Judges may tell MPs how far they can go

Parliamentarians no longer understand boundaries, says lord chief justice

At a (virtual) news conference this morning, I suggested to the lord chief justice of England and Wales that he might send a note round to MPs explaining why they should not interfere with the courts. Lord Burnett of Maldon (pictured) seemed to think this was a good idea.

I explained the background to this suggestion last week.

There is a transcript of the briefing. Here is a (lightly) edited compilation of the relevant passages:

JOSHUA ROZENBERG:  Lord Chief Justice, last year the courts were accused of interfering in politics. Are you concerned that politicians may now be interfering in the courts?

THE LORD CHIEF JUSTICE:  There have been a number of instances which bubbled up into the public domain just recently of what might be thought to be interference. There was an unfortunate letter only last week to two senior judges, copied to a trial judge, which appeared to be an attempt by a group of parliamentarians to influence the outcome of a pending decision. So that is obviously an unfortunate lapse.

But it illuminates, it seems to me, a wider problem. There needs to be sensitivity displayed by all branches of the constitution, so that is the legislature, the executive and the judiciary as to the proper sphere of the others. I am pretty confident that judges understand where the boundaries lie but I am less confident at the moment that all parliamentarians have an instinctive understanding of where those boundaries lie. And one of the things that I am concerned to think about at the moment is how we, the judiciary, can help to ensure that the understanding is deeper.

JOSHUA ROZENBERG:  A few years ago, you would have thought that members of parliament, members of the House of Lords, would have that instinctive understanding of these boundaries which you say they do not have any more. Is it appropriate for the judiciary to explain this when you give evidence to select committees of parliament — or perhaps send a note round?  What can you do to educate legislators in their proper constitutional role?

THE LORD CHIEF JUSTICE:  We have dialogue with both houses of parliament and obviously dialogue with the government.  It is something which I and other senior judges have been thinking about quite deeper recently. Quite what steps we will end up taking is premature to say.

But it does seem to me that, even if it amounts to a very short briefing provided to new members of both houses of the legislature on the boundaries between our respective roles and the need to respect the independence of the judiciary, that is something that we are thinking about and will have discussions about…

DOMINIC CASCIANI: Picking up on Joshua’s points about the suggestion of political interference, can you remember an instance similar to the sending of the letter that you referred to, during your time in office?

THE LORD CHIEF JUSTICE: There has been nothing quite like it in my experience.  Individual judges do occasionally receive letters from constituency MPs pressing the interests of one of their constituents. Some of those letters, similarly, lack the sensitivity to the appropriateness of a legislator or politician seeking to influence a judge. 

There are very few of them, but a handful, and they come to my office and a response is sent. But the invariable practice, if a judge receives any communication about a case from somebody not involved in the case, is that the judge will release that communication to the parties, so that they are aware of what has happened and the judge is in a position to say that he or she takes no notice of it.