
setting out the principles governing public comment by ministers on
individual judges. (Paragraph 51)
Constitutional Change
174. We agree that the advent of the Ministry of Justice, whilst obviously a
machinery of government change, has significant constitutional implications.
(Paragraph 60)
175. We are disappointed that the Government seem to have learnt little or
nothing from the debacle surrounding the constitutional reforms initiated in
2003. The creation of the Ministry of Justice clearly has important
implications for the judiciary. The new dispensation created by the
Constitutional Reform Act and the Concordat requires the Government to
treat the judiciary as partners, not merely as subjects of change. By omitting
to consult the judiciary at a sufficiently early stage, by drawing the
parameters of the negotiations too tightly and by proceeding with the
creation of the new Ministry before important aspects had been resolved, the
Government failed to do this. Furthermore, the subsequent request made by
the judiciary for a fundamental review of the position in the light of the
creation of the Ministry of Justice was in our view a reasonable one to which
the Government should have acceded in a spirit of partnership.
(Paragraph 67)
176. We believe that the role of Lord Chancellor is of central importance to the
maintenance of judicial independence and the rule of law. Prime Ministers
must therefore ensure that they continue to appoint to the post candidates of
sufficient status and seniority. (Paragraph 71)
177. We sincerely hope that constitutional affairs remain central to the Ministry of
Justice’s responsibilities and are not downgraded in importance compared to
the other duties of the Ministry. (Paragraph 74)
178. 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 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 55
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. (Paragraph 83)
179. 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. (Paragraph 87)
Human Rights Act
Ministerial Compatibility Statements and Parliamentary Scrutiny
180. 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. (Paragraph 90)
Greater Guidance to the Executive from the Courts?
181. Whilst we have sympathy with the difficulties outlined by Charles Clarke in
relation to the Human Rights Act, his call for meetings between the Law
Lords and the Home Secretary risks an unacceptable breach of the principle
of judicial independence. It is essential that the Law Lords, as the court of
last resort, should not even be perceived to have prejudged an issue as a
result of communications with the executive. (Paragraph 97)
Should there be a System of Abstract Review?
182. Whilst a system of “abstract review” of legislation might seem attractive in
some respects, we believe that it could compromise the impartiality of the
senior judiciary and that it would not in any case prevent successful
challenges under the Human Rights Act to ministerial exercise of statutory
powers. (Paragraph 106)
Review of Bills by a Committee of Distinguished Lawyers
183. 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.
(Paragraph 108)
Advisory Declarations
184. 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. (Paragraph 111) Parliament and Judiciary
Laying Written Representations before Parliament
185. 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.
(Paragraph 119)
The Question of Accountability
The Role of Select Committees
186. 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. (Paragraph 126)
A Parliamentary Committee on the Judiciary
187. 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. (Paragraph 129)
Post-legislative Scrutiny
188. 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.
(Paragraph 130)
Confirmation Hearings
189. 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. (Paragraph 135)
An Annual Report on the Judiciary
190. 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 seniorjudges 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. (Paragraph 139)
Judiciary, Media and Public
Public Perceptions
191. 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. (Paragraph 146)
The Role of Individual Judges
192. Whilst judges should never be asked to justify their decisions outside the
courtroom, it is desirable for them to communicate with the public and the media
on appropriate issues. We therefore strongly encourage the occasional use of
media releases alongside judgments, as for example in the Charlotte Wyatt case.
Further, we cannot see any reason why judges should not co-operate with the
media on features about their activities outside the courtroom, if they so wish.
However, we are strongly of the opinion that whatever the media pressure, judges
should not give off-the-record briefings. (Paragraph 155)
The Role of the Lord Chief Justice
193. It is wholly within the discretion of the Lord Chief Justice to determine how
he can most effectively communicate with the media and the public.
However, we suggest that he may from time to time need to re-appraise his
strategy in light of the new constitutional relationship between the judiciary,
the executive and Parliament. We believe that, in these days of greater
separation of powers, it is highly desirable for him to ensure that the views of
the judiciary are effectively conveyed to the public. (Paragraph 160)
The Role of the Judicial Communications Office
194. We conclude that the judges should consider making the Judicial
Communications Office more active and assertive in its dealings with the media in
order to represent the judiciary effectively. We suggest that consideration be given
to appointing one or more spokesmen with appropriate qualifications and legal
experience who would be permitted to speak to the media with the aim of
securing coverage which accurately reflects the judgment or sentencing decision.
However, under no circumstances should such spokesmen seek to justify
decisions as opposed to explaining them. (Paragraph 171)
58 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
APPENDIX 1: SELECT COMMITTEE ON THE CONSTITUTION
The Members of the Committee which conducted this inquiry were:
Viscount Bledisloe
Lord Carter (until 18 December 2006)
Lord Goodlad
Lord Holme of Cheltenham (Chairman)
Lord Lyell of Markyate
Lord Morris of Aberavon
Baroness O’Cathain
Lord Peston
Baroness Quin (from 19 February 2007)
Lord Rowlands
Lord Smith of Clifton
Lord Windlesham
Lord Woolf
Declaration of interests
Viscount Bledisloe
Barrister (QC) in private practice
Lord Holme of Cheltenham
Chairman, Hansard Society for Parliamentary Government (until
19 June 2007)
Lord Lyell of Markyate
Attorney General 1992–97
Solicitor General 1987–92
Barrister (QC) in private practice
Lord Morris of Aberavon
Attorney General 1997–99
Lord Peston
Chairmen of the Pharmaceutical Price Regulation Scheme Arbitration
Vice President, Speakability
Baroness Quin
Minister of State, Home Office 1997–98
Lord Windlesham
Minister of State, Home Office 1970–72
Lord Privy Seal and Leader of the House of Lords 1973–74
Lord Woolf
Lord Chief Justice of England and Wales 2000–05
Holder of judicial offices
Chairman, Committee of Inquiry into BAE Systems’ business ethics
APPENDIX 2: LIST OF WITNESSES
The following witnesses gave evidence:
Rt Hon Charles Clarke MP
Mr Paul Dacre, Editor, Daily Mail
Professor Terence Daintith, Emeritus Professor of Law, University of London
Ms Clare Dyer, Legal Editor, The Guardian
Rt Hon Lord Falconer of Thoroton, Lord Chancellor and Secretary of State for
Justice (until 27 June 2007)
Mr Peter Farr, Chief Public Information Officer, Judicial Communications Office
Professor Dame Hazel Genn
Ms Frances Gibb, Legal Editor, The Times
Professor Robert Hazell, Director, Constitution Unit, University College London
Rt Hon Sir Igor Judge, President of the Queen’s Bench Division and Head of
Criminal Justice
Rt Hon Lord Lloyd of Berwick
Rt Hon Lord Mackay of Clashfern
Professor Alan Page, Professor of Public Law and Dean of the School of Law,
University of Dundee
Dr Matthew Palmer
Rt Hon Lord Phillips of Worth Matravers, Lord Chief Justice of England and
Wales
Mr Joshua Rozenberg, Legal Editor, The Daily Telegraph
Rt Hon Lord Justice Thomas
Mr Mike Wicksteed, Head of Judicial Communications, Judicial Communications
Office
CHAPTER 5: CONCLUSIONS AND RECOMMENDATIONS
Executive and Judiciary
Managing the Tensions
172. The Sweeney case was the first big test of whether the new relationship
between the Lord Chancellor and the judiciary was working properly, and it
is clear that there was a systemic failure. Ensuring that ministers do not
impugn individual judges, and restraining and reprimanding those who do, is
one of the most important duties of the Lord Chancellor. In this case, Lord
Falconer did not fulfil this duty in a satisfactory manner. The senior judiciary
could also have acted more quickly to head off the inflammatory and unfair
press coverage which followed the sentencing decision. (Paragraph 49)
173. The key to harmonious relations between the judiciary and the executive is
ensuring that ministers do not violate the independence of the judiciary in
the first place. To this end, we recommend that when the Ministerial Code is
next revised the Prime Minister should insert strongly worded guidelines
setting out the principles governing public comment by ministers on
individual judges. (Paragraph 51)
Constitutional Change
174. We agree that the advent of the Ministry of Justice, whilst obviously a
machinery of government change, has significant constitutional implications.
(Paragraph 60)
175. We are disappointed that the Government seem to have learnt little or
nothing from the debacle surrounding the constitutional reforms initiated in
2003. The creation of the Ministry of Justice clearly has important
implications for the judiciary. The new dispensation created by the
Constitutional Reform Act and the Concordat requires the Government to
treat the judiciary as partners, not merely as subjects of change. By omitting
to consult the judiciary at a sufficiently early stage, by drawing the
parameters of the negotiations too tightly and by proceeding with the
creation of the new Ministry before important aspects had been resolved, the
Government failed to do this. Furthermore, the subsequent request made by
the judiciary for a fundamental review of the position in the light of the
creation of the Ministry of Justice was in our view a reasonable one to which
the Government should have acceded in a spirit of partnership.
(Paragraph 67)
176. We believe that the role of Lord Chancellor is of central importance to the
maintenance of judicial independence and the rule of law. Prime Ministers
must therefore ensure that they continue to appoint to the post candidates of
sufficient status and seniority. (Paragraph 71)
177. We sincerely hope that constitutional affairs remain central to the Ministry of
Justice’s responsibilities and are not downgraded in importance compared to
the other duties of the Ministry. (Paragraph 74)
178. 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 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 55
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. (Paragraph 83)
179. 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. (Paragraph 87)
Human Rights Act
Ministerial Compatibility Statements and Parliamentary Scrutiny
180. 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. (Paragraph 90)
Greater Guidance to the Executive from the Courts?
181. Whilst we have sympathy with the difficulties outlined by Charles Clarke in
relation to the Human Rights Act, his call for meetings between the Law
Lords and the Home Secretary risks an unacceptable breach of the principle
of judicial independence. It is essential that the Law Lords, as the court of
last resort, should not even be perceived to have prejudged an issue as a
result of communications with the executive. (Paragraph 97)
Should there be a System of Abstract Review?
182. Whilst a system of “abstract review” of legislation might seem attractive in
some respects, we believe that it could compromise the impartiality of the
senior judiciary and that it would not in any case prevent successful
challenges under the Human Rights Act to ministerial exercise of statutory
powers. (Paragraph 106)
Review of Bills by a Committee of Distinguished Lawyers
183. 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.
(Paragraph 108)
Advisory Declarations
184. 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. (Paragraph 111) Parliament and Judiciary
Laying Written Representations before Parliament
185. 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.
(Paragraph 119)
The Question of Accountability
The Role of Select Committees
186. 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. (Paragraph 126)
A Parliamentary Committee on the Judiciary
187. 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. (Paragraph 129)
Post-legislative Scrutiny
188. 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.
(Paragraph 130)
Confirmation Hearings
189. 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. (Paragraph 135)
An Annual Report on the Judiciary
190. 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 seniorjudges 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. (Paragraph 139)
Judiciary, Media and Public
Public Perceptions
191. 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. (Paragraph 146)
The Role of Individual Judges
192. Whilst judges should never be asked to justify their decisions outside the
courtroom, it is desirable for them to communicate with the public and the media
on appropriate issues. We therefore strongly encourage the occasional use of
media releases alongside judgments, as for example in the Charlotte Wyatt case.
Further, we cannot see any reason why judges should not co-operate with the
media on features about their activities outside the courtroom, if they so wish.
However, we are strongly of the opinion that whatever the media pressure, judges
should not give off-the-record briefings. (Paragraph 155)
The Role of the Lord Chief Justice
193. It is wholly within the discretion of the Lord Chief Justice to determine how
he can most effectively communicate with the media and the public.
However, we suggest that he may from time to time need to re-appraise his
strategy in light of the new constitutional relationship between the judiciary,
the executive and Parliament. We believe that, in these days of greater
separation of powers, it is highly desirable for him to ensure that the views of
the judiciary are effectively conveyed to the public. (Paragraph 160)
The Role of the Judicial Communications Office
194. We conclude that the judges should consider making the Judicial
Communications Office more active and assertive in its dealings with the media in
order to represent the judiciary effectively. We suggest that consideration be given
to appointing one or more spokesmen with appropriate qualifications and legal
experience who would be permitted to speak to the media with the aim of
securing coverage which accurately reflects the judgment or sentencing decision.
However, under no circumstances should such spokesmen seek to justify
decisions as opposed to explaining them. (Paragraph 171)
58 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
APPENDIX 1: SELECT COMMITTEE ON THE CONSTITUTION
The Members of the Committee which conducted this inquiry were:
Viscount Bledisloe
Lord Carter (until 18 December 2006)
Lord Goodlad
Lord Holme of Cheltenham (Chairman)
Lord Lyell of Markyate
Lord Morris of Aberavon
Baroness O’Cathain
Lord Peston
Baroness Quin (from 19 February 2007)
Lord Rowlands
Lord Smith of Clifton
Lord Windlesham
Lord Woolf
Declaration of interests
Viscount Bledisloe
Barrister (QC) in private practice
Lord Holme of Cheltenham
Chairman, Hansard Society for Parliamentary Government (until
19 June 2007)
Lord Lyell of Markyate
Attorney General 1992–97
Solicitor General 1987–92
Barrister (QC) in private practice
Lord Morris of Aberavon
Attorney General 1997–99
Lord Peston
Chairmen of the Pharmaceutical Price Regulation Scheme Arbitration
Vice President, Speakability
Baroness Quin
Minister of State, Home Office 1997–98
Lord Windlesham
Minister of State, Home Office 1970–72
Lord Privy Seal and Leader of the House of Lords 1973–74
Lord Woolf
Lord Chief Justice of England and Wales 2000–05
Holder of judicial offices
Chairman, Committee of Inquiry into BAE Systems’ business ethics
APPENDIX 2: LIST OF WITNESSES
The following witnesses gave evidence:
Rt Hon Charles Clarke MP
Mr Paul Dacre, Editor, Daily Mail
Professor Terence Daintith, Emeritus Professor of Law, University of London
Ms Clare Dyer, Legal Editor, The Guardian
Rt Hon Lord Falconer of Thoroton, Lord Chancellor and Secretary of State for
Justice (until 27 June 2007)
Mr Peter Farr, Chief Public Information Officer, Judicial Communications Office
Professor Dame Hazel Genn
Ms Frances Gibb, Legal Editor, The Times
Professor Robert Hazell, Director, Constitution Unit, University College London
Rt Hon Sir Igor Judge, President of the Queen’s Bench Division and Head of
Criminal Justice
Rt Hon Lord Lloyd of Berwick
Rt Hon Lord Mackay of Clashfern
Professor Alan Page, Professor of Public Law and Dean of the School of Law,
University of Dundee
Dr Matthew Palmer
Rt Hon Lord Phillips of Worth Matravers, Lord Chief Justice of England and
Wales
Mr Joshua Rozenberg, Legal Editor, The Daily Telegraph
Rt Hon Lord Justice Thomas
Mr Mike Wicksteed, Head of Judicial Communications, Judicial Communications
Office
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