Judges, Parliament and the Government the new relationship Transcript of a lecture by Rt Hon Lord Woolf Thank you very much for that over-generous introduction. I m afraid I don t share your confidence in my powers as a negotiator and I can verify that fact because I ve just finished a week of training provided by CEDA for people who want to act as negotiators or are involved in mediation and I feel that I would have done a much better job now as a result of that training than I was able to do at the time. I do, however, feel very pleased to be invited to your Committee. It is one of the parts of the new relationship between at least the judiciary and parliament that you should have asked me to be here; I understood there might have been more representatives of the Government, but I do note there is at least a Permanent Secretary here who I m delighted to see; indeed, old friends outnumber the people I was expecting to see by a considerable degree, but they are very loyal. There has been, in my view, a new relationship established as a result of the recent constitutional changes. It s true that, as yet, it has not been fully experienced. Indeed, a majority of the provisions don t come into force until next month, but a tremendous amount of work has been taking place and that is having an influence on that relationship. I don t want to dwell on what happened on that Thursday afternoon that precipitated the constitutional changes, because that is only history. It is interesting to observe that the date of that Thursday is identified in relation to the Lord Chancellor s Oath which is now required. It s not the date of the Act. The division is between Lord Chancellors sworn in before June 12 2003 and Lord Chancellors sworn in after that date. Historically, of course, the Lord Chancellor s role evolved so that, in my view, his office became the cement that bound the different arms of Government together. Once that cement was to be dissolved there had to be new arrangements put in its place if the Constitution was not to be disadvantaged. Our Constitution had, never previously, reduced the three relationships referred to in the title that you gave me to talk to you about tonight in writing, but we have it now done so in the form of legislation by the 2005 Act and in the form of the Concordat. It seems to me very significant that the legislation, like any other legislation, can be repealed and amended. The Concordat is not even legislation, but it has a special status because it was a document which was produced as a result of a consensus between the Lord Chancellor representing the Government and myself representing the judiciary which, thereafter, was fully examined during the parliamentary process. It was never the subject of any dissent. That is of real significance: if someone wants to depart from the Concordat hereafter, or to amend the legislation. They will require good reason to do so. Otherwise it will be thought that someone is tampering with our constitution, which in its evolving and un-entrenched form is very important to us all. The announcement that the Lord Chancellor was no longer to be a judge had an immediate effect on the judiciary. Rightly or wrongly, the judges supported my view that if someone is not a judge he could not be head of the judiciary. Furthermore, if he was not going to be a judge and was going to be a Secretary of State he was doubly unsuited to be the head of the judiciary. As you know, as a result of the changes, one of
the roles of the Lord Chancellor that fell away was that he ceased to be the head of the judiciary. This had very significant consequences. It was only as both the Lord Chancellor s department and the Judiciary (it wasn t my efforts, I emphasise, alone but a very valuable committee who supported me in this) worked at what was involved in that change that we realised just how significant it was. The changes meant that for the first time there was being introduced into our system the separation of powers, as this is known in many other countries between the judiciary and the other arms of government. The process is not immediate: the law lords still remain members of the House of Lords but that was to end when the legislation takes effect. That again is of importance. It meant that the role of the Chief Justice was defined in a way that it had never been defined before. The role of the Chief Justice as President of the Courts both civil and criminal - had never been identified in legislation and, indeed, I can remember times when I was a judge when the most distinguished Master of the Rolls, Lord Denning, would have taken grave exception, if it were to have been said to him, that the Lord Chief Justices, he saw one or two off their patch as he continued in office, were superior to him. So far as the Court of Appeal was concerned, Lord Denning was king. He exercised the powers of a supreme sovereign over that court in a way I suspect that no other Master of the Rolls has done. Now there in black and white that the Chief Justice is the head of the judiciary. It is fair to say that that wasn t something that was immediately conceded in the course of the negotiations; it was conceded fairly regularly that the role of the Lord Chancellor had changed but the actual words head of the Judiciary being attached to the Lord Chief Justice was something which stuck in some politicians and ministers gullet. I can understand that, because it might give the Lord Chief Justice of the day impressions that he was really grander than he is. Now, we have the changes that we would expect if there was to be a significant change of this nature. But when you look at the Act what you find in Part 1, Section 1, a clear statement that the Act does not adversely affect: a) the existing constitutional principle of the rule of law; and b) the Lord Chancellor s existing constitutional role in relation to that principle. Now this again is quite an extraordinary proposition. There are able people here who ll correct me immediately if I am wrong, but I am not aware of any legislation that refers to the rule of law before the 2005 Act. It may be that there is, but my belief is that it is the first statement. It is not without interest that what is meant by the rule of law does not have a definition. If you travel round the globe in the way that I have been fortunate to do in the last few years, you ll find that different jurisdictions have very different ideas of what is meant by the rule of law. Certainly there is no country whose leadership is more committed to the rule of law now than China. But they talk about rule of law for a social democracy and what they mean by the rule of law is evolving. It has a real element of human rights but it is a very different concept from what we have. I saw for myself, with my own eyes, in the Kremlin, President Putin no less talking about the importance of the rule of law when he announced that because Russia was now part of the Council of Europe they were no longer to have capital punishment. If this audience will allow me to do so, I ll try and demonstrate how he did it very effectively with the television cameras blazing down upon him. He said people who commit crimes which deserved execution in his view needed to be taken by the throat and throttled. And he demonstrated. But, he said, we are now part of the Council of Europe and we observe the rule of law and from now on we will have no more capital punishment - I must
confess I don t know whether that promise has in fact been fully implemented but I don t know anything to the contrary. But it is significant that the Act does refer to both those concepts. Then Section 3 says: the Lord Chancellor and other ministers of the Crown and all those with duties relating to the judiciary or otherwise with the administration of justice must uphold the continued independence of the judiciary. Section 3, it seems to me, is very important because it says that although the Lord Chancellor is no longer the head of the judiciary he clearly still has special responsibilities. He is the person in government primarily responsible for upholding the continued independence of the judiciary. Then sub-section 5 says: The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary. The special access to the judiciary is a phrase which has caused me some wonderment. But I just merely record it without seeking to explain it. I m very impressed by the oath of the Lord Chancellor, to which I referred earlier. When the next Lord Chancellor is appointed he will have to swear that in the office of the Lord High Chancellor of this country he will respect the rule of law, defend the independence of the judiciary and discharge his duty to ensure the provision of resources for the efficient and effective support of Courts for which he is responsible. So he will be taking on a number of really important commitments when he takes office. I point out that that oath is in addition to the ordinary oath that he would have taken otherwise. It does highlight the importance attached both to the rule of law and the independence of the judiciary. The Chief Justice is also and this is very relevant to our subject this evening required to represent the view of the judiciary to Parliament, to the Lord Chancellor and to ministers of the Crown generally. He s also responsible for the deployment and allocation of work within the Courts. That is, again, a very important matter, If you re a government, anxious to achieve improvements in the efficiency of the Court service, it is very tempting, if you are in a position to try to influence which cases are taken and in which order in the courts, not from any improper motive, but to further what the government thinks is most important in the interests of the proper disposal of criminal cases. I am delighted that there is now that statement in the Act because it makes it clear, I believe it always should be, that the deployment and allocation of work within the courts is a judicial function. This goes to the very heart of the proper role of the judiciary. And there it is in the Statute. Now, both the Lord Chancellor and myself have attached importance to the ability of the Chief Justice of the day to go to the House of Lords and make a speech in the House of Lords drawing attention to matters of particular importance to the judiciary. Rightly or wrongly I regard that as the most powerful weapon available in the Lord Chief Justice s armoury to achieve matters which are in the interests of the judiciary. That power has gone under the Act, but he is given an express power to make written representations, an express power which is extended to the Chief Justice in the other jurisdictions in the United Kingdom. Again I think that s very important and it does show that, although we have separation of powers, that the parliament has been wise enough not to isolate the judiciary and enable them to speak to the legislature in a way which is consistent with the new separation of powers.
The development of committees which take an interest in these matters in parliament is also important. If I may say so, particularly under your chairmanship, this Committee has been very sympathetic and constructive. The very fact that you call upon the judiciary to assist you on various matters is very helpful for the proper co-operation between the judiciary and the legislature which we must ensure exists. Of course, we ve now have also the Constitution Committee of the House of Lords whose energetic Chairman is foolish enough to come and hear me talk on this subject on more occasions than he should. But, again, we have a sympathetic audience who is interested in the working of the Constitution; interested in what is happening to it, and to whom we can address with complete propriety our concerns. It s a two-way traffic, as I appreciate. You, equally, can tell the judiciary through this mechanism about concerns that you have about the way things are happening within the judiciary. I feel that it is all to the good. It is becoming more and more frequent for reports to Parliament to be required of committees or commissioners whose activities effect the Constitution and, that again, is a very good way for communication to take part between the different arms of government. So it seems to me that, notwithstanding the changes that have taken place, the legislation, together with the Concordat, are building up new structures and new ways of dealing with the tensions that could otherwise exist between the different arms of government. These arrangements, if they do not act as cement should act as a cartridge to absorb unnecessary tensions and ensure the flexibility that should exist in the relationships between the different arms of government. Finally, the Concordat, as I already indicated its status is not that of legislation but it s interesting that in the explanatory notes to the Constitutional Reform Act it is said in terms that Parts 2 and 4 of that Act are to give substantial effect to the Concordat. So the Concordat derives its energy, and it s significance from the way it is handled in the legislative framework provided by the Act. So, the objectives have been achieved. The Lord Chancellor no longer performs judicial functions or functions previously performed as head of the judiciary, unless, and I emphasise this, the manner of performance is consistent with the continued independence of the judiciary. Secondly, if you look at the Concordat there are three classes of decisions. This is because, in the system we have, the Lord Chancellor is responsible for the proper running of the courts and the judges preside in those courts. They have mutual interests which require a means of expression. And if some of the matters are to be dealt with by the Lord Chancellor alone, some matters are to be dealt with by the Chief Justice, but many of them have to be dealt by them together. There are even important decisions where there can be no action taken unless both the Lord Chancellor of the day and the Chief Justice agree. I again think that this is a formula that should work. But much more important, it seems to me, is the situation with regard to appointments. Now I think that our appointments system in the last decade has always worked very well. But then I ve been a party to it for a long period of time and so I m unlikely to say otherwise. But I do think it has produced good judges and I believe there has been a public acceptance of the quality of those judges. Perhaps most important of all and perhaps most remarkably, with very isolated exceptions, no one suggests that there has been any political interference with appointments. That applies from the most senior appointments down to most junior appointments in the judiciary. This is a great
achievement. In the new appointments process one of the reasons why it should work well is that it provides absolutely copper-bottomed protection from interference of an inappropriate nature by the Executive. The need for this is particularly linked with the creation of the Supreme Court and with the developments in the nature of the cases which the judiciary are being required to decide, which include cases involving the carrying out of an evaluation as to where the balance lies in relation to human rights, It is time that that should be the position as to appointments. This is in part because I thought Lord Mackay, who spoke from with great experience, was right when he warned that the Human Rights Act could have the effect, in his opinion it would have the effect, of politicising the judiciary. It s my belief that the new appointments system will help prevent this happening. I happened to be in the States recently when they were appointing a new member of the Supreme Court and I can see that a democratic process of the sort that took place can be very good in some ways, but I feel it can only be a disadvantage in our system to have our senior judges in particular identified with a political party. It is extraordinary that as an onlooker from this country, when you watch television you observe the extent to which the whole process is linked to the Democratic Party s interests and the Republican Party s interests. Of course it gets huge exposure. They seems remarkable. The British papers gave very, very little coverage either to my retirement I think there were one or two papers who rejoiced or my successor s appointment. At the same time Justice Sandra O Connor had retired and that was given a full front-page cover. There was far more interest here in the media in what was happening in the States than was happening in this country in relation to judicial appointments. I think our treatment is absolutely right and proper. It is extremely healthy and I would not want to see imported from the States even a flavour of what now happens there with regard to their most senior judicial appointments. This is without going into questions of the desirability of electing judges, which does happen of course within the State system. So I believe we are now in a much better position as a result of these steps that are the result of the combination of the Concordat and the legislation. I have not focussed as yet on the Supreme Court. It is logical that if you are introducing the separation of powers that you should have a separate Supreme Court. I know there are different views on this. Personally, I was persuaded that we should have a Supreme Court. There were two things that helped me to reach my conclusion. First of all, a significant number of my colleagues in the House of Lords were against the present arrangements. It cannot be healthy to have a court in a situation with which its members are not comfortable. So that was one reason. The second reason that influenced me very substantially was the hunting case; because it involved Parliament asking the courts (to my surprise when I heard the case in the Court of Appeal), to adjudicate on the validity of, in effect, an Act of Parliament which was passed in 1949. My instincts were: this is not a subject on which judges should be trespassing; this is a matter for Parliament. If Parliament wanted to treat it as valid legislation, who were the courts to interfere? It seemed to me that that was in accord with the sovereignty of Parliament. But we were urged by the Attorney General to hear the case. We heard it and the House of Lords heard it. And in both cases it was clearly beneficial that the courts should have a role in regard to an issue of that nature. If the courts didn t decide it, who else could decide it? And that really was what influenced both the Court of Appeal and the House of Lords. We described it as a matter involving
interpretation of Acts of Parliament, but I do think that it went deeper than that and the principle behind our decision was that it had to be the responsibility of the Courts, particularly if the Attorney General was asking us to do so, to give the final decision. Those matters, in combination, suggested to me that the time had come for a Supreme Court. I don t believe that the effects of having a Supreme Court will be restricted to the re-housing, in different premises, of the 12 judges who are members of the Court. I believe that there is bound to be chemistry at work in consequence of there being a Supreme Court. Judges from different jurisdictions meet and talk and most of the judges who meet are Supreme Court judges and I believe that the very chemistry of their meeting together and our judges having the title of Supreme Court judges will mean that there will develop a different culture from what existed before. I don t believe that we should be worried about that. I think it may only act as a catalyst. What have happened would probably have happened anyway. When you consider the nature of some of the cases that are going before the House of Lords it does seem to me, in retrospect, it is inappropriate for cases of this nature to continue to be resolved finally in a chamber of the Legislature. Well, there you are. I ve come to the end of what I want to say but, of course, I will answer questions. But I would like to put on record, in this setting if I may, the fact that I do believe that the Constitutional Reform Act is, by its existence on the Statute Book now, a very good example of Parliament at its best. Your Committee made recommendations about the matter. There was then a process in the House of Lords and there is no doubt at all that the consultation and discussion process that was needed for this legislation could so very easily not have happened if Parliament had not been on its best behaviour. I think it was on its best behaviour and I think we can be proud of the result. From now on, we will without doubt have as a result of that legislation, a judiciary which is independent and, I hope, not isolated. They will have enough methods of communicating with Parliament to ensure that there is the necessary connection between the two arms of Government. What I can say, and I know that this is in fact due to those on both sides of the fence, on the Lord Chancellor s side and the judiciary s side, is that there is a much closer cooperation today, in relation to the matters where they should be working closely together, between the judiciary and the Executive in regard to the running of the courts. That is something that I think we should applaud. A partnership that I still believe exists is entirely constructive and is of benefit to all. One result already of the changes is that the judiciary have now the support which they did no always have from, mainly if not exclusively, members of the Department of Constitutional Affairs who come and work loyally for the judiciary when they re holding office, which enables the judiciary to play its proper role in a constructive way. This would not have been possible but for the changes which are now taking place. So, for this I say, three cheers. 8 February 2006