Examination of Witnesses (Questions 120-139)
RT HON
LORD BINGHAM
OF CORNHILL
25 MAY 2004
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
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 a" 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.
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