It would be wrong for judges to “intervene or to comment while a matter is being hotly debated in Parliament”, Lord Justice Beatson has said.
Beatson LJ was giving the first details of the judiciary’s approach to advising the government on policy and draft bills since the Lord Chief Justice, Lord Thomas, announced that guidance would be produced in December last year to match those already in place for relations between the judiciary and Parliament.
In a speech entitled ‘The New Model Judiciary and the Other Two Branches of the State’, Beatson LJ said it was possible that judges should be able to respond in private, but only in “exceptional circumstances”.
The lord justice, one of those responsible for producing the guidance, went on: “The judiciary should only express views on government policy (whether set out in consultation papers of otherwise) and legislation and draft legislation which relates to or is likely to affect the operation of the courts.
“In those areas the judiciary can use its institutional and individual experience not to support or challenge the policy, but to try and ensure that proposals to implement policy are as well formulated as possible and can work in practice.
“The basic principle suggests a constitutional boundary at the point where comment moves beyond the operational, the likely effect of a proposal, and is seen as expressing views on the broad policy. And that is the rub.”
Beatson LJ described the boundary between broad policy and operational policy as “notoriously difficult to pin down”.
He said judges had regularly responded to consultations, and research had identified 20 bills and draft bills in the last 35 years where evidence from judges had been submitted.
“They have sometimes done so even in cases where the matter is, as are the government’s proposals about judicial review, acutely controversial.
“The response last year to those proposals stated that it is of paramount importance to avoid introducing measures that would have the effect of preventing meritorious challenges and that the government’s proposals with regard to standing and legal aid caused particular concern.”
Beatson LJ said “timing and context” were fundamental.
“It would be wrong for the judiciary to intervene or to comment while a matter is being hotly debated in Parliament. The responses have been public, and I cannot at present see circumstances where it would be appropriate to respond in private, although it is possible that a case could be made for an ‘exceptional circumstances’ exception.”
The lord justice concluded: “All these matters will be the subject of the guidance. It will be prepared in consultation with others interested. I anticipate that it will, like the parliamentary guidance, be published.
“Any guidance will have to take care that the future impartiality of the judiciary, or the perception of it, is not prejudiced.
“But if the experience of engagement with Parliament is any indication, although there will be rocky parts, an incremental and cautious approach, leaving the opportunity to retreat if something does not work, is likely to enable greater engagement without imperilling the constitutional fundamentals.”