Graham Gee: Are Executive-Judicial Relations Strained?

[Posted on behalf of Graham Gee. This post originally appeared on the UK Constitutional Law Group Blog.]

At one level, it seems reasonable to characterise executive-judicial relations as strained. In recent weeks, after all, concerns have been raised by senior judges, or on their behalf, on a range of matters—including (the now withdrawn) Schedule 7 of the Public Bodies Bill that would have given ministers the power to modify, merge or abolish a large number of public bodies, including the Judicial Appointments Commission (see here and here); Part 4 of the Pensions Bill, which provides that ministers may require judges to contribute to the costs of their pensions, whereas at the moment judges only contribute to the costs of benefits for their spouses and dependents (see here); as well as aspects of the finance and administration of the UKSC (see here). At the same time, the PM and Home Secretary have spoken of being ‘appalled’ by the UKSC’s 2010 decision in R(F) on the notification requirements for sexual offenders, with the PM also outspoken on the ECtHR’s 2005 ruling in Hirst v UK (No. 2) on prisoners’ votes. But, at another level, the characterisation of executive-judicial relations as strained risks concealing more than it reveals, and for three main reasons.

First, public lawyers often use shorthand when discussing institutional relationships. For example, we refer to ‘executive-legislative relations’ when discussing Parliament’s powers or the ability of Parliament to hold the Government to account. Often the implication, as Anthony King noted in an article in 1976, is that there is one body called Parliament and another called the Government, with our aim to study the relationship between the two. Yet, as King explained, if we really want to understand the various phenomena subsumed under such a broad heading as ‘executive-legislative relations’, we need to study a number of distinct political relationships (including those between and within different chambers, between Government and Opposition and between and within different political parties). King’s basic point—and, in one sense, it is a very basic point and yet, at the same time, marvellously subtle—is that shorthand such as ‘executive-legislative relations’ conceals multiple, complex relationships, each with its own dynamic. So what then do we mean by ‘executive-judicial relations’? Following King, we can take this as shorthand for distinct but sometimes overlapping relationships. For a start, there is not simply one ‘judiciary’ or one ‘executive’ relevant to UK public lawyers; rather, there are multiple judiciaries and executives in our multi-layered polity. We might speculate that relations appear strained between UK Ministers and the UKSC, and those ministers and the ECtHR. Or similarly we might have speculated that, following Cadder, relations between Scottish Ministers and the UKSC were strained. But, in each case, we ought to offer our speculative assessments whilst reserving judgment about other relationships. The point, here, is that we have to specify which executive and judiciary we have in mind when talking of strained relations.

Second, even then, we would likely have in mind relations between only some part of the executive and some part of the judiciary and only on certain issues. Are relations between the Lord Chancellor and the UKSC strained? On the one hand, the Lord Chancellor gave short shrift to the concerns raised by Lord Phillips about the funding of the UKSC and the position of its Chief Executive (see here). As Joshua Rozenberg put it, Lord Phillips ‘learned the hard way’ that a judge ‘who takes on the government in the court of public opinion is bound to end up second best’. On the other hand, reports a week later suggested that the Lord Chancellor had sent a ‘furious letter’ to the Home Secretary, copied to the PM, rebuking her (and, indirectly, the PM) for intemperate comments on the UKSC’s decision in R(F). Leave to one side the question of whether Theresa May’s comments were in fact intemperate, or whether this was simply the sort of ‘no-holds-barred constitutional politics’ that Danny Nicol suggests that we should expect under the HRA. Leave also to one side the question of how ministers ought to react, particularly on the floor of the House, where they are genuinely appalled by some judicial decision. The point, here, is that different parts of the executive have different relations with different parts of the judiciary, with clashes between ministers and judges only ever one part of the story. What is more, the same minister can have differing relations with the same part of the judiciary on different issues.

Third, strained relationships between ministers and judges are sometimes as much about some aspect of ‘executive-legislative relations’ as ‘executive-judicial relations’. Consider, for example, the timing of Theresa May’s ministerial statement on R(F) in mid-February. This statement was made 10 months after the original decision, but less than a week after the House of Commons’ debated the blanket ban on voting by prisoners, where MPs backed a motion stating inter alia that ‘legislative decisions of this nature should be a matter for democratically-elected lawmakers’. Had the Home Office long been planning to respond to the s4 declaration in R(F) in mid-February? Was someone in government pushing for the statement to be made sooner than planned in order to intensify debates about the HRA, the ECHR and a British Bill of Rights? Was the timing of the statement a sop to Conservative backbenchers riled by other aspects of the Coalition Government’s constitutional agenda, coming as it did on the same day that the Parliamentary Voting System and Constituencies Act 2011 received Royal Assent? None of this should be read as to dismiss the importance of ministerial criticism of this or that judicial decision or political debate about issues such as prisoners’ voters or the post-sentence monitoring of sexual offenders. As King noted in his article, the views of Government backbenchers matter because they are seldom speaking for themselves. Their views on knotty question such as the proper role of courts are likely to be held by some, and perhaps many, inside the Government, as well as parts of the public at large. The point is simply that, at times, it may not be best to construe apparent clashes between ministers and judges solely in terms of ‘executive-judicial relations’, but to see them as related to those larger, complex relationships that we conflate under the shorthand of ‘executive-legislative relations’.

Open justice to the box, urges Neuberger

“Lord Neuberger is probably the first member of the senior judiciary to weave together the many strands of justice in the internet age, and has produced a formidable, progressive and, crucially, practical manifesto for open justice in the 21st century.” 

So pronounces Guardian’s Law in an  almost gushing verdict on the Master of the Rolls’ lecture to the Judicial Studies Board last week.   

The eyecatcher  of  Neuberger’s speech is  the televising of court proceedings. But his concept of more open justice ranges much more widely,  over the perceived gap between Justice or the Law (not quite  a solecism ) and  how to avoid writing “ vanity” judgments and embrace instead “ crisp , short,” drafting.   He even discusses the  bete noire of  super-injunctions.  Goodness, he’s so accommodating that he seems like an intelligent layman at times; hardly a vested interest in sight. While his concept of Open Justice is hardly new, (implying institutional resistance perhaps?) his restatement of it is timely and comes across as requiring judges and lawyers to be clearer and more accessible. His embrace of new technology although tentative, shows he recognises the validity of pressure for greater judicial accountability.

  The path to televising the courts has been trodden before as the BBC report explains. A pilot in the Court of Appeal in 2004 was never shown publicly. The subsequent consultation ended predictably, with a fairly even division of opinion among a small number of respondents ( just over 200) and a look ahead to another consultation that never happened.  Not a lost cause exactly, but a project that was never gripped.

Neuberger has now given a boost to the cause – or will have done, if more than this blog,  the Guardian and  the BBC pick it up.  On admitting  the cameras ,  he comes near to saying, why not? And he supports tweeting in court ( cf MPs in the Commons chamber ).  While he is doubtful about televising criminal trials (a pity, despite the problem of some witnesses ) his doubts do not extend to criminal appeals.

The protocols for televising court proceedings would be complex and as Lord Phillips has pointed out expensive, at least by the quite modest standards of the Supreme Court budget.

Editorial control would be likely to remain vested in the courts. But on what basis might cases  be selected and who in real time would be responsible for editing?  If televising were to be any more than a visual record, commentary would  be essential, in a form perhaps similar to law reports which have all but disappeared from the press.  

While Neuberger’s examples of press distortions of cases are telling, you might nonetheless feel his cautious hopes for countering those distortions are naïve. After all, the televising of Parliament has done little for public confidence in MPs . Nevertheless in the digital age, I would assert his is a very proper aspiration. At the very least, televising would greatly widen access to full judgments and arguments which as far as I know remains notoriously difficult for lay persons.  At best, televising whether by narrowcasting  on the internet or in a special digital TV channel (the two platforms will shortly converge anyway), could act as a sharp spur to greater clarity  and public understanding.

Of these matters, let us hear more.

Funding arrangements do not “satisfactorily guarantee” the Supreme Court’s institutional independence

Lord Phillips of Worth MatraversSo said Lord Phillips (President of the Court) in his lecture last night, launching the Constitution Unit’s new project on the Politics of Judicial Independence. He noted that because the original revenue streams envisaged for the court have not produced the amounts anticipated (Supreme Court souvenirs were one of the more unusual elements of this original plan) the court has effectively become dependent on a contribution from the Ministry of Justice in England and Wales for its operation – a stark contrast with the secure line of funding originally envisaged by Parliament for the new court. The result of this is that there is a “tendency on the part of the Ministry of Justice to try to gain the Supreme Court as an outlying part of its empire.”

While this is the first time this issue has been voiced by the President of the court, there have been rumblings of discontent within the judiciary about court funding for some time. Given the Government’s commitment to the reduction of public sector spending, this is a battle that is likely to run for a while.

Lord Phillips also discussed the administration of the court. He stressed that it was “critical” to the court’s independence that the chief executive, although a civil servant, owed primary loyalty to him (and not to the Minister), and added that this view was shared by Jenny Rowe (current chief executive of the Supreme Court). However, it was acknowledged that “there are those within the Ministry who do not appreciate this.”

Speaking about judicial appointments, Lord Phillips stated that the appointments process, as revised by the Constitutional Reform Act 2005, significantly guaranteed institutional independence. Any move towards US-style confirmatory hearings should be rejected since this would “lead to the politicisation of judicial appointments and to the Court being seen to divide on some issue on political lines.”

Other issues discussed included the growing role of judicial review and human rights jurisprudence, and how the judiciary should not be viewed as overstepping its role in this context.  The lecture was followed by a lively Q&A session, where Lord Phillips spoke candidly about his court’s relationship with the Executive, Parliament as well as the European Court of Human Rights in Strasbourg.

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Judicial Independence Project Launch – Lord Phillips Lecture

The Constitution Unit has just begun a new three-year project on The Politics of Judicial Independence, which will seek to answer a range of questions relating to the meaning and extent of judicial independence in Britain, particularly in the light of the significant constitutional changes brought about by the Constitutional Reform Act 2005. Judicial independence is particularly in focus at the moment as the Public Bodies Bill is before Parliament. In its present form the Bill gives ministers the power to abolish a list of quangos including some quasi-judicial bodies (see Robert Hazell’s earlier post).

The project will be launched by a lecture delivered by Lord Phillips (President of the Supreme Court) on ‘Judicial Independence and Accountablity: A View from the Supreme Court’. It will take place in the Gustave Tuck lecture theatre in UCL on Tuesday, 8th February 2010 at 5.45pm (for a 6pm start). For further details, and to book a place, see the Unit’s event page.