Accountability and the Media: “Parliament and the Judiciary: The Problem of Accountability”

Speaker: Professor Vernon Bogdanor on February 9th 2006

Thank you Sir John for that extremely generous introduction. It makes me wish  that my parents could have been present. My Father would have admired it, and my  Mother would have believed it! I am honoured by the presence of so many  distinguished guests here today, including judges, but I have to confess that I  feel rather like a new young recruit in the British army, in the First World  War, who was asked by his superior, “is that the sound of the enemy artillery?”, and he replied “No sir just the sound of my teeth chattering!”

It is a great honour to be asked to give this lecture, but I have to confess to  a tinge of sadness when I think of the last lecturer, Ben Pimlott, who died so  tragically last year. Ben was not only a close friend of mine, but also one of  the leading political biographers of the age. His biographies of the Queen, of  Harold Wilson and of Hugh Dalton will, I think, be read as long as people are  interested in the history of our times. Ben will be greatly missed by many, not  least by me, but he will never be forgotten.

I feel particularly honoured to be asked to deliver this lecture, since as you  said Sir John, although I am interested in the law, I am not a Lawyer but  approach the subject as a student of government. F.E. Smith, who became, as Lord  Birkenhead, one of our great Lord Chancellors, once said that “the law is an  arid but remunerative task mistress”. In me, I fear, you see only the aridity.  But one does not have to be a student of law or even of government to notice the  expansion in the authority and influence of the judiciary in Britain.

One could, until very recently, teach British government while knowing almost  nothing about the law. The great classic works on British government, such as  Bagehot’s “English Constitution”, have no chapter on the law or on the  judges. Today, however, to understand British government, one has to understand  something about the law and something about the changing role of the judges.

It is worth beginning by asking ourselves how and why judges have come to assume  a more important role in the constitution. There are, I believe, a number of  reasons.

In Britain, since the war, there has been a growing degree of discontent with  the workings of our democracy, which finds expression in widespread criticism of  the operation of representative institutions. Trust in politicians is not high.  Traditionally, in Britain, the main check on the depredations of politicians has  been not the courts but the alternation of power between the parties, what in my  youth was called ‘The swing of the pendulum’. But, since 1979, it seems that the  pendulum has ceased to swing. We have had the longest period of single party  government in Britain since the Napoleonic wars. Many have argued, whether  rightly or wrongly, that both the Conservative government which took office in  1979, and the Labour government which took office in 1997, have broken accepted  conventions of the constitution. People have said that these governments, both  the Conservative government and the present Labour government, are and have been  stretching the British constitution to the limit, so that we are approaching the  condition, so famously identified by Lord Halesham as ‘Elective Dictatorship’.

During the long period of Conservative government, between 1979 and 1997, many  people on the Left came to be converted to a belief in the virtues of judicial  review. This was a new development. A hundred years ago there was great  hostility on the part of the Left to the judiciary, because of judgments  restricting the rights of trade unions, such as the Taff Vale and the Osborne  judgements. This hostility persisted through much of the 20th century. Indeed,  as late as 1973, 180 Labour MPs signed a motion calling for the removal of Sir  John Donaldson, who was presiding over the Industrial Relations Court,  established by the Heath government. Perhaps, however, the GCHQ case in 1984,  when the courts were asked to defend trade union rights at GCHQ, was a turning  point for some people on the Left.

In addition to the growing discontent with the workings of government, there has  been a much greater emphasis on human rights. Britain has become a  multi-cultural society and also a multi-denominational society. This has made it  more difficult, but also more necessary, to protect the rights of minorities who  would not normally be heard in the electoral process, and to whom electoral  majorities might prove hostile. Moreover it may be argued that the development  of a multi-cultural and multi-denominational society has undermined a  traditional moral consensus, on which the old informal constitution rested.  People now have a more developed sense of their rights, of what is owed to them,  and they look to the courts to defend their rights. This greater sensitivity to  human rights was of course one of the factors which led to the Human Rights Act  of 1998.

Europe has also of course been an important factor. In 1974, Lord Denning  famously declared that European law was ‘like an incoming tide, it flows into  the estuaries and up the rivers. It cannot be held back’. The Factortame cases  seemed to show that Parliament was subordinate to a higher legal order. And in  1994, when the House of Lords declared that legislation relating to part-time  employees violated an EU directive, The Times commented, that Britain may now  have for the first time in history a constitutional court.

Finally, there is devolution which is, I think, likely to increase the role of  the courts. So far, there has been little conflict between Westminster and the  devolved bodies. But that may be (and probably is) because the same party,  Labour, is in charge in London, Edinburgh and Cardiff. I suspect that there will  be less consensus when we have a Conservative government in power in London,  facing Labour administrations in Scotland and Wales. When that happens, the  courts may be called upon to make the kind of decisions familiar to  constitutional courts in federal states.

We perhaps underestimate the likely effect of some of these changes since they  are so recent. It takes time for constitutional changes to yield their full  effects. Suppose we had sought to estimate the effects of the Great Reform Act  of 1832 in 1840, or the 1911 Parliament Act in 1920. We would probably not have  been able to appreciate their full effects.

Nevertheless, what is striking to my mind is the very speed of the process by  which judges have acquired authority and influence in Britain. It is far more  rapid for example than the growth in power of the Supreme Court in the United  States. The American constitution was promulgated in 1787. But the Supreme Court  did not strike down a federal statute until 1803; it did not do so again until  1857, and of course the Bill of Rights was not made applicable to the States  until the 14th amendment was passed in 1868. In France, the Conseil  Constitutionnel was established in 1958, but it did not develop a constitutional  role until the 1970’s. But in Britain, just 6 years after the Human Rights Act  has come into force, the judges are taking it upon themselves to protect  unpopular minorities against the government, against parliamentary majorities,  and against (it has to be said) the tabloid press.

But we do not notice these changes, because they occur not as a result of  constitutional amendment, but through the normal procedures of parliamentary  government. Procedure, it was once said, is all the constitution we poor British  have. In the second edition of his (misnamed) book, The English Constitution,  which was published in 1872, Bagehot said “An ancient and ever altering  constitution is like an old man, who still wears with an attached fondness,  clothes in the fashion of his youth. What you see of him is the same. What you  do not see, is wholly altered”. And it is certainly the case that those living  through a revolution are often unable to understand the experience; true  understanding only comes later.

It seems to me that we are engaged in a process, which is I think unique in the  democratic world, of transforming an un-codified constitution into a codified  one. But we are doing it in a piece meal and haphazard way, some would say a  peculiarly British way, and so it is not noticed. For there is neither the  political will to do more, to produce a wholly codified constitution, nor a  consensus on what the final resting place should be. Moreover, most countries  develop a constitution not as a result of rational considerations, but following a break in their political development as a result of war, revolution or  colonial independence. We have had no such similar constitutional moment, since the 17th century, though perhaps the debates over the 1911 Parliament Act  brought us near to such a moment.

In our developing constitution, the Human Rights Act, imperfect as it, is crucial. It provides for a radical change in the method by which our rights are  protected. In 1904, Sidney Low, in his book, The Governance of England, a worthy successor to Bagehot, said that British Government is based on a system  of tacit understandings. He then added “But the understandings are not always understood”.

Our constitution was largely based on tacit understandings, on convention, and  our rights were guaranteed by Parliament. We are now however looking  increasingly to judges and not to Parliament, to guarantee our rights. We are  looking increasingly to judges and not to Parliament to check the executive. We  are looking increasingly to judges and not to Parliament to determine the  division of power between Parliament and the European Union, and between  Parliament and the devolved bodies. The judiciary therefore is becoming a more  important part of our constitution. We are engaged, it seems to me, in a quiet  but nevertheless profound constitutional revolution. One major consequence of  this revolution, so it seems to me, is that we are moving in the direction of  becoming what Lord Steyn has called ‘a true constitutional state’. Lord Steyn  has said that a distinctive characteristic of such a state is that it has a  wholly separate and independent supreme court, which is the ultimate guardian of  the fundamental laws of the community.

It follows from this, however, that judges are increasingly making decisions,  which used to be made by politicians, and which many will characterise as  political. The decisions made by judges tend to limit the options available to  government. It is very possible, therefore, that there will be greater conflict  between the judiciary and Parliament then there has been in the past, especially  when the judges strive to defend the rights of unpopular minorities, such as  suspected terrorists, prisoners and asylum seekers.

It is in this context, I believe, that we should see the Constitutional Reform  Act of 2005. This Act provides for the creation of a supreme court, separate  from Parliament, so that the judges of the final court of appeal will no longer  be members of the House of Lords. Moreover, following this Act, the Lord Chief  Justice, rather than the Lord Chancellor, will be the head of the judiciary.  This Act has been subject to much criticism, but it does recognise so it seems  to me, the role of the judiciary as a third branch of the constitution, separate  from Parliament and the executive. It recognises the vital importance of the  principle of the separation of powers.

It would, however, be a misunderstanding of this principle, to imagine that it  means that judges should be walled off from the other departments of government.  As James Madison, one of the founding fathers of the American constitution said  over 200 years ago, “Unless these departments be so far connected and blended,  as to give each a constitutional control over the others, the degree of  separation essential to a free government can never in practice be duly  maintained”. This means that, as well as insisting upon the independence  of the various branches of government, we have also to recognise their essential interdependence.

This is particularly important in the case of the judges, since our new supreme  court will take on some, though by no means all, of the characteristics of a  constitutional court. Judges no doubt will say that, in interpreting legislation  relating to such matters as human rights, they are doing no more that applying  the law. In fact, they are doing much more than that, because any bill of rights  or similar constitutional document, such as the European Convention of Human  Rights, is bound to be broad textured, allowing for different interpretations of  its central provisions. Judges will not be able to avoid what a great American  lawyer, Eugene Rostow once called ‘the sovereign prerogative’, the prerogative,  that is, of choice. Indeed as long ago as 1972, before the European Union,  before devolution, before the Human Rights Act, Lord Reid declared that ‘There  was a time when it was thought almost indecent to suggest that judges make law,  they only declare it. Those with a taste for fairytales seem to have thought  that in some Aladdin’s cave, there is hidden the Common Law in all its  splendour, and on a judge’s appointment there descends on him a knowledge of the  magic words, ‘Open Sesame’. Bad decisions are given, when the judge has muddled  the password, and the wrong door opens. But we do not believe in fairytales  anymore, so we must accept the fact that for better of worse, judges do make  law, and tackle the question how do they approach their task, and how should  they approach it.’

With the Human Rights Act, our rights are now coming to be derived from  constitutional principles, the principles of the European Convention of Human  Rights. Issues which, in the past, were decided by ministers accountable to  Parliament will now come to be decided by the courts. Judges are now required to  interpret legislation in accordance with a higher law, the provisions of the  European Convention of Human Rights. Their interpretation of the Convention  will, as with any interpretation of a bill of rights, depends as much upon the  judicial philosophy of the judge, as upon technical or legal considerations. I  hasten to stress that a philosophy is of course not the same as a personal or  ideological preference. Some judges will no doubt respond that they have no  judicial philosophy, they merely apply the law. The story is told of the  political scientist Harold Laski, meeting Mr Justice McNaughton on a train, and  enquiring as to his inarticulate premises. The judge replied that he had no such  premises, but simply applied the law. Laski retorted that the judge was wiser  than he knew, but at this point the judge left the train and the dialogue came  to an end.

During the time of the Pinochet case, the Times (for the first time I believe),  profiled the Law Lords, distinguishing between them in the following way.

Lord Browne-Wilkinson was apparently ‘a humane liberal and charming’.

Lord Hope of Craighead was ‘quiet, with a meticulous style and middle of the  road politics’.

Lord Hutton was ‘the most right leaning of the panel’.

Lord Saville was ‘friendly, affable and sporting’.

Lord Millett was ‘the highest rating Free-Mason in the judiciary’.

Lord Phillips, now the Lord Chief Justice was ‘liberal’.

Lord Goff was ‘known for intelligence and moderation’.

It may be said that the judicial outlook of Judges is none of our business. Yet  senior Judges often do communicate their views to the informed public, through  lectures and articles in law journals. Moreover, it is a fundamental principle  of a democratic society, and in a sense the basic theme of this series of  lectures, that those with power should be accountable to the people, through  their elected representatives. We would all agree, I think, that the new supreme  court should be accountable to Parliament for the use of the public money given  to it, and for the general discharge of its duties. Presumably the new supreme  court will provide an Annual Report to Parliament on how it has used the money  in its budget. It will no doubt also report to Parliament on the course of its  work each year. All of us would also, I am sure, agree with the late, and deeply  lamented Lord Alexander, former Chairman of the Bar Council, that it is not for  Parliament to consider the conduct of individual judges, nor to hold judges to  account for their judgements, nor to examine the merits of individual  appointments or complaints against judges.

Clearly, then, judges cannot be accountable to Parliament, in the sense in which  ministers are accountable to Parliament. This of course imposes heavy  responsibilities upon the judiciary, the only one of the three branches of  government to hold unchecked and unaccountable power. The decision of a supreme  court is in effect final, and this may lead the unwary to suppose, that such a  decision will always be correct. They should remember the words of Justice  Jackson, a Supreme Court judge in the United States, who said ‘we are not final  because we are infallible; we are infallible because we are final’.

Another Supreme Court judge, Justice Stone, protesting in 1937 at excessive judicial intervention in the political process, said ‘While an unconstitutional  exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check on our own exercise of power is our own sense of self restraint’.

Can we not however go further than this? Must the judges be the single exception  to the general rule of accountability? Let us distinguish between two different  meanings of ministerial accountability to Parliament.

The first meaning is one that we might call sacrificial accountability. This  dictates that ministers take the credit for what goes right in their department,  and the blame for what goes wrong, to the extent of resigning if something goes  seriously wrong. Most ministers, of course, accept only the first part of this  principle! Clearly, judges cannot be held accountable to Parliament in this  sacrificial sense. They cannot be held to account for their decisions. If they  were, this would make nonsense of the principle of the independence of the  judiciary.

Under the Constitutional Reform Act of 2005, Parliament will have no role in the  appointment of Judges. The Constitutional Reform Act also provides that the role  of the Lord Chancellor (who of course is a politician as well as a lawyer) in  the appointment of judges is to be radically reduced. In future, the major role  in appointments is to be undertaken by a new judicial appointments commission,  appointed under Nolan principles. This means that it will be difficult if not  impossible for politicians to get their sticky fingers onto the appointments  process. There will therefore not be confirmation hearings before one or other  of the houses of Parliament, on the American model. The government in its  consultation paper on the Act declared that this would be inconsistent with the  policy of removing the supreme court from the political arena.

But it seems to me that there is no reason why judges should not regularly  appear before Parliament, or rather before Select Committees of Parliament,  after they have been appointed, to be cross-examined on their judicial  philosophy. Indeed, in recent years, senior members of the judiciary, such as  the Lord Chief Justice and the Master of the Rolls have appeared before Select  Committees to answer questions on issues related to the machinery of Government,  as it affects the judges. Judges cannot, of course, be expected to discuss  particular judgements, nor matters which are likely to prove justiciable. Such  matters would have to be explicitly excluded from the terms of reference of the  relevant Select Committee. But, if this proposal were to be accepted, judges  would become accountable to Parliament not in the first sense, the sacrificial  sense, but in another sense, a second sense, the explanatory sense.

Ministers of course are accountable to Parliament in both senses. They must  resign in case of fault, but they must also give an account of their stewardship  to Parliament. In the first sense, they are answerable to Parliament, in  the second sense they answer to Parliament. What I am proposing is that  judges while not being answerable to Parliament, will nevertheless answer to  Parliament. They would as it were, be cross-examined on their lectures and  articles in law journals, on their judicial philosophy, by a Select Committee.  They would be cross examined by the representatives of the people in Parliament.  Judges are in my opinion right to publicise their views, for senior judges are  teachers in the field of human rights and civil liberties. But they should not  object to discussing these views in a parliamentary forum, in the cause of  greater public understanding.

Given the new and unfamiliar role of the judiciary, it is vital that the role of  the judges be better understood. This can best be done by establishing a  dialogue with Parliament, with the representatives of the people. Such a  dialogue would be of benefit to the judges. Democracy, Geoffrey Howe has often  said, is ‘government by explanation’. If the judges can explain their role in  defending civil liberties and the rights of minorities, Parliament will be  better able understand why it is that Judges so often make judgements that go  against the tide of public opinion. We must also remember that, in human rights  cases, the judges have to rely upon Parliament to correct abuses. All the judges  can do, when a statute or part of a statute is, in their view, incompatible with  the European Convention, is to issue a declaration of incompatibility. It is  then up to Parliament to correct the situation. The effectiveness of the Human  Rights Act thus depends on parliamentary and governmental compliance. The  effectiveness of the Act depends in part on how successfully the three branches  of government are able to work together.

But the dialogue would also be of benefit to Parliament. One of the arguments  against the proposal in the Constitutional Reform Act to remove the judges of  the supreme court from the House of Lords, was that it would break a valuable  link between the judges and Parliament. Lord Hope of Craighead told the House of  Commons Constitutional Affairs Committee, that being a member of the Lords meant  that he could keep in touch with a wider range of people, including Scots  Members of Parliament (he is of course a Scottish judge). It is important for  Parliament to understand the judicial philosophy of senior judges and to  understand trends in their thinking. In the United States, the home of judicial  review, in the 1930s, when the Supreme Court was challenging President  Roosevelt’s legislative programme, Justice Stone reminded the Court of Oliver  Wendell Holmes’ famous injunction ‘It must be remembered that legislators are  the ultimate guardians of the liberties and welfare of the people, in quite as  great a degree as the Courts’.

Professor Robert Hazell of the Constitution Unit, to whom all those who think  about the constitution owe so much, has pointed to an analogy to my proposal. He  has shown that there is a precedent for the kind of dialogue I have in mind in  the scrutiny hearings conducted by the Treasury Select Committee with newly  appointed members of the Monetary Policy Committee of the Bank of England, after  they have been appointed. The Committee cannot of course undo the appointment of  members, but it can discuss the views of appointees on economic and monetary  policy generally. Professor Hazell has pointed out that, initially, the Treasury  was uncomfortable with the scrutiny hearings, but it has since come to accept  that they help to underpin the accountability and legitimacy of the Monetary  Policy Committee. That could be the model for the dialogue with judges, although  there may be a strong case for the dialogue to be undertaken with a joint  committee of both houses, rather than a committee of the Commons alone.

The dialogue however, would benefit not only the judges and Parliament, but also  us, the people. Because, although we may be glad of the protection given by the  Human Rights Act, it is dangerous, so it seems to me, for us to delegate the  protection of civil liberties to the judges alone. Indeed, one of the aims of  the Human Rights Act is to create a Human Rights culture, a culture which  permeates society as well as the courts. There is a great danger, I believe,  that liberals, feeling themselves to be a beleaguered minority in society, will  turn to the courts to achieve what they are unable to achieve by means of the  ballot box. But we cannot devolve or delegate the defence of civil liberties to  the judges. In the United States, the judges of the Supreme Court notoriously  failed to protect the rights of unpopular radicals during World War I and the  period of the Red Scare which followed it. They failed to protect the rights of  Japanese Americans during the Second World War, or the rights of the accused  during the period of McCarthyism.

In the last resort, the preservation of our rights depends on popular support,  not on institutional mechanisms. It depends on ourselves, and not on others.  Edmund Burke is supposed to have said that ‘all that is necessary for evil to  triumph is for good men to do nothing’. No one has ever been able to find the  source for this quotation in Burke, but whether he said it or not, the history  of Fascism and National Socialism in Europe, in the first half of the 20th  century, provides eloquent proof of it. In the last resort, both the  independence of the judiciary and respect for human rights rest not on  institutional arrangements but on public support. We err therefore if we believe  that human rights legislation and independent institutions will be sufficient to  preserve our freedoms.

In 1925, H.W. Horwill wrote a book entitled `The Usages of the American  Constitution’ which is still well worth reading. He concluded his book with a  story about the Holy Trinity Church at Guildford. On the site of the present  Church was an early building, which was destroyed in 1740, when the steeple fell  and carried the roof with it. One of the first persons to be informed of the  disaster was the verger. ‘It is impossible!’ he exclaimed, ‘For I have the key  in my pocket’ !

The key is the Human Rights Act, but it will not of itself, prevent the fall of  the steeple.