Scrutiny of bills : final progress report : twenty-third report of session 2003-04 : report, together with formal minutes and appendices / Joint Committee on Human Rights.
- Great Britain. Parliament. Joint Committee on Human Rights.
- Date:
- 2004
Licence: Open Government Licence
Credit: Scrutiny of bills : final progress report : twenty-third report of session 2003-04 : report, together with formal minutes and appendices / Joint Committee on Human Rights. Source: Wellcome Collection.
18/76 (page 14)
![We note that it is a feature of a number of the relevant international statements of principles and guidelines that they call for the independence of the judiciary to be enshrined in the constitution of the country, or at least incorporated into legislation. The UN’s Basic Principles on the Independence of the Judiciary, for example, states— The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.” The Committee of Ministers’ recommendation similarly recommends that amongst the measures which should be taken to respect, protect and promote the independence of judges— The independence of judges should be guaranteed pursuant to the provisions of the Convention and constitutional principles, for example by inserting specific provisions in the constitution or other legislation ...*” 1.39 We consider that the express statutory duty on Ministers in clause 1(1) of the Bill, to uphold the continued independence of the judiciary, will serve in practice to enhance the guarantee of judicial independence, in addition to the common law’s recognition of the principle, as recommended by these international statements of principle. 1.40 We also welcome the recognition in clause 1(3) of the reality that the executive enjoys special access to the judiciary and that this must never be used to influence particular judicial decisions. This gives effect to the important guideline in the Latimer House Guidelines, that “while dialogue between the judiciary and the government may be desirable or appropriate, in no circumstances should such dialogue compromise judicial independence”.** 1.41 However, we consider that the particular duties imposed on the Minister in relation to judicial independence in clause 1(4) are too weakly stated and that this potentially represents a retrograde step in terms of the degree of legal protection given to judicial independence. A duty expressed in terms of a duty to “have regard to” various “needs” is a weak form of duty.” It is a procedural rather than a substantive duty: instead of requiring the Minister to secure the actual achievement of the matters listed in clause 1(4), it merely requires him or her to treat them as a relevant consideration in the decision-making process. We have recently made similar criticisms of the strength of some of the duties contained in the Children Bill using the same weak formulation.” 1.42 We think that if express ministerial duties are to be included in the Bill the strength of their statement is of paramount importance. Since it is widely accepted to be one of the 36 UN Basic Principles on the Independence of the Judiciary, para 1 37 Council of Europe, The Independence, Efficiency and Role of Judges, Principle |, para. 2(a) 38 Latimer House Guidelines on Parliamentary Supremacy and Judicial Independence, 1998 updated 2002, | para. 5 39 Lord Ackner in his evidence to the House of Lords Select Committee on the Bill regarded the phrase as “pretty meaningless”: Select Committee on the Constitutional Reform Bill [HL], op cit., para. 78. 40 See our Nineteenth Report of Session 2003-04, Children Bill, HL Paper 161,HC 537, at paras 70, 72, 76-77](https://iiif.wellcomecollection.org/image/b3222185x_0018.jp2/full/800%2C/0/default.jpg)
