Introduction

Tensions between political and legal accountability are a backdrop to many debates about the character and future direction of the British constitution.¹ This essay explores a juncture of these two modes of accountability by examining how the UK Parliament exercises accountability in relation to the judicial system of England and Wales.

Part A defines ‘the judicial system' and what may be meant by parliamentary accountability and judicial independence in this context. Part B takes an institu­tional and procedural approach to examining the opportunities Parliament has for engaging in accountability activities in relation to the judicial system, focusing in particular on the evolving role of Select Committees. Part C uses an inductive approach to map current accountability practices in Parliament in relation to par­ticular aspects of the judicial system by drawing on examples from the parliamen­tary record to develop an explanation of what is and ought to be the reach of MPs' and peers' accountability functions relating to judges and courts.

1. The judicial system

The term ‘judicial system' is used in this study to define an area of state activity that is narrower than the whole legal system (so, for example, legal aid and the legal professions are left out) but broader than ‘the judiciary' or ‘the judicial power of the state'. Deciding cases and, for the higher courts, judgment writing to cre­ate precedents are the core activities of the judicial system. Closely connected to these are the practices and procedures of courts. Around this core is a penumbra of other activities and features that support and facilitate the judicial role. This includes the foundational texts (legislation and ‘soft law') creating new courts and shaping the governance of the judiciary; decision-making about judicial careers (appointments, terms and conditions of service, salaries and pensions, discipline and dismissals); deployment; training; and the management of the physical estate and infrastructures of the courts and tribunals.

Viewed as a set of institutions and decision-making processes, the judicial sys­tem comprises judges, ministers (in particular the Lord Chancellor/Secretary of State for Justice), officials, and holders of public office (such as the commissioners of the Judicial Appointments Commission for England and Wales)—all of them potential targets of accountability according to their responsibilities.

2. Parliamentary accountability

Parliamentary accountability centres on formal questioning, comment, and critical evaluation of past decisions or changes to existing or proposed practices or policy by MPs and peers, as reported in Hansard and other parliamentary publications. The occasional criticism of judges by ministers and other parliamentarians in inter­views, conference speeches,^[632] and extra-parliamentary writing^[633] are important in set­ting the tone of relations with the judiciary but they fall outside the scope of this essay, as they are not part of the formal parliamentary record.

The constitutional imperative for some kind of accountability in relation to some aspects of the judicial system cannot now be seriously doubted.^[634] As a relevant principle, parliamentarians have accepted it,^[635] as have the judiciary of England and Wales,^[636] and ministers.^[637] This reflects the general importance now attached to clear lines of accountability across all public services; the legitimacy of most kinds of public power now depends on satisfactory accountability mechanisms. The challenge that remains is to define more closely the circumstances in which parliamentarians may legitimately operate in relation to the judicial system, which accountability tools are best for the job, and what aspects of the judicial system should remain off-limits, or subject only to light-touch accountability oversight, by reason of the need to respect the constitutional principles of independence of the judiciary and separation of powers.

a. The orthodox approach

The conventional account of the limits of parliamentary accountability for the judicial system rests on two main ideas. The first is that the constitutional principle of judicial independence prohibits parliamentary scrutiny of the core aspect of the judicial system (deciding cases and setting precedents). In 2004 Chris Leslie MP, a junior minister, explained the point as follows :

Judicial decisions are taken and explained in public (save where the circumstances of a case demand confidentiality) and any decision which a judge makes is liable to be scrutinised, and if necessary overturned, on appeal, which is also a public process. Judges are there­fore fully accountable for their judicial decisions through the appeal system. Judges are not, however, accountable through a political process for the decisions they take, as this would not be consistent with judicial independence. The Lord Chancellor and Secretary of State therefore does not monitor appeals against decisions made by individual judges, and it is not his role to intervene in judicial decisions or consider complaints about judicial decisions.^[638]

The constitutional principle of judicial independence is a multifaceted concept.^[639] It relates to individual judges (who should not be placed under such personal pressure through inquiries or criticism by politicians as to influence or risk influ­encing their decision making) and to the judiciary as a whole (which as an insti­tution of the state should enjoy a relatively high degree of autonomy vis-a-vis government and parliament). Orthodox thinking priorities judicial independence over accountability: the latter must yield to the former in day-to-day practices and in constitutional design. It will be argued later that the broad cordon sani- taire around the judicial system that is often called for in the name of orthodox approaches to judicial independence is out of step with actual developments in the UK Parliament.

The other main idea in the orthodox approach is the assumption that account­ability practices associated with ministerial responsibility are adequate to scruti­nize other aspects of the judicial system beyond the prohibited zone. In other words, ministers are and should be answerable through parliamentary questions, in debates, in Select Committee inquiries; and this delivers a satisfactory level of accountability. Before 2005, the Lord Chancellor was the member of government responsible for judicial appointments, for allocation of resources to the courts, and so on—and he was answerable to Parliament for these matters. Whether in practice, ministerial responsibility was an effective form of accountability is open to question, not least because the Lord Chancellor’s Department was the last of the major government departments to become shadowed by a House of Commons Select Committee.^[640]

b. Recent innovations

This approach to accountability of the judicial system (that is, a prohibited zone plus ministerial accountability for the penumbra) is no longer satisfactory. First, remarkable changes to the scope of the ‘judicial power of the state’^[641] have taken place, through the development of common law powers of judicial review, the impact of the Human Rights Act 1998, and of European Union law. Judicial decision-making now impacts on government policy-making and parliamen­tary legislation in ways unthinkable two generations ago. It is unrealistic, against the background of these developments, to imagine that Parliament and parlia­mentarians will or should want to maintain a c ordon sanitaire around judicial decision-making. Insofar as court decisions impact on the national interest and the lives of constituents, parliamentarians will want to debate and criticise them.

Second, since 2005 there have been equally remarkable changes to the gov­ernance arrangements for the judicial system. The radical reforms to the office of Lord Chancellor mean that traditional notions of ministerial responsibility are no longer adequate to secure accountability for leadership roles, budgets, and decision-making powers that have been transferred or shared beyond the government department responsible for the judicial system—which was the Lord Chancellor’s Department (‘LCD’) up to 2003, the relatively short-lived Department for Constitutional Affairs 2003-7 (nicknamed ‘DeCaf’ by some wags but more respectfully ‘the DCA’) and the Ministry of Justice (‘MoJ’) since May 2007.

The Lord Chancello r/Secretary of State provides political leadership in the Ministry of Justice, with four junior ministers. The Lord Chancellor and Secretary of State are two distinct ministerial offices to which the Prime Minister appoints the same person. Legislation dealing with judiciary-related matters normally speci­fies the Lord Chancellor to be the responsible minister, though on occasion there has been debate as to which is the appropriate minister.^[642] The distinction is of constitutional importance as the Constitutional Reform Act 2005 places broad duties on the Lord Chancellor to ‘have regard’ to ‘the need to defend’ the inde­pendence of the judiciary and ‘the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters'.^[643] Other ministers have the lesser duty to ‘uphold the continued independence of the judiciary'.^[644] The Ministry is a major department of state (no longer the sleepy backwater that the LCD once was), with an annual budget of £8.58 billion in 2011-12, of which £1.21 billion is allocated to HM Courts and Tribunals Service. The Ministry employed over 78,000 FTE staff in 2009-10.

In the new governance arrangements, several important functions are now car­ried out by public bodies that have an arm's length relationship to the Ministry, some with executive powers, some dispute resolution and inspection roles, and some advisory. This judicial comitology is set out in Appendix 1 below. Several have been or shortly will be abolished under the Public Bodies Act 2011 as part of government policy to reduce the number and cost of quangos.

Other roles have been transferred directly to the judiciary, under the ultimate leadership of the LCJ; a network of boards and committees carry out executive decisions and advisory work (see Appendix 2). The Judicial Office consists of approximately 190 FTE civil servants who report directly to the Lord Chief Justice rather than to ministers.^[645] It has five groups of staff: strategy, communications, and governance; human resources; senior judicial support through private offices and jurisdictional teams; the Judicial College; and corporate services.

A more varied range of accountability mechanisms is needed to respond to these redistributions and fragmentations of responsibility. This essay focuses on what happens (or does not happen) in Parliament, but it is instructive to note developments in accountability elsewhere. One is that as head of the judiciary of England and Wales, the LCJ holds an annual press conference, the transcript of which is published online. In December 2011, Joshua Rozenberg, Frances Gibb ( The Times') and other journalists from the Daily Telegraph, the Guardian, Daily Mail, Evening Standard, BBC, ITV News, and the Press Association questioned Lord Judge for 45 minutes.^[648] The LCJ expressed diffidence in answering several questions on matters of current political controversy (legal aid reform, mandatory life sentences for murder) or because they dealt with particular cases (contempt of court). Other questions related to parliamentary privilege, sentencing after the summer 2011 riots, and the prison population. Asked about a controversial pub­lic lecture given by Jonathan Sumption QC shortly before his swearing in as a Justice of the Supreme Court,^[649] Lord Judge said he was ‘very sympathetic with Mr Sumption and the views he has expressed', telling Steve Doughty of the Daily Mail that ‘I would love to give you something to write down'. Lord Judge said ‘Judges have to be careful to remember that we are enforcing the law. As to that, we have no choice. We enforce the law as we find it to be. I think we have to be careful to remember that we cannot administer the responsibilities which others have'.

Since the 2010 coalition government came to power, new political priorities for accountability across the whole of government have been articulated. In a speech to civil servants, David Cameron MP outlined the Conservatives' approach:

We want to replace the old system of bureaucratic accountability with a new system of democratic accountability—accountability to the people, not the government machine. We want to turn government on its head, taking power away from Whitehall and putting it into the hands of people and communities. We want to give people the power to improve our country and public services, through transparency, local democratic control, competi­tion and choice.^[650]

Courts boards provide an illustration of the new approach in relation to the judi­cial system. The Courts Act 2003, s 4 provided that ‘England and Wales is to be divided into areas for each of which there is to be a courts board'. Boards had the duty ‘to scrutinise, review and make recommendations about the way in which the Lord Chancellor is discharging his general duty in relation to the courts with which the board is concerned'.^[651] Boards consisted of at least one judge, two lay magistrates, and at least four others, two of whom were ‘representative of the people living in the area'.^[652] Over time, their number was reduced from 42 to 19. They are abolished under the Public Bodies Act 2011; during the passage of that bill, the minister explained ‘there are now other structures in place such as the Justice Issues Group and area judicial forums to ensure that magistrates' views are heard. There are also strong local relationships with magistrates' bench chairs' and ‘there are other ways to ensure that the needs of the community are met, such as customer surveys, open days and more effective use of court user meetings'.^[653]

Transparency has swept through the judicial system in recent years. The Ministry of Justice's business plan makes a commitment ‘to ensure that the Department can be held to account as it moves this work forward and we will do this through our information strategy. Along with the rest of government, the Department will publish an unprecedented amount of data so the public can hold us to account. This will cover who we are, what we spend and what we achieve'.^[654] The Ministry now publishes, by court: what sentences are given for each type of offence; convic­tion rates; how long it takes for cases to be decided; the number of sitting days; and financial allocation and spend.^[655] A similar commitment to transparency can be seen in the arm's length bodies, down to trivial expense claims.^[656] More sig­nificantly, the whole judicial selection process is described in great detail on the Judicial Appointment Commission's website and in its publications.

B.