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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 628-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
Constitutional Reform Bill: the Government's Proposals
Tuesday 25 May 2004 PROFESSOR I R SCOTT Evidence heard in Public Questions 1 - 35
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 25 May 2004 Members present Mr A J Beith, in the Chair Peter Bottomley Mr James Clappison Ross Cranston Mrs Ann Cryer Mr Jim Cunningham Keith Vaz ________________ Witness: Professor I R Scott, examined. Q1 Chairman: Good morning, Professor Scott. We are very grateful for your help in looking at some of the rather important detail about how you can administer a supreme court. I think you had something you wanted to say by way of introduction? Professor Scott: Yes. I have been a bit concerned that I have not been as much help to this Committee as I might be. There are reasons for that. I think I said somewhere in one of my earlier papers that when one thinks about court management and court administration with either this new supreme court or any other court unfortunately most of our thinking gets bogged down in constitutional arguments about judicial independence and separation of powers. I have worked in this field for 40 years, all of my working life in England. I am Australian by birth but my commitment is to England and English systems. The line I have always run has been pretty much along the lines that you do not get very far by focusing on those kinds of constitutional, judge-type questions. They do not really tackle the problems of court administration and you do not get any hard and fast answers as to how you can design a court administration system if they are your starting points. Judicial administration literature, for 30 years, has said that this is an organisation and management issue. The question is how do we best administer courts. Let us think about this from scratch and not be overly concerned about the kinds of questions that lawyers like to talk about on separation of powers and judicial independence. That is my starting point. I believe and I have come to the conclusion that, if you look at the way in which courts are managed around the world, there is a spectrum. At one extreme, there are the heavily executive based systems. At the other extreme, there is the heavily judiciary based system. There is a kind of continuum. I think I submitted to the Committee, did I not, a table which shows the various classifications that have existed around the world. That table was pretty much derived from one of the leading figures in this field, a man called Carl Baar, an American who works in Canada, now retired. Carl Baar's analysis was empirically based. He did not just dream this up. He went and looked at how courts are managed around the world and said, "These seem to be the various ways." There seems to be a progression from executive based to judiciary based going on over the last 20 or 30 years. The key question you have - if this is not the key question the notes I scribbled out in Embankment Gardens this morning are not going to help - is how does the relationship between the judiciary and the executive affect the actual operation of the courts for good or ill? The received wisdom now is that the judiciary based models do better than the executive based models. In England, we have an extreme executive based model. In America, they have an extreme judiciary based model. In some of the Australian courts, they have an extreme judiciary based model. The question we have with the Supreme Court in this country is where should it fit on this particular spectrum. Should it be executive based as the department seems to require, or should it be more judiciary based as the Law Lords themselves seem to want. Is that the question that you would like to help me with? Is that where you think we are? Q2 Chairman: Yes. Professor Scott: This is where I think I did not get to last time. A vast amount has been written about this. I know your staff has had difficulties in getting to grips with it but that is because an awful lot of it is buried in consultants' reports, most of which are in my garden shed in Edgbaston if you want to come and look at them. I have dug a few out. I have pretty much retired from this field. The first thing to say about this relationship is that there are lots of other factors that influence court performance apart from this thing that we are focusing on, apart from the relationship between the executive and the judiciary. Some of these factors some writers say are really more important to court performance. To take an obvious one, the calibre of the judges which you manage to appoint. That does have executive, judiciary relationships. That is one of the things you have been talking about: how should those judges be selected? I am quite relaxed about that. Experience is that no matter how you select judges you pretty much end up with the same thing: some good, some bad. The independence of the Bar is a very important factor in court performance. That is a worrying thing nowadays, as we are seeing the decrease in the independence of the Bar, with a lot of the people having business before the courts as lawyers being executive based. Your Crown Prosecution Service and emerging public defences, as you turn those into less private, less independent things, they are worrying, particularly as you start recruiting your judges from there. Mr Cunningham: On the appointment system, you are not persuaded by what is ----? Chairman: I think we should declare interests, which I do not think are relevant to the Supreme Court. It is obvious something is going to come up. Mr Clappison: I am a practising barrister. Mr Cunningham: Barrister and recorder. Keith Vaz: I am a non-practising barrister. Q3 Chairman: Secondly, I do not want us to get too far into it before we have cleared up some of the questions about the Supreme Court. Professor Scott: What was the question? Q4 Mr Cunningham: You dismissed all the considerable momentum behind the notion that we need an appointments body. Professor Scott: I did not think I was here to give evidence about that. I have had great difficulty in following all the arguments and I do not have any concluded view on how judges ought to be appointed to this new court. If you want me to express an opinion, the answer is I cannot because I am confused by the argument and it seems to me it has become a bit hysterical. There are other factors apart from what I am talking about today that influence court performance and maybe they are more important than what I am talking about today. The conclusion reached by researchers is empirically based. It is that the relationship between the judiciary and the administration or the executive does affect court performance. It is a relationship that is important to court performance and I suppose this is the hard part. I will highlight four things because everybody who writes about this does it in a slightly different way. First is money, financing, the budgetary process. The second one that occurs to me is staffing and the way the Bill is drafted that bothers me a lot. The third is accommodation and, for heaven's sake, I dare not say anything at all about that, although I might just make a few points. The fourth thing is what is called case processing or case management. I thought I would talk about money and then stop. If you think I am not helping you at all, I will leave. First of all, there is a given. All governments, whether the United Kingdom Government, the Australian Federal Government, the state governments or any of the Americans, all these jurisdictions around the world work within the government's budgetary system. In the last 20 or 25 years, you know better than I do that these systems have changed very dramatically. Put crudely, we used to talk about line item budgeting and now we talk about programme budgeting and output budgeting. You know about that and it has affected all aspects of government: education, which I have worked on, health -- I have been a non-executive director of a hospital so I am pretty familiar with the problems in health - and justice. In other words, the government's basic budgetary system is a given. We have to work within that. Nobody is going to change that to suit just cause. Courts are not going to be treated as exceptions. Everyone accepts that the money allocated to courts has to be accounted for. Sometimes when people talk about judges running courts, they leap to the conclusion that somehow the judge has a licence to be unaccountable for money. That of course is complete nonsense. The question is what should be the involvement of the courts in the process of estimating what is required, spending what is allocated and accounting for how it is spent. In some court systems, the judges are virtually locked out of this process entirely and they would be on that diagram I gave you at the executive centred end of the spectrum. In others - and this is probably quite common - they are consulted and often given the impression by the executive branch that they are perhaps more involved in the process than they really are. This is the English way. I was working in a court abroad just recently which has got itself into a terrible mess, where I discovered that, yes, the chief justice had been in a sense consulted by the department of justice concerned about his budgets. He clearly did not understand what he was being told. He clearly had made no effort to try and explain it to his fellow judges. The court was going backwards and I was hired to try and stop the haemorrhaging. I recognised very early on that it started with the budget process and a complete lack of communication between the court and the department of justice. Senior officials in the department of justice were able to persuade me that they had gone through the motions of consulting with the chief justice but it had been completely ineffective. It was not really consultation, when I think about it; it was manipulation. An alternative way is to allow the court itself to draw up its own budget, to submit it to the government and to hope that the government will be able to see its way clear to appropriate from Parliament the money requested by the court. In other words, to behave like many other institutions do, I suspect even Parliament itself, even the House of Commons, in getting its funding. Q5 Chairman: Parliament does not have to have the government's approval. Its estimates are put before itself, in theory at least. Professor Scott: I should worry about that as a taxpayer perhaps but all right. You are in a special position. Some people argue that the courts ought to be in exactly the same position as you are. I would not go that far. Is this a better way to run things? Let us leave on one side the terribly powerful signal that gives to the world at large about the independence of the courts. It gives a very powerful signal that the court is independent. If you are worried about judicial independence, one of the simplest, clearest ways of doing it is to give the courts the power to design their own budgets and to submit them through the process. A lot of judicial independence is symbolism. A lot of it is signals as much as practical realities. Symbolism in government is terribly important. Such research as has been undertaken seems to suggest that, yes, this is a better way to proceed because it makes the courts operationally more effective and better. The question we have today is why does budgetary independence, autonomy or participation, whatever you call it, have this effect. The points that are made seem to be these: where the court is effectively locked out of the budgetary process, what you get are constant complaints, not only from the judges but from court staff, about the inadequacy of the funding, a constant moan, a running sore, which takes up time and energy of officials and all the rest of it. The legal profession very readily joins in on the side of the moaning and sometimes becomes the mouthpiece for the courts in all this. It is also said it has an impact on staffing. You tend to get a lack of opportunities for staff development. I will come to that later on. You get low morale. The most important thing is that you get this running bickering that goes on between the two branches of government. If we can avoid it, it is a good idea to avoid it. You get a consistent lack of confidence of the judiciary in the executive branch. You get a breakdown of trust. Some of the most interesting work that is now being done by judicial administration experts in this field is saying that these kinds of breakdowns of trust happen elsewhere. They happen in the commercial sector. They happen between big companies and their subsidiaries. People talk about "relational contracts" and how you build trust in relational contracts. Some people say the relationship between the executive and the judiciary is a relational contract. There are ways of building trust and making sure that these contracts work. If the court is not in control of its own budget, what you get is a settled feeling that the executive are determined not to understand the needs of the court and not to take responsibility for funding them adequately. What do you get if you go to the opposite extreme and engage the judiciary strongly -- the best example I know is the Family Court of Australia - in the budget process? You get a far greater understanding by the court that resources are necessarily limited. You get the court engaged in setting priorities. You get the court engaged in planning ahead. You get the court thinking creatively about how to make more and better use of the resources they have. You get the court committed to change because it knows that if it gets money for a particular purpose, if it does not then achieve that goal, it will be accountable for the failure. Courts quickly understand they cannot have everything at once. Q6 Chairman: Accountability in normal experience means if someone really makes a mess of the budget their job might be on the line. That is not a discipline that can exist in the relationship between the executive and the judiciary. Professor Scott: I would say that it is not one that should exist. We are talking about a third branch of government. There are limits to accountability. We have got ourselves into a silly frame of thinking about accountability that unless somebody is accountable to a vote on the floor of the House of Commons he is not accountable. The courts are a separate branch of government. The executive branch has a considerable influence over how it is constituted through the appointing process, but once it appoints it has to leave alone. If the court is not performing, that will certainly be very quickly known. I know that is the answer that the civil servants often give but best of all what budgetary participation brings is a greater willingness by the court to discipline its users, particularly the legal profession. You break the bad aspects of the link between the legal profession and the courts. The courts in Australia are far franker with the legal profession, in saying, "Look, we cannot allow you to run the courts the way you want them run. We have budgetary constraints. We have decided this is the way we are going to do it", and you get a greater discipline of the court over its principal users. Q7 Chairman: Does that process depend on very close involvement by the judges or is it satisfied by having an executive which is responsible to the judges? Professor Scott: That comes into staffing, and that leads to the next question: how are the judges going to participate in this budgetary process, given that you cannot expect the chief justice to do it himself. Can we leave that until we get to it? Q8 Chairman: I am rather conscious of time. Professor Scott: Okay. The question is why would not the government say yes to this idea that I am trying to advocate. I suspect there are various reasons. They say, "If we do it for one court, other courts will want to do it and we do not think that is a good idea. If we do it for the courts, other branches of health or education will want the same deal and we are not going to agree to that." I will not go through all these points I made as to why they would not want to do it. You have thrown me a bit because there were other things I was going to say. Q9 Chairman: I think they might emerge in the course of questioning. Some of my colleagues might want to clarify some of the things you have dealt with so far. I want to clarify to what extent in principle the operation of the kind of discipline which the court imposes on the legal profession is something that depends on having very close involvement by the judges, because the profession obviously will have a greater willingness to be ordered about by the judges than by the administrators; or whether, if you have administrators who are genuinely responsible to the court and not just an outpost of central government, you can achieve that objective then. Professor Scott: We are not disagreeing, are we? This brings us on to staffing. In the courts, they have within their own non-judicial staff people who prepare their budgets and people who liaise with their counterparts in the Treasury or the Department of Justice or whatever. It is a very interesting, iterative kind of process that goes on before the chief justice presents his budget. It is a public process. What happens is that the court makes its bid and the government responds. The greatest security of independence at the end of the day is public awareness of what is going on. It is pointless to have, as we have in this Bill, things saying portentously that the minister of state has a duty to secure judicial independence and a duty to support the courts. It is a meaningless thing to say. How is that duty going to be enforced? It can only be enforced by a public awareness of what is going on. The court is best placed to know what its needs are. The government is best place to tell it what money it can have. Justice is rationed. That is the point. That has to be brought out into the open. People have to understand that if the court is not performing properly for budgetary reasons then it is clear where the responsibility lies. The court always has to be aware of the fact that it is working within financial limits and that it can always strive to do better within those limits. If it is not seen to be doing better, the public knows that it is the court that is to blame and not the government. Q10 Peter Bottomley: The way we got into this was through the government's proposals for reforming the Judicial Committee in the House of Lords. It seems to be quite clear from what you have said and our observation that, were it to have been left to the judges themselves, they would not have gone in for a far more expensive way of running the system in a building that is not necessary. In a way, what you have said is illustrated by recent history. To sum things up, you are saying that at least the Supreme Court, not necessarily other courts, should be able to appoint their own chief executive. It should not be down to the permanent secretary in a minister's department to make those sorts of arrangements. Is that right? Professor Scott: I have not got on to staffing, but I might have said that. Q11 Peter Bottomley: Is the answer to the question yes? The Supreme Court should appoint their own functionaire, the person who does the work for them? Professor Scott: Yes. I do not see any reason why it should not. Q12 Peter Bottomley: Secondly, they should set their own budget and be prepared to defend that, both to whoever the paymasters are and to the public? Professor Scott: Absolutely. Q13 Peter Bottomley: They should be able to say to people involved in the process who bring cases to them, "This is the way things are going to run because that is the responsible way to do it within reasonable cost effectiveness"? Professor Scott: That is right. That is the way the world has gone. I can sit here and give you an argument to the contrary as to why you should not do that, but you will get all that from the DCA. I do not know whether they will be able to cope with this because they have not ever been able to present, in the paperwork that I have seen, the alternative ways of financing this new court. They have always just slavishly gone down the way of receiving this system. There are no other ways of doing it. That is the main reason why I am here. It irritates me that professional civil servants have not been able to advise you and the world at large of the alternative scenarios. It seems to me disgraceful. Q14 Peter Bottomley: Surely they cannot because they have to get ministers' approval to do it? Professor Scott: You are giving another reason for why the courts should run their own show, it seems to me. We tend to talk about the government as being monolithic. You and I know that the real battle is probably between the DCA and the Treasury. I would not be at all surprised if individual people in the DCA would agree wholeheartedly with what I have said. They cannot say it. Central government departments are rather closed organisations. They have to operate confidentially. They are brilliant at laying down policy and all the rest but they are no good at running things. They are no good at running courts and they should just get out of the way. Q15 Peter Bottomley: You have very fairly put the argument as to how most of the process of government is to work. You put the case that this is different. Professor Scott: Yes. Q16 Peter Bottomley: The fact that the heavens have not fallen in when Lord Bingham and other judges come and talk to this Committee illustrates the point you are making that judges are perfectly capable of explaining what they have in their minds? Professor Scott: I do not know. I do not talk to the judges because they seem to talk about me. The Law Lords produced their response to the paper and said, "We want to do what Professor Scott has done." That was simply a piece of paper that I submitted in the first consultation, exercising a fit of pique pretty much because I was exasperated that this debate was going on at such a low level. There is one very important thing to say about staffing. If you look in the Bill, it says that there is to be a supreme court of the United Kingdom and it should consist of 12 judges. Every other Act I have seen setting up a superior court then goes on to say that the court shall have certain judicial officers, usually somebody called a registrar. There is no sign of any court officers at all here. Apparently, it is all to come from the department. If I was a Law Lord, I would refuse to join a court which told me that we did not have our own court officer, which would seem to suggest that we are not even in control of our own records, that somehow they are going to be controlled by the department. This is absolutely outrageous. All other things I have seen say that there will be a registrar and he shall be responsible for the court office. Then they will go on to say how that person might be appointed. He may be appointed by the chief justice or the department. He may be appointed by some kind of collaborative process but at least there is a court officer who is there to do the administrative work for the judges. There is no sign of any such court officer here and this is absolutely staggering. I just cannot understand how you are letting the department get away with such nonsense. Q17 Chairman: Those functions are currently provided by officers of the House of Lords. They seem to have overlooked the fact that this gap then has to be filled. Professor Scott: If you look back at one of the papers I wrote, under this regime, the House of Lords as a judicial institution is less protected from the executive than it currently is because at the moment it can hide behind the skirts of the House of Lords. Q18 Mr Clappison: May I offer up a comment? In the position that we now find ourselves in with the proposals which have been made, there does seem to be an awful lot to learn from what you are telling us about administrative and budgetary independence. As a broad brush comment, going back to the situation which existed before the proposed reforms, one had the feeling that the old system was working reasonably well. It was producing high calibre judges and judicial independence. Whether it was sufficient judicial independence now appears to be in dispute, but we had a system which seemed to be working. Would you agree that part of the reason for the system working and having the independence which it had was because of the august, venerable figure of the Lord Chancellor and the prestige and influence which he carried within government on behalf of the judicial system in discussions with the Treasury, Prime Ministers, Cabinet colleagues, because of his powerful presence? Professor Scott: Yes. When I go around the world and talk to other jurisdictions, they used to be rather envious of the institution of the Lord Chancellor, saying, "We have gone down this judge based route because we do not have a Lord Chancellor. You do. The Lord Chancellor is not transplantable. We cannot introduce him." That was kind of a single thread but it was assumed to be a thread of steel. We felt very comfortable with that. We never understood it was going to be taken away, which is what has happened to us, but you are quite right. That was a very singular, constitutional arrangement that was not replicated elsewhere round the world. Q19 Mr Clappison: We cannot go back over the old ground. Thinking forward, would you share the concern which I have that, instead of the Lord Chancellor, we have a much more junior Cabinet figure in the Secretary of State for Constitutional Affairs and he will be the person who is responsible for negotiating with Cabinet colleagues, the Treasury, the Prime Minister and so forth? If power is to be vested with him and if there is not to be independence in the judicial administration, do you think there is a risk there of a lower quality of administration and more risks generally? Professor Scott: I do not know about lower quality. I am sure it is going to exacerbate the relationship between the executive and judges. That tension is always there, even in those systems like the High Court of Australia and the Family Court of Australia, where the courts are heavily involved in running their own affairs. You do not do away entirely with the friction between government and courts. It is always there. I think if we go down the route we are going to go down here and structure things the way you are talking about, it is going to exacerbate a tension which is always there. We are going to have judges and administrators spending an awful lot of their time managing a conflict which I think, if you design it correctly at the outset, can be minimised. That is my bottom line. Q20 Mr Clappison: In a nutshell, you are advocating to us the case for greater judicial independence and autonomy? Professor Scott: I have only talked about budgetary matters. We are not going to get to the other three I came to talk about: buildings, accommodation and staff. You are right, yes. Q21 Mr Clappison: Could I tempt you very briefly on one other slightly naughty issue? What is your view on accommodation? Professor Scott: I am worried about the Chairman being worried about time. What is happening around the world in accommodation is that that is always something that is inevitably the responsibility of the executive branch of government. It is complicated nowadays because courts that are being built tend to be built under private finance initiative schemes or similar. There have been some astounding successes in this. The County Court in Melbourne, in the state of Victoria, is a PFI venture. The judge is heavily involved from start to finish. I was involved in the early stages of this. Tensions arose early on about the PFI initiative. It was not only going to build the court; it was also offering to run the services for the court. Then, in a very highly developed state, you got the problem of where does the judge's responsibility begin and end. This was a building built with IT provision, right from the start. On the whole, our judges are badly accommodated at all levels and English judges who were in Australia last year for the Commonwealth Law Conferences looked at the County Court building in Melbourne. They came home feeling very, very disgruntled. It was a PFI initiative. It was not the easiest thing to do, but it has worked in its way very well and everybody seems to be very happy. There was heavy judicial involvement right from the very start. Q22 Chairman: Have you looked at the point at which the issue of financial independence starts to have a bearing on the administration of justice? There are serious rubbing points where someone could say, "I am not getting justice because the court has been told to cut its budget by 1.5%." Lord Hope talked, for example, about the pressure he did not want to see on the supreme court, the pressure of being told, "You have to cut by that percentage. There is no excuse; it just has to be done." Have you looked at the points where the availability of justice is affected? Is it possible to define those? Q23 Professor Scott: I have not looked at it in detail but I have seen reactions to it. The Family Court of Australia, like all courts that have this budgetary arrangement, know that they have to make their so many per cent efficiency gains every year. This is across the board. This does cause problems but it is out in the public domain. The court is able to say, "If you expect us to cut by 5%, for example, our mediation service, it will have the following impacts." If it does, it is clear where the responsibility lies. That is a trial court. We are talking about budgetary autonomy for a purely appellate court. This is dead easy. Getting a trial court right in its budget is a very complicated process. We are talking about the simplest court one can imagine, almost the lowest form of life when it comes to the development of court, purely an appellate court consisting of a very small number of judges. Q24 Chairman: It is also a court in which it is assumed that all English, Welsh and Northern Ireland cases on the civil side will be self-financing and only criminal cases will require any subvention from public funds. Is there any parallel to that, in your experience? Professor Scott: No. Ultimate courts of appeal are rather interesting. The only close one I can think of is probably the High Court of Australia, which does have its budgetary and administrative independence. I think the High Court of Australia is probably the best model for you, but I would say that, because I remember the night we invented it. Good heavens. It was in America and Sir Garfield Barwick, locked in conversation with Bora Laskin and the chief justice of Canada, on a restaurant napkin sketched out what he was going to do. Q25 Chairman: That sounds a little more sophisticated than what happens here. Professor Scott: It is certainly a lot better than what we have managed to do here, which is disgraceful. If you look at section one of the Bill, there is this rather interesting clause 39. Q26 Peter Bottomley: It is not paragraph 13 of your note to us, is it, on page two? Professor Scott: I have lost my note. Q27 Peter Bottomley: One is coming towards you. Professor Scott: Perhaps the first thing to do is to draw your attention to the Courts Act 2003, which amends section 27 of the old Courts Act. Some years ago, the Courts Act was amended at section two. When the Deregulation and Contracting Out Act 1994 was enacted, that amended the Courts Act provision about the Lord Chancellor's power to administer the courts above the level of magistrates' courts. It made elbow room for the Lord Chancellor to contract out court administration matters to the private sector. It seems to me that, in the Bill that we are now looking at, they have tried to do the same thing. My concern would be, if the executive branch of government is administering the new Supreme Court, we are led to believe that it is going to be administered by officials in the department, but there is in the Bill this power for the department to contract out administrative functions. Somewhere in the explanatory notes, the Lord Chancellor says, I think rather disingenuously, that we are only talking here about things like cleaning and catering. It does not stop at that. The point is they can contract out anything which they regard as administrative support for the work of the court. When the Courts Act was changed in 1994, when the Deregulation and Contracting Out Act was passed, there was a very careful exchange of letters between the then Lord Chief Justice, Lord Taylor, and the then Lord Chancellor, Lord Mackay assuring the Lord Chief Justice that the department would not contract out functions of an administrative kind that could affect case processing, which has always been traditionally regarded as a function which is very much under the control of the judiciary rather than under the control of the executive. This Bill, it seems to me, creates the same room for manoeuvre but we have no sign of an undertaking of the type that the Lord Chancellor, Lord Mackay, gave to Lord Taylor in 1994. That section is designed to enable the department to contract out. This is a very common provision, ever since the Deregulation and Contracting Out Act was passed in 1994, but it does raise interesting questions. The administrative tasks in relation to the Supreme Court: to what extent can they be contracted out. What powers does whoever is responsible for administration, whether it is the chief justice, the senior Law Lord or a minister of state, have? What is the extent of their contracting out powers in relation to the administration of this court? Q28 Mr Cunningham: If the court was independent, who exactly would negotiate wages and conditions of staff? Professor Scott: This varies, depending on how it is organised. In most of the Australian jurisdictions, where they have the courts running their own show now, it is still the case that most of the staff are subject to the Public Service Act, when it comes to pay, conditions and things like that. There is no suggestion that the court, in appointing staff, can somehow escape the Public Service Act. All the Acts I have seen make that perfectly clear. When you look at court staff, they are at three levels. You have the judges; the court officers, who are usually statutory appointments, registrars, maybe a notary or something like that and then you have what I might call the ordinary staff below them. In a sensible court system, they all work to the chief justice. I have just been in Australia to the farewell celebrations for the chief justice of the Family Court of Australia. The staff were crying. The enthusiasm of the staff for the court and for the chief justice is absolutely phenomenal. It is such a team effort. Q29 Mr Cunningham: Did the chief justice fix this up or was it the chief executive? Professor Scott: The chief executive, in negotiation with the appropriate executive branch of government, I think does it. The chief executive is appointed by the chief justice. One of the great advantages of this sort of court centred approach is that the judicial administration becomes a discipline. Here it is all buried. There are no training courses for judicial administrators. It is not a professional discipline of its kind. Judicial administration comes alive and develops as a discipline. I can point to people all around the world who are giants in the field of judicial administration, who work for courts. I cannot point to any single person ever in this country who has written an article or provided a conference paper which in any way has moved forward our thinking about judicial administration. That is because they are all civil servants, wonderful people doing wonderful jobs for certain purposes, but completely the wrong kind of people in the wrong kind of culture to administer courts. Courts, after all, operate in public more than any other institution we know and their administration ought to be in public too. Q30 Chairman: In the Australian system, is there any way in which the courts can meet particular problems in recruiting staff in certain areas by raising salary levels, or are they tied to some very rigid framework that runs right across the Civil Service? Professor Scott: One of the things that does tend to go on is that court poach staff, one from the other. For example, not so long ago, one court I was working for was very keen on poaching a very good statistician from another court. It is a bit like football managers and players. That can be a bit debilitating and unfortunate. The courts that are most judge centred in Australia are the federal courts and they, on the whole, tend to have better paid officials anyway. There is a tension between the state courts and the federal courts because the federal courts generally are just better funded. The salaries and conditions are laid down by trade union and public service negotiating procedures in the usual way. I am not aware of people joining a court because they thought they would be better paid in a court than, say, working for some other department of government. Q31 Chairman: Do you think judges have or are likely to acquire the necessary management and financial skills that are involved in the process you have described? Professor Scott: If they are thrown into it, they do give it up very quickly. The chief justice of the Family Court in Australia very recently retired. He was a man who had had a very predictable legal career. He had been at the Bar; he had been a state judge and then he became a federal judge. Fortunately, he had around him on his staff some people who had been recruited from the Department of Justice, who knew their way around government and who were alongside him right from the start. He had his team of managers with him who kept him straight. The problem does arise of whether judges can carry their brother judges with them. One of the great problems with courts generally is intra-court governance. How do the judiciary organise themselves so that they can participate effectively in the administrative process? It is a nightmare for a chief justice to have serious divisions amongst his judges as to what he should do and how he should move. You have to have a court which is capable of almost Cabinet solidarity to have their arguments behind closed doors as to what they ought to be doing administratively and then to agree on the end result. That is not always easily achieved. A lot of it comes down to the pure power and personality of the chief justice. Sometimes, all of the power will lie in the hands of the chief justice. Other times, it will lie in the hands of an executive group of the judges. It depends how big your court is. Again, here we are talking about a very simple court with maybe a dozen judges. This is easy. If you have a court like the Family Court of Australia, you are talking about 80 judges spread over 3,000 miles in one direction and 3,000 miles in another. The problems the chief justice has in getting his judges to agree on how he should administer things are not always easy. Q32 Chairman: We are not in this case presumably talking about the Lord Chief Justice but about the president of the Supreme Court, which is a different role. Do you accept that, whatever the merits of moving other parts of our system over towards a judge based administration, it is perfectly possible to consider such a model specifically and exclusively for the Supreme Court for a number of reasons? First, because it is having to replace an administration which is not part of the court service? Professor Scott: Yes. Q33 Chairman: Secondly, because it is a United Kingdom court which ought not to be administered by the court service of one or indeed, in this case, perhaps three of the four parts that make up the United Kingdom, since it would not then be properly a creature of the UK as a whole? Professor Scott: That was a point you almost made in your report and which, in the government's response, they absolutely ignored, it seems to me. They have just brazened it out by saying, "We do not agree" without any reasoned answer to that. I would agree with you, yes. You have to understand that I have made what academic reputation I have over the years in judicial administration by pushing this line. I am far from a lone voice but this is what I have done. Peter Bottomley: Is there anything Professor Scott intended to say that he wants to say? Q34 Chairman: In seeking to compress your argument and indeed give ourselves time to ask questions, have we missed something crucial that you would like to mention to us? Professor Scott: I know the minute I get outside the door I will think of six things that I should have said. I will go home and my wife will say, "What kind of a day have you had?" and I will say, "Miserable". That is always the way but I am in touch with your staff and I have the opportunity to say other things to them. We have said something about accommodation. I made the point about my worry about the Deregulation and Contracting Out Act. Q35 Chairman: By all means get in touch with us. Professor Scott: Your staff have a difficulty because not a lot of the things I am talking about are easily found. Unfortunately, most of the writing on the subject focuses on the judicial independent separation of powers and constitutional reasons for doing this, rather than what I have tried to focus on, which is the organisation, management and good government ideas. You can get this right at the start. If you do not get it right at the start, you will have years and years of debilitating, frustrating aggravation between the judiciary and the executive, with civil servants wasting an awful lot of their time and energy in dealing with it, with Members of Parliament and ministers worrying about it. Why not get these things right at the outset and then there will be enough to worry about anyway in the relationship between the courts in years to come. Why worry about these things when they can be solved at the outset? Chairman: Thank you very much indeed, Professor Scott. We are very grateful to you. You have enabled us to look in much more detail at areas which have not had sufficient consideration so far. The Committee is adjourned until 3.15 in the Wilson Room in this building. |