The Constitution Committee

The House of Lords Select Committee on the Constitution which I chair, was formed in 2001 in response to a recommendation by the Royal Commission on the Reform of the House of Lords. It is unusual among committees in that it performs a dual role: scrutinising legislation and conducting longer policy inquiries into matters of constitutional importance.

Relations between the executive, the judiciary and Parliament

In July 2007 the Committee published its report on Relations between the executive, the judiciary and Parliament which analysed the evolving constitutional relationships between the three arms of the state and made a series of recommendations to both the Government and the judiciary. The report focused upon the impact of the Human Rights Act 1998, the Constitutional Reform Act 2005 and the creation of the Ministry of Justice, which occurred during the inquiry.

In the report, we emphasised the importance of the Lord Chancellor’s fulfilling the duty to defend the independence of the judiciary (recognised by section 3 of the Constitutional Reform Act 2005) by ensuring that ministers do not impugn individual judges (and to restrain and reprimand those who do so) and recommended the inclusion in the Ministerial Code of "strongly worded guidelines setting out the principles governing public comment by ministers on individual judges". This recommendation followed the Craig Sweeney case, where the then Home Secretary the Rt Hon John Reid MP had publicly criticised a legal judgement. We also criticised the Government's handling of the creation of the Ministry of Justice and called for a transparent process for the setting of the budget of Her Majesty's Courts Service, with appropriate judicial involvement. Other recommendations to the Government concerned the status of the Lord Chancellor, the involvement of the Law Officers in policy-making and legislative drafting, and the possible use of advisory declarations by the courts to rule on whether recently enacted legislation is compatible or incompatible with the Human Rights Act.

The report also examined the judiciary's channels of communication with the media and the public. Whilst the Committee criticised sections of the media for irresponsible coverage of judges, we also concluded that the senior judiciary should act more quickly in explaining judicial decisions in controversial cases and recommended that "consideration be given to appointing one or more spokesmen with appropriate qualifications and legal experience who would be permitted to speak to the media with the aim of securing coverage which accurately reflects the judgment or sentencing decision". We also considered the appearance of judges before select committees, the role of the Lord Chief Justice and his annual report, and the interaction of individual judges with the media.

Follow up Report
In October 2007 the Government published their response to the Committee’s report and the Lord Chancellor, Jack Straw MP, gave evidence to the Committee. The judiciary also provided a response that month—their first to a select committee of Parliament—and the then Lord Chief Justice, Lord Phillips of Worth Matravers, subsequently gave evidence to the Committee on two occasions. We sent a copy of our report to Sir Christopher Meyer, Chairman of the Press Complaints Commission (PCC). This was followed by correspondence with the Editors' Code of Practice Committee which reviews the Code.

The Committee took account of the two responses, the three oral evidence sessions and the subsequent correspondence and on 16 October published a further report . Our aim in publishing the follow-up report was to analyse the responses by the Government and judiciary and to assess progress made since the original report.

Amending the Ministerial Code
The first recommendation in the follow-up Report related to the Ministerial Code. In our original report we had discussed in particular the political reaction to the Craig Sweeney case. Sweeney was sentenced to life imprisonment for abducting and sexually assaulting a three-year-old girl in June 2006 but, in accordance with the sentencing guidelines, he was given a minimum tariff of five years and 108 days. The then Home Secretary, Dr John Reid MP, subsequently attacked the sentence as "unduly lenient" and asked the Attorney General to examine the case as the tariff "does not reflect the seriousness of the crime". On a BBC Radio 4 programme, Vera Baird MP, then Parliamentary Under-Secretary at the Department for Constitutional Affairs, stated that the sentence was wrong (an assertion she later acknowledged was incorrect and for which she issued a formal apology). In the Committee’s original report, we found that there had been a "systemic failure" in the operation of the new relationship between the Lord Chancellor and the judiciary, concluding that Lord Falconer, then Lord Chancellor, had failed to fulfil his duty to ensure that ministers do not impugn individual judges and to restrain and reprimand those who do so. We also concluded that the senior judiciary could have reacted more quickly to what the Committee saw as inflammatory and unfair press coverage following the sentencing decision.

The Government’s response to our original report did not accept our criticism of the conduct of Lord Falconer. The Committee expressed disappointment. Whilst Lord Falconer eventually spoke out "fully and forcefully in public in defence of the judge in the Sweeney case", we believed that he should have done so sooner and that the Government should have disassociated themselves more quickly from the comments of the Home Secretary. It remains our view that the Home Secretary's comments were wholly inappropriate.

The Government response stated that Lord Falconer's successor, Jack Straw MP, "will not shirk his responsibility in reminding ministers that they need to be extremely careful not to attack judges". In oral evidence, Mr Straw commented that "we [the Government] are regularly going to be respondents to actions and quite frequently will lose those, and we have to take it on the chin without a huge amount of complaint" and that "we may regret a particular decision and we are entitled to say that, but not to do that in a disrespectful way". He also made clear that, if the Government was in imminent danger of infringing the rule of law, he would speak "first of all privately to colleagues, and then publicly, if necessary". He stated that "publicly" meant "on the floor of the House of Commons or in the public print".

In the original report, the Committee acknowledged that it would not be necessary for the Lord Chancellor to reprimand fellow ministers if they always adhered to the principle of not commenting on decisions of individual judges in an inaccurate and intemperate manner. We suggested that one possible way of achieving this would be to amend the Ministerial Code (the code of conduct and guidance on procedures for ministers, published by the Cabinet Office) to include reference to the constitutional conventions which ought to govern public comment by ministers on judges. Such amendment would also make the Lord Chancellor’s execution of his responsibilities in this area easier. We were therefore pleased that the Government said in their response that they would "further consider the Committee's recommendations when the Code is next updated". In the follow-up Report we reiterated the importance of amending the Ministerial Code so that it gives clear and unambiguous guidance to ministers about how they should or should not comment about judges in public. We have undertaken to review the position when the Government next update the Code.

Other recommendations
The Committee considered the establishment of the Ministry of Justice - criticised in the original report on the grounds that the Government failed to consult with the Lord Chief Justice or the Lord Chancellor prior to announcing the new department. In the follow up report we stressed that any future constitution or machinery of government changes that impact significantly on the judiciary should follow consultation with the Lord Chancellor and Lord Chief Justice at the early stages of the policy making process.

The Committee also considered the potential role for the courts in providing guidance to Government on whether proposed or recently enacted legislation is compatible with the Human Rights Act. We recommended a system of advisory declarations whereby the courts could make a declaration on the compatibility of legislation after hearing submissions from two or more parties. We found that this would avoid legislation being undermined by on-going legal challenges under the Human Rights Act. Such advisory judgements would have to be made after the usual adversarial legal process, so as to allay fears that such declarations might prejudice future court cases.

We also recommended in the follow-up Report that the roles of Lord Chancellor and Secretary of State for Justice should continue to be combined in a single office holder as at present.

We agreed with Lord Phillips, the then Lord Chief Justice that he should continue to publish an annual report and called on his successors to continue the practice.

In our original report we concluded that the media all too often published distorted and irresponsible coverage of the judiciary, treating judges as 'fair game'. A responsible press should show greater restraint and should desist from blaming judges for their interpretation of legislation passed by politicians. In order to ensure more responsible reporting, we recommended that the Editors' Code of Practice, which is enforced by the Press Complaints Commission, be regularly updated to reflect these principles. In the follow-up report we re-iterate these concerns and stressed that media coverage of legal judgements should be factually accurate and temperately expressed to avoid repetitions of the mistakes in the Craig Sweeney case. This should be reflected in the Editors Code of Practice and the Committee expect to see an outcome to the Editors’ Code of Practice Committee’s deliberation which will respond to our concerns.

Our reports on these issues have come at a time of significant change for the Judiciary and the legal profession. We hope to have made a contribution to ensuring that the changes being undertaken do not undermine judicial independence. We will continue to scrutinise the Government’s commitment to changes to the Ministerial Code and any future reforms of the Judiciary or court systems.

Lord Goodlad, Chairman of the House of Lords Constitution Committee