Mapping accountability practices in Parliament

The previous section focused on the institutional mechanisms through which Parliament exercises accountability functions in relation to the judicial system. To develop a more nuanced and contextual understanding, attention now shifts to particular aspects of the judicial system.

1. Scrutiny of court judgments on points of law

The parliamentary rulebook discourages parliamentary scrutiny of the core judicial function of deciding cases and setting precedents. Erskine May states that ques­tions to ministers ‘seeking an expression of opinion on a question of law, such as the interpretation of a statute, or of an international document, a Minister’s own powers, etc, are not in order since the courts rather than Ministers are competent in such matters’.^[684] Sub judice rules adopted by each House seek generally to pre­vent references being made to active court proceedings in any motion, debate or question (subject to the discretion of the Speaker or committee chair).^[685] Moreover, questions ‘which reflect on the decision of a court of law’ are not in order.⁵⁶ As already noted, the Judicial Executive Board guidance to members of the judiciary appearing before Select Committees urges judges to avoid answering questions which deal with the ‘merits of individual cases’.

Example 1.1. The Joint Committee on Human Rights (JCHR) issued two reports critical of the way in which courts had interpreted the meaning of ‘public function’ in s 6 of the Human Rights Act 1998. The first report criticized the case law as ‘in human rights terms, highly problematic', finding that the ‘development of the case law has significant and immediate practical implications'. It called for the govern­ment to intervene in a future case to argue for a change in the courts' approach to interpretation.^[686] The second report was made while an appeal on the relevant point of law was pending before the House of Lords, preventing the committee from commenting on the particular case.^[687] Both reports drew on written evidence from a variety of public bodies and interest groups. The reports led to an unsuccessful private member's bill seeking to reverse the precedent set by a series of judgments, including House of Lords authority; a change of law was brought about by s 145 of the Health and Social Care Act 2008, resulting in care homes being subject to the Convention rights.

The methodical work of the JCHR in reviewing case law and bringing together a body of evidence about the impact of the approach taken by the courts to inter­preting the HRA 1998 should not be regarded as undermining judicial independ­ence, so long as parliamentarians are clear that their views expressed in reports and debates are opinions expressed in a political arena. In the UK, it is safe to assume that the courts will exclude politicians' views as generally irrelevant to their adjudicatory task.

Example 1.2. The Compensation Act 2006, s 1 sought to ensure that ‘desirable activities' were not discouraged because of fear of liability under the common law of negligence or breach of statutory duty if it resulted in harm by clarifying the approach of courts to assessing what constitutes reasonable care in individual cases. During its passage as a bill, a Select Committee took evidence and reported on the ‘compensation culture'.^[690] In carrying out post-legislative scrutiny^[691] of the Act in 2012, the Ministry of Justice told the Justice Select Committee it had not car­ried out any detailed examination to assess the impact of s 1. To do so would, the Ministry said, be ‘impractical in resource terms' but also would not be appropriate ‘as it could be seen as undermining the independence of the judiciary and casting doubt on the way in which they have interpreted the law'.^[692]

Clearly there is a difference between the Ministry’s and the JCHR’s understand­ing of the constitutional propriety of a body other than the courts discussing the case law flowing from relatively recent legislation. The judiciary did not seem to share the Ministry’s concerns when the idea of post-legislative scrutiny was first being worked out in recommendations of the House of Lords Constitution Committee and the Law Commission.^[693] The Law Commission heard from the Association of District Judges that the ‘most important considerations for review were likely to be “difficul­ties in interpretation and unintended legal consequences” ’.^[694] The Judges’ Council envisaged that ‘individual judges might send any comments they have made about legislation in judgments to the body undertaking the scrutiny work and that judges should be made aware of this possibility but not obliged to follow this route’.^[695] So long as Parliament does not trespass into retrospective interference with individual cases (which must remain exclusively for the courts), the sort of corrective instigated by the JCHR in relation to s 6 of the HRA ought to be viewed as a welcome tool of accountability for Parliament, which does not undermine judicial independence.

responded that the government ‘really do not believe that we are undermining the constitutional separation of powers by asking Parliament to legislate to reverse the effect of a High Court decision in advance of the issue having been decided by the Supreme Court'.^[699] The fast-tracked bill, which had retrospective effect, became the Police (Detention and Bail) Act 2011 and the Greater Manchester Police withdrew their appeal.

The parliamentary response to the PACE ruling highlights the question of tim­ing: the general rules of sub judice discourage Parliament from scrutinizing judg­ments or commenting on cases which are actually pending before the courts while retaining the ultimate right to legislate on any matter.^[700] Comity and practical coor­dination between the judicial, legislative and executive limbs of the state require a principled approach to be taken in relation to cases that are awaiting decision on appeal to the Supreme Court; it is far from clear that this happened.

Example 1.4. The House of Commons Culture, Media and Sport Committee, carrying out an inquiry into press freedom and privacy, reported under the head­ing ‘Mr Justice Eady and Privacy Law' that they had ‘received no evidence in this inquiry that the judgments of Mr Justice Eady in the area of privacy have departed from following the principles set out by the House of Lords and the European Court of Human Rights', adding that ‘If he, or indeed any other High Court judge, departed from these principles, we would expect the matter to be success­fully appealed to a higher court'.^[701] In reaching that conclusion, the committee heard from journalists, judges and lawyers. The review into the jurisprudence and ideology of Mr Justice Eady is probably best seen as turning on the specific circum­stances of a particular Select Committee inquiry: the committee was faced with allegations made by an editor of a national newspaper and they felt could not, in the context, be ignored. The committee's report was carefully worded and favour­able in outcome to the judge. There is, however, a significant threat that individual judicial independence is compromised if a Select Committee embarks on a line of inquiry into a body of case law by a named judge.

2. Foundations

In the absence of a written constitution, the constitutional framework of the judicial system has to rest on ordinary legislation (primary and secondary), ‘soft law' and constitutional conventions. Under the new architecture, the principal statutes are the Constitutional Reform Act 2005 and the Tribunals, Courts and Enforcement Act 2007. (Provisions intended by the government to be included in the Constitutional Reform and Governance Act 2010 were dropped to enable the bill to receive royal assent before the 2010 general election). Examples of ‘soft law' include: the 2004 concordat between the Lord Chancellor and the LCJ;^[702] the ‘Memorandum of Understanding between the Office for Judicial Complaints, the Ministry of Justice and the Directorate of Judicial Offices for England and Wales';^[703] Her Majesty's Courts and Tribunals Service Framework Document;^[704] and the list of ‘qualities and attributes' required for judicial office—in other words, how ‘merit' is defined—published by the JAC.^[705]

The following two examples provide contrasting approaches to policy formation and legislative scrutiny:

Example 2.1.

Example 2.2. In 2000, the government appointed an independent panel, chaired by retired judge Sir Andrew Leggatt, with broad terms of reference to undertake a review of ‘the delivery of justice through tribunals other than ordinary courts of law' leading to a report in 2001.^[708] The Department for Constitutional Affairs responded in 2004 with an equally wide-ranging White Paper, accept­ing the thrust of the Leggatt recommendations and proposing a new principle of ‘proportionate dispute resolution' to avoid disputes arising and to encourage Alternative Dispute Resolution (ADR).^[709] In 2006, the Government published a draft Tribunals, Courts and Enforcement Bill.^[710] Neither the House of Commons Justice Committee nor the House of Lords Constitution Committee felt able to find time to carry out pre-legislative scrutiny of the draft bill. As well as completely re-designing the tribunal system (or ‘maze' as critics dubbed it), the bill would amend the eligibility criteria for all judicial appointments. The House of Lords Constitution Committee successfully called for a provision on ADR included in the draft bill but removed from the bill ‘proper' to be reinstated.^[711]

The legislation in these two examples was of great practical and constitutional importance. In the first, ‘back of the envelope' policy-making and a government decision not to publish a draft bill was countered by careful (albeit often partisan) parliamentary scrutiny that left few clauses unturned. In the second, careful policy making with judicial involvement, a White Paper and a draft bill were met with relative indifference by parliamentary Select Committees.

Example 2.3. In January 2004, the Lord Chancellor (Lord Falconer) and the LCJ (Lord Woolf) announced that agreement had been reached on the principles and practices governing the transfer of functions from the former to the latter under the government's proposals. This came to be known as ‘the concordat'. In their 2007 report, the House of Lords Constitution Committee stated that, although many aspects of the concordat had been put on a statutory footing by the CRA 2005, ‘it is clear to us that the concordat continues to be of great constitutional impor- tance'.^[712] In a debate on the Constitution Committee's report, Baroness Royall of Blaisdon (President of the Council, speaking for the government) said ‘The Government will consult and work with the judiciary to ensure that the concordat remains live and relevant, and that changes to both the framework document and the concordat are properly put before this House'.^[713] In February 2011, Lord Judge told the House of Lords Constitution Committee that in the event of the LCJ fail­ing to negotiate a satisfactory annual settlement for funding the judicial system:

I think we would have to renegotiate a new concordat, and I would expect that this Committee would be following very closely how we were reaching the concordat that we were trying to reach. I do not regard the concordat agreement between the Lord Chief Justice and the Lord Chancellor of the day as private between them. It is a public docu­ment, and anybody can look at it at any time. If the situation were to reach such a parlous state that it broke down completely, I suspect the Lord Chief Justice of the day—because this will not happen in my time—would be very anxious to exercise such power as is left to him in the context of the parliamentary process: (a) this Committee, (b) the Justice Committee and (c) the exercise under Section 5 of the Constitutional Reform Act of, in effect, writing to Parliament and setting out his or her concerns.^[714]

Example 2.4. In January 2007, the Home Secretary (John Reid MP) wrote an article in the Sunday Telegraph hinting strongly that the government was minded to create a Ministry of Justice (merging some policy areas of the Home Office and the Department for Constitutional Affairs).^[715] The senior judiciary had not been con­sulted at that point. The Prime Minister announced the creation of the Ministry of Justice by a written statement to Parliament on the day it rose for the Easter recess.^[716] The House of Commons Constitutional Affairs Committee carried out an inquiry into the decision, taking evidence from Lord Phillips CJ, Lord Justice Thomas, then twice from the Lord Chancellor (Lord Falconer) and permanent secretary (Alex Allan). The committee’s July 2007 report criticised the government for having failed to learn lessons from the way changes to the Lord Chancellor’s office had been announced in 2003 and for causing ‘a highly undesirable public conflict between the senior judiciary’ and the government.^[717] The House of Lords Constitution Committee, which was midway through an inquiry on relations between government, judges and Parliament, also considered the handling of the creation of the new ministry.^[718]

These two examples demonstrate the importance of non-statutory foundations for the judicial system. In relation to the concordat, there are several statements about its perceived importance, but parliamentarians have not been specific about what exactly their continuing role might appropriately be in scrutiny of the future developments of the concordat. This uncertainty is a reflection of doubts about the constitutional status of the concordat. On one view, its importance has faded since most of its provisions have been put on a statutory footing by the CRA 2005 and the conventions and institutional arrangements that have subsequently developed. Example 2.4 shows the mediating role Parliament is able to play when fundamen­tal disagreements arise between government and the judiciary. A carefully planned campaign by senior judges allowed them to use Select Committee hearings to vent their concerns about the manner in which the government had acted in setting up the MoJ as well as the substance of the government’s plans.

3. Judicial appointments

The 2005 constitutional settlement gave responsibility for selecting candidates for judicial office to an arm’s length body, the Judicial Appointments Commission (JAC) while reserving powers to the Lord Chancellor to have the final say on accepting, rejecting or asking the JAC to reconsider a recommendation.^[719] Parliament has no role in individual appointments; its function (unstated on the face of the CRA) is to exercise overarching accountability functions in relation to the process as a whole. As the following examples show, a range of methods is used to achieve this.

Example 3.1. Lord Marks of Henley-on-Thames (a QC) asked an oral question ‘To ask Her Majesty's Government what progress is being made in improving gender and ethnic diversity in judicial appointments'. After the minister's reply, five other peers asked supplementary questions.^[720]

Example 3.2. During 2011-12, the House of Lords Constitution Committee car­ried out a major inquiry into the judicial appointments processes in England and Wales and for the Supreme Court.^[721]

Example 3.3. In the calendar years 2010 and 2011, 37 written questions in the Commons dealt with aspects of the appointments process and judicial careers.

Example 3.4. The House of Commons Justice Committee has held evidence ses­sions on the work of the JAC: two sessions in 2007;^[722] and in 2010, hearing from Baroness Prashar (the chair), Jonathan Sumption QC (as he then was), and Edward Nally (legal practitioner members).^[723]

The picture that emerges is of some parliamentarians in both Houses keen to have oversight of the judicial appointments system as a whole, and to exercise scrutiny on a regular and rigorous basis. So far, however, parliamentarians have consistently rejected suggestions that they should have any role in individual senior appointments, as House of Commons Select Committees now have in relation to several public offices for which they carry out pre-appointment hearings with the preferred candidate.^[724] One of the main reasons for eschewing this direct form of accountability is that parliamentary involvement would risk undermining judicial independence, in fact or perception, if appointment hearings were to be conducted along partisan lines. This is a concern that needs to be taken seriously, though in an era when the LCJ subjects himself to an annual press conference and judges are content to give public lectures openly critical of government, the concern may be overstated.^[725]

4. Judicial discipline

The British constitution allocates to Parliament alone the power to dismiss judges of the High Court, Court of Appeal and Supreme Court: judges hold office ‘dur­ing good behaviour, subject to a power of removal by Her Majesty on an address presented to Her by both Houses of Parliament'.^[726] No judge has been subject to this procedure in modern times, but it is important to recognise that Parliament has this ultimate ‘sacrificial' tool of accountability. Dismissal of judges below the level of the High Court on grounds of misbehaviour is by the Lord Chancellor with the concordance of the LCJ. Erskine May is clear that ‘Unless the discussion is based upon a substantive motion, reflections must not be cast upon the con­duct of... judges of the superior courts of the United Kingdom, including persons holding the position of a judge, such as circuit judges and their deputies, as well as recorders'.^[727] The parliamentary record reveals MPs do, from time to time, want to criticize the conduct of individual judges.

Example 4.1. An Early Day Motion by Mildred Gordon MP called for the dis­missal of Judge Sir Harold Cassel QC over sentencing remarks in a child abuse case.^[728] It seems that the judge had, in fact, already tendered his resignation.

Example 4.2. Mark Todd MP led a debate on ‘Judicial Error (Compensation)' in Westminster Hall. He dealt in detail with the case of a constituent who had been convicted of indecent assault, which was subsequently held to be unsafe by the Court of Appeal. The MP was critical of the trial judge (whom he did not name) and went on to say:

The straight answer is that I do not know what happened to the judge after his decision was corrected. Although I can appreciate that the objectivity and independence of the judiciary might be harmed by, say, the ability of a complainant to sue the judge for damages where their error causes harm, I would expect some accountability to be exercised for judicial error. On my observation, we instead enter into a polite and largely private world. Some of the texts that I have read, which were written by learned lawyers, point out that it can be argued that the appellate process offers some accountability, in that it demonstrates where a correction is required of a judge.^[729]

For the government, Harriett Harman MP accepted that this individual case ‘raises a number of important and difficult points of principle' and went on to explain the compensation schemes available for wrongful convictions (which did not apply) and the new Office of Judicial Conduct.

Example 4.3. An MP used the daily adjournment debate to raise the ‘some­what esoteric subject of ex parte applications in the family courts' and a specific case involving constituents. He said that ‘I understand that in 2006-7... two complaints were upheld out of the 938 complaints made against judges. That tells us how much accountability m'learned friends in that high office have. It seems that judges have power without responsibility to anybody but themselves and one another'.^[730]

Example 4.4. The annual report of the Office for Judicial Complaints is published by the Lord Chancellor, with the concurrence of the LCJ. This event is put on the parliamentary record by a written statement.^[731] It appears that there has never been Select Committee scrutiny of the report or any debate of it in Parliament.

It is difficult to see how individualized censure can ever be appropriate in the light of (a) the principle of independence of the judiciary and (b) the existence of the Office for Judicial Complaints, established as part of the new CRA arrange­ments. Parliament's attention would be better directed at ensuring effective system­atic scrutiny of the general work of the OJC, but this it has failed to do despite the availability of a detailed annual report.

5. Judicial governance

The final aspects of the judicial system that will be examined are the new institu­tions of self-governance, with the LCJ at its apex. As noted above, there has been a transfer of management and leadership power to the judiciary under the CRA 2005.^[732] The making of annual reports is an accountability tool in its own right but is also capable of being the basis of further parliamentary scrutiny.

Example 5.1. The LCJ has no statutory duty to make an annual report. In May 2006, Lord Phillips CJ told the House of Lords Constitution Committee that this ‘is something we are considering'. In July 2007, he announced that the Judicial Executive Board would publish an annual report.^[733] The House of Lords Constitution Committee welcomed this, as ‘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'.^[734] The Lord Chancellor told Parliament that ‘The Lord Chief Justice views this as a way to demonstrate the judiciary's accountability to the public and parlia­mentarians without compromising judicial independence'.^[735] There then followed uncertainty about the procedural mechanism whereby such a report could be made to Parliament. CRA 2005, s 5 provides that the LCJ ‘may lay before Parliament written representations on matters that appear to him to be matters of importance relating to the judiciary, or otherwise to the administration of justice'. Initially, this had been seen as a ‘nuclear option', to be used only in circumstances approaching a constitutional crisis.^[736] The first report was published in March 2008, covering the period April 2006 to September 2007. It was neither published in Hansard nor debated. In 2008, Lord Phillips appeared to have ‘resiled from the commitment to publish such a report on a strictly annual basis', though that seemed to be to avoid binding his successor, Lord Judge (who was to assume the office of LCJ in October 2008).^[737] Lord Judge told the Constitution Committee that he felt ‘it may not be sensible to produce [a report] every year'.^[738] Two further reports have been published: one in February 2010 for the legal year 2008-9; and the other in August 2012 for the period January 2010 to June 2012.^[739] These have not been debated in Parliament. The judiciary website states: ‘Future reviews will be produced to provide information about the preceding Legal Year'.^[740]

Example 5.2. In February 2010, the Senior President of Tribunals presented his first annual report. The foreword explained that it was ‘not intended as a formal report under section 43 of the Tribunals, Courts and Enforcement Act 2007' under which the Senior President ‘is required to report annually to the Lord Chancellor, specifically about “cases” rather than the function of the new system of tribunals in general'.^[741] The report is succinct but informative. It deals with organisational mat­ters and with tribunal law and jurisprudence. It includes contributions from differ­ent tribunal judges. A second annual report appeared in February 2011. There was no discussion of either report on the parliamentary record.

These two examples reveal uncertainty about the scope and purpose of the reporting duties contained in legislation.The examples also show varying degrees of eagerness by Select Committees to follow-up annual reports with evidence sessions.

D.