Graham Gee: The Lord Chief Justice and Section 5 of the Constitutional Reform Act

This is posted on behalf of Graham Gee and originally appeared on the UK Constitutional Law Association Blog.

The Constitutional Reform Act redrew relationships between the senior judiciary and Parliament in a number of ways. Amongst the most significant was removing the right of the LCJ to speak in the Lords. Earlier this month, the new LCJ Lord Thomas repeated the lament of his immediate predecessors that it was a mistake to deprive the LCJ of the right to address Parliament on the floor of the House on important matters relating to the administration of justice. In this context, some have read the LCJ’s suggestion of a new approach to s5 of the CRA as significant. Drawing on interviews conducted between 2011-13 as part of an AHRC-funded project on The Politics of Judicial Independence, I want to shed some light on tensions that have arisen about the use of s5.

Section 5

Under s5, each of the LCJ, the LCJ for Northern Ireland and the Lord President “may lay before Parliament written representations on matters that appear to [the officeholder] to be matters of importance relating to the judiciary, or otherwise to the administration of justice”. In debates ten years ago on the bill that became the CRA, the then LCJ and Lord Chancellor—Lord Woolf and Lord Falconer—both suggested that s5 would be used rarely and only for high profile matters of serious concern to the judiciary. Subsequently, both Lords Phillips and Judge appeared to confirm this by describing s5 as a “nuclear option” to be used only in the face of a serious threat to judicial independence or the rule of law. (See here and here). But, in practice, neither used s5 in this way, invoking it instead for the more humdrum matter of laying before Parliament periodic reports on the management of the judiciary. Behind this lies a surprising and even at times rather silly disagreement between senior judges and parliamentary authorities; or what an interviewee called “a storm in a teacup”.

“A Storm in a Teacup”

In late 2007 and early 2008, there were lengthy discussions between the LCJ, the Procedure Committee, the Journal Offices in the Commons and Lords and others about the most appropriate way of getting the LCJ’s reports before Parliament. At issue were rival interpretations of the proper scope and purpose of s5. Reversing his previous position, Lord Phillips now argued that s5 was not only to be used in “a crunch situation” to raise pressing issues of concern, but that it also supplied a statutory mechanism whereby the LCJ can lay periodic reports before Parliament. The clerks did not dispute that a report can be laid under s5, provided it contained “written representations”. Rather, they relied on statements by ministers and Lord Phillips himself to argue that s5 was only for raising serious concerns.

Driving the clerk’s arguments were rules regulating who has authority to formally “lay” papers in the Commons. Under these rules, ministers are effectively the only officeholders authorized to do so. (See this guidance from the Journal Office from April 2009). The clerks suggested instead that the Speaker and the Lords Speaker should place the report in the libraries of the Commons and Lords as a deposited paper on behalf of the LCJ. Lord Phillips initially agreed to this, only to change his mind shortly before publication of his first report, insisting that he should be able to lay his report independently, without relying on the Speaker, the Lords Speaker or anyone else. Lord Phillips’s eleventh-hour reversal surprised the clerks. As one interviewee observed, “it was frankly all a bit of shambles, and there was a lot of misunderstanding and a lot of crossed wires”. In the end, Lord Phillips invoked s5 to lay his report before Parliament, with this fact noted on the face of the report itself—although, as one interviewee told us, in reality what actually happened was that the report was laid before the House on his behalf by the Clerk of the House.

In 2009 Lord Judge’s officials approached clerks in the Commons to discuss using s5 to lay the then new LCJ’s report before Parliament, but they were “sent away with a flea in their ear”, leading to what an interviewee labelled “a bit of a tiff”. In 2010, Lord Judge issued his report, but without using s5. Subsequently he initiated negotiations with the House of Lords authorities, agreeing with them that in the future the Lords would accept reports issued under s5. Two years later, a similar agreement was reached with the Commons, and in both 2012 and 2013 the LCJ’s reports were laid before both Houses under s5.

This back-and-forth, together with all of the tensions and frustration it generated, is aptly described as “a storm in a teacup”. But like many a storm in a teacup, it reveals something about the actors involved as they fumbled to redefine working relationships following the 2005 changes. These relations have been redefined less in a systematic fashion, and more by touch-and-feel, with missteps along the way. These missteps resulted largely from a failure to understand the other’s concerns and anxieties. The judges underestimated the cautiousness of the clerks and their concern to protect Parliament’s privileges and customs. The clerks in turn did not adequately grasp the importance that senior judges placed on finding new ways of communicating with politicians, especially in light of changes to the role of Lord Chancellor. Matters were not aided by successive LCJs sending mixed messages on s5. Similar patterns can be seen in other aspects of judicial-legislative relations: some parliamentary officials feel that senior judges have sent mixed signals on the appropriate scope of questioning of judicial witnesses by select committees.

Relations are improving, with the agreement that was eventually reached over s5 evidence of this. And careful coordination is taking place on both sides to nurture mutual understanding of and respect for each other’s concerns. The previous LCJ, Lord Judge, and the current Clerk of the House of Commons, Sir Robert Rogers, are both more outward looking than their predecessors and have developed more frequent informal contacts. To aid a better mutual understanding, the Clerk of the House has begun holding regular informal meetings with the LCJ and President of the UK Supreme Court, where topics discussed have included sub judice, the use of parliamentary materials in court and parliamentary privilege. The new guidance from the Judicial Executive Board in 2012 on judicial appearances before select committees is in part a product of these contacts.

When should s5 be used?

The tone of his evidence before the Justice Committee earlier this month suggests that Lord Thomas wants to build on this more outward-looking approach. In his evidence, he referred to the enduring respect that exists between Parliament and the judiciary, but hinted at concern about a lack of understanding between them. It was in this context that the LCJ suggested that he took a different view on s5 than his predecessors, eschewing the description of it as a nuclear option. He did not elaborate on the circumstances in which he envisaged using s5, although it is safe to assume that he will continue to invoke s5 to lay reports before Parliament. Although it is sensible for the senior judiciary to search out new and fruitful ways of communicating with Parliament, s5 is best retained as a measure of last resort.

The reason can be simply stated: the LCJ already has a suite of tools available for articulating concerns to ministers, parliamentarians, lawyers or the public at large. These include monthly meetings with the Lord Chancellor and, in a fairly recent innovation, twice yearly meetings with the Prime Minister. As and when serious concerns arise, the LCJ can request an extraordinary meeting with the PM. This happened in 2001, when the LCJ and a team of senior judges went to 10 Downing Street and persuaded Tony Blair to abandon a planned reorganization in Whitehall under which responsibility for the courts would have shifted to the Home Office. Other tools include speeches, press conferences and appearances before select committees. Where bills concern the administration of the courts or constitutional matters pertaining to the judiciary, judges already routinely provide evidence—oral and written—to committees. The chairs of both the Commons Justice and the Lord Constitution Committees have indicated that the LCJ can approach them to request an urgent session to hear from the LJC on topics of serious concern to the judiciary. Under HMCTS’s Framework Document, special processes are now also available to the LCJ to raise concerns about court funding.

These tools will usually be sufficient for voicing judicial concerns. They will alert stakeholders, generate coverage in the press and often secure favorable results for the judges. Absent a real constitutional crisis, it is difficult to imagine what using s5 could add; almost always there will be more appropriate, and more effective, ways of highlighting judicial concerns short of submitting formal representations to Parliament. A prudent LCJ will engage with ministers in private first, and only slowly escalate the matter in public. When relations with government are proving troublesome, the LCJ must decide whether to raise a concern publicly, how and where, reflecting on whether putting ministers on the spot in public will advance the judicial cause over the long haul. Knowing how to advance judicial interests inside Whitehall and Westminster requires political judgment. Almost always the LCJ will be well advised to avoid escalating matters through s5. Above all, there is something to be said for having an identified measure of last resort recognized by ministers, MPs, peers and civil servants as a tool that the LCJ would only use in the most strained circumstances. Seeking to employ 5 as something other than a measure of last resort to be used only in the most serious circumstances ultimately risks undercutting its potency.

A Final Word on the LCJ’s Reports

There are more appropriate ways than s5 for ensuring that the LCJ’s reports are laid before Parliament. Only four such reports have been prepared over nearly 10 years. They offer a selective, high-level account of the stewardship of the judiciary, with their irregular frequency rendering it impossible to compare performance of the senior judiciary over time. Successive LCJs have resisted producing the reports annually on the grounds that it would be administratively burdensome. This seems a poor excuse given the wide array of management and leadership responsibilities exercised by, or in the name of, the LCJ. It seems that Lord Thomas now intends to issue reports annually. Talk is cheap: Lord Phillips made a similar commitment in 2007, only for his successor to resile from it. To ensure regular reports, the LCJ should be under a statutory duty to produce an annual report similar to that on the Senior President of Tribunals, except that it should include explicit statutory authority to enable the LCJ to lay reports directly with each House.

Graham Gee is a law lecturer at the University of Birmingham. In 2011-2013 he worked with Robert Hazell, Kate Malleson and Patrick O’Brien on an AHRC-funded project on The Politics of Judicial Independence.

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