Examination of Witnesses (Questions 20-35)
PROFESSOR I R SCOTT
25 MAY 2004
Q20 Mr Clappison: In a nutshell, you
are advocating to us the case for greater judicial independence
and autonomy?
Professor Scott: I have only talked
about budgetary matters. We are not going to get to the other
three I came to talk about: buildings, accommodation and staff.
You are right, yes.
Q21 Mr Clappison: Could I tempt you very
briefly on one other slightly naughty issue? What is your view
on accommodation?
Professor Scott: I am worried
about the Chairman being worried about time. What is happening
around the world in accommodation is that that is always something
that is inevitably the responsibility of the executive branch
of government. It is complicated nowadays because courts that
are being built tend to be built under private finance initiative
schemes or similar. There have been some astounding successes
in this. The County Court in Melbourne, in the state of Victoria,
is a PFI venture. The judge is heavily involved from start to
finish. I was involved in the early stages of this. Tensions arose
early on about the PFI initiative. It was not only going to build
the court; it was also offering to run the services for the court.
Then, in a very highly developed state, you got the problem of
where does the judge's responsibility begin and end. This was
a building built with IT provision, right from the start. On the
whole, our judges are badly accommodated at all levels and English
judges who were in Australia last year for the Commonwealth Law
Conferences looked at the County Court building in Melbourne.
They came home feeling very, very disgruntled. It was a PFI initiative.
It was not the easiest thing to do, but it has worked in its way
very well and everybody seems to be very happy. There was heavy
judicial involvement right from the very start.
Q22 Chairman: Have you looked at the
point at which the issue of financial independence starts to have
a bearing on the administration of justice? There are serious
rubbing points where someone could say, "I am not getting
justice because the court has been told to cut its budget by 1.5%."
Lord Hope talked, for example, about the pressure he did not want
to see on the supreme court, the pressure of being told, "You
have to cut by that percentage. There is no excuse; it just has
to be done." Have you looked at the points where the availability
of justice is affected? Is it possible to define those?
Q23 Professor Scott: I have not looked
at it in detail but I have seen reactions to it. The Family Court
of Australia, like all courts that have this budgetary arrangement,
know that they have to make their so many per cent efficiency
gains every year. This is across the board. This does cause problems
but it is out in the public domain. The court is able to say,
"If you expect us to cut by 5%, for example, our mediation
service, it will have the following impacts." If it does,
it is clear where the responsibility lies. That is a trial court.
We are talking about budgetary autonomy for a purely appellate
court. This is dead easy. Getting a trial court right in its budget
is a very complicated process. We are talking about the simplest
court one can imagine, almost the lowest form of life when it
comes to the development of court, purely an appellate court consisting
of a very small number of judges.
Q24 Chairman: It is also a court in which
it is assumed that all English, Welsh and Northern Ireland cases
on the civil side will be self-financing and only criminal cases
will require any subvention from public funds. Is there any parallel
to that, in your experience?
Professor Scott: No. Ultimate
courts of appeal are rather interesting. The only close one I
can think of is probably the High Court of Australia, which does have
its budgetary and administrative independence. I think the High
Court of Australia is probably the best model for you. I remember
the night we invented it. It was at an American Legal Conference
and Sir Garfield Barwick, locked in conversation with Bora Laskin
and the Chief Justice of Canada, on a restaurant napkin sketched
out what he was going to do.
Q25 Chairman: That sounds a little more
sophisticated than what happens here.
Professor Scott: It is certainly
a lot better than what we have managed to do here, which is disgraceful.
If you look at section one of the Bill, there is this rather interesting
clause 39.
Q26 Peter Bottomley: It is not paragraph
13 of your note to us, is it, on page two?
Professor Scott: I have lost my
note.
Q27 Peter Bottomley: One is coming towards
you.
Professor Scott: Perhaps the first
thing to do is to draw your attention to the Courts Act 2003,
which amends section 27 of the old Courts Act. Some years ago,
the Courts Act was amended at section two. When the Deregulation
and Contracting Out Act 1994 was enacted, that amended the Courts
Act provision about the Lord Chancellor's power to administer
the courts above the level of magistrates' courts. It made elbow
room for the Lord Chancellor to contract out court administration
matters to the private sector. It seems to me that, in the Bill
that we are now looking at, they have tried to do the same thing.
My concern would be, if the executive branch of government is
administering the new Supreme Court, we are led to believe that
it is going to be administered by officials in the department,
but there is in the Bill this power for the department to contract
out administrative functions. Somewhere in the explanatory notes,
the Lord Chancellor says, I think rather disingenuously, that
we are only talking here about things like cleaning and catering.
It does not stop at that. The point is they can contract out anything
which they regard as administrative support for the work of the
court. When the Courts Act was changed in 1994, when the Deregulation
and Contracting Out Act was passed, there was a very careful exchange
of letters between the then Lord Chief Justice, Lord Taylor, and
the then Lord Chancellor, Lord Mackay assuring the Lord Chief
Justice that the department would not contract out functions of
an administrative kind that could affect case processing, which
has always been traditionally regarded as a function which is
very much under the control of the judiciary rather than under
the control of the executive. This Bill, it seems to me, creates
the same room for manoeuvre but we have no sign of an undertaking
of the type that the Lord Chancellor, Lord Mackay, gave to Lord
Taylor in 1994. That section is designed to enable the department
to contract out. This is a very common provision, ever since the
Deregulation and Contracting Out Act was passed in 1994, but it
does raise interesting questions. The administrative tasks in
relation to the Supreme Court: to what extent can they be contracted
out. What powers does whoever is responsible for administration,
whether it is the Chief Justice, the senior Law Lord or a minister
of state, have? What is the extent of their contracting out powers
in relation to the administration of this court?
Q28 Mr Cunningham: If the court was independent,
who exactly would negotiate wages and conditions of staff?
Professor Scott: This varies,
depending on how it is organised. In most of the Australian jurisdictions,
where they have the courts running their own show now, it is still
the case that most of the staff are subject to the Public Service
Act, when it comes to pay, conditions and things like that. There
is no suggestion that the court, in appointing staff, can somehow
escape the Public Service Act. All the Acts I have seen make that
perfectly clear. When you look at court staff, they are at three
levels. You have the judges; the court officers, who are usually
statutory appointments, registrars, maybe a notary or something
like that and then you have what I might call the ordinary staff
below them. In a sensible court system, they all work to the Chief
Justice. I have just been in Australia to the farewell celebrations
for the Chief Justice of the Family Court of Australia. The enthusiasm
of the staff for the court and for the Chief Justice is absolutely
phenomenal. It is such a team effort.
Q29 Mr Cunningham: Did the Chief Justice
fix this up or was it the chief executive?
Professor Scott: The Chief Executive,
in negotiation with the appropriate executive branch of government,
I think does it. The Chief Executive is appointed by the Chief
Justice. One of the great advantages of this sort of court centred
approach is that the judicial administration becomes a discipline.
Here it is all buried. There are no training courses for judicial
administrators. It is not a professional discipline of its kind.
Judicial administration comes alive and develops as a discipline.
I can point to people all around the world who are giants in the
field of judicial administration, who work for courts. I cannot
point to any single person ever in this country who has written
an article or provided a conference paper which in any way has
moved forward our thinking about judicial administration. That
is because they are all civil servants, wonderful people doing
wonderful jobs for certain purposes, but completely the wrong
kind of people in the wrong kind of culture to administer courts.
Courts, after all, operate in public more than any other institution
we know and their administration ought to be in public too.
Q30 Chairman: In the Australian system,
is there any way in which the courts can meet particular problems
in recruiting staff in certain areas by raising salary levels,
or are they tied to some very rigid framework that runs right
across the Civil Service?
Professor Scott: One of the things
that does tend to go on is that court poach staff, one from the
other. For example, not so long ago, one court I was working for
was very keen on poaching a very good statistician from another
court. It is a bit like football managers and players. That can
be a bit debilitating and unfortunate. The courts that are most
judge centred in Australia are the federal courts and they, on
the whole, tend to have better paid officials anyway. There is
a tension between the state courts and the federal courts because
the federal courts generally are just better funded. The salaries
and conditions are laid down by trade union and public service
negotiating procedures in the usual way. I am not aware of people
joining a court because they thought they would be better paid
in a court than, say, working for some other department of government.
Q31 Chairman: Do you think judges have
or are likely to acquire the necessary management and financial
skills that are involved in the process you have described?
Professor Scott: If they are thrown
into it, they do get it up very quickly. The Chief Justice of
the Family Court in Australia very recently retired. He was a
man who had had a very predictable legal career. He had been at
the Bar; he had been a state judge and then he became a federal
judge. Fortunately, he had around him on his staff some people
who had been recruited from the Department of Justice, who knew
their way around government and who were alongside him right from
the start. He had his team of managers with him who kept him straight.
The problem does arise of whether judges can carry their brother
judges with them. One of the great problems with courts generally
is intra-court governance. How do the judiciary organise themselves
so that they can participate effectively in the administrative
process? It is a nightmare for a Chief Justice to have serious
divisions amongst his judges as to what he should do and how he
should move. You have to have a court which is capable of almost
Cabinet solidarity; to have their arguments behind closed doors
as to what they ought to be doing administratively, and then to
agree on the end result. That is not always easily achieved. A
lot of it comes down to the pure power and personality of the
Chief Justice. Sometimes, all of the power will lie in the hands
of the Chief Justice. Other times, it will lie in the hands of
an executive group of the judges. It depends how big your court
is. Again, here we are talking about a very simple court with
maybe a dozen judges. This is easy. If you have a court like the
Family Court of Australia, you are talking about 80 judges spread
over 3,000 miles in one direction and 3,000 miles in another.
The problems the Chief Justice has in getting his judges to agree
on how he should administer things are not always easy.
Q32 Chairman: We are not in this case
presumably talking about the Lord Chief Justice but about the
president of the Supreme Court, which is a different role. Do
you accept that, whatever the merits of moving other parts of
our system over towards a judge based administration, it is perfectly
possible to consider such a model specifically and exclusively
for the Supreme Court for a number of reasons? First, because
it is having to replace an administration which is not part of
the court service?
Professor Scott: Yes.
Q33 Chairman: Secondly, because it is
a United Kingdom court which ought not to be administered by the
court service of one or indeed, in this case, perhaps three of
the four parts that make up the United Kingdom, since it would
not then be properly a creature of the UK as a whole?
Professor Scott: That was a point
you almost made in your report and which, in the government's
response, they absolutely ignored, it seems to me. They have just
brazened it out by saying, "We do not agree" without
any reasoned answer to that. I would agree with you, yes. You
have to understand that I have made what academic reputation I
have over the years in judicial administration by pushing this
line. I am far from a lone voice but this is what I have done.
Peter Bottomley: Is there anything Professor
Scott intended to say that he wants to say?
Q34 Chairman: In seeking to compress
your argument and indeed give ourselves time to ask questions,
have we missed something crucial that you would like to mention
to us?
Professor Scott: I know the minute
I get outside the door I will think of six things that I should
have said. I will go home and my wife will say, "What kind
of a day have you had?" and I will say, "Miserable".
That is always the way but I am in touch with your staff and I
have the opportunity to say other things to them. We have said
something about accommodation. I made the point about my worry
about the Deregulation and Contracting Out Act.
Q35 Chairman: By all means get in touch
with us.
Professor Scott: Your staff have
a difficulty because not a lot of the things I am talking about
are easily found. Unfortunately, most of the writing on the subject
focuses on the judicial independent separation of powers and constitutional
reasons for doing this, rather than what I have tried to focus
on, which is the organisation, management and good government
ideas. You can get this right at the start. If you do not get
it right at the start, you will have years and years of debilitating,
frustrating aggravation between the judiciary and the executive,
with civil servants wasting an awful lot of their time and energy
in dealing with it, with Members of Parliament and ministers worrying
about it. Why not get these things right at the outset as there
will be enough to worry about anyway in the relationship between
the courts in years to come? Why worry about these things when
they can be solved at the outset?
Chairman: Thank you very much indeed,
Professor Scott. We are very grateful to you. You have enabled
us to look in much more detail at areas which have not had sufficient
consideration so far. The Committee is adjourned until 3.15 in
the Wilson Room in this building.
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