APPENDIX 3: JUDICIAL RESPONSE TO THE
HOUSE OF LORDS CONSTITUTION COMMITTEE'S REPORT, "RELATIONS
BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT"
Chapter 2: Executive and Judiciary
We have no comment to make on the factual account
of the formation of the Ministry of Justice or the discussions
between the Ministry and the judiciary. We are at present still
engaged in discussion with the Ministry and the new Lord Chancellor
and therefore do not think it helpful or appropriate at this stage
to respond to the points in your report.
Chapter 3: Parliament and the Judiciary
Laying Written Representations Before Parliament
In the light of the decision that the Lord Chief
Justice should produce an Annual Report we now envisage that there
will be two types of communications with Parliament under section
5 of the Constitutional Reform Act 2005:
- the routine publication of an Annual Report to
The Queen in Parliament; and
- in exceptional circumstances, the expression
of some immediate concern about an issue important to the judiciary.
We welcome the proposed handling arrangements for
any such representations made by the Lord Chief Justice; the opportunity
for an early debate and a timely response from the Government
will be essential to ensure that there can be full and proper
consideration of issues that are raised.
The Question of Accountability
The constitutional changes reflected in the Constitutional
Reform Act 2005, in particular the displacement of the Lord Chancellor
as the Head of the Judiciary and the creation of a Supreme Court,
led to new interest in the judiciary as an institution and in
the issue of the accountability of judges and the judiciary. Both
individual judges and the judiciary as a branch of the state are
subject to a number of forms of accountability. The forms of accountability
and their limits are discussed in the attached paper which is
on the judicial website (www.judiciary.gov.uk).
The limits in the paper result from the acknowledged need in a
democracy for an independent and impartial judiciary which is
free from improper influence.
Individual judges are accountable for their decisions
through their duty to give reasons and the appellate system, and
that they are accountable for their general conduct through the
system for judicial complaints, handled by the Office for Judicial
Complaints. The duty to give reasons for all decisions is a clear
example of "explanatory" accountability, which not only
facilitates appeals but assists transparency and scrutiny by the
other branches of State and the public.
Save in accordance with the procedure under the Act
of Settlement, individual judges cannot be held accountable either
to Parliament or to the executive in the "sacrificial"
sense whereby their judicial office is put in peril, and they
cannot be externally accountable for their decisions. Such accountability
would be incompatible with the principle of the independence of
the judiciary. It is right, however, that if the judiciary is
to have the input we would like into all aspects of the administration
of justice, then we should account for the way in which we have
discharged our administrative responsibilities. The question is
how to do this in a way which is not incompatible with the judiciary's
core responsibility as the branch of the State responsible for
providing the fair and impartial resolution of disputes between
citizens and the State, in accordance with the prevailing rules
of law.
Your Report suggests that Select Committees "can
play an important role in holding the judiciary to account by
questioning in public". As you will appreciate from the attached
paper and our earlier guidance to judges appearing before Select
Committee, accountability has in the judiciary's view many facets
and we have made clear the aspects on which it would be appropriate
for the judiciary to discuss in Parliament.
It follows that we see merit in the suggestion that
Select Committees can represent an appropriate and helpful forum
for the Lord Chief Justice, after publication of his annual report,
to explain his views on aspects of the administration of justice
that are of general interest or concern and upon which it is appropriate
for the judiciary to comment. There may, of course, be other circumstances
in which the judiciary consider it appropriate to express views
to Parliament on other issues. We have already developed guidelines
on the kinds of issues that it would be appropriate for the judiciary
to discuss with Parliament in this way and we are cautious about
your suggestion that this should include their views on "key
legal issues". There are difficulties in judges giving views
on new legislative proposals or the operation of the law. Although,
as our guidance recognises, it is appropriate for a judge to comment
on the operation and procedures of his or her jurisdiction and
the implications of any Bill or Act in these respects we need
to be particularly aware of the fact that a senior judge might,
at some stage in the future, be asked to adjudicate on an issue
they had commented on in the past. An awareness and appreciation
of the guidelines, from both the judiciary and the Committee,
should ensure that we avoid any such pitfalls.
We are concerned, however, that the appearance of
judges and magistrates before Select Committees should not become
routine for fear of stepping beyond the proper boundary between
the judiciary and Parliament. We have already seen an increase
in the number of invitations to appear in the 18 months since
the implementation of the constitutional reforms. Therefore, while
we welcome the indication that Committees would be open to additional
appearances from the judiciary, such appearances need, we believe,
to be truly necessary and appropriate.
An Annual Report on the Judiciary
As already stated, we have agreed that it would be
appropriate for the Lord Chief Justice to, in future, produce
an Annual Report. This seems to us to be a key part of the judiciary's
explanatory accountability. We expect that this will build on
the information about the court systems that is already made public,
will cover the work of the judiciary, within the courts and with
others involved in the justice systems, and will highlight areas
of particular concern to the judiciary. We hope that the first
report will be available early in the New Year.
It is our intention that the Report should be laid
before the Queen in Parliament. We agree, as set out above, that
it would be appropriate for the Lord Chief Justice to discuss
the contents of the Report with both Houses of Parliament at a
convenient point soon after publication, and suggest that this
might be most appropriately done through a joint meeting of the
relevant Committees of each House. However, as we are sure Parliament
would anticipate, the Report will be sensitive to the kinds of
issues on which the judiciary should not comment and, as we have
already indicated above, we would expect the questions at the
subsequent Committee hearings also to take account of these sensitive
areas.
Chapter 4: Judiciary, Media and the Public
Introduction
We agree. Judges have their own part to play in maintaining
public confidence in the judiciary and the justice system.
Public perceptions
We agree with the Committee's view on the public
position Government Ministers should take in relation to judicial
decisions.
Role of individual judges
It is a cardinal principle that a judge should give
his decision and the reasons for it in public. It has, for some
time, been the practice that where a judgment is long and complex
a judge will, where practicable, incorporate into his judgment
a short summary to assist public understanding. When making sentencing
remarks in shorter judgments a judge will always endeavour to
explain the reasons for his decisions in a way that can be understood
by the public who may not be familiar with the details of the
case. Where reasons are given orally, as is almost always the
case when sentencing, judges are encouraged to consider preparing
a written note of their sentencing remarks to be given by hand
to reporters in court. It is inappropriate for a judge outside
of his decision to seek to amplify or explain his decision—his
public judgment speaks for itself. It follows from this principle
and the nature of judicial office that we endorse the Committee's
views that judges should not give media briefings.
The Role of the Lord Chief Justice
The Lord Chief Justice has been Head of the Judiciary
for 18 months. As the Committee acknowledges, there will always
be a gap between the level of activity the media would like to
see from the Lord Chief Justice and what is wise or even appropriate
for the Lord Chief Justice to undertake. In fact, as the Committee
advocates, this is kept under constant review, not least as interview
bids and other requests arrive for him on a daily basis.
It is important to bear in mind that the Lord Chief
Justice has now a direct means of communication with the public
through the judicial website (www.judiciary.gov.uk):
an illustration of this is the publication on the website of his
two interviews with Marcel Berlins (there have been 8840 downloads
since April 2006), as well as the publication of speeches and
statements by him and other senior judges.
The Role of the Judicial Communications Office
The JCO is, in government terms, a small and relatively
new unit responsible for providing communications support to more
than 40,000 judicial office-holders. It provides support to the
judiciary and to the media when questions arise about judicial
issues and keeps up to date the judicial website which, as we
have said, is an important means of external communication.
It is accepted there may be occasions, such as the
media's reporting following the Sweeney judgment in June 2006,
when the timely use of a judicial spokesperson, rather than a
JCO press officer, to explain sentencing process might
help provide a balance in the reportage. The Judges' Council is,
therefore, considering the best means of developing a proposal,
that whilst ensuring adherence to the principle that judicial
decisions must speak for themselves, to provide in certain circumstances
information through certain serving judges that will assist public
understanding and debate.
Along with the judicial website, the JCO is actively
involved in producing educational material for schools and the
public generally about the work of judges within the operation
of the justice system.
October 2007
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