House of Lords - Constitution

Select Committee on Constitution Sixth Report

APPENDIX 4: PAPER BY PROFESSOR ANTHONY BRADLEY: THE NEW CONSTITUTIONAL RELATIONSHIP BETWEEN THE JUDICIARY, GOVERNMENT AND PARLIAMENT; AND FURTHER PAPER: CHANGES IN THE MACHINERY OF GOVERNMENT AFFECTING THE DEPARTMENT FOR CONSTITUTIONAL AFFAIRS AND THE HOME OFFICE

Summary

The paper draws attention to aspects of the present constitutional relationship between judiciary, Government and Parliament. Section A (paras 1-9) explains the need for an independent judiciary in a constitution founded on democracy and the rule of law; in particular, the public law jurisdiction of the courts is likely to bring them into controversy with the Government. Section B (paras 10-11) outlines the main changes made by the Constitutional Reform Act 2005. Section C (paras 12-20) discusses the effect of these changes on the courts and considers whether judicial independence is inconsistent with some forms of accountability. Section D (paras 21-25) outlines the main features of the Human Rights Act 1998 and Section E (paras 26-33) examines whether the Act has affected the constitutional balance between Parliament, executive and the courts. It is concluded that the Act significantly extended the jurisdiction of the courts by enabling the higher courts to review primary legislation for compatibility with the European Convention on Human Rights, though the sole relief that may be granted is a declaration of incompatibility. Section F (paras 34-58) examines the extent to which the law permits excessive or abusive criticism of the judiciary by the media, by parliamentarians and by Ministers, and draws attention to recent criticism of judges by Ministers. It is proposed (para 58) that the Ministerial Code should contain a new chapter setting out the conventions in relation to the judiciary that Ministers must observe.

A The Constitutional Role of the Judiciary

1. The context for this inquiry by the Committee on the Constitution is the changing relationship between judiciary, Government and Parliament following the Constitutional Reform Act 2005 (hereafter, "the CRA" or "the 2005 Act"). The primary aim of that Act was to change the law relating to the constitutional position of the judiciary. For this reason, this paper focuses on the relationship between the judiciary, on the one hand, and Government and Parliament, on the other. It does not deal with the Government/Parliament relationship. While the paper is not a comprehensive review of the subject, it does examine the impact of the Human Rights Act 1998 (hereafter, "the HRA"), since that Act features prominently in current debate on the role of the judiciary.

2. The interaction of judiciary, executive and legislature is a fundamental aspect of any constitution founded on democracy and the rule of law. Unless there is an independent judiciary, able to interpret and apply laws in a manner based on legal rules and principles rather than on political intentions or calculations, the concept of law itself is brought into question. Article 6/1 ECHR recognises the right of every person "in the determination of his civil rights and obligations or of any criminal charge against him" to "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". In 2002, a high-level international study of challenges facing the judiciary in the 21^st Century led to the issue of The Bangalore Principles of Judicial Conduct.[114] The preamble to that document emphasised that the implementation of all rights, including human rights, "ultimately depends on the proper administration of justice"; and that a "competent, independent and impartial judiciary" is essential if the courts "are to fulfil their role in upholding constitutionalism and the rule of law".

3. Every democratic constitution distinguishes, in whatever terms, between the tasks of the legislature, executive and judiciary and contains a statement, however brief, of the distinctive role of the judiciary. Even in countries that have a written constitution based on the formal separation of powers, the significance of judicial independence cannot be discovered from the written text alone. Like other constitutional principles, judicial independence is heavily influenced by a country's history and culture. Although aspects of the principle have a long pedigree in this country (for instance, the Act of Settlement 1700 declared that judges in England hold office during good behaviour, not at pleasure of the Crown), the position of the judiciary has evolved over the years and will continue to do so in the light of changing social and political factors. By contrast with that evolutionary process, the CRA in 2005 made extensive changes in the institutional framework. At the same time, the CRA declared that

(i) despite these structural changes, the existing constitutional principle of the rule of law is not adversely affected (section 1) and

(ii) the executive must continue to uphold the independence of the judiciary (section 3). However, the Act did not define the content of the rule of law. Nor did it summarise the notion of judicial independence, other than to outlaw attempts by Ministers to influence particular judicial decisions "through any special access to the judiciary" (section 3(5)).

4. All legislation, and in particular the CRA, has to be read against the inherited constitutional background if it is to be fully understood. In 1995, the relationship between Parliament, executive and judiciary was summarised by Lord Mustill in these terms:

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More recently, Lord Bingham has said:

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5. But judicial independence is only part of our constitutional structure. At the heart of this structure is the enactment of legislation by Parliament (acting almost invariably on the proposal of the executive). That structure must also include a place for the common law, since in deciding cases the courts frequently apply rules and principles that have not been enacted by Parliament. While rules of the common law may be abrogated or amended by Parliament, the traditions of the common law largely determine the approach taken by the courts in deciding new questions of law that arise, and in interpreting and applying laws made by Parliament.[117] In recent years, the courts have stressed the extent to which the common law influences the task of applying new legislation, particularly when fundamental rights and liberties are affected. Lord Browne-Wilkinson said in 1997,

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This principle has been applied in particular to what have sometimes been called 'fundamental constitutional rights'.[119] The background of constitutional democracy against which Parliament legislates includes 'the principle of legality'. Lord Hoffmann has said that this principle

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6. The duties of the judiciary include applying and enforcing the laws, not merely against private individuals and corporations but if necessary against the executive itself. This duty is a key aspect of the constitutional position of the courts and the executive. As Nolan LJ said in 1992, when the Home Secretary was held to have acted in contempt of court in disregarding a judge's order to bring back to the United Kingdom a Zairean asylum-seeker,

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This formulation properly stresses the element of respect that is due from an all-powerful executive to what has sometimes been called 'the least dangerous branch', the judiciary. The statement must of course be read subject to the legislative authority of Parliament. Often legislation will have a decisive effect in determining the limits of the 'lawful province' of the executive, but this is not necessarily the case in a dispute involving the grounds of judicial review, which have never been the subject of comprehensive legislation by Parliament.

7. Many aspects of the judicial review of administrative action may be traced back for several centuries, but this jurisdiction of the courts (derived from the common law) is now remarkably prominent. In 2002, Lord Steyn wrote:

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8. On 31 October 2006, a senior judge, Maurice Kay LJ, gave evidence to the House of Commons' Constitutional Affairs and Home Affairs Committees. His opening summary included the following points:

(2) "long before the Human Rights Act, the courts developed and expounded the scope of judicial review …. They did so on a case-by-case basis, the centrepiece of the modern jurisprudence being the GCHQ case in 1985, which defined both the principles of modern judicial review and its limits. It made clear … that there were considered to be certain judicial no-go areas, including matters of national security and foreign relations. Indeed, that judicial self-restraint still exists at common law…";

(3) "the Human Rights Act requires [the speaker's emphasis] judges to approach a great deal of public law litigation in new ways …" and "all this is leading the courts into new territory" (instanced by the case of the Belmarsh detainees, A v Secretary of State)[123]; and

(4) "in this … the courts are doing no more and no less than carrying out their constitutional function of interpreting and applying the law—in this case, the law enacted by Parliament".

Finally, and more controversially, Maurice Kay LJ observed that in his view, which differed from what the Lord Chancellor (Lord Falconer) had recently said, the task of making decisions under the HRA "is a matter of judgment according to the law, not discretion". He further remarked that cases under the HRA "are more illustrative of self-restraint on the part of the judiciary than the sort of militant activism that is sometimes caricatured in the media".[124]

9. It will be evident, even apart from the HRA, that the public law jurisdiction of the courts requires them to review the legality of executive decisions. The results of these cases are often unwelcome to ministers and administrators, and may be particularly controversial in the media or in political terms. Successive governments have recognised the far-reaching implications of judicial review, at least since the pamphlet 'The Judge over Your Shoulder' was issued to civil servants in 1987. The need for judicial independence in this area is obvious, as also in the area of criminal justice. Section F(3) of this paper will draw attention to recent instances in which Ministers have expressed their irritation at judicial decisions that go against their policies.

B The Constitutional Reform Act 2005

10. The principal structural changes made by the CRA may be very briefly summarised.[125] They have provided for greater formal separation between government and judiciary (and, as regards the new Supreme Court, between Parliament and judiciary) and for a new statutory interface in England and Wales between government, in the person of the Lord Chancellor, and the judiciary, represented by the Lord Chief Justice.

(A) Contrary to the original intention of the Government, the Lord Chancellor remains in being, but he has lost his status as head of the judiciary in England and Wales and may not now sit as a judge. This greater separation between executive and judiciary made it essential for many functions of the Lord Chancellor to be re-assigned, some being transferred to the Lord Chief Justice, others being exercisable jointly by the Lord Chancellor and the Lord Chief Justice. The Lord Chancellor retains many important executive functions relating to the judiciary (including funding the system of justice, making judicial appointments in accordance with new statutory rules, and approving procedural rules for the courts). Many of these functions are ring-fenced, to ensure that they are not transferred to another Minister by the Prime Minister without further primary legislation.[126] Under the CRA, the Lord Chancellor is not required to have had a legal career, nor to be a member of the House of Lords.

(B) The Lord Chief Justice is now President of the Courts and Head of the Judiciary of England and Wales. He is responsible:

(i) for representing the views of the judiciary to Parliament, to the Lord Chancellor and to other Ministers;

(ii) for maintaining appropriate arrangements for the welfare, training and guidance of the judiciary within resources made available by the Lord Chancellor; and

(iii) for maintaining appropriate arrangements for the deployment of the judiciary and the allocation of work within courts.[127]

These broad duties are accompanied by many specific responsibilities, some of which are exercisable jointly with the Lord Chancellor, or with the concurrence of the Lord Chancellor.

(C) There will be a new Supreme Court for the United Kingdom, to take over the appellate functions now performed by the Appellate Committees of the House of Lords, together with the power to decide devolution issues transferred from the Judicial Committee of the Privy Council. This separation between the 'Law Lords' and the House does not mean any change in the extent of appellate jurisdiction. New provision has been made for funding and administering the Supreme Court. The CRA sets out in detail the procedure for the selection and appointment of judges to the Supreme Court, in place of the present practice by which the Prime Minister nominates to the Queen persons for appointment as Lords of Appeal in Ordinary.

(D) Judicial appointments in general are entrusted to the Judicial Appointments Commission, and are no longer a matter primarily for decision by Ministers. Within the framework of the CRA, it will be for the Commission to give substance to the statutory rule that selection must be solely on merit (section 63(2)); and the Commission must have regard to the need to encourage diversity in the range of persons available for selection (section 64(1))

(E) A new post of Judicial Appointments and Conduct Ombudsman is created to deal with two rather different classes of complaint: (a) in relation to the observance of proper procedure in judicial appointments, and (b) in respect of the conduct of judges.

(F) While the historic tenure of senior judges derived from the Act of Settlement continues (subject to a new power to suspend a judge while parliamentary proceedings for removal are pending: section 108(6)), the removal of other judges by the Lord Chancellor is now subject to statutory procedures; in general, disciplinary powers in respect of the judiciary (including power to suspend) may be exercised by the Lord Chief Justice, acting with the agreement of the Lord Chancellor.

11. The cumulative effect of the changes made by the CRA is very extensive. Alongside the statutory provisions has to be read a document known as the Concordat, entitled Constitutional Reform: the Lord Chancellor's judiciary-related functions, prepared in January 2004 while the Constitutional Reform Bill was before the House of Lords, at a time when the Government was proposing to abolish the office of Lord Chancellor and it was not known what the attitude of the judiciary would be to the proposals. The Concordat represented an agreement between the Lord Chancellor and the Lord Chief Justice (then Lord Woolf) regarding the future exercise of the Lord Chancellor's judiciary-related functions, and as such it facilitated the passage of the Constitutional Reform Bill through Parliament.

C. In what ways has the CRA affected the constitutional relationship between Parliament, the Executive and the Judiciary?

12. The structural changes in law made by the CRA will in time be supplemented by new working relationships, understandings and conventions, the foundations for which are already being laid. The present inquiry by the Committee will assist in that process. The removal of the Lord Chancellor's judicial status and the presidential functions of the Lord Chief Justice necessarily make for greater separation between executive and judiciary. So too, the new Supreme Court will make for a clear separation between the final appeal court and Parliament. But these changes may be more important in a formal, analytical perspective than in practical terms. Indeed, if the essentials of judicial independence were not adversely affected by the various roles of the Lord Chancellor, his removal from the judiciary will not affect judicial decisions. Similarly, if the independence of the Law Lords has not been at risk because of their status at Westminster, their decision-making will be unaffected by the change of location. Nonetheless, these structural changes are important in constitutional terms, and will make the distinct status of the judiciary more visible in the media and in the public eye.

13. Reference has already been made to the Concordat between the Lord Chancellor and the Lord Chief Justice that was drawn up in January 2004. This document has an uncertain constitutional status. Many of its provisions have been superseded by what eventually appeared in the CRA 2005. If it contains continuing principles of value that should govern relations between the judiciary and the Government, the document should be revised to take account of the provisions of the Act, and its status clarified. Rather than it disappearing from sight, a regular review and updating of the Concordat in the light of experience could be of value.

14. The new procedures for appointing judges were welcomed on all sides when the CRA was in Parliament. Ministers have given up a significant power that in many countries is still retained by the executive, but the full effect of the changes will not be felt immediately. If judges in recent years have been selected primarily on the basis of merit, then the new powers of the Judicial Appointments Commission will not directly affect the kind of appointments made. But it remains to be seen how a test of merit will affect the most senior appointments, where candidates will need a range of skills that include the capacity for handling the administrative tasks that under the CRA will be borne by the senior judiciary. At a lower level in the hierarchy, new career patterns in the legal profession may emerge once the Commission's policies for increasing the diversity of applicants for appointments begin to bear fruit.

15. While judicial decision-making may be unaffected by these structural changes, significant new burdens are placed on the Lord Chief Justice. He or she will have to bear the brunt of representing the judiciary vis-à-vis Parliament, the Government, the media and the public at large. Other senior judges will acquire executive-type responsibilities. The Judges' Council was re-formed in 2002 [128] and it may have an increasingly important role as a forum accessible to the Lord Chief Justice for enabling opinions broadly representative of the whole judiciary to be formulated. Moreover, while the focus in the re-organisation has been on the role of the Lord Chief Justice, the President and Deputy President of the new Supreme Court will have their own statutory functions that may bring them into public prominence in matters affecting the highest level of appeal.

16. The main changes made under the CRA took effect only in April 2006 and it is too soon to know how robust the structure based on the separated functions of the Lord Chancellor and the Lord Chief Justice will be. Difficult questions are likely to arise in respect of funding and resources; maintaining a public understanding of judicial independence; and determining the proper limits and forms of judicial accountability, in particular to the executive and to Parliament. The former Home Secretary, Mr Charles Clarke MP, recently called for

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17. An indication of the possible pitfalls that open up if the judiciary are to be more closely engaged in the process of executive policy-making, as Mr Clarke would wish, was given by the experience of senior judges when they were consulted about the Government's proposal in the forthcoming Asylum and Immigration (Treatment of Claimants etc.) Bill 2004 to substitute review by the Asylum and Immigration Tribunal for the right to judicial review of immigration and asylum decisions. When the judges replied to the Home Office that the proposed exclusion would not work for reasons that they set out, the response of the Government was to write in additional provisions that sought to fire-proof the exclusion clause against any restrictive judicial interpretation. There may be some matters directly affecting the working of the courts upon which the Lord Chief Justice and senior judges administering the system of justice may necessarily need to be consulted. But it should be the exception rather than the rule for new government policies to be put out to consultation with the judges. If expert advice about the likely effects of legislation is needed by government, there are many qualified people to supply it who are not judges.

18. So far as judicial accountability is concerned, it must be emphasised 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. Even in the case of the Supreme Court, further proceedings are possible on matters of EU law or ECHR law. As an agency of state power, the judiciary as a body are, or ought to be, accountable for the general manner in which the court system serves the public at large. But methods of ensuring this form of accountability must not be such as to prejudice judicial independence.

19. In particular, these considerations must restrict the ability of select committees at Westminster to summon judges to give evidence and question them about judicial decisions. There are of course matters on which dialogue between judges and parliamentarians could be useful.[130] When the chief justice of any part of the United Kingdom exercises his new right to lay written representations before the relevant parliament (CRA 2005, s 5), this should lead to a hearing before a committee of that parliament: it may be assumed that the chief justice would welcome the opportunity of making his concerns about the judiciary or the administration of justice better known.

20 A separate paper would be needed to deal with these questions in respect of the system of criminal justice. Two brief points may be made. (a) It ought not to be stated or implied by Ministers who seek to 're-balance the system of criminal justice' that the judges are not acting in the interests of the law-abiding public, or that appeal judges allow appeals to succeed on technicalities.[131] (b) In responding to public concern about crime, governments too frequently have recourse to legislation that removes judicial discretion in sentencing and substitutes an automatic minimum sentence when specified conditions exist. Currently it appears to be realised that judicial discretion in sentencing may indeed be a way of avoiding anomalous results that attract headlines in the press. Frequent and excessive encroachment by Parliament on the sentencing process (as seen in the Criminal Justice Act 2003) is likely to have undesirable side-effects.

D Human Rights Act 1998

21. The main changes made by the HRA are well-known. With the object of 'bringing rights home' to Britain, all courts and tribunals must when relevant take account of the Strasbourg case-law (s 2). All legislation in the United Kingdom must where it is 'possible' be interpreted consistently with the Convention rights (s 3). Where this is not possible in the case of primary legislation, the higher courts may declare that the legislative provision is incompatible with the Convention (s 4). All public authorities, including the courts but not Parliament, are under a duty to exercise their functions consistently with Convention rights, except where this is excluded by mandatory provision in primary legislation (s 6). The courts may provide appropriate remedies in proceedings in which issues as to Convention rights are raised (ss 7-9), including the award of compensation where this would be consistent with the approach of the Strasbourg court. When a declaration of incompatibility has been issued by a higher court, the incompatibility may be removed by a 'remedial order', subject to heightened parliamentary scrutiny (s 10). The Minister in charge of a Government bill in either House must before Second Reading state either that the bill is compatible with the Convention rights or that, while this is not the case, the Government wishes the House to proceed with the bill (s 19). To this framework established by the HRA must be added the Joint Committee on Human Rights at Westminster, which maintains a continuing scrutiny of Government bills, ministerial statements and proposed remedial orders, and from time to time reviews the interpretation of the Act by the courts.

22. The impact of the Act and its application by the courts are now the subject of much examination in books and articles, discussion in the media, and reviews by government departments and Westminster committees. Earlier this year, there was public controversy over the HRA and its effects: three high-profile cases were considered by some to prevent the Government from ensuring public safety, and the Prime Minister asked the Lord Chancellor and the Home Secretary to conduct reviews of the Act's impact. The review by the Department for Constitutional Affairs on implementation of the HRA was published in July 2006; at the same time the Home Office published papers dealing with the criminal justice system and the Immigration and Nationality Directorate.[132]

23. In November 2006, the Joint Committee on Human Rights published a report on the DCA and Home Office reviews.[133] The Joint Committee's summary of its report is annexed to the present paper (see annex 1). The Committee welcomed the DCA review, which "in our view makes a very fair and balanced contribution to this important debate" (para 43). The Committee noted the conclusion in the review "that the HRA has not significantly altered the constitutional balance between Parliament, the Executive and the Judiciary" but drew attention to a "significant omission" from the report, namely any substantial consideration of the impact of the Act on the relationship between the executive and Parliament (para 60).

24. Since the departmental reviews and the Joint Committee's inquiry were largely prompted by allegations in the media about the damaging effects of the HRA on national security, it is notable that the Government and the Joint Committee agree with the view that the HRA "has not significantly altered the constitutional balance between Parliament, the Executive and the Judiciary".

25. While I readily agree that the constitutional equilibrium has not been put at serious risk by the HRA, I find it difficult to accept that the HRA has not changed the constitutional relationship between Parliament, executive and judiciary. Constitutions evolve, and the United Kingdom constitution is inherently likely to change, both because of its reliance on conventions, and because Parliament's authority extends to constitutional matters.[134] Both the HRA and the CRA have, in various ways, affected the relationship between Parliament, the executive and the Judiciary, as indeed they were intended to do. The range of changes will be outlined in the next section of this paper.

E. In what ways has the HRA affected the constitutional balance between Parliament, the Executive and the Judiciary?

26. In its White Paper in 1997, outlining the scheme of the Human Rights Bill, the Government stated that it had

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With this limitation, the scheme in the HRA went as far as it could to enabling the courts to protect Convention rights except where they are prevented from doing so by primary legislation. There have been innumerable statements by judges and Ministers that the HRA keeps in being the fundamental rule of parliamentary sovereignty. Even where the courts declare a provision in primary legislation to be incompatible with Convention rights, as they did in the case of the Belmarsh prison detainees,[136] that declaration "does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given" (HRA, s 4(6)(a)). Nor is there an enforceable legal obligation derived from the HRA to require either Parliament or the Government to alter national law so that it complies with the ECHR. (Such an obligation does however exist at international law by virtue of the ECHR; and the possibility of a remedial order being made under section 10 HRA must add to the political pressure on the Government that may arise to ensure that national law complies with the ECHR). Moreover, section 19 HRA expressly envisages that Ministers may ask Parliament to enact legislation that is inconsistent with the Convention.

27. Nevertheless, a statement that the sovereignty of Parliament is not affected tells only part of the story, since the HRA extended the jurisdiction of the courts to deal with matters that previously were not arguable before a judge. The duty under the HRA to interpret all legislation where it is possible to do so consistently with the Convention is a much stronger duty than that which previously stemmed from the principle that certain common law rights could not be taken away except by express enactment.[137] The new interpretative duty, together with the possibility of a declaration of incompatibility if an interpretative outcome is not possible, takes the courts into the examination of questions that, apart from the HRA, would have been regarded as political questions.[138] In respect of delegated legislation, the HRA empowers the courts to quash delegated legislation on Convention grounds; this power is similar to, but goes beyond, the long-established power of the courts to quash delegated legislation that is ultra vires.

28. Moreover, for a superior court to decide to make a declaration of incompatibility, the court must first have reached a view on the substance of a statute legislation that the courts could not have been asked to make apart from the HRA. The fact that the HRA does not give power to the courts to quash primary legislation on Convention grounds is a limitation on the remedy that the courts provide, not on the substance of what may be argued in court and if necessary decided.

29. This is not to suggest that the new powers entrusted to the courts by the HRA are unsuitable for judicial decision-making. A power to review primary legislation on Convention grounds may indeed be new in the United Kingdom, but such a power is similar to the position in many countries where a court can go further and may set aside legislation that conflicts with the constitution. Under the HRA, a claimant that obtains a declaration of incompatibility will have secured a considerable victory on the substance of the case. He or she will be well placed to go to Strasbourg if the offending legislation continues in being. Indeed, in practical terms the statutory provision can probably no longer be relied on by the Government, unless either the national law is changed (as happened after the Belmarsh prison case) or the Government is prepared to derogate from the Convention obligation in question.

30. The implications of entrusting the judiciary with greater powers of protecting Convention rights were probably not understood by the public at large when the HRA was enacted, despite the clarity with which the White Paper in 1997 explained the scheme. Given the intentions behind the HRA, and the fact that the jurisdiction of the courts was thereby enlarged to include matters akin to the constitutional enforcement of fundamental rights, it is not surprising that appellate judges have given much time to questions arising under the Act. But I do not consider that the record of these decisions establish a case for either re-considering the scheme of the Act, or supporting allegations that the judges are usurping the authority of the executive or Parliament. In his judgment in the Belmarsh case, Lord Bingham set out the great weight that should be given to decisions of Ministers and of Parliament in matters that involve a pre-eminently political judgment, and said:

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He drew attention to the Convention regime for the international protection of human rights, which "requires national authorities, including national courts, to exercise their authority to afford effective protection".[140] On the proportionality of the scheme for detaining foreigners suspected of terrorist involvement indefinitely without trial, Lord Bingham did not accept a submission by the Attorney-General that distinguished between democratic institutions and the courts, saying:

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31. The review of case-law by the Department for Constitutional Affairs in July 2006 concluded that decisions of the courts had had no significant impact on criminal law or on the Government's ability to fight crime. The HRA had had an impact on the Government's counter-terrorism legislation, but the main difficulties had arisen from decisions of the Strasbourg Court. The Act had had a significant but beneficial effect on the development of policy by central Government. But it had been widely misunderstood by the public and sometimes misapplied, and some 'damaging myths about human rights' had taken root. The Government remained fully committed to the ECHR and HRA, but would take steps to give new guidance to departments on human rights, would take a proactive approach to human rights litigation, and would make efforts to inform the public about the benefits of the HRA and to debunk myths that had grown up around Convention rights.[143]

32. This appraisal of the HRA has not, however, always been reflected in the reaction of some Ministers to decisions by the courts. A later section will examine some difficulties that have arisen from the response of Ministers to judicial decisions.

33. The question discussed in this section has been: 'In what ways has the HRA affected the constitutional balance between Parliament, the executive and the Judiciary?' In summary, my answer is that, so far as the protection of rights guaranteed by the ECHR is concerned, the HRA has vested new powers in the courts to determine the limits of those rights and to decide whether those rights have been respected by public authorities (including the executive) and whether legislation by Parliament (whenever enacted) is compatible with those rights. The HRA has created a new form of judicial review of legislation, and new grounds for the review of executive decisions, thus enabling judicial decisions to be made on human rights claims. However, when primary legislation is concerned, ultimate legislative authority remains with Parliament, acting on the proposal of the executive. This new form of protection for human rights is exactly that envisaged by the framers of the HRA. The effects of the Act have often been misunderstood both in some political quarters, in the media, and by the public at large. Some recent criticisms of the judiciary may have come about because of a failure to understand the constitutional implications of the HRA.

F. Criticism of the Judiciary in the Media, in Parliament and by the Government

34. As has already been seen, the functions of the judiciary are different in both substance and form from those of the executive and legislature; and judicial independence is to be contrasted with the democratic accountability of legislature and executive. But does their independence mean that the judges are not 'accountable' for their work, whether to Parliament, the executive or to the public? Is judicial independence incompatible with any form of criticism? The next sections examine the extent to which the position of the judiciary is protected in law and constitutional practice.

(1) Should the media be under any special requirement to respect the authority of the judiciary?

35. At one time, the common law on contempt of court enabled the courts, albeit acting as judges in their own cause, to impose penal sanctions should a newspaper or journal exceed the limits of permissible criticism of the judiciary.[144] The law of contempt also applied to publications that might prejudice the holding of a fair trial—for example, a newspaper publishing details of an accused person's previous convictions, casting doubts on the veracity of witnesses, or urging that severe penalties should be imposed on the accused. The obligation of the press not to prejudice the holding of a fair trial is reinforced by Article 6/1, ECHR.[145]

36. The need for some limitation on freedom of the press as it affects the judiciary is recognised by Article 10/2 ECHR, which permits freedom of expression to be restricted by law where this is necessary in a democratic society for (among other things) "the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." The common law on contempt of court was modified by the Contempt of Court Act 1981, in response to the decision of the European Court of Human Rights in the Sunday Times case.[146] In that case, a majority of the Court held that a ban imposed by the English courts on publishing material relating to the thalidomide disaster (because of a pending civil action against the manufacturers) was not necessary for maintaining the authority and impartiality of the judiciary.

37. Given the changes in the law made in 1981, and a more permissive attitude to forthright discussion of current issues, the law on contempt of court has virtually ceased to be a restraint on the severity of published comment on judges' decisions. Certainly, an untrue press report that a judge had taken a bribe before reaching his decision could give rise to an action in defamation; and press disclosure of confidential information that in the interests of justice must be kept secret could give rise to liability for contempt of court and possibly to an action for breach of confidence by the person whose confidence had been broken. But the situation would have to be exceptional for even an abusive and scurrilous critique of the judiciary to be held to be in contempt of court.

38. There is a continuing risk of sensational and one-sided reporting in sections of the press. Responses from litigants or other interested parties may attempt to set the record straight. But when a court decision has been given sensational treatment of this kind, it will not generally be possible for the judge to reply. Indeed, the judge's decision with reasons will usually have been given in open court. Even if the judge should wish to correct any misunderstanding of the decision, the judgment itself should have emphasised the factors that explain an unexpected or controversial outcome. If the judge at first instance gets it wrong, the mistake can be corrected by means of an appeal. If no appeal is brought, and a putative mistake of law remains uncorrected, legal journals may comment on the error. In general, the hope must be that good reporting of decided cases will in time come to prevail over selective or biased reporting.

39. It may be that the new presidential responsibilities of the Lord Chief Justice will, in the interests of greater public understanding, enable a statement to be issued when damaging mistakes have been made in press reports of a judgment. The Judges' Council may also have a role to play. But such action will not in itself remedy persistent misreporting that intentionally presents a judge or judges in a bad light. The unavoidable conclusion may be that this is an aspect of press freedom to which judges, along with other public figures, must become accustomed.

(2) What limits apply or should apply to criticism of the judiciary in Parliament?

40. Article 9 of the Bill of Rights provides the fundamental building-block in the relationship between the courts and Parliament:

"the freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any court of place out of Parliament".

Accordingly, no court could penalise or impose liability for statements made in Parliament that judges in general were corrupt, that a judge had committed sexual offences with young people[147] or that an accused person facing trial was manifestly guilty and should spend the rest of his life in prison.

41. Nevertheless, Article 9 does not prevent the two Houses from exercising control over what their members say in Parliament. An important example of such control for present purposes is the sub judice rule, which bars members from referring to civil or criminal cases in which proceedings are active in United Kingdom courts. The rule has developed for three main reasons:

(a) to avoid a risk of prejudicing court proceedings in individual cases;

(b) the principle of comity between the courts and Parliament; and

The Joint Committee on Parliamentary Privilege in 1999 examined the need for the sub judice rule, and concluded:

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42. The report of the Joint Committee caused both Houses to look again at the sub judice rule. Resolutions embodying a revised form of the rule were adopted in the Lords on 11 May 2000, and on 15 November 2001 by the Commons. The rule, which does not apply to debates on primary or delegated legislation, is subject to the Speaker's discretion and provides for certain exceptions, in particular when a ministerial decision is in question or where a case in the opinion of the Chair concerns issues of national importance such as the economy, public order or the essential services. The rule has recently been examined by the House of Commons Committee on Procedure: the Committee agreed that the rule be maintained, subject to some greater flexibility in the exercise of the Speaker's discretion. The Committee reminded MPs that they should not say anything on the floor of the House that would affect evaluation of the merits of proceedings which were imminent or before the courts, or would influence the result of proceedings, in particular the likelihood of an acquittal.[149]

43. The sub judice rule ceases to apply when civil or criminal proceedings relating to a matter are no longer active. Thus the rule does not prevent the members of either House from raising matters concerning the merits of court decisions that have already been made, so long as no appellate proceedings are active. There is however a long-standing rule of the House that, unless discussion is based on a substantive motion on which a vote could be taken (which in this context would generally mean a motion calling for a judge to be dismissed), members may not cast reflections on the conduct or motives of a judge or upon judges generally.[150] In 1987, when the Prime Minister (Mrs Thatcher) said at question time that she was unable to comment on a particular sentence imposed by a judge, the Speaker subsequently ruled:

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Although the requirement of a substantive motion may create a real difficulty where neither the Government nor opposition parties are willing to find time for debate of the motion, determined back-benchers may be able to find ways (for instance, by way of an early day motion) of putting on record the substance of their criticisms of a judge.

44. Rodney Brazier's account of these matters in 1994[152] concluded that these arrangements

"in general represent a sensible balance between judicial freedom from wrongful parliamentary pressure and Parliament's rights in relation to the administration of justice."

However, the rules under discussion do not deal with a current question of some importance, namely whether judges should appear before select committees that are inquiring into topics in which the performance of the courts is in question. Moreover, Professor Brazier also had in mind the conventional rules that apply to Ministers, and emphasised that Ministers are subject to restrictions that do not apply to backbench members.

(3) What limits apply or should apply to criticism of the judiciary by the Executive?

45. One aspect of the constitutional relationships under discussion that has recently caused concern is the extent and manner of criticisms made by Ministers of judicial decisions. In particular, concern has arisen in two areas - decisions of the courts in judicial review cases involving the Human Rights Act, and the sentencing of convicted offenders.

46. Where a court on judicial review holds a government policy or an executive decision to be unlawful, the Government has the usual right of an unsuccessful litigant to seek leave to appeal, if necessary to the House of Lords. The appeal process will determine the merits of the legal issues concerned, and this is the right course for a Minister to take when a decision has been made on a matter of departmental importance. What is not acceptable is for a Minister to react to an unfavourable decision by blaming the judges, casting doubt on their integrity, alleging that they are intentionally thwarting the wishes of Parliament or claiming that they have taken leave of their senses. Nor ought Ministers to instigate or condone hostile criticism of a judge in the media through off-the-record briefing that will cause some newspapers to pillory the judge concerned.

47. Moreover, when proceedings are pending before a court or tribunal, a Minister should not publicly call for a certain outcome (as occurred within recent weeks when a Minister asserted that a Muslim class-room assistant in dispute with her employers over the wearing of the veil must be dismissed).[153] It would be equally wrong for a Minister to demand that an accused person who was on trial for a criminal offence should be convicted.

48. Recent incidents arising from three cases where Ministers intervened with comments about the Human Rights Act have been examined by the Joint Committee on Human Rights.[154] The only one of these incidents to involve criticism of a judge was the case of the Afghani hijackers. The judge in the Administrative Court was Sullivan J, and the ministerial comment was (in effect) that he must have taken leave of his senses. On appeal by the Home Office, the Court of Appeal upheld the judgment, noting that the case "has attracted a degree of opprobrium for those carrying out judicial functions" and commending Sullivan J for "an impeccable judgment".[155] After hearing evidence from the Lord Chancellor, Lord Falconer, about the case, the Joint Committee found that the Human Rights Act had been used "as a convenient scapegoat for unrelated administrative failings within Government". On the case of the Afghani hijackers, the Committee observed:

156

49. The Sweeney case in June 2006 was examined by the House of Commons Constitutional Affairs Committee.[157] The Home Secretary had expressed strong criticism of the sentence given to Craig Sweeney by Judge John Griffith Williams QC, after he had pleaded guilty to abducting and sexually assaulting a 3-year old girl. The situation was not helped by a statement on radio by the Parliamentary Under-Secretary of State (Vera Baird QC) to the effect that the judge's sentence was wrong. This was promptly followed by correspondence between the Minister and the Lord Chancellor, in which she withdrew her comments and acknowledged that they should not have been made. Annex 2 to this paper contains an extract from the evidence given by the Lord Chancellor to the Constitutional Affairs Committee. Annex 3 contains the text of a letter sent by the Lord Chief Justice to circuit judges dated 19 June 2006. Such a letter may have raised their morale, but would not bring to the public generally that it was not the error of a judge that had caused the controversy.

50. At one time, it was considered to be a constitutional convention that members of the Executive would not criticise members of the judiciary. While the Government might properly say that a court decision differed from the legal advice on which it had acted or that it proposed to bring in amending legislation, Ministers were expected not to state that a court's decision was wrong, nor to impute improper motives or incompetence to the court. To quote Brazier again, writing in 1994:

"Ministers are by convention expected to show due inhibition when commenting in Parliament on judicial words and deeds…"—

to which the author added the comment,

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51. The interpretation and effect of many conventions fluctuate over time. The behaviour of some Ministers in recent years makes it necessary to consider whether the convention stated by Brazier still survives, or whether it has merely lost some of its former authority and been ignored.

52. In 1995, there was a period of acute tension between the Home Secretary (Mr Michael Howard) and the judiciary, resulting from a series of judicial review decisions involving the Home Office.[159] Criticisms of the judiciary by Mr Howard were accompanied by attacks launched by several newspapers on judicial review, on the judiciary in general, and on individual judges. The Times (3 November 1995) said,

"it is tempting to observe a pattern emerging, a potentially alarming hostility between an over-mighty executive and an ambitious judiciary".

53. In February 2003, the Home Secretary, Mr David Blunkett, reacted with anger to a decision of Collins J upholding the right of six asylum-seekers to receive support from the National Asylum Support Service (NASS), an agency of the Home Office.[160] The case arose under section 55 of the Nationality, Immigration and Asylum Act 2002, which prevented the Home Secretary from granting support to certain asylum-seekers but empowered him to grant support to them where this was necessary for avoiding a breach of their Convention rights. In the absence of a right of appeal against a refusal of support by NASS, the flood-gates opened to a torrent of claims for judicial review. The decision by Collins J led Mr Blunkett to say on radio:

"Frankly, I'm personally fed up with having to deal with a situation where Parliament debates issues and the judges then overturn them".

In a newspaper article, he said that it was "time for judges to learn their place". The Daily Mail, along with some other newspapers, complained that Collins J "had chosen to set his will above Parliament's". A Labour MP wrote in the Express on Sunday, "We're used to lawyers trying to bend the rules. What is not so easy to forgive is the destructive activity of a judge."

55. In dealing with the Home Secretary's appeal in this case, the Court of Appeal explained that the task of the courts was to interpret the laws made by Parliament, and commended "the care with which, in his lengthy judgment, [the judge] addressed the difficult issues before him".[161] The judgment of Collins J was largely upheld, although not entirely, but the court endorsed the view that the Home Office's decision-making failed the test of fairness. Later, when other cases reached the House of Lords, section 55 was considered by the Law Lords to be inherently likely to cause the Home Secretary to breach the right of a destitute asylum-seeker not to be subjected to inhuman or degrading treatment. The same view of the section had been taken by the Joint Committee on Human Rights when the proposed clause was rushed through Parliament without adequate debate.[162] Some aspects of this episode were highly specific to the immediate context, but the affair vividly illustrates the need for an independent judiciary able to interpret the laws made by Parliament, particularly when Ministers do not appear to understand the constraints that apply to their policies, or indeed the full content of legislation that they proposed to Parliament.

56. It is not known whether Lord Irvine, Lord Chancellor at the time of Mr Blunkett's attack upon Collins J, intervened with his Cabinet ministerial colleague. But some months later, Lord Irvine referred to the role of the executive under the HRA and said:

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Later, in evidence to a House of Commons committee, Lord Irvine gave an 'absolute assurance' that while Lord Chancellor he had frequently argued within government to insist that judicial independence was upheld.[164]

57. While it is certain that recent governments have found it difficult to welcome decisions on judicial review to which Ministers are opposed, it is not possible to assess the extent to which Lord Chancellors have had to intervene in such moments of strain. But the record since the mid-1990s set out above suggests that some Ministers today find their constitutional duties in this respect to be irksome. Today, as has been seen above, all Ministers are required by the Constitutional Reform Act 2005, s 3(1) to "uphold the continued independence of the judiciary". If the earlier convention that Ministers should not criticise the judiciary has been seriously eroded, as it seems to have been, steps are needed to re-state the convention in the light of that statutory duty.

58. Since this is primarily, but not exclusively, a question that affects the conduct of Ministers, it would be appropriate for a new chapter to be included in the Ministerial Code that would make a full statement for the guidance of Ministers and their advisers of their obligations in respect of the judiciary. It should include—

(a) a statement of the implications of sections 1 (rule of law) and 3 (judicial independence) of the CRA for Ministers and their advisers, including the special role that the Act prescribes for the Lord Chancellor;

(b) a statement of the sub judice rule from Parliament, but adapted for a ministerial context, emphasising the need to avoid intervening with comments that might prejudice the outcome of a current or pending trial or hearing; the rule should go further than the rule in Parliament by applying not only to court proceedings but also to tribunal proceedings;

(c) a statement of the limitations that ought to apply to comment on and criticism of decisions that have been made by courts or tribunals;

(d) a reminder of the respect that Ministers, as members of the executive, should extend to the courts and the judiciary;

(e) a suggestion that Ministers should seek advice if necessary on the legal issues involved before making off-the-cuff comments on current or recent court and tribunal proceedings; that advice should be available both within departments and also from the Lord Chancellor or the Attorney-General.

It is indeed remarkable that the Ministerial Code is at present silent on the subject of relations with the judiciary.[165] The inclusion of a statement on these lines in the Ministerial Code would have the further advantage of making it readily available to the advisers of all members of the Government.

G. Conclusions

59. This is a long paper, but it has not dealt with all the issues that are relevant to this 'short inquiry' by the Committee on the Constitution. Thus I have not mentioned participation by judges in the media, the use of judges for governmental inquiries, or the appointment of judges to such posts as the Intelligence Services Commissioner under the Regulation of Investigatory Powers Act 2000. Although I have dealt separately with the implications of the CRA 2005 and the HRA 1998, an integrated picture of the changing position of the judiciary would require these two very different Acts to be taken into account together. A comprehensive assessment would include the role of national courts in respect of EU law, and possibly also the effects of devolution.

60. Despite the political controversies that have arisen in relation to the HRA, and although the internal balance between Parliament, Executive and the judiciary has changed because of that Act, an appraisal of the present role of the judiciary would in my view be incomplete without some recognition of the way in which the judges have answered the difficult questions that arise from the HRA and the ECHR. The case-law includes some remarkable judgments that have fully justified the aim of the Act in enabling United Kingdom judges to contribute to the developing understanding of human rights protection in the 21^st Century.

114 This document was promulgated by the Round Table Meeting of Chief Justices held at the Hague in November 2002; it was based on the Draft Code of Judicial Conduct adopted by the Judicial Group on Strengthening Judicial Integrity, meeting at Bangalore in 2001. The principles amplified in this document relate to judicial independence, impartiality, integrity, propriety, equality, competence and diligence. Back

115 Lord Mustill, in the Fire Brigades Union case [1995] 2 AC 513, 567. Back

116 DPP of Jamaica v Mollison [2003] UKPC 6; [2003] 2 AC 411 at [13]. Back

117 A v Secretary of State for the Home Department (SSHD) (No 2) [2005] UKHL 71, [2006] 1 All ER 575. Back

118 R v SSHD, ex p Pierson [1998] AC 539. Back

119 R v Lord Chancellor, ex p Witham [1998] QB 575. Back

120 R v SSHD, ex p Simms [2002] 2 AC 115, 131. Back

121 Nolan LJ, in M v Home Office [1992] QB 270, 314, adopting a formulation of the relationship between courts and the executive that had been presented in argument by Stephen Sedley QC. Back

122 "The Case for a Supreme Court" (2002) 118 Law Quarterly Review 382, 385. Back

123 A v SSHD [2004] UKHL 56, [2005] 2 AC 68. Back

124 For the full text of this evidence, see HC 1554-I (2005-06). Back

125 A fuller account is in the Fourth Report of the Select Committee on the Constitution, HL Paper 83 (2005-06). Back