Select Committee on Constitution Sixth Report


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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