House of Lords - Constitution

Select Committee on Constitution Sixth Report

CHAPTER 2: EXECUTIVE AND JUDICIARY

31. As explained in Chapter 1, the nature of the relationship between the executive and the judiciary has changed substantially since the Constitutional Reform Act (CRA) and the Human Rights Act (HRA) were passed. The CRA was intended to represent a move away from the traditional "fusion" model of the British constitution and towards what was said to be a more explicit separation of powers, with relations between executive and judiciary thenceforth being governed by the Act itself and the Concordat agreed between the then Lord Chancellor, Lord Falconer, and the then Lord Chief Justice, Lord Woolf. The senior judiciary now has an identity which is distinct from the executive: as the Lord Chief Justice told us, "we, as judges, are now patently freestanding. The division of powers is quite clear. Now our negotiations with ministers, in particular with the Lord Chancellor, are negotiations between the judiciary and the executive and clearly seen to be so" (Appendix 8, Q 3). Although many of the principles regulating the new relationship between the judiciary and executive are set down in the Concordat, it would not be unreasonable to expect that such profound structural changes, with the judiciary assuming a more distinct identity, would lead to increased tensions between these two branches of the state.

32. The impact of the HRA upon the relationship between the executive and the judiciary has been equally significant. As Professor Anthony Bradley argued in his paper, "the HRA extended the jurisdiction of the courts to deal with matters that previously were not arguable before a judge … [and] takes the courts into the examination of questions that, apart from the HRA, would have been regarded as political questions" (Appendix 4). Similarly, Professor Vernon Bogdanor has predicted that "issues which, in the past, were decided by ministers accountable to Parliament will now come to be decided by the courts".[11] Charles Clarke MP, the former Home Secretary, agreed that the HRA had "shifted the balance of power towards the judiciary" (Q 141). The possible ways of resolving the tensions that this change has created, particularly with regard to anti-terrorism legislation, are discussed later in this chapter.

33. Summing up the way in which the role of the judiciary has changed in recent years, Professor Kate Malleson wrote, "the senior judges are now required to police constitutional boundaries and determine sensitive human rights issues in a way which would have been unthinkable forty years ago. This new judicial role is still developing, but … the effect of this trend will be to reshape the relationship between the judiciary and the other branches of government" (Appendix 3).

Strained Relationships?

34. None of the witnesses doubted that there had been periods of strain in the relationship between the executive and judiciary in recent years. Opinion was however divided on whether these tensions should so far as possible be avoided, or whether they should be accepted as part of the new checks and balances of modern constitutional life. Charles Clarke told us that "there is a constitutional tension which is not properly resolved and which it would be beneficial to resolve" (Q 134) and Paul Dacre, editor of the Daily Mail, believed that "the relationship between the executive and the judiciary has become a story and it is possibly creating a gladiatorial sense about some of the reporting that might be causing anxieties on the judicial side" (Q 337).

35. By contrast, Sir Igor Judge, President of the Queen's Bench Division, thought that "a degree of tension is healthy" (Q 297). The former Lord Chancellor, Lord Mackay of Clashfern, agreed with this: "a certain degree of tension between the judiciary and the executive is inevitable and healthy because from time to time the judiciary are called upon to adjudicate under the judicial review procedure and in other ways on actions of the executive, and there are not many people who completely welcome their activities being judged, particularly if they are found to have failed". Indeed, he felt that "the present situation between the judiciary and the executive is in fact quite a good relationship; I do not think that, generally speaking, the relationship is in crisis or anything of that sort" (Q 165).

36. Lord Bingham of Cornhill, the senior Law Lord, took a similar approach in a recent speech, stating that "there is an inevitable, and in my view entirely proper, tension between the two [branches]". He also explained that the tension "is greater at times of perceived threats to national security, since governments understandably go to the very limit of what they believe to be their lawful powers to protect the public, and the duty of the judges to require that they go no further must be performed if the rule of law is to be observed".[12]

Managing the Tensions

37. Whether or not the current levels of tension in this relationship are predictable and in general acceptable, they nevertheless have to be managed and kept in proportion if public confidence is to be maintained in the independence of the judiciary and the integrity of government. The Lord Chancellor, with his traditional position as a "bridge" between the executive and the judiciary, has a particular responsibility to ensure that neither the government as a whole nor individual ministers exacerbate these tensions inappropriately. This responsibility is reflected in his key statutory duties as set out in the oath that he must take under section 17 of the CRA:

to "respect the rule of law";

to "defend the independence of the judiciary"; and

to "ensure the provision of resources for the efficient and effective support of the courts".

We now consider the first and second of these duties; the funding of the courts is discussed in the next section on constitutional change.

38. The first of these duties was explained by Lord Falconer in the following terms: "where the Lord Chancellor is faced, within government, with action which is contrary to the rule of law, national or international, then he has an obligation to take steps to prevent that action … the office is intended to be a check on activity which might have political attractions but would either contravene the law, or offend widely accepted constitutional principles".[13] This duty is absolutely central to the role of Lord Chancellor.

39. The second duty is an important component of the first: the Lord Chancellor must ensure that the principle of judicial independence is not violated. His duty to "defend" the independence of the judiciary is stronger than the duty[14] of all other ministers to "uphold" that independence, giving him a special enforcement role in relation to the rest of the government. Lord Lloyd of Berwick, a former Law Lord, told us that there were two key aspects to defending judicial independence. The first is "where there is an attempt … by Government … to restrict in some way the jurisdiction of the courts", for example the proposed "ouster" clause in the Asylum and Immigration (Treatment of Claimants, etc.) Bill in 2004. In such cases, "the Lord Chancellor's duty is absolute; he must point out in Cabinet that this would undermine the independence of the judiciary" (Q 197). Even though the Lord Chancellor is no longer head of the judiciary, it is essential that he should remain a jealous guardian of judicial independence in Cabinet.

40. The second aspect of defending the independence of the judiciary, Lord Lloyd said, was dealing with ministers who attack individual judges. We have already mentioned that section 3 of the CRA places all ministers under a duty to "uphold" the independence of the judiciary. Lord Falconer explained how this duty applied to the question of ministers commenting on individual cases:

"If you disagree with a decision, say what you are going to do; if you are going to appeal, say you will appeal; if you are going to change the law, say you will change the law. If you cannot appeal and cannot change the law then my advice would be to keep quiet because there is not much you can do about it … It is a pretty unwise thing for a minister to say that there is something [wrong with the law] but we are not going to do anything about it" (QQ 45, 51).

41. Therefore, it is acceptable for ministers to comment on individual cases, but as Lord Falconer told us, "what is objectionable … is something which expressly or impliedly says that there is something wrong with these judges for reaching this conclusion" (Q 50). Lord Lloyd of Berwick agreed with this approach, saying that "it is open to ministers to say they disagree with judgments … What I think is intolerable … is a personal attack on judges" (Q 201). Similarly, Sir Igor Judge said, "if a minister finds there is an adverse judgment against his department in the administrative court, commenting on the judge seems to me to be completely unacceptable, but of course the minister is allowed to say 'we disagree with the judge's position and we intend to appeal'" (Q 284).

42. It seems there is widespread agreement on the limits of what ministers should and should not say about individual cases, but this does not mean that ministers will always behave accordingly. The Lord Chancellor's duty, as the defender of judicial independence in the Cabinet, is both to ensure that ministers are aware of the need to avoid attacking individual judges and to reprimand them if they breach this principle. As Lord Falconer told us, "the effect of the Constitutional Reform Act is that I have got an obligation to speak out both privately and, if necessary, publicly to defend the independence of the judges" (Q 30). As to whether his performance of this role had been adversely affected by the fact that he was no longer a judge or head of the judiciary, he insisted "emphatically not" (Q 3).

43. The Lord Chief Justice has emphasised that this kind of intervention by the Lord Chancellor is "a most valuable constitutional protection of judicial independence", because the only alternative would be for the Lord Chief Justice himself to intervene publicly, which would risk a high-profile dispute that would not be "in the interests of the administration of justice".[15] Lord Mackay of Clashfern added that "the sooner a response is made [by the Lord Chancellor] the better" (Q 174).

44. So how effectively has this duty been performed by Lord Chancellors since the advent of the CRA? In fact, it is only quite rarely that ministers attack individual judges so it may be too soon to pass a definitive judgment on this point. Nonetheless, there are a number of examples of ministers attacking judges over the last two decades, suggesting that such situations will arise again in future. For example, David Blunkett MP (then Home Secretary) implicitly criticised a judge in 2003 for upholding the right of six asylum-seekers to receive support from the National Asylum Support Service, writing a strongly-worded article under the headline "It's time for judges to learn their place".[16] Similarly, in 1995 Michael Howard MP (Home Secretary at the time) reacted to a ruling by Mr Justice Dyson in relation to IRA prisoners by commenting on the radio that "the last time this particular judge found against me, which was in a case which would have led to the release of a large number of immigrants, the Court of Appeal decided unanimously that he was wrong".[17]

45. There has moreover been one case since the CRA was enacted where the then Lord Chancellor, Lord Falconer, was forced to speak out publicly. The case concerned the convicted paedophile Craig Sweeney, who was given a life sentence with a minimum tariff of five years and 108 days. When passing sentence in the Crown Court at Cardiff in June 2003, Judge Griffith Williams, the Recorder of Cardiff, explained very clearly how he reached this tariff and emphasised that Sweeney would only be released "when and if there is no risk of you re-offending".[18] Nonetheless, the then Home Secretary (John Reid MP) attacked the sentence as "unduly lenient" and asked the then Attorney General (Lord Goldsmith) to examine the case as the tariff "does not reflect the seriousness of the crime", thereby inappropriately casting aspersions on the competence of Judge Williams.[19] Lord Goldsmith's spokesman responded sharply to Dr Reid's comments, pledging that "the Attorney will make a decision [on whether to appeal] purely on the merits of the case and not in response to political or public pressure".[20]

46. A detailed timeline of the ensuing events is set out in Box 1. In short, Lord Falconer did not publicly defend Judge Williams until appearing on the BBC's Question Time programme three days after the sentence was handed down. Even then, he defended Dr Reid's intervention.[21] Lord Falconer subsequently had to rebuke and extract an apology from his junior minister, Vera Baird MP, for directly criticising the judge when appearing on a radio programme.[22] The Lord Chief Justice later labelled the attacks "intemperate, offensive and unfair",[23] whilst the Secretary of the Council of Circuit Judges, Judge Keith Cutler, told the BBC that "some of the judges felt that there was quite a silence, and there was no-one actually speaking on behalf of the judges … We are thinking that we must perhaps change that".[24] Ultimately, Judge Williams was vindicated when Lord Goldsmith decided not to appeal.

TABLE 1

The Craig Sweeney case: sequence of events

Mon 12 June 2006	Craig Sweeney sentenced to life imprisonment for abducting and sexually assaulting a three-year-old girl; eligible for parole in 5 years and 108 days. Home Secretary John Reid attacks sentence as "unduly lenient" and asks the Attorney-General to examine the case as the tariff "does not reflect the seriousness of the crime". The Attorney-General's spokesman states that "the Attorney will make a decision purely on the merits of the case and not in response to political or public pressure". He adds that "calling for the file in no way implies that there will be a reference by the Attorney—still less does it imply any criticism of the sentencing judge". It is also widely reported that the Attorney-General feels that John Reid's comments are "not terribly helpful". The Chief Crown Prosecutor for South Wales explains the sentencing guidelines in the context of the Sweeney case.
Tues 13 June	The sentence handed down to Craig Sweeney generates hostile media coverage. The Sun criticises "the arrogance of judges in their mink-lined ivory towers who leave the rest of us to cope with the real crisis of soaring crime" and adds that "judges are a law unto themselves".[25] The Daily Express brands the judiciary as "deluded, out-of-touch and frankly deranged" and "combining arrogance with downright wickedness", suggesting that "our legal system has not only lost touch with public opinion but with natural justice itself … [sentencing] now bears no relation at all to the seriousness of the crime".[26] The Prime Minister's spokesman defends John Reid, suggesting that it was right "to articulate the concern the public has". Jack Straw MP, Leader of the House of Commons, agrees that it was "perfectly appropriate" for John Reid to have intervened. Lord Morris of Aberavon, the former Attorney General, states that "our courts are not run by Government ministers … As far as sentencing is concerned, they [judges] are independent. If he [John Reid] has a concern … he can amend the acts of Parliament". Alun Michael, a Cardiff MP, calls on judges to "wake up and smell the coffee" and suggests that "some judges simply aren't getting it".
Thurs 15 June	The Lord Chancellor appears on the BBC's Question Time. He says "we need to be extremely careful that we don't attack the judges on these issues where it is the system" and "the whipping boys for this have become the judges and that is completely wrong … If we attack the judges, we attack an incredibly important part of the system when it is not their fault … it wasn't the judge's fault". But he also defends John Reid and claims that he "did not attack the judge".
Fri 16 June	Vera Baird QC, Parliamentary Under-Secretary of State at the DCA, appears on the BBC's Any Questions? She says, "it seems to me that this judge has just got this formula wrong, so I'm critical of the judge for three reasons—one, starting too low; two, deducting too much for the guilty plea; and three, getting the formula wrong".
Sun 18 June	Judge Keith Cutler, Secretary of the Council of HM Circuit Judges, appears on the BBC's Broadcasting House. He says that his colleagues are feeling "pretty low" about the Sweeney case and adds, "some of the judges felt that there was quite a silence, and there was no-one actually speaking on behalf of the judges". He concludes, "we are thinking that we must perhaps change that".
Mon 19 June	Vera Baird is forced to apologise for her comments on Any Questions? The Lord Chancellor accepts her apology.
Tues 4 July	The Lord Chancellor gives evidence to the House of Commons Constitutional Affairs Committee. He accepts that the Sweeney case "has had an impact on undermining confidence in the judiciary".
Mon 10 July	The Attorney General decides not to challenge the sentence imposed by the trial judge, concluding that it was not "unduly lenient".
Tues 18 July	The Lord Chief Justice, speaking at the Lord Mayor of London's annual judges' dinner, labels the recent attacks on judges as "intemperate, offensive and unfair".

47. When we asked the panel of legal editors about this case, they were highly critical of the then Lord Chancellor. Frances Gibb, Legal Editor of The Times, told us that "the Lord Chancellor should have stepped in much more quickly to defend judges in the face of some of his colleagues' comments", and Joshua Rozenberg, Legal Editor of The Daily Telegraph, said that the Lord Chancellor had left the judges "to swing in the wind". Astonishingly, Mr Rozenberg had been told by a DCA press officer that it was for the Lord Chief Justice rather than the Lord Chancellor to speak out on these matters (Q 92).

48. Although the Lord Chief Justice could have publicly criticised Dr Reid, this would probably have exacerbated tensions between the executive and the judiciary at a sensitive time. In fact, the Lord Chief Justice was in Poland at the time and the responsibility for dealing with the controversy fell to Sir Igor Judge. He did not speak to Lord Falconer until two days after the sentence was handed down, and in retrospect admitted that he should have contacted him "more quickly" (Q 272). The Lord Chief Justice should also have been more proactive in ensuring that the matter was being dealt with promptly.

49. 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.

50. It would not be necessary for the Lord Chancellor to reprimand fellow ministers at all if they always adhered to the principle of not commenting on decisions of individual judges in an inaccurate and intemperate manner. One possible way of achieving this would be to amend the Ministerial Code (the code of conduct and guidance on procedures for ministers, published by the Cabinet Office) to include reference to the constitutional conventions which ought to govern public comment by ministers on judges. Dr Matthew Palmer told us that such rules were included in the New Zealand Cabinet Manual (Q 522). Although the new Prime Minister has just issued a new Ministerial Code which does not refer to ministerial comment on judges, he could make the appropriate additions when the Code is next revised. Lord Mackay of Clashfern said that this was "an important matter for consideration", although he was wary of making the Code too long (Q 170). Lord Falconer was non-committal, saying that "I am open to that as a suggestion but I do not think it is that critical" (Q 5). Charles Clarke felt that "getting the codification of this into a better situation is not the answer" (Q 155).

51. 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.

52. Just as ministers ought to demonstrate restraint in commenting on the judiciary, so judges should (and generally do) avoid becoming inappropriately involved in public debates about government policy, matters of political controversy or individual politicians. As the Lord Chief Justice told us, "Essentially, you would not expect judges to comment on political policy" (Appendix 8, Q 41). Lord Falconer elaborated on this sentiment, suggesting that "it is generally a bad idea for judges to be criticising the government on policy issues" because "the public want judges to be unpolitical" and "those very same judges then have to enforce laws about which it might be said they have expressed disagreement" (Q 58). The Lord Chief Justice and Heads of Division have a responsibility to ensure that judges adhere to this principle.

53. However, the Lord Chief Justice, as head of the judiciary, and perhaps other senior judges with responsibility for specific parts of the justice system, are in a different position from that of other judges. On occasion, it is necessary for them to speak out publicly if a particular government policy is likely to have an adverse impact upon the administration of justice and ministers have failed to provide a satisfactory response during private consultations.

General Channels of Communication

54. Effective channels of communication between the executive and the senior judiciary are vital to ensure that the impact of government legislation or policy proposals upon the administration of justice is fully understood at an early stage. Such communications are facilitated in a variety of ways. First, judges serve on a range of bodies with responsibility for the justice system, for example the National Criminal Justice Board. As Sir Igor Judge said, "it is no longer … a concomitant of independence that judges should be isolated" (Q 297).

55. Second, concerns amongst the judiciary about particular government proposals are conveyed through formal responses to consultations. For example, as was widely reported at the time, the Council of Her Majesty's Circuit Judges gave a largely negative response to the Home Office's paper Convicting Rapists and Protecting Victims—Justice for Victims of Rape in January 2007.[27] As Sir Igor Judge told us, a negative response to Government proposals "may create tension" but "we do not expect our response to carry the day" and "in the end Parliament legislates, and then it does not really matter what the judges think" because "the judges apply the law that Parliament has produced" (Q 297).

56. Finally, there are private meetings which take place between ministers and judges (especially the Attorney General, the Home Secretary—probably now the Secretary of State for Justice—and the Lord Chief Justice) to discuss the practicality of particular government policies in terms of the administration of justice. As Sir Igor Judge explained, "week after week these sorts of discussions are going on at ministerial level [and] at official level" (Q 297). Likewise, the former Home Office Minister and new Attorney General, Baroness Scotland, has confirmed that "Ministers do meet the judiciary regularly. These are constructive meetings which ensure there is a regular dialogue between us".[28] If these meetings do not lead to satisfactory mutual understandings, it should be noted that the Lord Chief Justice can also in appropriate circumstances ask to see the Prime Minister (Q 68).

Constitutional Change

57. Effective two-way communication is of particular importance when a constitutional change is proposed which is likely to impact upon the judiciary or the administration of justice more broadly. As Lord Justice Thomas told us: "Our constitution … is based both on statute law and on constitutional understandings and conventions. Those understandings and conventions include reliance upon full and appropriate respect for the different positions occupied by the three branches of government" (Q 374). Therefore, he said, there should always be "a proper … and detailed examination, so that you come to a solution that is acceptable across the board to the executive, to the legislature and to the judiciary" (Q 409). This principle is of even greater significance in light of the constitutional changes brought about by the CRA because, in the words of Dr Matthew Palmer, the different arms of government are still "jockeying for position and taking … time to settle down as to what their relationship is likely to be" (Q 518). Maximum co-operation and consultation are therefore essential.

58. We have already noted in Chapter 1 how in 2003 the Government failed to consult relevant stakeholders—including, astonishingly, the judiciary—before announcing the proposed constitutional changes which ultimately became the Constitutional Reform Act 2005 and, after discussion with the then Lord Chief Justice, the Concordat. Thus the Government's subsequent decision in early 2007 to split the Home Office and create a Ministry of Justice (MoJ) provided an opportunity to ascertain whether they had learnt the lessons of 2003. Whilst the proposals involved a change in the machinery of government, which is a matter for the Prime Minister, Professor Alan Page noted that they were also of "very real constitutional significance" (Q 480). Lord Justice Thomas agreed: "It is our view that the creation of a Ministry of Justice is not simply a machinery of government change [but one that involves] significant constitutional change" (Q 374). Similarly, Professor Anthony Bradley told us that the changes were "of constitutional significance" and affected "the relationship between the Government and the judiciary that resulted from the Constitutional Reform Act 2005", but he also noted that "there is no clear argument to be made against the proposed Ministry of Justice on constitutional grounds" (Appendix 4).

59. So what constitutional impact might these reforms have? We discuss these issues in greater detail below, but they can be summarised as follows:

Role of the Lord Chancellor: the impact of combining in one post the Lord Chancellor's responsibility to defend the independence of the judiciary and some of the Home Secretary's most controversial duties. The effect of having a Lord Chancellor in the House of Commons.

Judicial Review: the impact of the Lord Chancellor being subject to a much greater number of judicial reviews upon his relationship with the Lord Chief Justice and the ongoing validity of the Concordat.

Constitutional Affairs: the impact of constitutional affairs forming a much smaller part of the Lord Chancellor's department than previously.

Funding of the Courts: the possibility of the courts budget being squeezed due to the demands of the resource-hungry prison system, and the impact of no longer having a judge on the board of the department.

60. We agree that the advent of the Ministry of Justice, whilst obviously a machinery of government change, has significant constitutional implications.

61. The Government did not make a good start: the Lord Chief Justice found out about the mooted policy on 21 January 2007 through a Home Office leak in The Sunday Telegraph, whilst the then Lord Chancellor could only recall that he "may have known the day before that something was going to be suggested".[29] The Lord Chief Justice went so far as saying that events unfolded in this manner because the proposal reflected "an anxiety on the part of the Home Secretary to clear the decks so that he could really make a concerted attack on terrorism" and that "it was not a decision that was taken because it would be an extremely good idea to have a Ministry of Justice".[30] Professor Bradley concurred: "the immediate cause of the Government's decision appears to have been concern about the administrative and political problems of the Home Office, rather than a long-established and fully reasoned commitment to creating a Ministry of Justice" (Appendix 4). Whilst this may be true, it is nonetheless important to note that a possible Ministry of Justice has been on the political agenda for some years and that there are solid and well-rehearsed arguments behind its creation.

62. After the leak occurred, Lord Justice Thomas told us, the judiciary was provided by the DCA with "an outline paper detailing possible models for the Ministry". The judiciary responded with two working papers setting out concerns in relation to resources, Her Majesty's Courts Service (HMCS) and sentencing (Q 374). On 19 March, just ten days before the Prime Minister formally announced the Home Office split and the creation of the MoJ, Lord Falconer and the Lord Chief Justice agreed to set up a working group—reporting to them both—to resolve these issues of concern.

63. When the Prime Minister made his announcement, the Lord Chief Justice publicly outlined his concerns about resources and sentencing, warning that the new Ministry could face "a situation of recurrent crisis" if these concerns were not addressed. Provided the necessary safeguards were put in place, however, there would be "no objection in principle" to the proposals.[31] He subsequently explained, "we did make it quite plain that we thought the right way to go about it was to have in-depth discussions first and to form the Ministry of Justice afterwards".[32] Similarly, Lord Justice Thomas told us that "the judiciary considered that the Ministry of Justice should not be brought into existence until the necessary safeguards had been agreed, given the constitutional importance of the issues. However, the judiciary's view was not accepted" (Q 374). Indeed, Lord Falconer made his position crystal clear when giving evidence to us on 1 May: "If we cannot reach agreement, that is not going to stop the Ministry of Justice going ahead on 9 May 2007" (Q 423). When pressed, he simply said that any outstanding areas of disagreement would have to "evolve" (Q 426).

64. When we asked Lord Falconer about the way in which this process of consultation with the judiciary had been conducted, he told us that he was "completely satisfied it is a sensible way of dealing with it" (Q 413). However, Professor Terence Daintith did not agree: "If prior consultation with the judiciary did not take place before the announcement was made, or before the proposal … was fixed in the mind of government, then I think that is very unfortunate, and one would hope that in any future case bearing on the administrative structure relating to the discharge of judicial functions that omission would not occur". He felt that the Government had "move[d] ahead as if it was simply in a pre-2003 situation and nothing more needed to be done other than to tell people what it was going to do" (Q 479).

65. Clearly the formation of the working group was a positive step, even if it only came into being slightly more than one month before the MoJ itself. However, Lord Falconer imposed a number of very tight parameters on the working group:

there must be no change to legislation;
there must be no change to the Concordat;
there must be no change to the executive agency status of the HMCS;
there must be no ring-fencing of HMCS's budget; and
it is for the Lord Chancellor to decide, subject to his statutory obligations, on budgetary issues.[33]

Lord Justice Thomas told us that the judiciary had accepted these parameters because "we felt that if we were to try and protect our position we had no alternative" (Q 382). Nonetheless, he added, it was made clear that "the parameters would have to be revisited if appropriate constitutional safeguards could not be provided within them" (Q 374).

66. At the time of writing—over two months after the MoJ came into being—the working group set up by Lord Falconer and the Lord Chief Justice was still trying to reach agreement. The Lord Chief Justice believed that the relationship between the judiciary and the MoJ was unsustainable and he suggested that he "may very well" be getting near the point where he would be forced to use his "nuclear option" of laying written representations before Parliament under section 5 of the CRA.[34] He went on to explain that the judiciary had "reached the firm view" that there must be a "fundamental review of the position in the light of the creation of the Ministry of Justice", but he noted that "the Lord Chancellor does not believe it is necessary".[35] Lord Falconer, when questioned on this, would only agree that a review could happen "in a year or two".[36]

67. 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.

68. Whilst we do not have sufficient evidence to analyse in any great detail the judiciary's outstanding concerns about these latest reforms, we do offer some thoughts and tentative conclusions. First, we consider how the reforms might affect the traditional role of Lord Chancellor and his ability to defend the independence of the judiciary effectively. Lord Justice Thomas was concerned that the Lord Chancellor would become "a quasi-Home Secretary" and predicted that "the conflicts that are being put into one person will make it progressively more difficult as future ministers no longer have the tradition of the office" (Q 383). Clearly, if the roles of Lord Chancellor and Secretary of State for Justice continue to be combined, there is potential for conflict between the statutory duty to defend the independence of the judiciary and the temptation—to which home secretaries have regularly succumbed—to make intemperate remarks about judges and their judgments or sentencing decisions.

69. However, Lord Falconer pointed out that the changes "do not relieve [the Lord Chancellor] of either his responsibilities to the court system or his duties to the judges" (Q 416). He further commented: "The idea that a minister … responsible for courts and the judges cannot also be responsible for prisons, probation and sentencing policy seems completely wrong. It is a model in many other countries and I would regard my ability to defend the judges, their independence and a proper functioning court system as is no way affected by that. That is a critical consideration in me supporting the idea of a Ministry of Justice" (Q 421). These comments were echoed by Professor Alan Page, who said "I do not think there is anything objectionable itself in this combination of responsibilities" (Q 484). Although this is logically correct, the recent experience of negotiations between the judiciary and the Lord Chancellor has not been encouraging.

70. Another issue is whether the changes will have an adverse impact on the status of the Lord Chancellor, making it more difficult for the post-holder to defend the independence of the judiciary effectively. Traditionally the Lord Chancellor was a senior lawyer in the House of Lords who had no prospect of further promotion, and was seen as somewhat removed from the cut and thrust of everyday politics. However, in light of the increased responsibilities of the MoJ, assuming that the post remains combined with that of Secretary of State for Justice, and given the recent appointment of Jack Straw MP as Lord Chancellor, it seems less likely that future Lord Chancellors will be members of this House. This makes it more probable that they will be ambitious for promotion to what are seen as more senior posts, such as Foreign Secretary or Chancellor of the Exchequer.

71. 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.

72. A related issue is the impact of the Lord Chancellor/Secretary of State being subject to a much larger number of judicial reviews—particularly in respect of prisons—than has been the case in recent years. The Judicial Position Paper on the MoJ noted that "the relationship between the Lord Chancellor and the Lord Chief Justice … depends on continuous dialogue, concurrence and consultation between the two in the field of judicial appointments, discipline and the administration of justice".[37] Yet the Lord Chief Justice said, "if I was sitting on an appeal to which [the Lord Chancellor] was a party, then I could not myself meet with him or enter into discussions with him while that appeal was pending; one of my other judges would have to".[38]

73. Whilst this problem could be overcome if the Lord Chief Justice agreed not to hear judicial review challenges to the legality of MoJ policies and practices, Lord Justice Thomas told us that "the Lord Chief Justice must sit in the major cases—that is his job primarily, to decide them. It would be awful and very damaging, I think, to the judiciary as a whole that if because of the need to maintain dialogue under the Concordat with the Lord Chancellor there was any perceived difficulty with him doing that" (Q 386). Therefore, although the Lord Chancellor has always been subject to judicial review in respect of the Legal Services Commission (QQ 419, 432), it will be necessary to give careful consideration to how his relationship with the Lord Chief Justice will operate under the new dispensation.

74. Another consideration is whether the former DCA responsibilities for constitutional affairs will continue to be given the attention that they merit in the much larger MoJ. Professor Terence Daintith expressed concern about "how difficult it is to find constitutional affairs within the organisation chart of the department" and warned that "it is a pretty small part of what the department does" (Q 493). However, Lord Falconer, supported by other witnesses including Professor Alan Page, insisted that "issues like human rights, freedom of information, the constitution of the United Kingdom are inextricably linked, I think, with the rule of law and the running of the courts" (Q 444) and therefore rightfully belonged in the MoJ. Moreover, the new Prime Minister's decision to propose a series of constitutional reforms (to be overseen by the new Lord Chancellor and Secretary of State for Justice) during his first few days in office indicates that constitutional affairs will remain very much on the agenda. Indeed, the Green Paper setting out these proposals envisages constitutional reforms stretching into the next Parliament.[39] 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.

75. The judiciary's most serious ongoing concern relates to the funding and administrative support of the courts. Even before the announcement of the MoJ, there were problems with the budget-setting process. As the Lord Chief Justice said recently, the Concordat should have resulted in "a sea-change in the attitude of both HMCS and the DCA, under the Lord Chancellor, to the role of the Lord Chief Justice in relation to the provision and administration of court resources" yet "there has been no real change in attitude at all". Indeed, "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". The judges were "side-lined" and "decisions were taken without our participation and we were then told what was proposed".[40]

76. Whilst the judiciary were in fact attempting to resolve this problem before the MoJ was announced, the Lord Chief Justice explained that the situation had been "tolerable so long as the Lord Chancellor was in the traditional and historic role of that office and so long as providing an administrative system for the courts remained one of his two most important budgetary concerns; the other being legal aid".[41] But with the creation of the MoJ, incorporating responsibilities for the overcrowded and resource-hungry prison system, there will clearly be far more demands on the Lord Chancellor's departmental budget—which potentially means that the courts budget could be squeezed. As the Lord Chief Justice commented, "whereas before, so far as the Lord Chancellor was concerned, the running of the courts was really probably his primary concern, now he has taken on board an enormous portfolio, and it seems to us, looking at it realistically, that his primary concern is bound to be prisons and offender management".[42] However, one of our witnesses, Professor Robert Hazell, a former senior civil servant, offered an alternative view. He suggested that "the argument about the greater risk to the Courts Service inside a large Ministry of Justice potentially cuts both ways. The budget for the Courts Service itself is relatively small … One could say it is easier to protect the budget of £1 billion within a total budget of £10 billion, because there are more other votes or lines within the budget from which savings can be sought. I therefore do not see the arguments as necessarily all one way or potentially negative" (Q 496).[43]

77. It is also noteworthy that the creation of the MoJ has resulted in the removal of a key protection in relation to the financial position of the courts: the Senior Presiding Judge's seat on the board of the DCA. Lord Justice Thomas explained that the Senior Presiding Judge could not take up a seat on the board of the Ministry because "it would be wholly inappropriate for a judge to sit on the board of a ministry where there was a conflict between how much we spend on prisons or how much we spend on the courts" (Q 391).

78. The judiciary's other concern about courts funding relates to the impact of judgments against the MoJ. As the Judicial Position Paper noted: "If the budget of HMCS is not sufficiently independent of, or safeguarded from, [the] departmental budget, the consequence is that members of the judiciary will find themselves in the invidious position of making decisions which directly impact on the Lord Chancellor's ability to fulfil his duty under section 1 of the Courts Act 2003 ['to ensure that there is an efficient and effective system to support the carrying on of the business' of the courts]".[44] Sir Igor Judge warned that in 20 years a Minister of Justice may "wonder why on earth one bit of his department is ordering another bit of his department to spend money and he may take the view that spending the money is for him", thus risking a possible breach of judicial independence. Moreover, he said, an individual whose judicial review fails may suspect that "the judge was influenced in his decision against him by the fact that there would be a huge cost imposed on the Ministry, of which the judiciary formed a part in financial terms" (Q 378).

79. Lord Justice Thomas set out the reassurances sought by the judiciary in relation to the funding of the courts as follows:

"there must be a fixed mechanism to set the budget and operating plan with provision for capital expenditure; and, in the event of a dispute between the judicial and executive branches of government as to the resources necessary, the arbiter must be the legislature which of course ultimately votes the budget in accordance with their view as to priorities of overall expenditure. It is also necessary to ensure that if adjustments are proposed to the budget during the year (for example by taking money from the agreed budget to remedy shortfalls elsewhere in the Ministry), there is a similar open and transparent mechanism which must be followed before a change is made" (Q 374).

80. When we asked Lord Falconer about the issue of funding, he said, "I completely accept the need for a properly funded court system" and pointed to the statutory protections in section 1 of the Courts Act 2003 and sections 1 and 3 of the Constitutional Reform Act 2005 (Q 420). As for the financial impact of judgments concerning the MoJ, he commented: "the principle that I [already] deal with is, from time to time, the courts have to make decisions about the granting or refusal of legal aid that can potentially have an effect on legal aid funding and that can in its turn have an effect on funding available to the courts. The judges obviously make these decisions completely in accordance with the law and the facts. So far as I am concerned, it gives rise to absolutely no difficulty in my relationship with the judges" (Q 431).

81. Nonetheless, Alex Allan, Permanent Secretary at the MoJ, demonstrated to the House of Commons Constitutional Affairs Committee that he was taking the judiciary's concerns seriously. He revealed that "we have been working through quite detailed processes to ensure that there is judicial involvement in all stages [of the budget-setting process] so that some of their concerns about the Lord Chancellor arbitrarily raiding the court budget to fund some other portion of the Ministry of Justice's budget would be alleviated". He also said, "we have produced a solution through this process which meets the particular concerns to ensure transparency of the budget-setting process and full involvement of the judiciary", though at the time of writing it was not clear that agreement with the judiciary on this point had been reached.[45]

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".[46]

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).

87. 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 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 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 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 not have any greater authority really than Home Office lawyers in that situation" (Q 128). A committee of legal grandees also risks duplicating the work already carried out by the JCHR, which has an important role in scrutinising the compatibility of bills with Convention rights and drawing concerns to the attention of both Parliament and the executive. Moreover, the House of Lords as currently constituted has an abundance of distinguished members of the kind outlined above, and can therefore bring this expertise to bear during the passage of legislation through the House.

108. We do not believe that a committee of distinguished lawyers tasked with scrutinising legislation for compatibility with Convention rights is desirable at this time. If, however, at some future time the composition of the House of Lords changes, this is an idea that may well merit further consideration.

ADVISORY DECLARATIONS

109. We have already explained why we do not believe that a system of "abstract review" would not be appropriate in this country. However, this is not to say that the courts could not exercise a jurisdiction to make advisory declarations about the compatibility (or otherwise) of legislative provisions promptly after enactment. Claims for advisory declarations differ from "abstract review" in that they are brought using ordinary legal procedures, arise out of a practical situation and the court hears submissions from two or more parties. The English courts have long been wary of adjudicating on hypothetical issues, but in 1994 the Law Commission of England and Wales recognised that advisory declarations had a role to play and Lord Woolf's major review of the civil justice system in 1996 recommended that the High Court should have "an express power to grant advisory declarations when it is in the public interest to do so. However, this should be limited to cases where the issue was of public importance and was defined in sufficiently precise terms, and where the appropriate parties were before the court".[54]

110. Advisory declarations will be inappropriate in some circumstances. Thus the High Court recently held that it had no jurisdiction to issue an advisory declaration (in a case brought by the Campaign for Nuclear Disarmament) on whether Resolution 1441 of the United Nations Security Council (an instrument of international rather than national law) authorised states to take military action in the event of non-compliance by Iraq with its terms.[55] In other situations, however, the courts have been willing and able to give guidance on matters of general public importance. For example, the House of Lords made a declaration on whether a departmental circular was correct to state that a pregnancy was "terminated by a registered medical practitioner", and therefore lawfully under the Abortion Act 1967, when the termination is prescribed and initiated by a medical practitioner who remains in charge of it, and is carried out in accordance with his instructions by qualified nursing staff.[56] Moreover, the Government has recently shown itself open to the possibility of identifying a test case to bring an issue of importance about the HRA to the courts.[57] Therefore, although not a panacea, it is possible to envisage situations in which an advisory declaration may provide an opportunity for the courts to give guidance on a question relating to a Convention right.

111. We recommend that the Government and the judiciary give further consideration to how advisory declarations might be used to provide guidance on questions relating to Convention rights.

11 See http://www.ukpac.org/bogdanor_speech.htm. Back

12 "The Rule of Law" (2007) vol 66 Cambridge Law Journal 67, the text of a lecture delivered at the University of Cambridge Centre for Public Law on 16 November 2006. Back

13 See http://www.dca.gov.uk/speeches/2006/sp061020.htm. Back

14 CRA s 3. Back

15 See http://www.judiciary.gov.uk/publications_media/speeches/2007/lcj_220307.htm. Back

16 News of the World, 23 February 2003, p 6. Back

17 Daily Mail, 30 September 1995, p 19. Back

18 Sentencing Remarks, T20067014, 12 June 2006. Back

19 The Independent, 13 June 2006, p 4. Back

20 The Guardian, 14 June 2006, p 11. Back

21 Daily Mail, 16 June 2006, p 6. Back

22 The Daily Telegraph, 20 June, p 4. Back