Examination of Witnesses (Questions 1-19)
PROFESSOR I R SCOTT
25 MAY 2004
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.[1]
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—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 extreme judiciary based models. In some of the Australian
courts, they have extreme judiciary based models. 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. I have dug a few out. 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 affect 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 defenders, as you turn those into
less private, less independent things, they are worrying, particularly
if you start recruiting your judges from there.
Ross Cranston: 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.
Ross Cranston: 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 Ross Cranston: 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. 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 but 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.
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