Relations between the executive, the judiciary and Parliament-Report with Evidence-26/07/2007

HOUSE OF LORDS
Select Committee on the Constitution 6th Report of Session 2006–07
Relations between the executive, the judiciary and Parliament
Report with Evidence

Ordered to be printed 11 July 2007 and published 26 July 2007
Published by the Authority of the House of Lords
London : The Stationery Office Limited
HL Paper 151

Select Committee on the Constitution

The Constitution Committee is appointed by the House of Lords in each session with the following terms of reference:
To examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution.

Current Membership

Viscount Bledisloe
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

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CONTENTS

Rt Hon Lord Justice Thomas and Rt Hon Sir Igor Judge, President of the Queen’s

NOTE: In the text of the report, (Q) refers to a question in oral evidence

Relations between the executive, the judiciary and Parliament

CHAPTER 1: INTRODUCTION AND BACKGROUND

Introduction

1. Constructive relationships between the three arms of government—the executive, the legislature and the judiciary—are essential to the effective maintenance of the constitution and the rule of law. In recent years, the character of these relationships has changed significantly, both because of changes in governance and because of wider societal change.

2. We therefore decided to take the annual appearances by the Lord Chancellor and the Lord Chief Justice in front of our Committee as the starting point for a broad assessment of the impact of the changes in these relationships. In particular, we set out to identify points of friction or uncertainty and to offer suggestions to the Government, Parliament and the judiciary as to how these might be tackled.

3. As if to illustrate the importance of conducting such an assessment, midway through our inquiry a serious dispute erupted between the Government and the judiciary over the new Ministry of Justice. This dispute, which was ongoing at the time this report went to print, demonstrates that there are still disagreements and uncertainties about the relationships between the three arms of government. We hope that this report will help point the way to more balanced and harmonious relationships in the future.

Acknowledgements

4. We thank all our witnesses (listed in Appendix 2) for their invaluable oral evidence, and we also express gratitude to Professor Anthony Bradley, Professor Kate Malleson and Professor Paul Craig for their helpful papers.

5. We are also most grateful to our Specialist Adviser on this inquiry, Professor Andrew Le Sueur.

Mapping the Changing Constitutional Landscape

6. In this report we examine the evolving constitutional relationships between the judiciary, the executive and Parliament. The various reforms that have been introduced and the changes that have come about in recent years may be better thought of as a process rather than an event. However, for the purposes of this inquiry we have focused on three milestones that have been particularly influential in defining and influencing the changing character of the relationships.

• The coming into force of the Human Rights Act 1998 (HRA) in October 2000.

• The passage of the Constitutional Reform Act 2005 (CRA) and the formation of the concordat between the then Lord Chief Justice of England and Wales (Lord Woolf) and the then Lord Chancellor (Lord Falconer of Thoroton).

• The creation of the Ministry of Justice (MoJ), which formally came into being on 9 May 2007.

7. This is not to imply that all the changes have come about as a result of developments in legislation and governance arrangements. The relationships have also been shaped by changing attitudes and perceptions. Since the revocation of the “Kilmuir Rules” in 1987, judges have been more open in speaking to the news media. For their part, some ministers have felt able to break with previously understood conventions and make robust and public comments critical of judges and judgments. Moreover, the news media play an increasingly important role in reporting and commenting on the judiciary, and—as in other contexts—there has been a decline in the culture of deference. Individual judges and the judiciary as a whole are seen as “fair game” by columnists and headline writers in the tabloid press. Broadsheet journalists also chart closely the intrigues of discussions and disagreements between the senior judiciary and ministers.

Human Rights Act 1998

8. It was always clear that the Human Rights Act would have constitutional importance as well as giving citizens a practical right to use the European Convention on Human Rights (ECHR) in litigation in our national courts. Though careful to preserve the essence of parliamentary sovereignty (that no court may question the validity of an Act of Parliament), the HRA nonetheless gives the judiciary significant new powers. Section 3 places a duty on courts in relation to the way in which they carry out their function of interpreting legislation: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.

9. A variety of views have been expressed as to what exactly this requires—to what extent should words be “stretched”, or new words implied, in order to make a provision fit with the requirements of the ECHR and the case law of the European Court of Human Rights? Where the words of an enactment are so plainly contrary to Convention rights that no amount of interpretation can make them fit, the courts are empowered to make a declaration of incompatibility under section 4 of the HRA. Such a declaration does not affect the validity and enforceability of the provision in question and so offers little practical help to the aggrieved citizen; rather, it is intended to signal to the executive and Parliament the view of the courts that remedial action should be taken to repeal or amend the legislation.

10. To date, 17 declarations of incompatibility have been made by the courts.1 Thus far the Government have accepted the outcome of court proceedings which result in a declaration of incompatibility by undertaking to remedy the clash between national law and Convention rights.2 Most declarations of incompatibility related to statutory provisions enacted before the HRA came into force in October 2000, at which point Parliament began systematic scrutiny for possible incompatibility through the Joint Committee on Human Rights (JCHR) and ministers started issuing “statements of compatibility” to accompany all government bills introduced to Parliament. Since then, some bills have been amended by Parliament to address human rights concerns, and two enacted provisions have been subject to declarations of incompatibility. This may call into question the efficacy of the executive’s self-scrutiny of policy proposals and, in relation to the incompatible provisions, parliamentary examination of bills (see Chapter 2).

11. Later in our report, we examine several ways in which the HRA is having an impact on relations between the judiciary, the executive and Parliament, and how this situation may develop in the future. In particular, we consider whether the judiciary should be able to evaluate the general compliance of bills or recently enacted statutes for their compatibility with Convention rights in a process of “abstract review”, a procedure that is common in many jurisdictions throughout Europe. We also consider whether there might be a greater role for “advisory declarations”, in which the courts could be called upon to give guidance to the government on Convention rights, or whether a “committee of distinguished lawyers” could be of use.

The Constitutional Reform Act 2005 and the Concordat

12. In previous reports we have expressed our dismay about circumstances in which the Government have announced policy or introduced a bill without apparently being sufficiently aware of the impact of the initiative upon the fundamentals of the constitution.3 A prime example of confusion about whether an initiative is a simple “machinery of government” change or a major constitutional reform was the announcement in June 2003—in the midst of a Cabinet reshuffle—that the office of Lord Chancellor was to be abolished and that a Supreme Court of the United Kingdom was to be established. That announcement took place without any apparent understanding of the legal status of the Lord Chancellor and without consultation with the judiciary (or anyone else outside government).

13. Soon after that announcement, Lord Woolf (then Lord Chief Justice) and Lord Falconer (then Lord Chancellor) started negotiations over the key principles and principal arrangements that should govern the new situation in which the Lord Chief Justice rather than the Lord Chancellor would be head of the judiciary. The outcome of those talks was set out in January 2004 in an agreement known as “the Concordat” (formally entitled “The Lord Chancellor’s judiciary-related functions: Proposals”).4 Many aspects of the Concordat were put on a statutory footing by the CRA, but it is clear to us that the Concordat continues to be of great constitutional importance.

14. Lord Falconer agreed with this: “it seems to me to be a document of constitutional significance because, although much of it was then enacted in the Constitutional Reform Act, it sets out the basic principles on which the judges and the executive will relate to each other in the future. I have never known any piece of legislation to be utterly comprehensive; there are bound to be issues that come up in the future where it is the principle that matters rather than precise detailed legislation and I believe the Concordat will be important for that” (Q 41). Similarly, the current Lord Chief Justice, Lord Phillips, told us: “I would like to think it has an entrenched quality about it. It has certainly been treated as if it were a constitutional document laying down the division of functions, now largely of course overtaken by the Act but not exclusively, and where the Act does not cover something one needs to go back to the Concordat” (Appendix 8, Q 6).

15. On the question of whether the Concordat might be amended in the future, Professor Robert Hazell of the UCL Constitution Unit suggested that “it has the status of a constitutional convention, and all constitutional conventions are liable to evolve over time in the light of experience and new circumstances, and I would be very surprised if the Concordat did not itself evolve partly in its interpretation, as other conventions have evolved, but partly it could be revisited, and I hope at some point it will be revisited, and possibly this inquiry could provide the trigger for that. I do not think myself it is written in tablets of stone” (Q 473).

16. The terms of the CRA itself differed in several respects from the announcement of 3 June 2003 and the Constitutional Reform Bill as introduced to the House of Lords in 2004. Part 1 of the CRA is about the rule of law, a provision to which we return shortly. Part 2 sets out the main duties and powers of the reformed office of Lord Chancellor, the new role of the Lord Chief Justice of England and Wales as head of the judiciary, and other provisions relating to judicial leadership. Part 3 concerns the new Supreme Court of the United Kingdom. Part 4 deals with judicial appointments and discipline. Clearly the Concordat and the CRA taken together have made important changes to the relationships between the judiciary, the executive and Parliament.

17. As well as redefining formal powers and duties, the CRA and the Concordat were intended to change the attitudes and perceptions relating to these leadership roles. Lord Falconer told us that “having a leader of the judges drawn from the judiciary rather than a politician drives a sense of ownership and momentum. It gives the judiciary confidence that the pressure for change, if it comes from the head of the judiciary, comes from the profession and not from the politicians. Judges have always sought to improve the core processes” (Q 3). The Lord Chief Justice said that under the changes brought about by the Concordat and the CRA he and the Lord Chancellor “become partners in the administration of justice, but as a matter of constitutional principle the Lord Chief Justice is now the senior partner”.5

18. In her paper for us, Professor Kate Malleson (Professor of Law at Queen Mary, University of London) forecast that “the idea of a partnership as expressed in the Concordat may well provide a basis for the future relationship, but it would be unrealistic to expect it to be a partnership without tensions. The consequence of a more active judiciary with greater autonomy will inevitably be a more dynamic relationship between the branches of government in which the judiciary have a more structured and active role in defending themselves from criticism and ensuring that the proper resources and support for the courts are in place” (Appendix 3). That comment, written in November 2006, has proved to be prescient. The creation of the new Ministry of Justice has thrown up issues of profound disagreement between the Government and the judiciary. By May 2007, the judiciary were expressing frustration that “in the event there has been no real change in attitude at all. The Lord Chancellor and his staff in the DCA continued to act as if he retained primary responsibility for the administration of justice and had sole responsibility for deciding what resources should be allocated to this and how they should be deployed”.6

1 See Appendix 6.

2 The Government have amended the legislation to remedy the incompatibility (or are in the process of doing so) in 11 of these 17 cases. They are appealing or considering how to remedy the incompatibility in the remaining six cases.

3 See for example our report on the Legislative and Regulatory Reform Bill: Eleventh Report of Session 2005–06 (HL Paper 194).

4 See [http://www.dca.gov.uk/consult/lcoffice/judiciary.htm].

5 See

http://www.judiciary.gov.uk/publications_media/judicial_views_responses/lcj_evid_cons_affairs_sel_comm_ 220507.htm.

Creation of the Ministry of Justice

19. This brings us to the third milestone in the development of the new relationships: the creation of the Ministry of Justice, which formally came into existence on 9 May 2007. Reports of Government plans for a Ministry of Justice had been circulating for some considerable time. Then in August 2004, there was speculation that the Home Office (then under David Blunkett) would be split, with a department for justice (responsible for courts, police, prisons and probation) and a “department for rights” (with responsibilities for human rights, immigration and asylum, family law and civil disputes, freedom of information, constitutional reform, electoral law and devolution).7

20. A Home Office leak in The Sunday Telegraph on 21 January 2007 was the first public acknowledgement of the current plans. That article appeared to be the first that either the then Lord Chancellor or the Lord Chief Justice knew of the plans.8 The new MoJ has taken on all of the responsibilities of the Department for Constitutional Affairs (DCA) and the following responsibilities previously held by the Home Office:

• criminal law and sentencing;

• prisons;

• probation; and

• reducing re-offending.

Lord Falconer became the Secretary of State for Justice (the title of Secretary of State for Constitutional Affairs was abolished), a ministerial office he continued to combine with that of Lord Chancellor. These two posts were assumed by Jack Straw MP in the reshuffle after Gordon Brown became Prime Minister. Appendix 7 sets out the responsibilities of the MoJ as compared to those of the now defunct DCA, and the respective responsibilities of the Secretary of State for Justice and the Lord Chancellor.

21. The judiciary have expressed a number of concerns both about the process by which the MoJ came into being, and about the impact of the new arrangements upon the administration of justice. These matters are discussed in detail in Chapter 2.

Criteria for Assessing the Changing Landscape

22. There are a variety of different ways in which the changes mapped out in this report could be evaluated. Our Committee’s remit is: “To examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution”. For this purpose, the Committee has defined “the constitution” as “the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual”.9 Our focus for this inquiry has therefore been to consider how the changing relationships between the judiciary, the executive and Parliament impinge on core constitutional principles—notably the rule of law and the independence of the judiciary. The Lord Chancellor has express statutory duties in relation to both.

6 ibid.

7 The Daily Telegraph, 2 August 2004, p 1.

8 Evidence by the Lord Chief Justice and the Rt. Hon. Lord Justice Thomas to the Constitutional Affairs Select Committee, 22 May 2007, Q 62.

The Rule of Law

23. Section 1 of the CRA states that “This Act does not adversely affect (a) the existing constitutional principle of the rule of law, or (b) the Lord Chancellor’s existing constitutional role in relation to that principle”. This provision begs several questions, the first of which is what the “rule of law” actually means. To assist our understanding of this term, we commissioned a paper from Professor Paul Craig, Professor of English Law at the University of Oxford (Appendix 5).

24. Although Professor Craig shed much light on the matter, it is apparent that despite its inclusion in the statute book, the rule of law remains a complex and in some respects uncertain concept. Professor Craig drew our attention to three different meanings. First, “a core idea of the rule of law … is that the government must be able to point to some basis for its actions that is regarded as valid by the relevant legal system”. This is, however, too limited so, secondly, the rule of law requires that legal rules “should be capable of guiding one’s conduct in order that one can plan one’s life”. In other words, legal rules should meet a variety of criteria, including that they should be prospective, not retrospective; that they should be relatively stable; and that there should be an independent judiciary. Professor Craig told us that some commentators regard these “formal” attributes of law to be necessary but not sufficient. So a third meaning of the rule of law held by some is that it encompasses substantive rights, thought to be fundamental, which can be “used to evaluate the quality of the laws produced by the legislature and the courts”.

25. Lord Falconer told us that “the rule of law includes both national and international law as far as I am concerned, therefore if we remained in breach of the European Convention then we would be in breach of international law. I think the rule of law also goes beyond issues such as specific black letter law. I think there are certain constitutional principles which if Parliament sought to offend would be contrary to the rule of law as well. To take an extreme example simply to demonstrate the point, if Parliament sought to abolish all elections that would be so contrary to our constitutional principles that that would seem to me to be contrary to the rule of law. The rule of law goes beyond specific black letter law; it includes international law and it includes, in my view, settled constitutional principles. I think there might be a debate as to precisely what are settled constitutional principles but it goes beyond, as it were, black letter law” (Q 8).

26. On the question of who is responsible for upholding the rule of law, the Lord Chief Justice told us that “it is the role of the judiciary, in practice, to uphold the rule of law, to apply the rule of law, to enforce the rule of law, and to do that they have to be independent of outside influence. Insofar as it is the Lord Chancellor’s job to uphold the rule of law, this must be very largely a job of ensuring that our independence is observed. Equally, there must be occasions in government where a question may arise as to whether the conduct that the Government is contemplating is or is not in accordance with the rule of law, and there, I would imagine, the Lord Chancellor would have a role to play in his capacity as a minister” (Appendix 8, Q 7). In relation to the rule of law and the HRA, the Lord Chief Justice explained that if a court made a declaration of incompatibility “it would be open to the Government to say, ‘the court has ruled that this is contrary to the Human Rights Act. Notwithstanding that, we do not intend to comply with the Human Rights Act on this point’ and that would be contrary to what I would call rule of law”. That would, however, be the end of the argument “because Parliament is in that field supreme” (Appendix 8, QQ 9, 10).

Independence of the Judiciary

27. The other constitutional principle of central importance in governing the relationships between the judiciary, the executive and Parliament is that of the “independence of the judiciary”. This does not and should not mean that the judiciary have to be isolated from the other branches of the State. Nor does it mean that the judiciary—individually and collectively—need to be insulated from scrutiny, general accountability for their role or properly made public criticisms of conduct inside or outside the courtroom.

28. The CRA refers to the independence of the judiciary and offers a guide to some aspects of this principle. Section 3(1) provides that “The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary”. Section 3(5) 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”. The Lord Chancellor also has additional statutory duties which relate to judicial independence. Under section 3(6), he “must have regard to—(a) the need to defend that independence; (b) the need for the judiciary to have the support necessary to enable them to exercise their functions; and (c) the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters”.

29. Sir Igor Judge, President of the Queen’s Bench Division, told us that it was important to “appreciate that judicial independence and the proper funding of the judiciary is actually something that belongs to the community. We do not sit in judgment in flummery saying, ‘judicial independence for our own sake.’ The independence of the judiciary is something which is precious to every single member of the community. You must be able to go into court and know that the person sitting in judgment is neutral—not on one side or the other—coldly applying the law that applies to your case. So although people sometimes think that when we defend judicial independence we are simply defending our own corner … that is not the case—we simply are not. The issues which arise here are of great importance to every member of the public” (Q 379).

The Scope of our Inquiry

30. Our focus in this inquiry has been on the relationships between the executive, Parliament and the judiciary of England and Wales. We make only passing reference to developments in Scotland. Questions about relations between the Scottish judiciary, the Scottish Executive and the Scottish Parliament are now matters to be debated and decided north of the border rather than in Westminster.10 Nor do we deal with the position of the judiciary in Northern Ireland. We note, however, that there are constitutional questions common to all three jurisdictions. The fact that they arise in somewhat different legal systems should not prevent lesson learning. Although we make some reference to the creation of the Supreme Court of the United Kingdom—which will be a court for all three of the United Kingdom’s jurisdictions—it would be premature to attempt any detailed analysis of the constitutional consequences of establishing this new court. It is due to begin its work in October 2009.

9 Constitution Committee, First Report of Session 2001–02, Reviewing the Constitution: Terms of Reference and Method of Working (HL Paper 11), Chapter 2.

10 Before the change of administration at the May 2007 elections to the Scottish Parliament, the Scottish Executive had published two consultation documents and a draft Judiciary (Scotland) Bill. See Scottish Executive, Strengthening Judicial Independence in a Modern Scotland: A consultation on the unification, appointment, removal and management of Scotland’s Judiciary (February 2006); and Draft Judiciary (Scotland) Bill and plans for other aspects of future legislation (February 2007).

To be continued