House of COMMONS
MINUTES OF EVIDENCE
CONSTITUTIONAL AFFAIRS COMMITTEE
Tuesday 25 May 2004
HON MARGARET WILSON
and RT HON SIR KENNETH KEITH KBE
USE OF THE TRANSCRIPT
Taken before the Constitutional Affairs Committee
on Tuesday 25 May 2004
Mr A J Beith, in the Chair
Mr James Clappison
Mrs Ann Cryer
Witnesses: Hon Margaret Wilson, Attorney General of New Zealand, examined.
Chairman: Attorney General, you are most welcome. We are pleased to have you here and get the benefit of your advice. Because judicial appointments issues do tend to come up a bit, I will ask Members to declare their interests.
Mr Clappison: I am a non practising member of the bar.
Ross Cranston: I am a barrister and recorder.
Q36 Chairman: Now, you have had some experience of setting up a court from scratch over a period of, what, four years?
Margaret Wilson: Yes. We issued a discussion paper in the year 2000, and that went out for quite extensive consultation, and the options that were put there were those that were essentially carried over from attempts by previous attorney generals to establish a Supreme Court, so we by and large reproduced that but undertook a different process of consultation. The principal option there had been one of do nothing or basically convert the Court of Appeal into the highest court, in other words only have one appeal, and what came through clearly was that, if we were going to do anything, two appeals would in fact be seen as preferable, so from that idea came the notion of a Supreme Court, interestingly, as a result of that consultation process. So what emerged from there is that I set up an advisory committee upon which the bar, the Law Society, the judiciary, Maori and others were represented, and they in effect recommended what became the Supreme Court Act, and the structure emerged from that. That took just over three years, and the legislation was enacted last year.
Q37 Chairman: So did most of the modifications and changes to the plans take place during the advisory committee process, rather than during the legislative process?
Margaret Wilson: Yes. During the legislative process, because we are a minority government and therefore the government does not have a majority on the select committee, or very few select committees, there is quite genuinely a process of negotiation and contribution into legislation, not only this legislation but all legislation. On the Supreme Court one issue was that we should invite judges from overseas to sit on the final court, and while the legislation did not provide for that, I had made it clear that we were happy to take advice basically because the matter was such an important one, so at the end of the day, after quite a lot of submissions and consultation, the advice was no. I think that surprised some people, but there are lots of practical and logistical issues associated with inviting judges from other jurisdictions to sit on other courts and we know the President of Hong Kong was mentioned, but most final courts do not have many spare judges, though there are some, of course, who are retired and may be available to sit when needed. So at the end I think it was as much a practical issue of judicial administration than any in principle sovereignty issue that probably swayed the select committee. Other issues emerged in terms of what was in the purposes provision of the legislation to make quite clear principles, so arguments relating to the Treaty of Waitangi and what its status should be were prominent, and that was because of the special relationship through the treaty that Maori had with the Crown, and it is fair to say that most of the submissions we heard on it from Maori were not in support of dis-establishing appeals from the Privy Council but there were some submissions that were, and by and large I think it was also quite understandably a question of not wanting to change when you were not quite sure what you were getting into. So we tried to ensure at each stage that there was adequate consultation with Maori and we had a special hui relating to that, and in the end on the advisory group that was set up to advise appointments to the Supreme Court we ensured there was Sir Paul Reeves, who was Maori but had been Governor General and Primate of the Anglican Church and was represented there as well, so at each point we did try to accommodate.
Q38 Ross Cranston: In terms of background, do you anticipate that the Supreme Court is going to be different from the Privy Council? Is the notion that they are going to be performing a different function, or basically are they going to be performing the same function?
Margaret Wilson: I think on one level the answer is yes and no. Yes, they are envisaged to be the final Court of Appeal and, therefore, it is envisaged that obviously that court will create the precedent and we hope will develop a New Zealand jurisprudence which, of course, will be based on common law but will also perhaps take account a little more of the context within which the legislation and cases arise. Probably what has not always been understood, however, is that many cases were statute barred from coming to the Privy Council, so in a way the Privy Council only ever got a few cases. The Court of Appeal in many ways was effectively the final Court of Appeal for the majority of New Zealanders, and so the combination of being statute barred plus cost effectively meant that it was important that we established our own final court.
Q39 Ross Cranston: There is some talk here that, if we are going to establish a Supreme Court, then really we are establishing a different sort of court from the existing House of Lords Judicial Committee, and there is some talk that we really need a written constitution for that Supreme Court to interpret and all the rest of it. So in a way, raising that particular issue, do you anticipate this new court to be doing something different?
Margaret Wilson: Not in that sense, I think. Really what was envisaged by some, and everyone has their own view I guess, is that they would have the time to be able to consider those cases upon which it was important that there be guidance given so there can be some certainty when people come to advise on what is the law, and I think it was fairly well accepted that, while we had very good and high quality judiciary in New Zealand, the Court of Appeal was overworked. There were just too many cases to be able always to provide the opportunity for reflection that I think is needed, so we do not see it as being different qualitatively, I think, at all. One comment about the written constitutions that I will make is that in the course of the submissions that were given on the Supreme Court Bill, I would say the vast majority had nothing to do with the Supreme Court Act itself but had everything to do with the whole range of constitutional issues, including whether or not we should have a written constitution, so the select committee, as you may know, in its report did suggest that perhaps an opportunity should be provided at some stage for reflection on those matters, but it was not appropriate in this context.
Q40 Mrs Cryer: Can you see any friction between the two concepts of the rule of law and the sovereignty of Parliament?
Margaret Wilson: No, not in principle, no. Parliament should act consistent with the rule of law, as should the courts, so I think it would be quite strange if there was.
Q41 Mrs Cryer: You have already touched on a number of issues but, simply for clarity, why did it take almost four years for New Zealand to establish its Supreme Court, and what steps were taken along the way to ensure a smooth transition to the Judicial Committee of the Privy Council?
Margaret Wilson: Contrary to some reports this was not rushed. What happened, however, is that we did the discussion papers; I deliberately recommended to my parliamentary colleagues that we did not rush the legislation before an election, so we had an election intervening. We had, however, made the decision in principle to proceed with legislation relating to a Supreme Court so that people knew that was a part of the manifesto, a specific manifesto commitment. We also had the issue of Maori, and it was important to take time I think to try and work out really what would be the best way to go for their involvement but also for the outcome of what sort of court. Also, it was important that we provide a time for transitions; there was no need to rush anything, it seemed to me. These things can take their own time but if you leave them too long - and in a way we may have almost left it too long - then that creates its own issue so, in terms of transition, there will be cases still going to the Privy Council as a result of appeals from the Court of Appeal decisions. The Supreme Court came into life on 1 January this year but it starts hearing cases on 1 July, and those other cases will continue on. So we tried to make it as smooth as possible but I think what happened in the end was that some sections of the community and the media discovered the proposal, and that highlighted some issues, which came mainly from some sections of the business community, which was the same when I did my researches. In all other jurisdictions that have gone through this process, very similar sections of the community raised very similar issues, so it was generic.
Q42 Chairman: Was there an issue about the corporate independence of the court and how its funding was achieved, how its staff were appointed, and, if there was, how did you resolve it? It is one of the areas where there can be conflict between judicial independence and accountability to Parliament for money spent.
Margaret Wilson: Yes. I do not think it has been addressed as being perhaps any more different from funding of other courts, I must say. The process we used was that, when we agreed in principle to proceed to the Supreme Court legislation, then obviously the costings were done, the business case was made, and it was factored into the budget. When it came nearer the time, though it was about a year I think before the legislation was passed, I put a business case and proposal to Cabinet for funding of accommodation and a building, so it was all done I think in a timely and what would have been normal way to do it. We have in the meantime merged our Ministry of Justice and the Department of Courts into a Ministry for Justice, and issues of court administration generally have been raised, and I am sure the Chief Justice and Justices will be able to comment from their perspective on that but certainly the involvement of the judiciary and judicial administration personally I think is important. However, I do know that some judges have felt this might intrude on judicial independence, so I suppose it is a question of balance.
Q43 Chairman: So is the court dependent on you and your successors in the future for its budget? Is it you who go to your equivalent of the Chancellor of the Exchequer and to your Treasury to say, "The courts need more", or "They will have to manage with less" or "No, they cannot accept 5%"?
Margaret Wilson: That has always been the way it has been.. There was a brief moment in the 90s where there was a Treasury view, as I understand it, that courts could be self-funding.
Q44 Chairman: We have that here!
Margaret Wilson: That was highly optimistic and I think in many ways, having come to the position much later, it did raise some infrastructure issues for the court and I personally do not think it was a wise policy to follow. I think our Budget is tomorrow so I would not want to anticipate our Minister of Finance's announcements but I think there is recognition that certainly administration of justice is an important infrastructure issue for any society in roads, water, etc.
Q45 Chairman: You have the same title, Attorney-General, as the member of our administration. He has responsibility for prosecutions. Do you share that responsibility?
Margaret Wilson: No. That is the Solicitor-General's responsibility.
Q46 Chairman: That is wholly separate?
Margaret Wilson: Yes, and an apolitical position, so it has nothing to do with political parties' appointments at all. Appointed on merit.
Q47 Chairman: And does the judiciary in any way look to you, do you think, as a defender of the judiciary against other parts of the administration and other ministers who might start to encroach on their territory, at least in their rhetoric?
Margaret Wilson: The way the system in New Zealand is set up the Attorney-General has traditionally had that position, and certainly I think it is an important position to defend the judiciary. Certainly one of the more difficult positions we had during the Supreme Court debate was criticism from the bar, which did provide some rather difficult conflicts potentially, I think. Certainly I felt the criticism of the judiciary from the bar was totally unwarranted, and certainly the Solicitor-General formally said that and I said it in as many ways as I could without further politicising it.
Q48 Ross Cranston: The other issue associated with the establishment of the Supreme Court is the establishment of a Judicial Appointments Commission, and our diligent staff have come up with a press release that you recently issued about this. Could you just say a little bit about this in the New Zealand context? You quite rightly say that in the past there has been no question about the outstanding nature of the judiciary in New Zealand, but also about the integrity of the appointment process. But what has led to this, and how do you envisage it being taken forward? You probably appreciate that here a lot of the pressure is because of the diversity issue, and the need to address that.
Margaret Wilson: Certainly one of the issues that emerged from the submission process on the Bill was a Judicial Appointments Body. I felt it was too important a step to rush without putting out a discussion paper in an opportunity for full consultation, so undertook to issue a discussion paper with a view to introducing legislation, or a different process, according to what emerged as a result of that process. That discussion paper has now been issued and one of the reasons I am visiting the United Kingdom is to have an opportunity to observe your experience, but also I went up to Edinburgh and met with some members of the Scottish Judicial Appointments Board because they have had the opportunity of two to three years' experience now in this matter. So what drives it I think is probably the same reasons; it is felt that the judiciary is not representative enough of the community it judges, and at the same time I think everyone would accept that appointments should be on merit, and therein I guess lies the dilemma. So I have no doubt at all we probably will merge to some form of appointments body.
Q49 Ross Cranston: Yet you yourself appoint a number of them, and obviously the distinguished Chief Justice who we are going to hear from, but they are also members of the Court of Appeal, and there are some quite young members as well.
Margaret Wilson: The Chief Justice was appointed by the Prime Minister and by a previous Prime Minister who also happened to be a woman. My experience would be this; that women have been graduating from law schools in New Zealand about 50% plus of the graduating classes for maybe fifteen years, maybe a bit longer in some law schools. The reality is, however, they are not so represented in the profession and they are not so represented at the bar or in those areas of litigation that one would look to see for those skills when one was appointed to the bench. I think the issue lies very much now with the profession. Personally I have not detected in our processes a gender bias but you have to have a pool of people who have had the experience to be able to have the position, and I think that is a challenge for us. I know there are some jurisdictions in Australia that are also looking at this, and Victoria has engaged in a more proactive approach now I understand, engaging the profession to see what it is doing. Also to ensure that work is given and opportunities provided.
Q50 Ross Cranston: Could I ask you about whether there has been criticism of political appointments to the higher judiciary? Here, in the first part of the 20th century it was quite openly political and then it became depoliticised, and in recent times there has not been criticism of Lord Chancellors from either of the major parties in terms of their appointment but, all of a sudden, there seems to be a criticism that appointments would be political if we did not change it to an Appointments Commission.
Margaret Wilson: There certainly was criticism that appointments would be political. I suppose it depends on what you mean by "political". They have always been political in the sense that Parliament has the authority to remove judges and they are, in effect, appointed by the Governor General through a process of recommendation from the executive, so the assumption I guess has been, if you look for those lines of accountability, there is a synergy there. The allegations I suppose are more party political allegations, I presume. There seems to have been very little evidence from whoever has been the government that that, in fact, has been borne out in reality.
Q51 Ross Cranston: Has there been any criticism?
Margaret Wilson: There does not appear to have been from whatever government. There has been criticism but if you look at the appointments the reality does not seem to justify the amount of concern. However, perception is very important and that is why I think a Judicial Appointments Commission body probably will be required, but then the question becomes to whom are they accountable, and if the diversity does not emerge or if it does emerge but merit does not emerge, then what happens?
Q52 Ross Cranston: I take the view that there has to be some minister making the appointment or the Prime Minister because there has to be some sort of accountability; that it cannot be completely depoliticised - but this is not necessarily the view of everyone.
Margaret Wilson: Well, in our system anyway, or while I have had the position it tends to be as consultative a process as you can make it, with the judiciary being consulted and the profession, both the Law Society and the bar, and from there recommendations are made so it will be interesting to see. Various models are out there and we have been looking at them. I understand that in South Africa they have a very interesting model of sectors of civil society who are very actively involved in all levels of recommendation. Presumably it works there. Certainly their constitutional court is an extraordinarily distinguished court. It does not seem to suffer as a result of this quite extensive involvement from communities, so I suppose any appointment system at the end of the day will be reflected in society because it is really the confidence of the people in the process that is most important.
Q53 Ross Cranston: Was there any pressure to create a distinct system for the appointments to the Supreme Court as opposed to the rest of the judiciary?
Margaret Wilson: There was a lot of pressure just to automatically appoint members of the Court of Appeal, and I suppose that would have been an option. However, there were seven members of the Court of Appeal and five for the Supreme Court so it was not just as simple as a transfer. Also, my own personal view was that it was important that the body was appointed on merit and not just on precedent. Others may disagree with me on that. It is politically more comfortable to appoint on seniority, but it may not always produce the best court. I think in this instance we were fortunate that the committee that advised me on the appointments, which was a special committee set up, did recommend basically in line of precedence from the Court of Appeal to the Supreme Court. Whether that continues in the future or not I guess time will tell.
Q54 Ross Cranston: So this was a one-off body --
Margaret Wilson: Yes. I thought it was important, and important not just to automatically make some assumptions. That was a judgment call; as I said it would have been politically more comfortable just to say seniority prevailed. The legal profession operates on precedent and, once you do it once, it is very difficult to justify doing it differently again, so I felt it was important to keep that option open.
Q55 Ross Cranston: Can I ask if there was any move that Parliament should be involved in judicial appointments?
Margaret Wilson: Yes. My opposition parliamentary colleagues and many of my legal colleagues did suggest from time to time that judges should be appointed by select committees, that I suppose a process that might be more akin to perhaps that of the United States would be preferable, or that there should be some direct endorsement from Parliament. My own personal view on that is if you wanted to depoliticise it that may not have been the appropriate way to do it in the New Zealand context. I do not know about your own.
Q56 Ross Cranston: There is no great pressure to go down that particular avenue?
Margaret Wilson: I did not feel personally any pressure, but I have to say that was put out.
Q57 Chairman: And is there a relationship of the kind that we have developed in this Committee, for example, with senior judges, and Lord Bingham will be in later this afternoon, whereby, quite outside the context of confirmation hearings or anything like that which we do not have, judges do feel free to come and speak to this Committee on matters affecting the judiciary?
Margaret Wilson: Certainly. The Chief Justice can talk directly to that, but from my perspective there are no issues with that. The only precautionary is I suppose that from time to time matters can be taken out of context so it is always a matter of judgment on these matters, but judges have been appearing before select committees, both open and not open committees, for some considerable time. I personally think it is extremely important that the judiciary has an input into matters relating to judicial administration. After all, they know how the job is to be done because they do it and how it can be improved and done better, so it seems to me that on those matters they should have an influence on what goes in the legislation.
Q58 Chairman: Thank you very much indeed. I am very grateful for your help. Best wishes to New Zealand's new Supreme Court.
Margaret Wilson: And to yours!
Witnesses: Rt Hon Dame Sian Elias GNZM, Chief Justice, New Zealand Supreme Court; Rt Hon Thomas Gault DCNZM, President, New Zealand Court of Appeal, and Rt Hon Sir Kenneth Keith KBE, Judge of the Court of Appeal, examined.
Q59 Chairman: Chief Justice and colleagues, welcome. Perhaps you would introduce yourselves?
Dame Sian Elias: Thank you. I am the Chief Justice, and with me are Justice Thomas Gault and Sir Kenneth Keith. We are three of the five members of the New Zealand Supreme Court.
Q60 Ross Cranston: I guess I am going to ask you the same question as I asked the Attorney. Do you envisage the job as being different now that you are in the Supreme Court as opposed to what you were doing in the Court of Appeal, or is it simply that in the Court of Appeal the pressure of work was such that you could not be as reflective as you might want to be? Do you see it as a stepchange in terms of the nature of the work?
Dame Sian Elias: It is a court of general jurisdiction and not a constitutional court so that does not change. As the Attorney said, there are areas of New Zealand law which have not had effectively the benefit of second tier appeal, so I expect this will be a court with a sense of the scope and reach of the whole law, which is not something that a Privy Council has been able to have in relation to our law. So that will be a change. Also, as the Attorney said, the Court of Appeal has been a very busy intermediate appellate forum and that has led to some strains in terms of resourcing, so there are community expectations of the court which we will have to try to fulfil. Some of those are expressed in the legislation; others have been expressed during the process of putting the court in place; and one of those expectations is for raising the game.
Justice Gault: I could perhaps add that, the way the jurisdictions fell in the courts in the past, in some civil case hearings there was virtually a right of appeal to the Privy Council and very few criminal appeals were accepted by the Privy Council, so the Supreme Court is likely to better sift the civil cases and focus on the more appropriate ones through the leave mechanism, and will hear more criminal appeals than the Privy Council did, so there are those differences.
Q61 Ross Cranston: I guess it is appropriate to note for the record that in the Naomi Campbell case the other day a New Zealand case was cited, and I think it was a five judge Court of Appeal case. So - how can I put this - it is not as though you need to lift your game, as it were, to have an influence in the common law world because your Court of Appeal has had that influence over the years with its quality of judgments.
Dame Sian Elias: I think that is true and I think some of the criticism that was voiced during the process, which has been fairly bruising, has been unfair in that connection. That was a bit of special pleading by particular interest groups to some extent.
Q62 Ross Cranston: Could I just ask this question? I met Sir Kenneth many years ago when I was a graduate student and he was a professor at that stage. Do you anticipate that the Supreme Court might have more academics because of its nature? Is there any move towards that?
Dame Sian Elias: We have been quite receptive to the appointment of academics. There have been a few appointed, I should not exaggerate --
Q63 Ross Cranston: I should say that this is in a way a self-interest question!
Dame Sian Elias: I understand that! There is no real impediment. We are, of course, in appointments looking for experienced people but you can gain experience in a number of different areas. All things being equal, the higher judiciary is likely to be staffed by people who have had substantial experience in the practising profession, but that does not exclude exceptional appointments, and Sir Kenneth is clearly an exceptional appointment.
Q64 Ross Cranston: He is not going to comment! Some of my colleagues are going to ask about some of the mechanical issues, the Supreme Court as a corporate body and running the ship itself rather than having the Attorney General provide rations and so on, but can I just ask you a practical question? How much assistance will you have in terms of clerks or associates, or whatever you might call them?
Dame Sian Elias: We each have a secretary and we each have a clerk, and in addition to that the Chief Justice has some administrative support - not lavish.
Q65 Ross Cranston: And the clerk would be a recent graduate who would be there to help with legal research?
Dame Sian Elias: Yes. Usually a graduate student progressing on to further education.
Q66 Ross Cranston: Yes, because, until recently, the House of Lords did not have that sort of assistance.
Dame Sian Elias: Yes.
Q67 Chairman: Did you have some influence into the kind of building that you were going to use?
Dame Sian Elias: No.
Q68 Chairman: You had none?
Dame Sian Elias: I would like to correct I am sure an inadvertent matter that the Attorney raised and that was that there had been judicial input throughout. In fact, there was no judicial membership of the Steering Committee. I declined an invitation to participate in it and one of the reasons is because of my view that communication between judiciary and the executive and Parliament needs to be formal and needs to be public and I was not prepared for the judiciary to participate in committee discussions in camera in a back room. So the judicial representation which I think the Attorney was referring to was one of the retired judges of the Court of Appeal, who accepted a personal appointment but was not representative of the judiciary, and another judge who was the President of the Law Commission, again without reference to the judiciary accepted appointment. What we did, however, when the working party came out with its report, was we responded formally after I had consulted my colleagues, and our concerns were matters such as institutional independence, fragmentation of the judiciary - because I think there is real risk in a country like ours where you do not have a Scotland issue, for example, that we should not set up a court that is off on its own but is part of the general judicial system - and also appointments because they had arisen. It was our strong contention that the stability of the judiciary had to be maintained and that really meant that, in the creation of a new court, the only safe way was to take senior members of the Court of Appeal, and there was quite a lot of criticism in public or of anxiety about the possibilities of political appointment. I think that was the solution eventually adopted by the appointing committee, and I think that diffused a lot of anxiety.
Q69 Chairman: So your responses on some of these matters significantly influenced the decision-making by government and Parliament when it came to the legislation?
Justice Gault: I think they did but it was through an open and formal process rather than through participating in a committee which was not an open forum.
Q70 Chairman: And you did not have a concordat like our Lord Chief Justice which was not publicly arrived at but then became a public document?
Dame Sian Elias: Well, there is nothing wrong with working something up as long as, in the end, it is laid open and transparent and people can comment on it.
Q71 Chairman: Did you have a view about the issue which Lord Bingham has raised that the kind of courtroom which is appropriate should be partly based on experience in the House of Lords, and I suppose not unlike that of the Privy Council Judicial Chamber either, which is not a very grand sort of room. What have you finished up with? Something which suits the style that you have to produce for the court, or have you had the sort of fears that Lord Bingham has of being elevated like a criminal trial to some high judicial bench?
Dame Sian Elias: We have had almost no judicial input into that and I have been concentrating on temporary accommodation because I think it might be preferable for us to be in temporary accommodation. The Supreme Court of the United States was in temporary accommodation for 100 years, and I think it is the mental freedom you are after more than the physical space as long as you have the facilities to do the job, including, say, the library facilities and so on. But we do have preference for a committee-style room because appellate argument is conducted like a seminar so we agree with Lord Bingham, but we are less anxious to get into our Gar's Mahal than perhaps the House of Lords understandably is, because after all they are already housed. We are not, yet.
Q72 Chairman: And there is not a point to be made that this new court is no longer a part of the House of Lords, which is obviously not a factor.
Dame Sian Elias: Exactly, so our reforms are really quite different.
Q73 Chairman: Gar's Mahal comes from Sir Garfield Barwick who was the Attorney General and then became the Chief Justice, but a very shrewd operator, and got them a very good building with excellent facilities.
Dame Sian Elias: Which shows that the separation of powers does not always work to the advantage of the judiciary. Our most effective Chief Justice was probably Sir Robert Stout, who had been a former Prime Minister and managed to achieve quite a lot too, but we do not have that pull any more!
Q74 Peter Bottomley: Can you as the Supreme Court rule that an Act of Parliament is either unconstitutional or unjust?
Dame Sian Elias: We can make declarations about compatibility with our equivalent of your Human Rights Act, not that that is legislatively conferred but it follows from the function being pursued but no, we have the same system that you have and indeed our legislation, as you are aware, affirms parliamentary sovereignty and the rule of law. Parliamentary sovereignty is a concept that has been developed by judges, by judicial determination, so this system is not going to give us the power to strike down legislation.
Q75 Peter Bottomley: In any way, at any time?
Dame Sian Elias: The New Zealand constitution, whatever it is, is not changed by this, just as the British constitution, whatever it is, would not be changed by the setting up of a Supreme Court - well, that is not quite right because you have the legislative dimension which will alter a bit, but I think Maitland and Badger - everyone - has always said that you cannot take a snapshot of the constitution of a country, it evolves, or you only have a snapshot but it evolves over time, and what the constitutional limits are has not really been explored recently in jurisdictions like mine or, indeed, in jurisdictions like yours, and we can all hope that we do not have ever to get there.
Sir Kenneth Keith: Each time I come here and hear discussions about the sovereignty of Parliament I think of the paragraph that Lord Bridge included in his Factortame judgment in 1991 in which he said that in 1972 things happened and things changed and power went to Brussels, and so on. It is a very cautious and in some ways slightly confusing paragraph and I think probably deliberately obscure at times, but things do change, do they not, and the context in which a constitution works changes. In 1986 when our constitution was rewritten and the New Zealand Parliament finally repealed the 1852 New Zealand Constitution Act that had been passed here, all that the law-making provision said was "Parliament continues to have full powers to make laws for New Zealand", and that is a provision that can only be descriptive I guess, or declaratory, and now of course we do have, in terms of Ann Cryer's question, that reference to New Zealand's continuing commitment to the rule of law and the sovereignty of Parliament.
Q76 Ross Cranston: This is an article by one of the many New Zealanders in academic life in this country about this clash between sovereignty and rule of law in section 3(2).
Sir Kenneth Keith: Yes. Comparing the view of the one time Professor Wilson with mine, I still think, as Dicey said all those years ago, that if you tried to put those two things in the same sentence you would have real problems, but that is a matter that academics can argue about for a long time and like the Chief Justice, who I think was implying this, I trust the issue does not ever arise in a sharp way in New Zealand. I was really interested to see from a distance the debate that you had here about the inclusion of that very strong ouster clause in the Immigration Bill and the way in which the constitutional debate was carried on in public and resolved in public, and I would have thought very fortunately did not get into the courts, but you had, did you not, the robustness of exchanges between politicians and judges and so on.
Q77 Ross Cranston: This Committee did a strong report.
Sir Kenneth Keith: Yes, I saw that, and then I kept getting sent copies of speeches that various people were making, and I thought that was a very interesting and proper way in which constitutional debate should be carried on quite separately from what might have happened in the courtroom.
Q78 Peter Bottomley: Do you appear in front of the New Zealand Parliament? And do you?
Dame Sian Elias: I have only done it once since I became Chief Justice which is now five years ago, so it is not anything that I am very keen to do. I have put in submissions, however, to select committees on particular Bills and provided what the judiciary does is formal and open and able to be publicly disclosed I do not see problems in communication between the judiciary and the executive or the judiciary and Parliament. I think there is a variety of ways in which you can do it.
Q79 Chairman: Do your colleagues do so, or other members of the judiciary, or is it quite rare for a personal appearance by a judge in front of a Committee like this?
Dame Sian Elias: It is quite rare at higher court level and it would always be something I would expect to be co-coordinated through the Chief Justice. It would not necessarily be the Chief Justice who would go along; we would probably send somebody who has particular expertise in a particular area, but we do exercise judgment about that. We did not get involved at all in the decision whether appeals to the Privy Council should be abolished, because it was a judgment for the people of New Zealand to make. On the other hand, when it came to looking at how you would go about implementing that without undermining some fairly important principles, we felt that we should express our concerns about the way in which the appointments should be made, that sort of thing; the fragmentation of the judiciary.
Q80 Peter Bottomley: Is there any parliamentary oversight in judicial appointments and, if so, at what levels?
Dame Sian Elias: No.
Q81 Peter Bottomley: Turning to the mechanics, what administrative arrangements are made for the funding of your Supreme Court?
Dame Sian Elias: This may have been a feature of the controversy surrounding the primary decision which was whether or not to set up a new court. There was no judicial input into that; it was assumed I think that the budget for the Court of Appeal could just be replicated for the Supreme Court. As a result there are some omissions and there are some public expectations which will not be able to be met out of that, so I see this as a work in progress and not a final position. Things like institutional independence I am getting concerned about because I think we are now getting out of step with countries that we would benchmark ourselves against. As the Attorney said, we did have a department for courts. Last year government decided, probably for very sound government reasons, to collapse it back into the Ministry of Justice, the department which has major law reform responsibilities, including for criminal justice. I do not think it is satisfactory that our immediate judicial support is provided by that ministry which has to prioritise across the board, and I do not see that the Supreme Court should be treated distinctly from the rest of the judiciary. I think it is time for matters of direct judicial support to be under judicial control with a one-line budget for that, so that is libraries, secretaries, clerks, who should be, I think, employees of the judiciary acting through a chief executive as they have in Australia, rather than being employees of the ministry. The security of our IT communications and so on is a matter of real concern to me. The Ministry does not really have any incentive to respond to our concerns there and I feel that amount of independence really is required. I would not like to see us assume responsibility for running the courts which seems to me to be a core government function, and I am worried about co-opting the judiciary into some of the rationing decisions that have to be made in those sort of cases, because cases will come before the judiciary on stay applications, for example. If the judiciary has made some of the decisions which create the delays or has assorted priorities, I think you compromise. Personally, therefore, I would not like to see us go quite to the stage of some of the Australian jurisdictions; there is a halfway house but I think it is time you moved to it.
Q82 Peter Bottomley: I do not want to get into how to run the lower courts because it may logically follow from the question I am going to ask. In some jurisdictions, when a Supreme Court is established and written into the Act which establishes the Supreme Court, which is not a title I like but I am using it for working purposes, there is provision in the legislation for the court to appoint a chief executive and for the court to appoint a registrar, and in other places it is left to the kind Minister to offer up someone who will come through the Permanent Secretary's club, which works very well despite that but has a different kind of function and culture and corporate responsibility. What sort of view would you and your colleagues have which is the preferable way forward?
Dame Sian Elias: The former, I would say.
Q83 Peter Bottomley: The key officers of the Supreme Court should be appointed by the Supreme Court?
Dame Sian Elias: Yes. Personally I would not extend that to the registrar function because, again, I think that is the provision of the courts, that is a responsibility of government, but there are different perspectives there. Certainly, however, I think it is intolerable that our immediate judicial support staff are not answerable to the judiciary but are employees of the ministry, and all our communications are arguably subject to the Official Information Act. We are judges, and that is it, really.
Justice Gault: I have a slightly different view on that for a number of reasons but, particularly having regard to the debate leading up to the establishment of the court and the anxiety expressed quite widely of political influence in appointments and political influence in the courts' work, I believe it is important that we establish a new court with as much autonomy and apparent independence as possible. Establishing public confidence after this rather bruising debate will be very important, and for that reason I favour perhaps a greater degree of autonomy. I also have some difficulty in separating quite as clearly the, let us say, administrative, registry type of support from the judicial support in a small court with only five judges, all of whom sit on every case, but that is rather a detail of the practical operation of the court. I am concerned at the perception of independence being very clear.
Q84 Peter Bottomley: Do you or will you produce an annual report or some equivalent, and will you have some control over making sure that your own staff do not get held back on some general service pay restraint, so that you use competent people?
Dame Sian Elias: There are two questions there. We have had an annual report; it has been a very pedestrian, not terrifically illuminating, document and also it has been very expensive to produce. We just do not have the resources to do a good job on it. I have wanted to have that published on a website because it will save us $60,000 in terms of producing the hard copy and it is going to be available. Getting that on a website has proved almost impossible. It has taken months and it is not a ministerial priority. They have lots of other things and I am not blaming them, but it is like pulling hen's teeth. On pay for key staff, my Chief Justice support staff consists of three key people I suppose, including the person who is probably head of my little department, and I have been trying for the last six months to have their wages reassessed. We have no power at all. I cannot commission a review of our IT security, and I have been asking the Ministry to do that ever since we have had some very bad leaks, and real anxiety being expressed by the judges. That is why I say I think the situation is really intolerable. We do have parallels with, for example, the Governor of the Reserve Bank where it is thought that it is important enough to set up some institutional independence with a budget which is administered and which is a one-line budget like the Australian High Court, for example, has. It is not regarded as a matter of priority at home, and I am hoping that some of your deliberations will assist us in continuing the dialogue on this topic.
Q85 Chairman: Is it your idea that that one-line budget should be confined to a limited area of judicial support, rather than being the budget of either the Supreme Court as a whole or the court system as a whole?
Dame Sian Elias: That is one option and, as you have heard, probably Justice Gault and I are on slightly different ends there. I do not have a problem with the Supreme Court having a one-line budget because it is quite an easy exercise. I worry a little about the smugness and the separateness of totally stand-alone courts, which is why I would prefer to see the same sort of arrangement put in place for the High Court, the Court of Appeal, and the Supreme Court, the higher judiciary, where you really do need to maintain your judicial independence. If you are going into that it is a much bigger operation, and I would prefer to see that personally as just the immediate judicial support.
Q86 Chairman: Has your Lord Chief Justice now changed, because you are on the Supreme Court, are you not?
Dame Sian Elias: Yes. The Chief Justice has always been said in the legislation to be leader of the judiciary and a member of both the Court of Appeal and the High Court. Effectively because we are a court of five and a quorum of five I do not think I will be able to sit in the High Court and I am now not a member of the Court of Appeal. But the Chief Justice can really only lead the judiciary, I think, by being a sitting judge, so I would hate to see the administrative responsibilities of the Chief Justice swamping the judicial responsibilities of a Chief Justice.
Q87 Chairman: So every case that the Supreme Court deals with must be dealt with throughout by all five justices?
Dame Sian Elias: Yes.
Q88 Peter Bottomley: Five plus one, or four plus one?
Dame Sian Elias: Five. I am one of the five.
Q89 Chairman: And therefore you preside over every sitting that takes place?
Dame Sian Elias: Yes, except where there is a conflict when we have the ability to bring in retired judges from the Court of Appeal.
Q90 Chairman: The quorum is met by bringing in a retired judge?
Dame Sian Elias: Yes.
Q91 Ross Cranston: What about leave applications?
Dame Sian Elias: For leave we sit two or three. We could sit any number really but we can sit two. The Supreme Court of Canada has the ability to bring in retired judges and the Chief Justice of Canada has told me that they have never used it, that they have deliberately done what they could to avoid that. We do have provision for an additional appointment, a sixth appointment, and if it looked as though we were going to have to pull on retired judges frequently, I think it would be better to activate that sixth appointment.
Q92 Chairman: Is there not a risk that an expensive case would have to restart because of this quorum requirement?
Dame Sian Elias: No, it would not be embarked upon.
Ross Cranston: It probably would be always at the outset that ----
Q93 Peter Bottomley: And can four of you carry on if one of you kicks the bucket?
Dame Sian Elias: Yes.
Q94 Chairman: Well, let's not dwell upon that!
Dame Sian Elias: Not yet anyway, but we may look forward to some peace at some stage.
Q95 Chairman: Let us instead express our warm thanks for all the useful advice you have given us and the shared experience and repeat our good wishes to the Supreme Court of New Zealand.
Dame Sian Elias: Thank you very much.
Chairman: Thank you very much.
Witness: Rt Hon Lord Bingham of Cornhill, Senior Lord of Appeal in Ordinary, examined.
Keith Vaz: I would like to declare an interest, that I am a non-practising barrister.
Peter Bottomley: I repeat what I said the last time we were together, that we are fellow members of a partly charitable, partly corporate body of no importance to this.
Q96 Chairman: Other interests were declared earlier this afternoon. Well, we are very glad to have you back again for something of an update. Quite a lot has happened since the last time you were before us. Do you want to comment initially on that at all?
Lord Bingham of Cornhill: No.
Chairman: I am sure it will all emerge in the course of the questions. We are obviously aware of the proceedings which are going on in the House of Lords on the Bill and indeed the existence of those proceedings, I think, in part reflects this Committee's express desire that we should take a slightly more measured approach to considering the legislation and that seems to be happening and we want to continue to play a part in it. I wonder if we could perhaps start by looking at the nature of the Court and any issues which that gives rise to. We have just been talking to your New Zealand counterparts and we had a rather interesting session with them. Perhaps Mr Cranston would open up on that.
Q97 Ross Cranston: This may take you back to ground which you do not want to traverse again, but Lord Hope had made an interesting comment and I think some of the other Law Lords have made this comment, that the association with the House of Lords as a parliamentary body is useful and sitting in on, and listening to, debates gave him a dimension to some of the issues which would come before him as a judge which he would not otherwise get. That has come up in the evidence he has also given to the Select Committee of the House of Lords. You may not want to go through that because I think you were very clear last time about ----
Lord Bingham of Cornhill: Well, it is certainly not a point which impresses me at all. The truth is that the Law Lords have played less and less and less part in the business of the House of Lords. If you drew their contributions to debates on a graph, it would go plummeting down and there are a number of reasons for this which are very familiar to you and also to me, but the truth is that we are very inactive members of the House.
Q98 Ross Cranston: I do not think it was the contribution which the Law Lords would make, but more what they could learn by sitting there. I think that was the way he put it.
Lord Bingham of Cornhill: Well, if you plotted on a graph the amount of hours per month that the Law Lords spend sitting in the Chamber, it would be negligible. They basically do not do it. People do sometimes forget that we have a rather demanding full-time job which keeps most of us extended most of the time. I am not accusing you of forgetting that because I appreciate you know that very well.
Q99 Ross Cranston: Could I ask you about appointments. The Bill has a clause which says that the appointing body will put forward two, three, four names, but the Lord Chancellor has subsequently said that he is considering an amendment whereby only one name would go forward. I personally, just to state my own view, prefer the existing provision in the Bill, but I do not know whether you have any thoughts on that change.
Lord Bingham of Cornhill: It has been the subject of correspondence between myself and the Lord Chancellor and we have not reached agreement, although certainly his position has moved a little. The history is that he originally wanted five names and that is actually simply too many because whilst you could probably find, and I think you could find, five thoroughly credible names if it was, so to speak, an English appointment, it could be harder to find five credible names if it were a Scots appointment bearing in mind that you would not want to recommend anybody who did not want to come and it could be impossible in a very small judiciary like in Northern Ireland to find five credible names. I have discussed this with Lord Carswell and I am not saying anything behind his back; it is a view he fully shares. Therefore, the proposal of five names was modified to not fewer than two, no more than five, but among my colleagues there has been quite a lot of resistance to that and we have reverted to thinking that the suggestion which we originally made is actually the right one, which is that the Commission puts forward a name and the Lord Chancellor can ask the Commission to think again giving reasons why he wants it to think again. The Commission would then, in good faith, think again. It might come up with the same name or it might come up with a different name, but whichever name it came up with on the second occasion would be accepted. Now, that seemed to us to be a good formula and it is our preference, but I cannot claim it is one which the Lord Chancellor has as yet accepted.
Q100 Ross Cranston: What about distinguished advisers? Dr Kay Mallison said that maybe you do not mind that the appointing body might in one particular case think, "Well, we cannot really decide between A or B. We will put forward two names", but you do not put it in the legislation.
Lord Bingham of Cornhill: Well, I myself think that the appointing body should be the body which makes the choice rather than the Minister because the whole object of the exercise is to make this demonstrably independent and devoid of political input.
Q101 Ross Cranston: We could debate this at great length. I do take a different view on this and I think you can have non-party-political appointments by a politician. The law officers act in a non-political way in many ways and so too even the Home Secretary in certain ways which require a judicial capacity and not in a party-political capacity.
Lord Bingham of Cornhill: I accept that without any reservation whatever. The Lord Chancellor has indeed behaved in a totally unpolitical way, a totally unpolitical manner, but the object of this exercise has to be to remove any room for suspicion whatever.
Ross Cranston: What about the composition then of the appointing body - does that need to change? There has been some suggestion that there needs to be a greater lay input.
Lord Bingham of Cornhill: I have strongly urged that the three territorial commissions, which are very responsible bodies and they are making enormously important decisions, should themselves decide who they want to represent them on this body. Let us take this example. Suppose that the President and the Vice President of the Court, given an appointment, are both from England as is, as it happens, the case at the moment and suppose that a choice was to be made from Scotland. Now, if I were a member of the Scottish Commission, I would definitely want a judicial or professional representation on the Commission because I would wish to make absolutely plain that in the deliberative body which was going to make a recommendation there was somebody who could speak with authority and expertise about the legal system in Scotland. If, on the other hand, in the same example, it was an English appointment which was to be made and I was the Chairman of the English Commission, I would say, "Let's have a layperson because we have got enough people who think they know about the English legal system. Let's get somebody who will bring a different perspective to bear". I think if we are going to have these bodies, we have to trust them. As I say, they have got very, very responsible decisions to make and I think it should be left to them who they choose to represent them.
Q102 Chairman: So that for any given appointment to the Supreme Court, you would see the composition of the special body varying in the nature of the appointments?
Lord Bingham of Cornhill: Yes. I think that the Lord Chancellor is proposing to ensure, and I do not resist this, but I think he wants to say that there must be at least one lay representative of the territorial bodies so that if they all nominated judges or professional lawyers, there would be one decent, honest citizen to speak for the common man.
Q103 Chairman: Can I attend to the vexed question of accommodation. As you say, part of the purpose of the exercise is to demonstrate that this body is different and that applies to appointments and presumably it applies to its sittings, so would you then not want to exclude the possibility of this new Court appearing hardly different at all because it continued to sit in a corridor of the House of Lords, perhaps delivering its judgments there, during a long period while the authorities looked for somewhere else for you to go?
Lord Bingham of Cornhill: I think there is bound to be an interim period because if the legislation were enacted, let us say, by the end of the year, there would be simply nowhere we could conceivably go to, so there has to be an interim period. I myself think it would be a great mistake to bring the legislation into force until there is somewhere for us to go to because, as you point out, this is a sort of phoney war situation which could last for some time and I would find it very gravely embarrassing if three or four appointments fell to be made when most of us were of a certain age and I ended up with a team, or any President of the Court ended up with a team, of whom half were members of the House of Lords and the other half were not so that one had a situation in which you, you and you could eat in the dining room, but you, you and you could not. That would be, I think, quite unacceptable, so I think the only acceptable arrangement really is that until there is somewhere to go, things carry on as they are, but I certainly do not think that it can be seen as a long-term solution. If one were envisaging that as a long-term plan, it would not have been worth embarking on the exercise at all.
Q104 Chairman: Could you not go into some other temporary accommodation while the real long-term solution was found as long as it met your requirements?
Lord Bingham of Cornhill: I think there are two points to make about that. The first is that the Department for Constitutional Affairs, as I understand it, are very much against it because they feel it would be vastly more expensive if you spend a lot of money equipping one place and then after a short period everybody moves out and goes to another, so they think it would cost a great deal more. I think from our perspective we are extremely resistant to that because history shows that if you go into temporary accommodation, you are still there 200 years later.
Q105 Chairman: And you have rather taken against the Middlesex Guildhall because you do not see yourself sitting in one if its two grand chambers and you are not too pleased with the other courtrooms in the Middlesex Guildhall either.
Lord Bingham of Cornhill: We do not think, unless it is virtually demolished internally, that it can provide the ambience which the Supreme Court needs. It was built, as we all know, in 1912 to house downstairs some criminal courts and they are very typical and useful criminal courts of the period no doubt intended to strike horror into the breast of the malefactor who was standing trial, but it is entirely the wrong ambience as it now is for a Supreme Court.
Q106 Chairman: What is wrong with the smaller courtrooms which are rather more like the committee rooms of the House of Lords?
Lord Bingham of Cornhill: Well, we have expressed the view that it would be really extraordinary to house your Supreme Court in the attic of a museum!
Q107 Chairman: Are you not beginning to sound a bit like the popstar who rejects all hotel suites which the manager has offered?
Lord Bingham of Cornhill: No, we are concerned to try to provide the United Kingdom with a great Court. We think it has got a pretty good Court now in the way that it actually sort of functions, but we think it could be better and we think it would undoubtedly be worse if it were shoehorned into a building which is really quite unsuitable, unless you were to do a great deal more to the interior than it seems to us English Heritage are likely to countenance.
Q108 Mr Clappison: Can I follow up on the range of options which we are discussing here for the future housing of the Court which has seemed to become a very important issue as far as the Court is concerned. Given that you would be unwilling to have the Court sit temporarily in the House of Lords, and that would seem to be at odds with the main purpose of separating the Court physically from the Legislature, and given that you want purpose-built accommodation or accommodation which is fit for the purpose at any rate, would it be the end of the world, given that things are not satisfactory at the moment, that rather than have something which was less than ideal as far as you are concerned, the present arrangements continued?
Lord Bingham of Cornhill: Well, I fear I may not have made myself quite clear. I am, and I think my colleagues are, perfectly happy to carry on as we are until there is somewhere suitable so that I am not resisting our remaining here in the short term at all.
Q109 Chairman: But remaining as the Law Lords rather than as half a Supreme Court?
Lord Bingham of Cornhill: Well, I think we should remain exactly as we are until the legislation can be the subject of a Commencement Order and everything will be transformed.
Q110 Chairman: Do you think that should be written into the Bill so that the Commencement Order in some way was devised so that it was the commencement of a Supreme Court sitting in its own premises?
Lord Bingham of Cornhill: I do not see much point in simply rechristening the Lords of Appeal in Ordinary and calling them a Supreme Court and otherwise carrying on exactly as they are. There are other bits of the legislation, as you will be better aware than I am, which could be commenced much sooner, like the judicial appointments thing which I think everybody would like to see commenced as soon as possible really.
Q111 Peter Bottomley: When we last had the benefit of your presence, we had a bit of what I called "the Bingham pudding test and Bingham", which were not always the same. Can I ask what your view is on some of the administrative arrangements. We have had the benefit of Professor Ian Scott talking to us and he says or he indicates, and I think I would agree that he even said, that it would be wise to write into the Bill that the Supreme Court, which was the expression he used in discussions, should be able to appoint its own chief executive rather than having one sent along from the Department for Constitutional Affairs, that it might have the authority to appoint its own registrar and that it ought to have budget independence and should not have its staff treated as though they are ordinary members of the Civil Service and subject to the ups and downs of pay. Could you tell us how you and your colleagues might respond to those issues?
Lord Bingham of Cornhill: I do not of course know exactly what Professor Scott told you this morning, but I have seen a certain amount which he has written on the subject and I have spoken to him and I think it is most unlikely that there is anything which he said which I and my colleagues would not agree with totally. He is very, very insistent, as you will have heard, on giving the thing operational independence and functional independence and we would enthusiastically endorse both of those ambitions. The Committee will be very well aware that there are probably very few people in the world who are really more knowledgeable on this subject than Professor Scott. He was, as you will know, the Director of the Institute of Judicial Administration at Birmingham which does actually specialise in this subject.
Q112 Chairman: Is it not a logical consequence of moving out of the House of Lords that the independence that the Law Lords have in their administration, because it is not part of the Executive, it is part of the House of Lords, ought in some way to be reproduced in any new system that you have of administration around you which is answerable to you?
Lord Bingham of Cornhill: Absolutely. It is one of the sort of faint anomalies in a way of the whole discussion that, as a result of our current status, we do have extraordinary independence in some respects. The Lord Chancellor, for example, has really no say in the way anything happens. He used to compose the panels, but gave that up some time ago.
Q113 Chairman: And none of this is written into the Bill at the moment, is it?
Lord Bingham of Cornhill: No, the Bill, it seems to me, is extremely spare on this whole topic and for the best of all possible reasons that I do not really think anybody knew what arrangements they intended to provide.
Q114 Peter Bottomley: Because they have not consulted Professor Scott no doubt. Every other country in the world does, but not this one. How could the Court be accountable for its expenditure if it had what we might call "corporate independence"?
Lord Bingham of Cornhill: I would envisage that there would be an accounting officer and a very detailed and careful bid would be made for money and the Treasury would plainly be scrupulous to make sure that there were no extravagant and avoidable sources of expense in the bid and then at the end of the year there would be a report and no doubt the accounting officer, like others, could be called before the Public Accounts Committee to be politely questioned about where all the money had gone.
Q115 Peter Bottomley: If, under the new arrangements, the costs are significantly higher, and we have to assume that the premises costs will certainly appear far greater and I would suspect that the support costs would be significantly higher ----
Lord Bingham of Cornhill: Yes.
Q116 Peter Bottomley: ---- how much of that should be paid for by the public purse and how much of it should be properly put as a fee to those who are applying to the Court for cases to be heard?
Lord Bingham of Cornhill: You are touching on a subject which has been, as you probably know, quite a long-running source of argument between the judges and successive governments, the philosophy of which has been that civil justice should pay for itself. The judges have actually always resisted this philosophy because they feel that providing a system of justice is something that a civilised state has to do, like providing other forms of social service, military protection and so on. That does not mean to say that litigants should not pay anything, but it does mean that if the public purse has to meet some of the expense of providing an alternative to violence or self-help, it should. Now, my opinion would be that it would be unrealistic to expect the relatively few litigants who reach the Supreme Court to pay the costs of the operation. We have to assume, and I would have no difficulty in assuming, that, as the final domestic source of law, it is providing a service for three jurisdictions. It is, we hope, laying down sensible principles which the courts in England and Wales, Scotland and Northern Ireland can apply, so it is really, I think, wrong in principle that the litigants who come to the Court should pay for all of that, which is not to say that they should not pay reasonable fees, but of course potentially the fee could be prohibitive which would just mean, attractive though it might be, that there would be no cases to try because nobody could afford it, except no doubt some criminals.
Q117 Keith Vaz: Lord Bingham, can I take you back to what you said earlier on, that you felt that the Lord Chancellor had behaved in a non-political way as these proposals have developed.
Lord Bingham of Cornhill: Well, I said in the course of making judicial appointments.
Q118 Keith Vaz: Well, let's talk about the proposals now. How did the Government handle these proposals?
Lord Bingham of Cornhill: Well, I share the view which has been voiced by others that there would have been a lot to be said for a period of quite detailed consultation before the plans were actually announced. I think many of us can understand some reasons why there was not such a period of consultation, but if you compare it, for example, with the Judicature Acts of 1873 and 1875, there was a Commission which was formed in 1867 which heard an awful lot of evidence, provided some very big books and they really chewed that subject up and they were, as we both know, very successful reforms and they have stuck.
Q119 Ross Cranston: They were going to abolish the House of Lords as a judicial body.
Lord Bingham of Cornhill: Well, they never did it for Scotland and Ireland.
Q120 Keith Vaz: So had there been this consultation, had there been a period which would have allowed both the judiciary and others to have their say, do you think that we would have made better progress with these proposals?
Lord Bingham of Cornhill: Yes, I do because I think there would have been very much less opposition to them. My own view, which I have expressed before and will express again, is that it would have been perfectly reasonable to reform the Lord Chancellor's office by removing his judicial function and his Speakership function, but there was no overwhelming case for abolishing it altogether since there is a big department there and somebody has to run it and there are advantages in having the Lord Chancellor running it. I think that a lot of the opposition has flowed from the sort of rather casual-seeming abolition of the office of Lord Chancellor.
Q121 Keith Vaz: Sure. It remains the case, does it not, that there are still a number of senior judges who are very unhappy with these proposals and would actually like a pause in the discussion so that there is further consultation? Lord Hope is not on board yet, is he?
Lord Bingham of Cornhill: No, there are some judges who would favour delay or never, never, yes, there are. On the other hand, I would simply perhaps make the point that if judicial reform had awaited the enthusiastic support of the judges, we would still be whipping people at the back of a cart!
Q122 Keith Vaz: Indeed and we would not want to be in that position! Having accepted these reforms and clearly gone along with them, as the most senior Law Lord, are you in dialogue with the Lord Chancellor? Do you have meetings with him about these proposals as they go on? Are you being kept fully informed? Are they terribly apologetic about the way things are done? Do they ring you up? Do they call you in for tea? How are you kept informed of what is going on about what is the most major change in British legal history?
Lord Bingham of Cornhill: I have known the Lord Chancellor for a very long time. He was a member of my Chambers and my relationship with him is cordial and I hope sort of mutually trustful. We exchange letters. I usually answer his very quickly and he in due course answers mine!
Q123 Keith Vaz: We all have that problem!
Lord Bingham of Cornhill: I have no inhibition about making my views known to him at all. He has got a lot of constituencies and when you say, "Does he keep you fully informed?", I do not really know.
Q124 Keith Vaz: But you have expressed to him the concerns which still exist amongst the higher judiciary about what is happening because I think there was a view that the senior judges are blowing hot and cold? Publicly they are not critical, but privately they are very critical. We had the problem with the Lord Chief Justice in that he had to go all the way to Jerusalem to make a speech about constitutional reform and the possibility of having a written Constitution and when he gave evidence to us, he was not quite so controversial. Do you have to go abroad to criticise the Government?
Lord Bingham of Cornhill: Certainly not, certainly not.
Q125 Keith Vaz: So you feel that those views which have been expressed have been made known to the Government, that the Government are clear that there is still a division amongst the higher judiciary about these proposals?
Lord Bingham of Cornhill: The Government are very well aware that some of the Law Lords favour the Supreme Court proposal and others do not.
Q126 Chairman: Have you given up on the office of Lord Chancellor entirely or do you take the view, which this Committee made some reference to when we published our Report, that there might be merit in retaining the office for at least some period of time and that ways may have to be found of avoiding the anxieties created by the fear that the judiciary's relationship with the Government will be dealt with in future by a Minister who might have further hopes of promotion, who might be relatively junior compared to Lord Chancellors of the past, might not be a lawyer and might not be so ready to express concern when the judiciary's interests are at stake as some previous Lord Chancellors have done?
Lord Bingham of Cornhill: I have not led a personal crusade on the subject of the office of Lord Chancellor. Others have and the House of Lords Select Committee is very interested in the question. I have said clearly and publicly what I think I would have done if I had been the Prime Minister last June. On the other hand, it seems to me slightly difficult, if the Government do not want to have an Officer of State, to say, "Well, you have jolly well got to". Apart from anything else, they could frustrate such a scheme by simply giving him or her very little to do, so I do not know if the office is salvageable myself, but it is not a cause which I have gone to the barricades on myself.
Q127 Chairman: Is there any other way, in your view, in which this concern about the nature of the person who does some of the things the Lord Chancellor used to do becoming simply a middle-ranking political function fully subject to all the pressures that all other Ministers are put to and rendering rather ineffective the writing into the legislation of a duty to uphold the interests of the judiciary?
Lord Bingham of Cornhill: I remember a former Lord Chancellor, forgive me if I am anecdotal in my reply, who said to me on one occasion that his life was really very difficult because all the politicians viewed him as a judge and all the judges viewed him as a politician. I am not absolutely sure that the Lord Chancellor's office could have maintained his traditional function as head of the judiciary if he were no longer a judge. To call somebody the head of the judiciary if they are not a judge is actually a nonsense, so once the decision is taken that he is not to sit as a judge anymore, which I think is the right decision for reasons that I can go into if you wish me to, I think to the extent that the office derives strength from the Lord Chancellor's role and the perception of him as a judge, it probably was destined to decay.
Q128 Chairman: Do you see any merit in the suggestion that the Attorney General's role might be increased to fill some of the gap on the basis that he is, by definition, a lawyer and is somewhat detached from day-to-day political argument and is in other jurisdictions the person who carries out that role? Is that a runner?
Lord Bingham of Cornhill: Well, up to a point, but it would seem to me that the real clout is going to rest with whoever runs what is still quite a big Department of State, which the Attorney General is never going to do. I may be wrong about this and it is a rather minor thing in one sense, but I think he has been given an enhanced role in relation to silk. I may be wrong about that, but I think he is going to have some function in sort of vetting the candidates for silk.
Q129 Chairman: Could I just draw attention to something which Professor Scott drew to our attention which is that in the context of contracting out services by courts, getting private organisations to provide some of the services for courts, there was concern as to what a judicial function was and what ought to be protected from being privatised and this was resolved by an exchange of letters between Lord Mackay and Lord Taylor which was then read into the Hansard record. As far as I am aware, this has not been brought up in the course of the proceedings so far on this Bill.
Lord Bingham of Cornhill: I think I was, so to speak, around the table at the time and this was when the Court Service Agency was established and I think that Lord Mackay gave an undertaking, and I am really dredging the recesses of my memory now, that the purpose of the Court Service was to forward the administration of justice in conjunction with, and subject to, the direction of the judges, or something of that sort. There was, as I recall, something written in broadly to that effect. Am I right about that?
Q130 Chairman: It included the assertion that case management functions are judicial functions and ought, therefore, to be protected in some way.
Lord Bingham of Cornhill: And listing functions, which are closely allied.
Q131 Chairman: Are you happy that the legislation at present will meet that along with assurances given in the past or does that need to be rewritten into the Bill or restated in some way?
Lord Bingham of Cornhill: It needs to be rewritten at a great deal more length, I think, really unless one is going to have a clear statement of principle which will govern everything.
Q132 Chairman: So there is quite a lot more to do in terms of that, for example, some of the issues which Mr Bottomley raised about the appointment of key officers of the Court which really needs to be written into the Bill before the process is over?
Lord Bingham of Cornhill: Yes, there is also, which Mr Bottomley did not quite correctly raise, but no doubt Professor Scott did, the question of how the Court gets into possession of the money. The question of accountability we touched on and the question of an annual report and that sort of thing, but I think there is a difficult issue as to how it sets about the bidding process. My impression is that the Lord Chancellor's ambition, if he could get his way with the Treasury, would be to give the Court a very great deal of authority to make the running in this field, but he feels that a Minister, such as himself, would be very much more successful at extracting money from the Treasury than someone who is the Chief Executive of the Supreme Court because he makes the point that a Minister's reputation in government and in Whitehall stands or falls by his success as an extractor of money from the Treasury and, therefore, it is very much in the Minister's interest to do well by the Supreme Court.
Q133 Chairman: It could be said that the reverse is now the case, that Ministers are judged according to how successful they are in reducing their claims upon the Treasury.
Lord Bingham of Cornhill: Well, he did not put that.
Q134 Chairman: The point I want to put to you is that the present situation is because the bill for the Court is part of the House of Lords' funding, then that budget is presented to Parliament without the intervention of a Minister as part of Parliament's budget.
Lord Bingham of Cornhill: Yes.
Q135 Chairman: So the logic would be that if you are moving out of Parliament, you should preserve that relationship with the Treasury by ensuring that the Court can bid for its funds and have that estimate put before Parliament which must ultimately decide upon it without the direct intervention of a Minister?
Lord Bingham of Cornhill: Well, I do not know, Mr Chairman, whether you saw some questions which Lord Howe was putting, I think, to the Lord Chancellor, but in the Select Committee anyway, some very interesting questions which he was putting against a background of having served both as Chancellor and as Leader of the House of Commons. He made the point that, as Chancellor, he had tried to impose some sort of corset on parliamentary expenditure and completely failed, but had then exploited that freedom when he became Leader of the House of Commons. He was rather suggesting that that particular mechanism could be used still which would in many ways be ideal if it could.
Q136 Peter Bottomley: What better option is there than for the Supreme Court to tell Parliament, "This is the money we believe we need to run the operation"? Why in any sense would it have been better for it go through a Minister?
Lord Bingham of Cornhill: Well, we obviously would prefer it did not. The answer which we would get at the moment is that it is completely unthinkable that Parliament, the House of Commons would vote any money for which a Minister was not accountable or without its going through the sort of official channel and the notion that you would say, "Could we have X please?", and there would then be a vote of X or something approaching X is just not the way it would work. That is the line and I am caricaturing it a little.
Q137 Peter Bottomley: In that case, surely for Parliament to say to the Government, "This Bill, the Act of Parliament, which is going to make the changes, should direct that the budget required by the Supreme Court shall be submitted to Parliament"?
Lord Bingham of Cornhill: Yes. Well, that would of course be very attractive indeed and I do not think personally the Lord Chancellor would actually oppose it. I think there are two points to make, first, that it is going to be, in United Kingdom terms, a unique institution, this, and, second, that although it will cost more than the existing operation, in terms of comparable expenditure, we are really talking in relatively small sums.
Q138 Ross Cranston: Just à propos this Scott model of corporate independence for the Court, I am just wondering if that is going to change the nature of the presiding officer or the President of the Court in the sense that that person, even if they did not relish administration, would at least have to be comfortable with administration or would it be, do you think, just a matter of supervising the Chief Executive?
Lord Bingham of Cornhill: I would very, very much hope that if one had, as one would assume, a competent and experienced Chief Executive and a good relationship between him and the President that the President could leave most of the running to him. I really cannot imagine him wanting to pore over the accounts every night or anything like that.
Q139 Keith Vaz: I wonder whether the new President of the Supreme Court could take on the title of Lord Chancellor and take on some of those functions so that we preserve the historic nature of the office and, therefore, recognise that whoever is going to be the President of the Supreme Court will be in effect the leader of the judiciary.
Q140 Chairman: Perhaps that is an unfair question to put to a person personally involved.
Lord Bingham of Cornhill: No, it is not an unfair question. I would actually be rather against that because I think the notion of the Lord Chancellor comes with a lot of baggage and everybody who knows anything knows that the Lord Chancellor has a political dimension and one of the things we will want to try to make as plain as can be is that the President of the Supreme Court would have no political dimension whatever, so I think there are disadvantages about that.
Q141 Keith Vaz: When you were last here, I asked you a question about diversity and the ability of the new Commission to ensure that the vision of the judiciary which was representative of society as a whole meant that we had more women, more black and Asian judges and indeed perhaps a black or Asian person sitting in the Supreme Court. Your answer to me was that you felt that any committee would be suitably qualified to make those judgments. I then put it to you that the merit principle is sometimes as a means of preventing people of calibre from being appointed. I do not know whether you have seen the very interesting paper produced by Thomas Legg on a definition of what is merit where he set out his views in a speech in Cambridge as to what is the minimum qualification and what is the maximum qualification for someone to be appointed. Have you seen that paper?
Lord Bingham of Cornhill: I read a lecture which he gave in Manchester a year or two ago and it may be that it is the same lecture.
Q142 Keith Vaz: When do you foresee someone who is of Afro-Caribbean origin or Asian origin sitting in the Supreme Court because under the present system this is going to take a very long time indeed?
Lord Bingham of Cornhill: Well, I recall being asked the question not so long ago, "When do you envisage there being the first female Lord of Appeal in Ordinary?", and I replied that I would be amazed if it did not happen within five years. I pitched it at five years because I did not want to excite anybody unduly, but in fact I think it was probably two or three years ago that I said that.
Q143 Keith Vaz: So what is your timescale?
Lord Bingham of Cornhill: It would be longer. On the other hand, I can immediately think of several people of outstanding ability belonging to minority communities who again I would be astonished not to see holding very high office when they are a bit older.
Q144 Chairman: Well, thank you very much indeed. I think we will probably meet again because this show is going to run and run and certainly this Committee hope to assist the process of getting the right answers and getting a carefully considered outcome, so we are very grateful for your help in that.
Lord Bingham of Cornhill: Well, if any of us can help you at all, let us know because we would very much like to do that.
Chairman: Thank you very much.