Select Committee on Constitutional Affairs Third Report


5 Relations between the judiciary and Parliament

75. One of the most important (although perhaps least thought through) effects of the proposed reforms contained in the Bill is the impact on the relations between the judiciary and those in political life of the change to the office of Lord Chancellor, the removal of the Law Lords' work to an institution outside Parliament, and the disqualification of all senior judges from speaking and voting and in the Upper House.[59] Some senior judges (including Lord Bingham, the Senior Law Lord) take the view that it is constitutionally inappropriate for them to take part in parliamentary debates. Others (including Lord Woolf, the Lord Chief Justice of England and Wales) have made important interventions in debates about the judiciary and the administration of justice.

76. Lord Woolf is clearly aware of the need for the judiciary to have access to Parliament and moved an amendment, in his name and that of Lord Cullen of Whitekirk (the head of the Scottish judiciary), to allow the chief justice of any part of the United Kingdom to lay before Parliament written representations on matters of importance relating to the judiciary or the administration of justice. This is now in Clause 6. We regard the provisions of Clause 6 as a useful mechanism for senior judges to be able to communicate directly to Parliament.

77. It is necessary for the operation of the courts in England and Wales and the new Supreme Court of the United Kingdom to be accountable to the public and Parliament in appropriate ways. Well-designed mechanisms of accountability need in no way impinge on the important principle of judicial independence. On the contrary, public confidence in the administration of justice is likely to be increased by parliamentary scrutiny and requirements that the courts provide timely and useful information to the public about their work. We welcome the continued use of evidence sessions of our Committee as an opportunity for members of the judiciary at all levels to advise Parliament on the workings of the judicial system and on issues of policy.

Supreme Court annual report

78. In our First Report we said in relation to the Supreme Court:

79. The original Bill, as introduced by the Government to the House of Lords, provided that the Minister would prepare an Annual Report for Parliament. We note with approval the amended provision in Clause 51 under which it is the Supreme Court Chief Executive who must prepare an Annual Report, which the Minister will lay before Parliament. Copies of the report will be sent formally to the devolved administrations. A well-written and informative Annual Report has the capacity not only to explain the work of the court to the public, but to make known any concerns that members of the Court may have relating to the operation of the court and perhaps also issues of broad legal policy and the general development of the law. The Annual Report will provide the opportunity to invite members of the court and the Chief Executive to appear before a parliamentary select committee, and from time to time might be the subject of a debate on the floor of one of the Houses of Parliament. In these ways, a constructive dialogue between the court and Parliament may be developed.

A parliamentary committee for judiciary-related matters

80. The Select Committee in the House of Lords said:

81. As the House of Lords Select Committee explained in their report, there are two basic ways of establishing such a committee: a statutory committee could be established by the Bill;[62] alternatively, Parliament itself could establish a committee (or an existing select committee could assume the role). The idea of creating a statutory committee has found favour in some quarters. Lord Mackay of Clashfern, the former Lord Chancellor, moved an amendment to this effect.[63] The advantages of a statutory committee were not, however, clear to the House of Lords Select Committee on the Bill, who in their report set out the relative advantages and disadvantages of both types of committee:[64]

    The advantages of a statutory committee is that its existence is protected by statute whereas a parliamentary committee has to be re-appointed by Parliament each Session and at each re-appointment its terms of reference, and very existence could be called into question. The powers of a statutory committee on the other hand can be enshrined in the Act. The disadvantage of a statutory committee is that its terms of reference and powers may be less flexible and therefore the development of its role is likely to be less fluid.

82. Another important decision is whether the committee responsible for oversight of judiciary-related matters should be a committee of the House of Commons, the House of Lords, or a joint committee of both Houses. A clear majority of the House of Lords Select Committee on the Bill preferred the option of a joint committee.[65]

83. In general we agree with the House of Lords Select Committee on the importance of a continuing Committee with responsibility for judicial matters. We think that this Committee serves this function. It would be appropriate for both Houses to have their own Committees for maintaining a relationship with the judiciary which can meet jointly, if they see fit. We do not see the necessity for inserting a provision to this effect in the Bill.


59   Among the senior judges who hold peerages, but are not Lords of Appeal in Ordinary, are Lord Woolf (Lord Chief Justice of England and Wales), Lord Phillips of Worth Matravers (Master of the Rolls), and Lord Cullen of Whitekirk (Lord President of the Court of Session and thus head of the Scottish judiciary). Sir Brian Kerr, who was appointed Lord Chief Justice of Northern Ireland in January 2004, does not hold a peerage Back

60   op cit, para 81 Back

61   op cit, para 485 Back

62   Examples of such committees are the Ecclesiastical Committee (established by the Church of England Assembly (Powers) Act 1919), which is a joint committee of both Houses, and the Speaker's Committee on the Electoral Commission (established by the Political Parties, Elections and Referendums Act 2000), a committee of Members of the House of Commons only Back

63   HL Deb, 7 December, col 809; the amendment was withdrawn after debate Back

64   op cit, paras 419-420; of course, this refers only to the position in the House of Lords. In the House of Commons Committees are appointed for the life of the Parliament Back

65   op cit, para 420 Back


 
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