Examination of Witnesses (Questions 100-119)
RT HON
LORD BINGHAM
OF CORNHILL
25 MAY 2004
Q100 Ross Cranston: What about distinguished
advisers? Dr Kate Malleson 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, 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 acting in
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 representative 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 (most of us are 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 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.
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