Hazell, RJD; O'Brien, PC; (2015) Meaningful Dialogue: Judicial Engagement with Parliamentary Committees at Westminster. Public Law , 2016 (January) pp. 54-73.

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Abstract

This article has three main objectives. First, we present an alternative form of constitutional 'dialogue' to that which is prevalent in the legal academic literature, and use dialogue in its ordinary meaning of face to face conversation. Through a detailed study of dialogue between judges and parliamentary committees we offer an account of how this works in practice. Second, we argue that dialogue between the judiciary and legislature in this sense has benefits which greatly outweigh the costs, and that it does not constitute a threat to judicial independence. Third, we illustrate those benefits by analysing the practice of the UK Parliament at Westminster, where the judiciary regularly give evidence to parliamentary committees, and with increasing frequency. In this respect the UK differs markedly from other Westminster countries, showing how judicial independence can be interpreted very differently even in countries with a shared legal and political tradition. We start by defining our terms, in particular dialogue, judicial independence, and judicial accountability. We then set the practice at Westminster in comparative perspective with a brief survey of judicial evidence to the legislature in six other common law countries. The remainder of the article focuses on Westminster, with quantitative and qualitative data about the nature of judicial evidence, explaining which judges talk to which committees, and about what. To anticipate our conclusions, we find the benefits are that Parliament hears at first hand from a wide range of judges who are expert witnesses about the working of different parts of the justice system. It also provides a forum in which the judiciary can meaningfully – if very gently – be called to account. For the judiciary, it provides an opportunity to talk directly to Parliament, to overcome any misunderstandings or mistrust, and to inform and influence legislative policy making at a formative stage. This is a genuine dialogue with benefits for both sides. Our research was conducted as part of a wider research project on the politics of judicial independence in the UK’s changing constitution, funded by the AHRC. During that project we interviewed 150 judges, parliamentarians, ministers and officials, and held a dozen seminars (including three in Parliament). This article draws on that interview material, and on analysis of the evidence given by judges to Westminster parliamentary committees.1 The dataset upon which the analysis in this article is based is available on the Constitution Unit website.

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