30 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
82. Whilst greater judicial involvement in setting the courts budget might seem
desirable, we do draw attention to a caveat set out by Professor Terence
Daintith. He warned us that he would expect “judges always to be saying
that they wanted more money for the Courts Service than the department or
the Treasury were prepared ab initio to give”, resulting in “a situation where
there was at least an odour of disagreement floating around”. He felt that
there could be “a quite difficult constitutional situation, year by year, in
relation to the fixing of this budget” and suggested that if the judges “can
stay out of it somehow … that would be perhaps the best way through, but
my understanding is that they do not really want to stay out of it” (Q 494).
83. The integrity of the legal system depends on it being properly funded.
We consider it one of the vital tasks of the Lord Chancellor to ensure
that the Courts Service and Legal Aid budgets uphold that integrity.
Whilst it is not for us to suggest how the courts budget should be
agreed in future, we do urge the Lord Chancellor to ensure that it
receives maximum protection from short-term budgetary pressures
upon and within the new Ministry. Moreover, the budget-setting
process must be transparent and the judiciary must be fully involved,
both in determining the process and in its implementation.
84. Finally, we consider the status of Her Majesty’s Courts Service (HMCS), an
issue which has been highlighted by the judiciary in the context of
discussions over the MoJ even though the issue was excluded from the remit
of the working group. Indeed, the Lord Chief Justice felt that the question of
the status of HMCS “has become a fundamental difference between [the
judiciary and the Government]”. He told the House of Commons
Constitutional Affairs Committee that HMCS “owes a duty to its minister,
but we have urged that the duty it owes to its minister is to discharge the
duty that the minister owes to us; that is to provide the judiciary with the
resources that they need to provide the public with an efficient and effective
system of justice”. Therefore, “its primary loyalty really ought to be to us”.
85. Lord Justice Thomas expanded on this point, telling us that in Ireland, the
Netherlands and Denmark an “autonomous court administration with a
greater degree of judicial participation” had been “very successful”, and
concluding that “a new structure akin to these models is, in the view of the
judiciary, a constitutional safeguard made necessary by the Ministry of
Justice” (Q 374).
86. Reflecting on the motivation behind the concerns expressed by the senior
judiciary in relation to HMCS, Professor Robert Hazell told us that “the
gradual separation between the executive and the judiciary … was always
going to be a process and not a single event, and I believe that it was bound
in time to lead to demands from the judiciary for further separation, and
those demands are now beginning to emerge, so although the Ministry of
Justice has provided the occasion for those demands to be formulated by the
judiciary, I do not myself believe that the Ministry of Justice is itself the
cause”. He also reminded us that “there is a recent trend throughout
northern Europe to introduce greater separation of powers between the
executive and the judiciary, and as part of that to give the judges greater
responsibility and control for managing the court service” (Q 472).
4687. We are not convinced by the judiciary’s claims that the creation of the
Ministry of Justice lends any additional urgency to their desire for an
autonomous court administration. However, the status of Her
Majesty’s Courts Service is of central importance to the
administration of justice, and we urge the Government to engage
meaningfully with the judiciary on this issue in order to find a
mutually acceptable way forward.
Human Rights Act
“Dialogue” in Relation to Convention Rights
88. The HRA creates a dispensation under which the executive, Parliament and
the judiciary each has a distinctive role in ensuring that policy and legislation
complies with the European Convention on Human Rights. In relation to bills
introduced to Parliament, the HRA requires ministers to make a statement
that the bill is (or is not) compatible with Convention rights. This statement is
then tested by the Joint Committee on Human Rights (JCHR) and other
committees, and through scrutiny of the bill on the floor of both Houses. After
enactment, aggrieved citizens who allege that they are victims of a violation of
a Convention right may start legal proceedings in the appropriate court. The
interaction between the different branches of the state about Convention rights
can be regarded as a form of “dialogue”, as Dr Matthew Palmer explained
(QQ 502–504). During the course of our inquiry we identified a number of
criticisms about the efficacy of this dialogue, to which we now turn.
Ministerial Compatibility Statements and Parliamentary Scrutiny
89. Section 19 of the HRA requires the minister in charge of a bill in each House
to make a statement, which is in practice published on the face of the bill,
that in his view the provisions of the bill “are compatible with the
Convention rights” or (something that has not yet occurred) to make a
statement to the contrary. Section 19 statements were envisaged to be an
important part of the HRA, enabling the executive to signal to Parliament
and—important from the perspective of our inquiry—to the courts that a
proper assessment of the human rights implications of legislation had been
carried out. Although the terms of the government’s advice as to the
compatibility of proposed legislation are not disclosed, the explanatory notes
to bills summarise the government’s view of which rights are in issue and why
the bill does not breach them.
90. Notwithstanding ministerial statements under section 19, there have been
cases in which it is clear that ministers have initially adopted a far too
optimistic view about the compatibility of provisions in a bill. Although few
statutory provisions enacted since the HRA came into force have been
subject to declarations of incompatibility by the courts,
47 on a number of
32 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
occasions the Government has had to make or accept major amendments to
bills to bring them into line with Convention rights (as Parliament views
them). For example, they replaced the “ouster” clause in the Asylum and
Immigration (Treatment of Claimants etc.) Act 2004 after strong
representations from the JCHR and others. Where a department has any
doubt about compatibility of a bill with Convention rights, ministers
should seek the involvement of the Law Officers at a formative stage
of policy-making and legislative drafting.
91. Reports of the JCHR are vital in drawing the attention of both Houses to
possible compatibility problems. It is not, however, always clear that the
Committee has sufficient time or information from the Government to carry
out its role as effectively as it would wish. For example, reporting on the
Prevention of Terrorism Bill in Session 2004–05, the Committee said “we
regret that the rapid progress of the Bill through Parliament has made it
impossible for us to scrutinise the Bill comprehensively for human rights
compatibility in time to inform debate in Parliament”.
48
The limits of
parliamentary scrutiny also need to be recognised. In many situations the
issue is not so much whether the terms on the face of the bill are compliant,
but whether a minister will subsequently exercise powers conferred by the
bill in a manner which respects Convention rights. Parliament’s control over
the use of such powers, once conferred, is necessarily limited.
92. Parliament’s scrutiny of the executive in relation to human rights is always
likely to be subject to the problems outlined above. The courts have the
central constitutional role in upholding respect for human rights. Is there a
way in which they can help ensure compliance with human rights obligations
and indeed the rule of law? We consider four options in the following pages:
discussions between the Law Lords and members of the executive on issues
of principle; a system of “abstract review” of legislation; the creation of a
committee of “distinguished lawyers” to scrutinise legislation; and greater
use of advisory declarations.
Greater Guidance to the Executive from the Courts?
93. Charles Clarke MP, the former Home Secretary, made it clear to us that he
was angered that the courts had overturned a number of Control Orders
issued under the Prevention of Terrorism Act 2005. He complained that
“after the most intense Parliamentary discussions [on the Act], followed by
the Home Secretary’s decision taken on the basis of detailed legal advice, and
then a series of legal actions up to the Court of Appeal, the Home Secretary
[was] then simply asked to take another stab with no guidance whatsoever as
to how the highest courts would view the legality of his complicated and
difficult decisions”. With the appeal process ongoing, he noted that “more
than five years after 9/11 the legal and Parliamentary circus still moves on”
and claimed that “this is a ludicrous way of proceeding which dangerously
undermines confidence in every aspect of the police and criminal justice
system” (Q 123). He added that “you could end up with a state of affairs
where we end up leaving the European Convention [on Human Rights] as a
result of public pressure” (Q 137).
94. Mr Clarke’s main concern was that “the judiciary bears not the slightest
responsibility for protecting the public, and sometimes seems utterly unaware
of the implications of their decisions for our security”. This criticism of the
judiciary was implicitly echoed by former Prime Minister Tony Blair, who
wrote recently, “again and again in court judgments we were forced to keep
[foreign terror suspects] here” and misleadingly stated that anti-terrorism
measures had been “struck down” by the courts (something which the courts
are not empowered to do) as if his own Government had not introduced the
HRA which the judges were applying.
49
Mr Clarke went on to criticise “the
total refusal” of the Law Lords to discuss “the issues of principle involved in
these matters” and suggested that “it is now time for the senior judiciary to
engage in a serious and considered debate about how best legally to confront
terrorism in modern circumstances” (QQ 123, 131). In his view, “the
question of where does the responsibility lie for upholding the rule of law in
the country is a big, mega constitutional issue [and] for the Law Lords to
say, ‘that is not really much to do with us; all we have to do is look at any
particular case’ … is a bit rich” (Q 147).
95. Mr Clarke therefore suggested that the Law Lords should meet with the
Home Secretary to discuss the broad issues of principle involved, in either a
formal or informal setting (QQ 123, 137). He felt that “some proper
discussion about what might or might not be legal would be a very helpful
thing to do because we have spent five years since 9/11 without getting to a
system that works” (Q 145). He added that “the idea that their
independence would be corrupted by such discussions is risible” (Q 123).
96. The Lord Chief Justice later addressed Mr Clarke’s proposal in a speech,
referring in particular to Lord Bingham of Cornhill’s refusal to meet with the
former Home Secretary to discuss Control Orders. Whilst he understood
Mr Clarke’s “frustration” on this point, he warned that “judges must be
particularly careful not even to appear to be colluding with the executive
when they are likely later to have to adjudicate on challenges of action taken
by the executive”.
50 Moreover, section 3 of the CRA expressly states that
“the Lord Chancellor and other Ministers of the Crown must not seek to
influence particular judicial decisions through any special access to the
judiciary”. One of the current members of this Committee, the former Lord
Chief Justice Lord Woolf, noted that this was particularly crucial in the case
of the Law Lords because they “have the responsibility of being the final
arbiters on law on the particular facts” (Q 146).
97. 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.
Should there be a System of Abstract Review?
98. In many constitutional systems throughout Europe, procedures exist through
which judges (usually in the form of a constitutional court) may be asked to
provide a prompt ruling on whether proposed or recently enacted legislation
is or is not contrary to basic rights contained in the constitution. Such
34 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
arrangements are called “abstract review” because they permit examination
of the terms of legislation in the abstract rather than in a “concrete” situation
arising when the legislation is applied to a particular situation.
99. The precise basis on which abstract review is conducted differs from country
to country, but typically a question is referred to the court by a public body
or a group of members of the legislature. In Germany, the
Bundesverfassungsgericht (Federal Constitutional Court) has jurisdiction to
carry out abstract review of federal legislation referred to it by specified
political institutions. In Spain, the Tribunal Constitucional similarly has
powers of abstract review; proceedings must be started within three months
of the official publication of the law in question. In France, the Constitution
of the Fifth Republic established the Conseil Constitutionnel, a body of nine
distinguished statesmen whose role includes scrutiny of legislation in judicial
proceedings after it has been voted on by Parliament but before it is
promulgated. Such scrutiny must be completed within a month.
100. Mr Clarke alluded to something along broadly similar lines when he
suggested to us that there was a need in the British constitutional system for
“a process whereby the senior judiciary gives a formal opinion upon the
extent to which proposals for legislation comply with the European
Convention before Parliament debates the bill, rather than possibly years
later” (Q 123). Specifically, he suggested that “a senior committee of Law
Lords” should make a judgment on the ministerial statement of compatibility
with the HRA which is a mandatory part of every government bill. In this
way, he continued, “if there were doubt that the Secretary of State’s
certificate was correct amongst the highest lawyers in the land, that would be
made clear at the outset before the whole of the parliamentary process rather
than subsequently”. Mr Clarke did, however, accept that “this would be a
massive constitutional departure … because it would immediately introduce
the judiciary into the legislative process in some sense” (Q 125).
101. This suggestion would indeed be a constitutional innovation if adopted in the
United Kingdom, necessitating a re-examination of current understandings
of parliamentary sovereignty and privilege. Moreover, abstract review in
other countries takes place in constitutional settings (often encompassing
codified constitutions and constitutional courts) that are very different from
the British one.
102. Rulings on the general compatibility of primary legislation with Convention
rights, whilst sounding unusual to the ears of some lawyers in this country,
are however already a feature of the United Kingdom’s devolution
settlement. The Scotland Act 1998 enables the Law Officers to refer the
question of whether a bill or any provision of a bill would be within the
legislative competence of the Scottish Parliament to the Judicial Committee
of the Privy Council (in future, the Supreme Court of the United Kingdom)
for decision.
51 Similar provision exists in relation to Assembly Measures
before the National Assembly of Wales.
52 These provisions, though not yet
used, enable the Law Lords to assess (among other things) whether the bill
or measure in question is compatible with Convention rights, as it is outside
the competence of the Scottish Parliament and the National Assembly of
Wales to pass legislation that is incompatible with such rights. Further RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 35
constitutional reform along these lines cannot therefore be dismissed as
unthinkable. There would, however, be difficulties in designing such a
system.
103. One concern is that abstract review as practised in the countries mentioned
above could compromise the position of the Law Lords or other senior
judges called upon to make findings of compatibility or otherwise. As the
Lord Chief Justice explained recently: “the Strasbourg Court requires that
any individual whose human rights are adversely affected by governmental
action must have a right to challenge that action in a court of law. If the
senior judiciary have already resolved the issue before such a challenge is
made, how can the individual making the challenge have a fair hearing? It is
for this reason that we have separation of powers”.
53
Moreover, the
introduction of a system of abstract review risks muddling legislative and
judicial processes and drawing the judiciary into the political arena. This
would run counter to the principle of greater separation of functions which
underpins many aspects of the recent reforms.
104. Another concern relates to the efficacy of “abstract review”. A judicial
assessment of the general compatibility of an aspect of a legislative scheme
with Convention rights may not be able to anticipate how administrative
powers will actually be exercised in particular situations. Bills are often
drafted so as to confer very wide discretionary powers on the Secretary of
State or other public authorities, with the result that Parliament is unable to
make any properly informed assessment of the impact that the exercise of
such powers will have on particular individuals (which is a key consideration
in judging the proportionality of a measure, an assessment that is necessary
in relation to several Convention rights). Moreover, even if a judicial body
has given proposed legislation approval in the abstract, individuals cannot
subsequently be barred from challenging the application of a policy to their
own special circumstances. To do so would not only be contrary to the rule
of law but would most likely also be contrary to Article 6 (right to a fair trial)
and Article 13 (effective remedies for breach of Convention rights) of the
European Convention on Human Rights.
105. A further concern is that creating an opportunity for prior judicial scrutiny of
bills could delay the introduction and implementation of the government’s
proposals, which is likely to be unacceptable in the case of anti-terrorism
policy.
106. 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.
Review of Bills by a Committee of Distinguished Lawyers
107. If it is generally constitutionally undesirable to involve any part of the
judiciary in the process of making rulings on the compatibility of bills or draft
bills with Convention rights, it may be that a committee of retired Law
Lords, professors, former attorneys general and legal practitioners could
perform this role instead. However, Mr Clarke felt that “those people would
82. Whilst greater judicial involvement in setting the courts budget might seem
desirable, we do draw attention to a caveat set out by Professor Terence
Daintith. He warned us that he would expect “judges always to be saying
that they wanted more money for the Courts Service than the department or
the Treasury were prepared ab initio to give”, resulting in “a situation where
there was at least an odour of disagreement floating around”. He felt that
there could be “a quite difficult constitutional situation, year by year, in
relation to the fixing of this budget” and suggested that if the judges “can
stay out of it somehow … that would be perhaps the best way through, but
my understanding is that they do not really want to stay out of it” (Q 494).
83. The integrity of the legal system depends on it being properly funded.
We consider it one of the vital tasks of the Lord Chancellor to ensure
that the Courts Service and Legal Aid budgets uphold that integrity.
Whilst it is not for us to suggest how the courts budget should be
agreed in future, we do urge the Lord Chancellor to ensure that it
receives maximum protection from short-term budgetary pressures
upon and within the new Ministry. Moreover, the budget-setting
process must be transparent and the judiciary must be fully involved,
both in determining the process and in its implementation.
84. Finally, we consider the status of Her Majesty’s Courts Service (HMCS), an
issue which has been highlighted by the judiciary in the context of
discussions over the MoJ even though the issue was excluded from the remit
of the working group. Indeed, the Lord Chief Justice felt that the question of
the status of HMCS “has become a fundamental difference between [the
judiciary and the Government]”. He told the House of Commons
Constitutional Affairs Committee that HMCS “owes a duty to its minister,
but we have urged that the duty it owes to its minister is to discharge the
duty that the minister owes to us; that is to provide the judiciary with the
resources that they need to provide the public with an efficient and effective
system of justice”. Therefore, “its primary loyalty really ought to be to us”.
85. Lord Justice Thomas expanded on this point, telling us that in Ireland, the
Netherlands and Denmark an “autonomous court administration with a
greater degree of judicial participation” had been “very successful”, and
concluding that “a new structure akin to these models is, in the view of the
judiciary, a constitutional safeguard made necessary by the Ministry of
Justice” (Q 374).
86. Reflecting on the motivation behind the concerns expressed by the senior
judiciary in relation to HMCS, Professor Robert Hazell told us that “the
gradual separation between the executive and the judiciary … was always
going to be a process and not a single event, and I believe that it was bound
in time to lead to demands from the judiciary for further separation, and
those demands are now beginning to emerge, so although the Ministry of
Justice has provided the occasion for those demands to be formulated by the
judiciary, I do not myself believe that the Ministry of Justice is itself the
cause”. He also reminded us that “there is a recent trend throughout
northern Europe to introduce greater separation of powers between the
executive and the judiciary, and as part of that to give the judges greater
responsibility and control for managing the court service” (Q 472).
4687. We are not convinced by the judiciary’s claims that the creation of the
Ministry of Justice lends any additional urgency to their desire for an
autonomous court administration. However, the status of Her
Majesty’s Courts Service is of central importance to the
administration of justice, and we urge the Government to engage
meaningfully with the judiciary on this issue in order to find a
mutually acceptable way forward.
Human Rights Act
“Dialogue” in Relation to Convention Rights
88. The HRA creates a dispensation under which the executive, Parliament and
the judiciary each has a distinctive role in ensuring that policy and legislation
complies with the European Convention on Human Rights. In relation to bills
introduced to Parliament, the HRA requires ministers to make a statement
that the bill is (or is not) compatible with Convention rights. This statement is
then tested by the Joint Committee on Human Rights (JCHR) and other
committees, and through scrutiny of the bill on the floor of both Houses. After
enactment, aggrieved citizens who allege that they are victims of a violation of
a Convention right may start legal proceedings in the appropriate court. The
interaction between the different branches of the state about Convention rights
can be regarded as a form of “dialogue”, as Dr Matthew Palmer explained
(QQ 502–504). During the course of our inquiry we identified a number of
criticisms about the efficacy of this dialogue, to which we now turn.
Ministerial Compatibility Statements and Parliamentary Scrutiny
89. Section 19 of the HRA requires the minister in charge of a bill in each House
to make a statement, which is in practice published on the face of the bill,
that in his view the provisions of the bill “are compatible with the
Convention rights” or (something that has not yet occurred) to make a
statement to the contrary. Section 19 statements were envisaged to be an
important part of the HRA, enabling the executive to signal to Parliament
and—important from the perspective of our inquiry—to the courts that a
proper assessment of the human rights implications of legislation had been
carried out. Although the terms of the government’s advice as to the
compatibility of proposed legislation are not disclosed, the explanatory notes
to bills summarise the government’s view of which rights are in issue and why
the bill does not breach them.
90. Notwithstanding ministerial statements under section 19, there have been
cases in which it is clear that ministers have initially adopted a far too
optimistic view about the compatibility of provisions in a bill. Although few
statutory provisions enacted since the HRA came into force have been
subject to declarations of incompatibility by the courts,
47 on a number of
32 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
occasions the Government has had to make or accept major amendments to
bills to bring them into line with Convention rights (as Parliament views
them). For example, they replaced the “ouster” clause in the Asylum and
Immigration (Treatment of Claimants etc.) Act 2004 after strong
representations from the JCHR and others. Where a department has any
doubt about compatibility of a bill with Convention rights, ministers
should seek the involvement of the Law Officers at a formative stage
of policy-making and legislative drafting.
91. Reports of the JCHR are vital in drawing the attention of both Houses to
possible compatibility problems. It is not, however, always clear that the
Committee has sufficient time or information from the Government to carry
out its role as effectively as it would wish. For example, reporting on the
Prevention of Terrorism Bill in Session 2004–05, the Committee said “we
regret that the rapid progress of the Bill through Parliament has made it
impossible for us to scrutinise the Bill comprehensively for human rights
compatibility in time to inform debate in Parliament”.
48
The limits of
parliamentary scrutiny also need to be recognised. In many situations the
issue is not so much whether the terms on the face of the bill are compliant,
but whether a minister will subsequently exercise powers conferred by the
bill in a manner which respects Convention rights. Parliament’s control over
the use of such powers, once conferred, is necessarily limited.
92. Parliament’s scrutiny of the executive in relation to human rights is always
likely to be subject to the problems outlined above. The courts have the
central constitutional role in upholding respect for human rights. Is there a
way in which they can help ensure compliance with human rights obligations
and indeed the rule of law? We consider four options in the following pages:
discussions between the Law Lords and members of the executive on issues
of principle; a system of “abstract review” of legislation; the creation of a
committee of “distinguished lawyers” to scrutinise legislation; and greater
use of advisory declarations.
Greater Guidance to the Executive from the Courts?
93. Charles Clarke MP, the former Home Secretary, made it clear to us that he
was angered that the courts had overturned a number of Control Orders
issued under the Prevention of Terrorism Act 2005. He complained that
“after the most intense Parliamentary discussions [on the Act], followed by
the Home Secretary’s decision taken on the basis of detailed legal advice, and
then a series of legal actions up to the Court of Appeal, the Home Secretary
[was] then simply asked to take another stab with no guidance whatsoever as
to how the highest courts would view the legality of his complicated and
difficult decisions”. With the appeal process ongoing, he noted that “more
than five years after 9/11 the legal and Parliamentary circus still moves on”
and claimed that “this is a ludicrous way of proceeding which dangerously
undermines confidence in every aspect of the police and criminal justice
system” (Q 123). He added that “you could end up with a state of affairs
where we end up leaving the European Convention [on Human Rights] as a
result of public pressure” (Q 137).
94. Mr Clarke’s main concern was that “the judiciary bears not the slightest
responsibility for protecting the public, and sometimes seems utterly unaware
of the implications of their decisions for our security”. This criticism of the
judiciary was implicitly echoed by former Prime Minister Tony Blair, who
wrote recently, “again and again in court judgments we were forced to keep
[foreign terror suspects] here” and misleadingly stated that anti-terrorism
measures had been “struck down” by the courts (something which the courts
are not empowered to do) as if his own Government had not introduced the
HRA which the judges were applying.
49
Mr Clarke went on to criticise “the
total refusal” of the Law Lords to discuss “the issues of principle involved in
these matters” and suggested that “it is now time for the senior judiciary to
engage in a serious and considered debate about how best legally to confront
terrorism in modern circumstances” (QQ 123, 131). In his view, “the
question of where does the responsibility lie for upholding the rule of law in
the country is a big, mega constitutional issue [and] for the Law Lords to
say, ‘that is not really much to do with us; all we have to do is look at any
particular case’ … is a bit rich” (Q 147).
95. Mr Clarke therefore suggested that the Law Lords should meet with the
Home Secretary to discuss the broad issues of principle involved, in either a
formal or informal setting (QQ 123, 137). He felt that “some proper
discussion about what might or might not be legal would be a very helpful
thing to do because we have spent five years since 9/11 without getting to a
system that works” (Q 145). He added that “the idea that their
independence would be corrupted by such discussions is risible” (Q 123).
96. The Lord Chief Justice later addressed Mr Clarke’s proposal in a speech,
referring in particular to Lord Bingham of Cornhill’s refusal to meet with the
former Home Secretary to discuss Control Orders. Whilst he understood
Mr Clarke’s “frustration” on this point, he warned that “judges must be
particularly careful not even to appear to be colluding with the executive
when they are likely later to have to adjudicate on challenges of action taken
by the executive”.
50 Moreover, section 3 of the CRA expressly states that
“the Lord Chancellor and other Ministers of the Crown must not seek to
influence particular judicial decisions through any special access to the
judiciary”. One of the current members of this Committee, the former Lord
Chief Justice Lord Woolf, noted that this was particularly crucial in the case
of the Law Lords because they “have the responsibility of being the final
arbiters on law on the particular facts” (Q 146).
97. 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.
Should there be a System of Abstract Review?
98. In many constitutional systems throughout Europe, procedures exist through
which judges (usually in the form of a constitutional court) may be asked to
provide a prompt ruling on whether proposed or recently enacted legislation
is or is not contrary to basic rights contained in the constitution. Such
34 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
arrangements are called “abstract review” because they permit examination
of the terms of legislation in the abstract rather than in a “concrete” situation
arising when the legislation is applied to a particular situation.
99. The precise basis on which abstract review is conducted differs from country
to country, but typically a question is referred to the court by a public body
or a group of members of the legislature. In Germany, the
Bundesverfassungsgericht (Federal Constitutional Court) has jurisdiction to
carry out abstract review of federal legislation referred to it by specified
political institutions. In Spain, the Tribunal Constitucional similarly has
powers of abstract review; proceedings must be started within three months
of the official publication of the law in question. In France, the Constitution
of the Fifth Republic established the Conseil Constitutionnel, a body of nine
distinguished statesmen whose role includes scrutiny of legislation in judicial
proceedings after it has been voted on by Parliament but before it is
promulgated. Such scrutiny must be completed within a month.
100. Mr Clarke alluded to something along broadly similar lines when he
suggested to us that there was a need in the British constitutional system for
“a process whereby the senior judiciary gives a formal opinion upon the
extent to which proposals for legislation comply with the European
Convention before Parliament debates the bill, rather than possibly years
later” (Q 123). Specifically, he suggested that “a senior committee of Law
Lords” should make a judgment on the ministerial statement of compatibility
with the HRA which is a mandatory part of every government bill. In this
way, he continued, “if there were doubt that the Secretary of State’s
certificate was correct amongst the highest lawyers in the land, that would be
made clear at the outset before the whole of the parliamentary process rather
than subsequently”. Mr Clarke did, however, accept that “this would be a
massive constitutional departure … because it would immediately introduce
the judiciary into the legislative process in some sense” (Q 125).
101. This suggestion would indeed be a constitutional innovation if adopted in the
United Kingdom, necessitating a re-examination of current understandings
of parliamentary sovereignty and privilege. Moreover, abstract review in
other countries takes place in constitutional settings (often encompassing
codified constitutions and constitutional courts) that are very different from
the British one.
102. Rulings on the general compatibility of primary legislation with Convention
rights, whilst sounding unusual to the ears of some lawyers in this country,
are however already a feature of the United Kingdom’s devolution
settlement. The Scotland Act 1998 enables the Law Officers to refer the
question of whether a bill or any provision of a bill would be within the
legislative competence of the Scottish Parliament to the Judicial Committee
of the Privy Council (in future, the Supreme Court of the United Kingdom)
for decision.
51 Similar provision exists in relation to Assembly Measures
before the National Assembly of Wales.
52 These provisions, though not yet
used, enable the Law Lords to assess (among other things) whether the bill
or measure in question is compatible with Convention rights, as it is outside
the competence of the Scottish Parliament and the National Assembly of
Wales to pass legislation that is incompatible with such rights. Further RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 35
constitutional reform along these lines cannot therefore be dismissed as
unthinkable. There would, however, be difficulties in designing such a
system.
103. One concern is that abstract review as practised in the countries mentioned
above could compromise the position of the Law Lords or other senior
judges called upon to make findings of compatibility or otherwise. As the
Lord Chief Justice explained recently: “the Strasbourg Court requires that
any individual whose human rights are adversely affected by governmental
action must have a right to challenge that action in a court of law. If the
senior judiciary have already resolved the issue before such a challenge is
made, how can the individual making the challenge have a fair hearing? It is
for this reason that we have separation of powers”.
53
Moreover, the
introduction of a system of abstract review risks muddling legislative and
judicial processes and drawing the judiciary into the political arena. This
would run counter to the principle of greater separation of functions which
underpins many aspects of the recent reforms.
104. Another concern relates to the efficacy of “abstract review”. A judicial
assessment of the general compatibility of an aspect of a legislative scheme
with Convention rights may not be able to anticipate how administrative
powers will actually be exercised in particular situations. Bills are often
drafted so as to confer very wide discretionary powers on the Secretary of
State or other public authorities, with the result that Parliament is unable to
make any properly informed assessment of the impact that the exercise of
such powers will have on particular individuals (which is a key consideration
in judging the proportionality of a measure, an assessment that is necessary
in relation to several Convention rights). Moreover, even if a judicial body
has given proposed legislation approval in the abstract, individuals cannot
subsequently be barred from challenging the application of a policy to their
own special circumstances. To do so would not only be contrary to the rule
of law but would most likely also be contrary to Article 6 (right to a fair trial)
and Article 13 (effective remedies for breach of Convention rights) of the
European Convention on Human Rights.
105. A further concern is that creating an opportunity for prior judicial scrutiny of
bills could delay the introduction and implementation of the government’s
proposals, which is likely to be unacceptable in the case of anti-terrorism
policy.
106. 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.
Review of Bills by a Committee of Distinguished Lawyers
107. If it is generally constitutionally undesirable to involve any part of the
judiciary in the process of making rulings on the compatibility of bills or draft
bills with Convention rights, it may be that a committee of retired Law
Lords, professors, former attorneys general and legal practitioners could
perform this role instead. However, Mr Clarke felt that “those people would
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