Opportunities for parliamentary accountability

Against this background of dramatic increases in the judicial power of the state, changes in governance and new approaches to accountability, what role does Parliament have in oversight of the judicial system? What role should it have? Finding answers to these questions is not straightforward, not least because of the need to protect judicial independence from inappropriately targeted accountabil­ity claims.

1. The accountability toolkit

Parliament has at its disposal a variety of accountability mechanisms that can be deployed for oversight of the judicial system. Examples of how these are used are providedbelow:

i. There are opportunities to scrutinize legislative proposals. In relation to bills, this now includes the possibility of pre-legislative scrutiny (if the government publishes a bill in draft), the legislative process in each House (with the parallel scrutiny of committees including the Joint Committee on Human Rights and the House of Lords Constitution Committee), and relatively new practices of post-legislative scrutiny (where the responsible government department reviews legislation five years or so after enact­ment and reports to a Select Committee).

ii. A variety of different kinds of debate may be held on the floor of the House, including government motions, topical debates, substantive motions for the adjournment, and daily adjournment debates.

iii. Ministers are obliged to answer oral and written questions. ‘The purpose of a question is to obtain information or press for action; it should not be framed primarily so as to convey information, or so as to suggest its own answer or to convey a particular point of view, and it should not be in effect a short speech'.^[657]

iv. Early Day Motions proposed by backbench MPs drawing attention to an event or cause, which MPs sign to register their support.

v. Select Committee inquires enable MPs and peers (usually working in a non-partisan, cross-party manner) to carry out detailed evidence-based investigations, receiving oral and written evidence. Reports may be debated on the floor of the House or in Westminster Hall. The relevant government department is expected to make a formal response to the committee's find­ings and recommendations.

vi. Pre-appointment Select Committee hearings for appointments to various senior public offices.^[659] In relation to the judicial system, the House of Commons Justice Committee is responsible for scrutinizing the government's preferred candidate for the chair of the Judicial Appointments Commission and the Chair of the Office of Legal Complaints. Some commentators have argued in favour of extending pre-appointment scrutiny to senior judicial posts but so far Parliament has viewed this as anathema.^[660]

These may form a network of interconnected activities: for example, what a judge says in oral evidence to a Select Committee may be quoted in the committee's report, which in turn will prompt a debate in the House and a response from min­isters; another illustration of the connectedness of the mechanisms is that informa­tion obtained by an MP from a written parliamentary question may be used to lobby a minister or in a speech on the floor of the House.

2. Select Committees

Select committees have acquired a central role in accountability practices relat­ing to the judicial system. They provide the most rigorous sort of parliamentary scrutiny, conducting thematic inquiries based on oral and written evidence. On occasion, the launch of an inquiry makes front-page news.^[661] Sometimes a Select Committee oral evidence session ends with the publication of a transcript on the relevant committee’s web page. Normally, however, the Select Committee pro­duces a report containing findings and recommendations, often accompanied by a press release.

One of the most notable developments in recent years is the phenomenon of judges appearing to give oral evidence to Select Committees and submitting written evidence.^[663] Appendix 3 summarises the inquiries at which judges have appeared to give oral evidence on 38 separate occasions between 2006 and August 2012. Eight different Select Committees received evidence, though appearances were concen­trated in the House of Commons Justice Committee and the House of Lords Constitution Committee. During the passage of the Constitutional Reform Bill there was discussion about the pros and cons of establishing a Select Committee on the judiciary. This might be a joint committee of both Houses and have a statutory basis.^[664] So far, this has not been thought necessary or desirable.^[665]

The 35 individual judges contributing to the work of Select Committees come from all levels of the court hierarchy, from the magistrates’ courts to the Supreme Court. Unsurprisingly, it is those judges with leadership responsibilities who appear most frequently (in particular the LCJ and Heads of Division); there is now an expectation, firming up into a constitutional convention, that the LCJ will meet the House of Commons Justice Committee and the House of Lords Constitution Committee on an annual basis.

Judges are able to provide valuable technical advice to Parliament, which is particularly useful in an era of increasingly complex legislation. However, for appearances to be mutu­ally beneficial both the judiciary and Parliament need to be mindful of their respective roles—as Parliamentarians are aware, there are some areas of enquiry in which it is not appropriate for judges to become involved, for example in relation to political matters or issues relating to a particular case. Being drawn into such matters would be damaging for both future involvement in the work of committees and for the impartiality and reputation of the judiciary. For this reason, care is exercised by those involved when responding and in considering invitations to judges to appear before Parliament.^[666]

There appears, however, to be a feeling on the part of the judiciary and parliamen­tarians that meetings with Select Committees are generally valuable experiences for both sides.

Over time, the judiciary has taken a more coordinated approach to requests to appear before committees. The Judicial Office explains:

Should a Select Committee feel they require a judge to appear before them, the normal process is for the relevant Committee to contact the Lord Chief Justice’s Office seeking for an appropriate judge to be identified, or to approach the judge directly. On some occasions judges are unable to attend Committee hearings due to sitting and other prior commit­ments.

In July 2008, the Judicial Executive Board issued ‘Guidance for Judges appearing before or providing written evidence to parliamentary committees’.^[668] The docu­ment provides a list of types of questions which judges may not be willing to answer or in respect of which they will need to exercise caution: ‘the merits of individual cases’; ‘cases over which they have presided’; ‘the merits or personalities of particular serving judges and politicians’; ‘the merits of Government policy’; and bills or proposed legislation, ‘save where the policy in question affects the admin­istration of justice within his or her area of judicial responsibility’; the adminis­tration of justice which falls outside the judge’s area of responsibility or previous responsibility; and matters on which the government is consulting to which the judiciary will but has not yet responded. In fact, it is rare for a judge to be asked a question during a Select Committee hearing that the judge feels it inappropriate to answer. The committee clerk drafts lines of questioning, often with the assistance of a part-time specialist adviser.^[669] The practice in the House of Lords is for wit­nesses to be sent the proposed lines of questioning several days in advance of the hearing, though this does not happen routinely in the Commons. The extent to which members of a committee depart from the suggested lines of question varies, but for the most part the interview proceeds along the pre-prepared lines.

Judicial appearances before Select Committees have different kinds of func­tion. In some inquiries the judiciary is the focus of scrutiny. As the Constitution Committee states, Select Committees ‘can play an important role in holding the judiciary to account by questioning the judges in public'.^[670] Into this type fall the annual appearances of the LCJ. Where necessary, committees may be critical of the judiciary: thus, in 2007 the Constitution Committee gently suggested that the LCJ needed to re-appraise his media and public communications strategy and that the judges needed to make the Judicial Communications Office ‘more active and assertive in its dealing with the media in order to represent the judiciary effec- tively'.^[671] Later in the essay, two further examples of inquiries which included a focus on the judiciary are considered in which judges did not give evidence: the Joint Committee on Human Rights' inquiry into how the judiciary were interpret­ing s 6 of the Human Rights Act 1998 (wrongly, the committee found);^[672] and an inquiry by the House of Commons Culture, Media and Sport Committee which considered the judgments of Mr Justice Eady in relation to privacy (finding that the judge had not, contrary to the assertions of a newspaper editor, departed from precedent in cases on privacy rights).^[673] One possible reason for not hearing from judges in these inquiries is that any lines of questioning would have quickly taken the committees into forbidden territory—the merits of cases and the merits of particular serving judges.

A further function of judicial evidence is to comment on or criticize govern­ment policy or action in relation to the administration of justice or areas of public policy in which judges have particular experience or expertise. Thus, Sir Nicholas Wall (President of the Family Division of the High Court) was quoted in a com­mittee's report on the government's proposed reform of legal aid as saying that the government ‘is very ill-advised to concentrate on violence' rather than use the term ‘domestic abuse'; and he said that the proposals created ‘a perverse incentive' to take out injunctive proceedings against a former spouse.^[674] His predecessor, Sir Mark Potter, described earlier proposals as ‘a series of extremely crudely averaged fixed fees', concluding that ‘the whole thing has to be radically revised'.^[675] In rela­tion to inquiries of this sort, Select Committee evidence is one way in which judges may make known to Parliament their misgivings about government proposals.

A third function of judicial evidence is educative: to explain to parliamentar­ians what the judges' role involves and what the limits of that role are. Examples include Baroness Hale's evidence to the JCHR on a British bill of rights (about adjudication on social and economic rights)^[676] and Ryder J's evidence to the Justice Committee on the operation of family courts (on the difference that hearing the voice of the child could make).^[677] The Constitution Committee has suggested that there might be more of this kind of interaction, with judges ‘encouraged to discuss their views on key legal issues in the cause of transparency and better understand­ing of such issues amongst both parliamentarians and the public'.^[678] As the com­mittee noted, judges discuss issues such as the interpretation of the Human Rights Act 1998^[679] or the use of Pepper v Hart^[680]in public lectures and in academic writing.

Measuring the concrete influence of the work of Select Committees is far from straightforward.^[681] This is as true of inquiries in relation to the judicial system as it is in other contexts. It may be that the importance lies in the activity of engagement by parliamentarians with judges and others about the judicial system (rather than any specific ‘wins' in influencing policy or practice). Select committee hearings now provide the only official forum in which parliamentarians and judges may have a public conversation. Before the CRA 2005, the senior judiciary who were peers (the Law Lords and the Lord Chief Justice) were able to make contributions to debates on the floor of the House and, the conscientious objectors apart,^[682] did so until disqualified in the new constitutional arrangements.^[683] A sense of proportion is, however, needed: concern for judiciary-related matters is something of a niche interest among parliamentarians. Except perhaps where an MP's constituency is affected by court closures or reorganisation, the judicial system barely registers on the political agenda of most parliamentarians. Some Select Committee hearings with judges have been poorly attended by MPs.

C.