House of Lords - Constitution

Select Committee on Constitution Sixth Report

CHAPTER 3: PARLIAMENT AND JUDICIARY

112. Section 137 of the CRA, when it is brought into force, will disqualify all senior serving judges from sitting and voting in the House of Lords. Although in recent years it has become increasingly rare for the Law Lords and other senior serving members of the judiciary who hold peerages to participate in debates in the House of Lords, section 137 will be constitutionally significant. Moreover, proposals to reform the composition of the House of Lords may result in there being fewer retired judges in the House, or possibly none at all. Against this changing background, it is necessary to consider how the senior judiciary might convey to Parliament any concerns about legislation or policy.

Laying Written Representations before Parliament

113. The most obvious mechanism to convey such concerns is set out in section 5 of the CRA, which allows the Lord Chief Justice (and the Lord Chief Justice of Northern Ireland and the Lord President of the Court of Session in Scotland) to "lay before Parliament written representations on matters that appear to him to be matters of importance relating to the judiciary, or otherwise to the administration of justice".

114. When we asked the current Lord Chief Justice about the circumstances in which this power should be used, he told us that "this is a power to be exercised when I really want to draw attention to something that is really important, not something to be done as a matter of routine. I see this really as a substitute for what the Lord Chief Justice has been able to do and has done in the past, which is to address the House on a matter which is considered sufficiently important to justify that step" (Appendix 8, Q 38). He went on to describe the power as "a nuclear option" and suggested that it might be used "if something was proposed by way of legislation that was so contrary to the rule of law that judges would feel: 'We have got to step in and make plain our objection to this'" (QQ 48, 50). Appearing before the House of Commons Constitutional Affairs Committee on 22 May 2007, the Lord Chief Justice indicated that in relation to the failure (as he saw it) of the then Lord Chancellor, Lord Falconer, to provide safeguards following the creation of the MoJ, he was getting near the point of considering it necessary to use his section 5 power.[58]

115. Perhaps unsurprisingly, Lord Falconer also thought that this power should be a "nuclear option" and "a rarely used power" which would only come into play if the judiciary failed to obtain satisfaction through prior discussions with the executive (Q 61). Indeed, he warned that "if the representations were used on a routine basis … then I think that would greatly reduce the effect of the power" (Q 65). He also suggested that the Lord Chief Justice should only use this power in relation to issues "that touch … the independence or the position of the judiciary", including inadequate resourcing of the court system or undue interference in the judicial appointments system (Q 61). Clearly, however, it would be for the Lord Chief Justice to decide when to use his "nuclear option".

116. This leads us to ask a question which appears to have received remarkably little attention: how should the executive and legislature respond if the Lord Chief Justice were to exercise his right to lay written representations before Parliament?

117. First, it would seem essential for the executive promptly to present Parliament with a formal written response to the Lord Chief Justice's concerns, probably in the form of a written ministerial statement. Lord Falconer seemed to accept this, saying "I would have thought there would have to be a government response" (Q 63). Furthermore, if the Lord Chief Justice's concerns relate to a piece of legislation being considered by Parliament, it might be considered appropriate for the response to be made before the bill has progressed too far in either House, in order that the deliberations of MPs and peers can properly be informed.

118. Second, it is clear that Parliament should now give some serious thought in advance as to how it might treat any written representations from the Lord Chief Justice, because it would be inadvisable to wait until a constitutional crisis arises before choosing an appropriate process to scrutinise the concerns in question. In our view, it would be desirable for such representations to be published in Hansard and for the bill or policy in question to be debated on the floor of the House. It might also be useful for there to be more in-depth scrutiny of the Lord Chief Justice's concerns in order to aid the deliberations of the House. In his paper, Professor Bradley suggested that "when the chief justice … exercises his new right to lay written representations before … Parliament, this should lead to a hearing before a committee" (Appendix 4). It might perhaps be appropriate for this Committee to undertake such a hearing in this House, and for the Constitutional Affairs Select Committee (or its successor committee) to do so in the House of Commons. These hearings might include oral evidence from the Lord Chief Justice himself, the relevant minister and other key stakeholders.

119. We recommend that any written representations received from the Lord Chief Justice under section 5 of the Constitutional Reform Act 2005 should be published in Hansard; that the business managers should find time for the issue to be debated in the House at the earliest possible opportunity; and that the Government should respond to such representations in good time before either House has finished considering the bill or initiative in question. Further, this Committee will endeavour to scrutinise any such representations in time to inform deliberations in the House.

Other Ways of Communicating with Parliament

120. Since the Lord Chief Justice's power to lay written representations before Parliament is likely to be a rarely-used "nuclear" option, there need to be other more routine ways in which lesser concerns can be conveyed to Parliament. The Lord Chief Justice asked, "might there not be a machinery, if there was a particular topic that I thought it desirable to ventilate, whereby I could let the appropriate committee know that if they were interested in hearing about this I would be happy to discuss it?" (Appendix 8, Q 43). Lord Mackay of Clashfern agreed with this approach, telling us that "more informal procedures such as speaking to committees … are more likely to be productive" (Q 180). We agree that select committees offer a suitable arena for the Lord Chief Justice, or other senior judges, to air concerns about the administration of justice and the impact of legislation and other policy proposals upon the courts and the judiciary. The Lord Chief Justice already appears before this Committee annually, but we would always be open to additional appearances as necessary by him and other senior colleagues, and we trust that other committees of both Houses would take a similar approach.

The Question of Accountability

121. It is now necessary to ascertain how the judiciary should be held accountable. Professor Bradley warned that "judicial independence requires that judges are not directly accountable either to the executive or to Parliament for their decisions. The primary form of accountability comes from four aspects of judicial process: (a) most court hearings take place in public; (b) judicial proceedings are usually adversarial; (c) judicial decisions must deal with the submissions of the parties; and (d) most decisions may be challenged by appeal to a higher court" (Appendix 4). Therefore, as Professor Vernon Bogdanor has pointed out, "it is not for Parliament to consider the conduct of individual judges, nor to hold judges to account for their judgments, nor to examine the merits of individual appointments or complaints against judges".[59] In fact, according to Erskine May, "reflections" may only be cast upon the conduct of judges in Parliament if there is "a substantive motion, drawn in proper terms".[60]

122. Nonetheless, subject to these caveats, Professor Bogdanor noted that "it is a fundamental principle of a democratic society … that those with power should be accountable to the people, through their elected representatives". We would add that the House of Lords has special responsibilities as a guardian of constitutional values and should thus play a role here as well. Professor Bogdanor suggested that judges should not be "answerable" to Parliament in terms of justifying their decisions, but should "answer" to Parliament through committee appearances—in other words, they should be accountable to Parliament not in the "sacrificial" sense, but in the "explanatory" sense. We find this an interesting argument.[61]

123. In a previous report, we noted that Parliament was the "apex" of accountability in the political process.[62] This principle is apt here, since the public is the judiciary's key stakeholder and Parliament represents the people. We have therefore sought to identify ways in which Parliament can help the judiciary to remain accountable. Since the Lord Chancellor is no longer head of the judiciary and therefore cannot answer to Parliament on its behalf, Parliament must hold the judiciary accountable in other ways.

THE ROLE OF SELECT COMMITTEES

124. Select committees, especially this Committee and the Constitutional Affairs Select Committee (or its successor committee) in the House of Commons, can play an important role in holding the judiciary to account by questioning judges in public. Our Committee has already adopted the practice of inviting the Lord Chief Justice to appear before us on an annual basis, and there is scope for taking evidence from other senior judges. Committees must be sensitive to the caveats mentioned above, and the need for the judiciary not to become involved in overtly political questions, but judges themselves should be aware of which subject areas they can appropriately discuss. Indeed, Parliament and the judiciary have agreed a set of internal guidelines to help judges appearing before committees.

125. It is clearly acceptable for committees to question judges on the administration of the justice system and the way in which the judiciary is managed. In addition, it may be desirable for discussions to range beyond such issues, with judges being asked about their opinions on broad legal questions such as the use of comparative law, the distinction between sections 3 and 4 of the HRA and the wider interpretation of the Pepper v Hart judgment.[63] Indeed, given that many judges' views on issues such as these are already in the public domain in the form of articles and speeches, it would be odd if Parliament was denied the opportunity to probe such opinions in more detail. As Professor Bogdanor commented, judges "should not object to discussing [their] views in a parliamentary forum, in the cause of greater public understanding".[64] However, it would be inappropriate for committees to question judges on the pros and cons of particular judgments.

126. We believe that select committees can play a central part in enabling the role and proper concerns of the judiciary to be better understood by the public at large, and in helping the judiciary to remain accountable to the people via their representatives in Parliament. Not only should senior judges be questioned on the administration of the justice system, they might also be encouraged to discuss their views on key legal issues in the cause of transparency and better understanding of such issues amongst both parliamentarians and the public. However, under no circumstances must committees ask judges to comment on the pros and cons of individual judgments.

A PARLIAMENTARY COMMITTEE ON THE JUDICIARY

127. This leads us to the question of whether there should be a committee tasked solely with scrutinising the judiciary. In 2004, the Select Committee on the Constitutional Reform Bill concluded: "the Committee agrees that it is desirable for a committee of Parliament to act as a bridge between Parliament and the judiciary, particularly in the event of the senior judges being excluded from the House. Such a committee should not seek to hold individual judges to account. The advantages of a statutory committee were not obvious to the Committee and a clear majority preferred the joint committee option. We recognise that Parliament itself will wish to consider this issue further."[65] Three years later, no such committee has been formed.

128. The Lord Chief Justice, when asked about the possible creation of such a committee, felt that it was "an option that merits consideration" because "Parliament is certainly justified in expecting some way of communicating with the judiciary" (Appendix 8, Q 40). Good communications are indeed both desirable and necessary, because there must be a mechanism for effective parliamentary oversight of, and two-way dialogue with, the judiciary now that there is essentially no judicial representation in the legislature. However, given that judicial affairs are an important element of the constitution, it might be argued that this Committee and the Constitutional Affairs Committee (or its successor committee) in the House of Commons could provide the fora for such communications. On the other hand, a new joint committee could lighten the burden on both the judiciary itself and the two constitution committees.

129. We are not currently convinced of the need for a joint committee on the judiciary, but we shall keep the situation under review, not least in evaluating our Committee's effectiveness in providing the necessary oversight and contact. The Constitutional Affairs Select Committee in the House of Commons also has an important role to play.

POST-LEGISLATIVE SCRUTINY

130. A recent and interesting development in Parliament is select committee inquiries into the way in which the courts are interpreting and applying legislation. In the past three years, the Joint Committee on Human Rights have twice investigated the courts' approach to defining the terms "public authority" and "function of a public nature" in section 6 of the HRA.[66] The Joint Committee reached the conclusion that the leading judgments of the courts had given those terms an overly narrow meaning and as a result the true intention of Parliament was not being given effect. With growing awareness of the importance of post-legislative scrutiny,[67] it is likely that in future similar inquiries will consider the judicial interpretation of parliamentary legislation in other contexts. However, we are concerned that post-legislative scrutiny has still not become the "common feature" that we concluded it should be in an earlier report.[68] We repeat our earlier conclusion that post-legislative scrutiny is highly desirable and should be undertaken far more generally. This would boost the level of constructive dialogue between Parliament and the courts.

CONFIRMATION HEARINGS

131. Our inquiry has not focused on judicial appointments as it would have been premature to do so: the Judicial Appointments Commission of England and Wales has only recently begun to operate and the selection commission that will seek Justices of the Supreme Court of the United Kingdom will not begin its work until some time after October 2009 (the anticipated date on which Part 3 of the CRA will come into force, transferring functions from the Appellate Committee of the House of Lords to the new court).

132. No account of communications between the judiciary and Parliament would be complete, however, without mention of confirmation hearings. In a number of constitutional systems there is a requirement or convention that appointees to high judicial office appear in front of a committee of the legislature before being confirmed in their post. However, the possibility of confirmation hearings (or appearances before a select committee soon after appointment) was canvassed during the passage of the Constitutional Reform Bill and firmly rejected.[69]

133. Nonetheless, we note three developments. The first is the proposed creation for the first time in the United Kingdom of a statutory requirement for confirmation hearings, albeit in the very different context of appointments made by the Mayor of London.[70] The second is the announcement in 2006 by the Prime Minister of Canada that his candidate for a Supreme Court of Canada vacancy (Justice Marshall Rothstein of the Federal Court of Appeal) had agreed to appear before an ad hoc committee of the Canadian House of Commons, chaired by a judge and law professor who were not MPs. A televised hearing was held in which Justice Rothstein answered questions about himself and his view of the role of the Supreme Court of Canada.[71]

134. The third and most important development is the proposal of the MoJ in their Green Paper The Governance of Britain to introduce pre-appointment or post-appointment committee hearings for certain key public posts. The Green Paper also refers to judicial appointments in the following terms: "The Government is willing to look at the future of its role in judicial appointments: to consider going further than the present arrangement, including conceivably a role for Parliament itself, after consultation with the judiciary, Parliament and the public, if it is felt there is a need".[72] However, when asked about this point, Baroness Ashton, Leader of the House of Lords, told peers that "to my knowledge there is absolutely no intention" of introducing pre-appointment hearings for judges.[73] Whilst we embrace this assurance from Baroness Ashton, we are concerned that it does not tally with the wording of the Green Paper.

135. We urge the Government to clarify their position on the introduction of appointment hearings for judges at the earliest opportunity, since this would be an innovation with very profound implications for the independence of the judiciary and the new judicial appointments system.

AN ANNUAL REPORT ON THE JUDICIARY

136. An additional device to facilitate effective scrutiny would be an annual report by the judiciary of England and Wales to be laid before Parliament. Although numerous different parts of the judiciary already produce annual reports, there would also be value in having one consolidated report on behalf of the judiciary as a whole. The Lord Chief Justice told us in May 2006 that this "is something we are considering" (Appendix 8, Q 39) and then on 17 July 2007 he announced that the Judicial Executive Board had agreed to produce such an annual report to be laid before Parliament. Although the mechanism for laying such a report has yet to be determined, we suggest that it should be laid under section 5 of the CRA so that it has a formal status.

137. The question of what should be contained in the report is primarily a matter for the judiciary. However, it might make sense for it to contain an overview of issues relating to the administration of justice—including the funding of the courts and the activities of the Judicial Office—and perhaps an account of concerns amongst the senior judiciary on matters such as sentencing policy.

138. Once the report is laid before Parliament, both Houses should debate it, perhaps after the report has been considered and commented upon by our Committee and the Constitutional Affairs Select Committee (or its successor committee) in the House of Commons. Moreover, Lord Mackay of Clashfern suggested that upon publication of the report, "the Lord Chief Justice would probably give a press conference, explaining the report and answering any questions that might be raised about it by the press" (Q 180).

139. We welcome the Judicial Executive Board's decision that the Lord Chief Justice should lay an annual report before Parliament, an innovation which this Committee had discussed with the Lord Chief Justice and other senior judges in the course of our deliberations. We suggest that the annual report should be formally laid under section 5 of the Constitutional Reform Act. We further suggest that the report might encompass administrative issues and—where appropriate—areas of concern about the justice system, provided that there is no discussion of individual cases. We believe that the report will provide a useful opportunity for both Houses of Parliament to debate these matters on an annual basis, and for the Lord Chief Justice to engage effectively with parliamentarians and the public.

58 Evidence by the Lord Chief Justice and the Rt. Hon. Lord Justice Thomas to the Constitutional Affairs Select Committee, 22 May 2007, Q 58. Back

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

60 Erskine May, Twenty-third edition (2004), pp 438-439. Back

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

62 Sixth Report of Session 2003-04, The Regulatory State: Ensuring Its Accountability (HL Paper 68-I), pp 20-21. Back

63 See http://www.parliament.uk/commons/lib/research/notes/snpc-00392.pdf for further information. Back

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