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Tension between executive and judiciary |
In 2007, Jack Straw the Justice Secretary, also the Lord Chancellor and
the first Lord Chancellor to sit in the House of Commons, became locked in
a dispute with senior judges over the creation of the new Ministry of
Justice.
The judges were concerned that the funding for the courts would be
plundered to meet the needs of prisons, which were in the same department.
A second concern was that they would come under pressure to tailor
sentences according to prison spaces rather than what is appropriate.
The Lord Chief Justice, Lord Phillips of Worth Matravers said that the
administration of justice was “inevitably and quite properly” of public
and Parliamentary interest.
“I have therefore come to the conclusion
that the right course is to produce a report on the administration of
justice which I will lay before Parliament annually.
“My hope is that this will serve to
strengthen understanding between Parliament and the judiciary.”
Mr Straw underlined the importance of the relationship he must forge with
the judiciary.
“How I act, and to what standard, will set
a framework for future holders of the office,” he said.
Declaring his commitment to judicial independence, he added that this
would be
“as nothing if the
courts were not able without impediment to criticise and where needed,
correct acts of commission or omission by the executive”.
Mr Straw also made clear that he would remove himself entirely from a role
in judicial appointments.
He said, “I will not second guess the recommendations of the Judicial
Appointments Commission”.
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Zander critical of the creation of the MoJ |
In a special issue of New Law Journal in July 2007, Professor Michael
Zander, QC, Emeritus Professor of Law at the London School of
Economics, said,
"The establishment of the Ministry of
Justice was another botched job reminiscent of the shambles over the
attempt in 2003 to abolish the office of Lord Chancellor.
“That both the Lord Chief Justice, Lord Phillips, and the Lord
Chancellor, Lord Falconer, say that they first learnt of the plan from
an article in The Sunday Telegraph is startling.
“That the new ministry opened for business before fundamental
constitutional issues between the judiciary and the executive had been
sorted out is an outright scandal.”
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Judicial appointments still criticised |
In its first year, the new judicial selection process appeared to be
running into trouble, and the big question is have “secret soundings”
found a back door?
In January 2007 the selection of 75 circuit judges had to be re-run
because more than 200 candidates were wrongly rejected. Senior judges,
including the Lord Chief Justice made representations
concerning applicants that the Judicial Appointments Commission
 had
passed over. Extra interviews are needed to correct the “error”, which has
been blamed on the initial sifting panels that simply looked at
application forms and took no account of judicial references.
Some suggested that this has created an appearance that senior judges have
leant on the Commission to make sure candidates they thought should have
been selected are selected.
On top of that 21 judges of the Immigration Appeals Tribunal
had to be reappointed after their 5 year contracts were not renewed. They
had started legal action for Judicial Review but got their jobs back
before the case came to court.
Further concerns have been voiced because some appointees have been made
from the Crown Prosecution Service, which as part of the
executive should be kept separate from the judiciary.
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The appearance of
inappropriate actions on the part of the Lord Chancellor in the selection
of judges is not acceptable. |
In October 2005 a row broke out between the
Lord Chancellor and the Commission for Judicial Appointments,
which accused the Lord Chancellor of interfering in the judicial selection
process and also of using his influence to favour Oxbridge educated
candidates.
The observation appeared in the Commission’s annual report, which accused
Lord Falconer of acting “inappropriately” in appointing Wyn Williams QC as
a specialist chancery circuit judge for Cardiff despite the unanimous
recommendation of the selection panel that the job go to another candidate
because Williams lacked the experience of chancery work stipulated in the
job advertisement.
Lord Falconer denied he had tried to persuade the commission to
change its conclusions.
The Commissioner Sir Colin Campbell said he found it
“quite disturbing” that in the legal arena there should be a complaints
system without redress. “It is not acceptable for an individual to be
informed that an independent commission has upheld his or her complaint,
but then to have redress denied.”
Campbell criticised the Government for rejecting the independent
watchdog’s recommendations on five occasions over the last four years.
The Judicial Appointments Commission, took over
responsibility for the appointment of judges in England and Wales in 2006.
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Terrorist legislation |
The Law Lords criticised the executive for
detaining 12 alleged terrorists without trial because they were not UK
nationals and could not be deported.
The evidence against them was secret
intelligence information which it was too sensitive to disclose to the
suspects.
The then Home Secretary - Charles Clarke
- changed the law in response to the Law Lords’ ruling, by introducing the
Prevention of
Terrorism Act 2005.
The change meant that the law did not only apply to non nationals and saw
the introduction of “Control Orders” – effectively house arrest – limits
to access to others by phone or the internet – and tagging.
The tension between the judges and the
executive continued, with warnings from both sides; the judges demanding
the rule of law and adherence to the Human Rights legislation, and the
executive warning the judges not to interfere by "judicial activism"
(11-8-2005, Michael Howard in the
Telegraph)
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SS Home Department v JJ and others (2007) HL
Whole case
here |
Subsequent court action to curb the use of control orders had very little
impact on their use. The judges seemed to accept that a control
order "is not in prison or anything that can be called an approximation to
prison" (Lord Hoffman" in the House of Lords in his speech in four
overlapping cases.
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The
Inquiries Act
2005 limits the scope of inquiries and is thought by many to put to
much control in the hands of the executive. |
Lord Saville pointed out that the Act "makes
a very serious inroad into the independence of any inquiry; and is likely
to damage or destroy public confidence in the inquiry and its findings".
He said:
"As a Judge, I must tell you that I would not be prepared to be appointed
as a member of an inquiry that was subject to a provision of this kind."
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6 June 1996
Labour's Lord Chancellor-in-waiting, Lord Irvine, |
Lord Irvine's
pointed criticism came during a Lords' debate on the dangers of 'judicial
invasion of the legislative turf', which he himself had initiated. "Judges
should keep their tanks off Parliament's lawn."
He defended the right of the Home
Secretary, Michael Howard, to put his controversial sentencing plans
before Parliament. |
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Senior
judges have repeatedly criticised Home Secretary Howard’s plans. |
To remove the right to set
tariffs for murderers serving mandatory life sentences and to decide
whether or not they should be released. |
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Lord Irvine
said judges should not stray beyond their constitutional role as
interpreters of enacted law. |
Senior judges - including
Lord Woolf, said that the courts might in exceptional cases hold invalid
statutes duly passed by Parliament.
Lord Bingham,
that the courts might feel compelled to act to protect the individual's
right to privacy if legislation was not forthcoming.
Lord Irvine declared that such an action
would suggest 'a judicial invasion of the legislature's turf. |
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Agreed,
judges could do it |
Judges could only do that if
there was a "clear community consensus that way. If there is no such
consensus, and I am sure there is none, then I say they would seem to be
taking sides. The result would be to imperil their major asset, their
reputation for impartiality." |
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"It sounds to ordinary people uncomfortably like a judicial threat to
legislate." |
"This causes ordinary people not only to think that the judges might have
got over and above themselves, but that perhaps they are exercising a
political function in judicial review cases instead of simply upholding
the rule of law" |
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Removing judges' discretion
in sentencing |
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Sentencing murders |
The
Criminal Justice Act 2003 lays down the appropriate starting point, in
determining the minimum sentence for sentencing murders. For someone
over 21 where the murder showed certain characteristics the minimum term a
judge must impose is 30 years or 15 years.
http://www.opsi.gov.uk/acts/acts2003/30044-bp.htm#sch21
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