CHAPTER 5: CONCLUSIONS AND RECOMMENDATIONS
Executive and Judiciary
MANAGING THE TENSIONS
172. 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. (Paragraph 49)
173. 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. (Paragraph 51)
CONSTITUTIONAL CHANGE
174. We agree that the advent of the Ministry
of Justice, whilst obviously a machinery of government change,
has significant constitutional implications. (Paragraph 60)
175. 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. (Paragraph 67)
176. 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. (Paragraph 71)
177. 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. (Paragraph 74)
178. 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. (Paragraph 83)
179. 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. (Paragraph 87)
HUMAN RIGHTS ACT
Ministerial Compatibility Statements and Parliamentary
Scrutiny
180. 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. (Paragraph 90)
Greater Guidance to the Executive from the Courts?
181. 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. (Paragraph 97)
Should there be a System of Abstract Review?
182. 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. (Paragraph 106)
Review of Bills by a Committee of Distinguished
Lawyers
183. 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. (Paragraph
108)
Advisory Declarations
184. 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. (Paragraph 111)
Parliament and Judiciary
LAYING WRITTEN REPRESENTATIONS BEFORE PARLIAMENT
185. 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.
(Paragraph 119)
THE QUESTION OF ACCOUNTABILITY
The Role of Select Committees
186. 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. (Paragraph 126)
A Parliamentary Committee on the Judiciary
187. 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. (Paragraph 129)
Post-legislative Scrutiny
188. 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. (Paragraph 130)
Confirmation Hearings
189. 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. (Paragraph 135)
An Annual Report on the Judiciary
190. 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. (Paragraph 139)
Judiciary, Media and Public
PUBLIC PERCEPTIONS
191. We believe that the media, especially the
popular tabloid press, all too often indulge in distorted and
irresponsible coverage of the judiciary, treating judges as "fair
game". A responsible press should show greater restraint
and desist from blaming judges for their interpretation of legislation
which has been promulgated by politicians. If the media object
to a judgment or sentencing decision, we suggest they focus their
efforts on persuading the Government to rectify the legal and
policy framework. In order to ensure more responsible reporting,
we recommend that the Editors' Code of Practice, which is enforced
by the Press Complaints Commission, be regularly updated to reflect
these principles. (Paragraph 146)
THE ROLE OF INDIVIDUAL JUDGES
192. Whilst judges should never be asked to justify
their decisions outside the courtroom, it is desirable for them
to communicate with the public and the media on appropriate issues.
We therefore strongly encourage the occasional use of media releases
alongside judgments, as for example in the Charlotte Wyatt case.
Further, we cannot see any reason why judges should not co-operate
with the media on features about their activities outside the
courtroom, if they so wish. However, we are strongly of the opinion
that whatever the media pressure, judges should not give off-the-record
briefings. (Paragraph 155)
THE ROLE OF THE LORD CHIEF JUSTICE
193. It is wholly within the discretion of the
Lord Chief Justice to determine how he can most effectively communicate
with the media and the public. However, we suggest that he may
from time to time need to re-appraise his strategy in light of
the new constitutional relationship between the judiciary, the
executive and Parliament. We believe that, in these days of greater
separation of powers, it is highly desirable for him to ensure
that the views of the judiciary are effectively conveyed to the
public. (Paragraph 160)
THE ROLE OF THE JUDICIAL COMMUNICATIONS OFFICE
194. We conclude that the judges should consider
making the Judicial Communications Office more active and assertive
in its dealings with the media in order to represent the judiciary
effectively. We suggest that consideration be given to appointing
one or more spokesmen with appropriate qualifications and legal
experience who would be permitted to speak to the media with the
aim of securing coverage which accurately reflects the judgment
or sentencing decision. However, under no circumstances should
such spokesmen seek to justify decisions as opposed to explaining
them. (Paragraph 171)
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