Examination of Witnesses (Questions 145-159)
RT HON
LORD FALCONER
OF THOROTON
QC AND SIR
HAYDEN PHILLIPS
GCB
8 JUNE 2004
Chairman: Welcome, Lord Chancellor, welcome
Sir Hayden. We are pleased to have you with us again. We will
just go through our usual routine declaring interests.
Ross Cranston: I am a barrister and Recorder.
Mr Clappison: I am a non-practising member
of the Bar.
Q145 Chairman: Thank you very much. I
think you might have an opening statement?
Lord Falconer of Thoroton: A very
short one, if that is okay.
Q146 Chairman: That is very helpful.
Lord Falconer of Thoroton: The
Government believes that it is now time for the establishment
of a Supreme Court for the United Kingdom. The creation of a Supreme
Court is a key element of our Constitutional Reform Bill, which,
as you know, is currently being considered by a Select Committee
in another place. We agree with Lord Bingham of Cornhill, who
has said that he regards "the establishment of a suitably
accommodated, adequately resourced, appropriately staffed, Supreme
Court, visibly separate functionally, institutionally and geographically
from either House of the Legislature, as an all but imperative
feature of a modern democratic State." He went on to say
that he had yet to hear any principled argument to the contrary.
The Government respectfully agrees. The Law Lords are judges and
not legislators: the separation between those two roles should
be made explicit. It is time, as Lord Bingham has argued in his
evidence to this Select Committee, for our institutional arrangements
to reflect the reality of the constitutional position. The quality
of the current Law Lords is undisputed. I pay tribute here to
the work that they do. The Government believes strongly that our
highest court should be one to which the world can look as a beacon
of excellence. But we believe that if our highest court is to
be an example to all, it must also be demonstrably independent
of the Legislature—it must be, in Lord Steyn's phrase, "a
badge of independence and neutrality and a potent symbol of the
allegiance of our country to the rule of law". We believe
that the establishment of a Supreme Court will provide clarity
in our constitutional arrangements and give people confidence
that the institutional arrangements for our highest court are
robust and will endure. The facilities available to and provided
by the court are of genuine importance. As we all know, the accommodation
for the Law Lords within this building leaves a lot to be desired.
We see scope for real improvements in the provision of information
technology; of additional research assistants; and of additional
secretarial support. We are committed to providing a world class
law library; and, very importantly, we will ensure that the public—including
visitors from overseas—have the opportunity they deserve
to see the Supreme Court of the United Kingdom at work. Since
I last appeared before the Select Committee in January, we have
made considerable progress on the evaluation of potential buildings
for the Supreme Court. The potential options identified through
a comprehensive search of possible sites in central London have
been analysed against a number of criteria, including functional
suitability, deliverability, prestige and location, and value
for money and affordability. Following this detailed evaluation
exercise, two building options remain under active consideration.
These are Middlesex Guildhall and the new wing of Somerset House.
We will continue to investigate the relative qualitative and financial
merits of these two options in consultation with the Law Lords
before reaching a final decision. We are also responding to concerns
raised on a number of issues, including both the system of appointments
and the way the integrity of the Scottish legal system can be
preserved, and we are considering how the management and the financial
framework for the court can sustain both the vital principle of
judicial independence and at the same time ensure accountability
of ministers to Parliament. The Government's proposals have been
put forward following an extensive consultation during the summer
and autumn of 2003, and following a series of detailed discussions
with the senior judiciary. They will bring greater clarity and
transparency to our constitutional arrangements, but I very much
welcome the opportunity for further consideration of the proposals
and for the opportunity to look for improvements to those proposals.
Thank you very much.
Q147 Chairman: Thank you very much. We
will turn to the accommodation issues quite shortly, but since
you started your statement by referring to the importance of doubting
the independence of the court from the Legislature, but I take
it you would also intend from the Executive—
Lord Falconer of Thoroton: Yes.
Q148 Chairman: —it might be appropriate
for us to start with an issue which the Committee itself raised,
namely whether the management arrangements of the court reflect
that kind of independence. If I could simply quote one of the
Committee's own recommendations. We referred to the dangers of
giving the Government control over the administration of the court
because it might offend against the principle of judicial independence,
and your reply, the formal reply of the Department, referred to
"the chief executive being accountable to the Secretary of
State for the financial management of the Court". I think
that phrase would seem rather chilling to some of those in the
judiciary who were concerned about judicial independence. Has
your thinking moved on since then?
Lord Falconer of Thoroton: Yes,
it has. I think this is a very, very important issue and the discussions
we have had with the Select Committee in the Lords, the discussions
we have had with the Law Lords and the paper, the document this
Committee have produced, have all thrown considerable light in
relation to it. I think there are three matters that are vital:
first of all that the chief executive of the court report to the
Law Lords, to the Supreme Court Justices, not to a particular
minister; secondly, that the money that is obtained is obtained
direct from Treasury to the Supreme Court; and, thirdly, once
the money is obtained, it is entirely a matter for the Supreme
Court executive to determine how it is spent in relation to it.
Those seem to me, in the light of mature consideration, to be
the three conditions that need to be fulfilled. There is one other
thing that needs to be dealt with, which is that there needs to
be some arrangement for ministerial accountability in relation
to what the Supreme Court does. How does the requirement for ministerial
accountability match with those three requirements that I have
just gone through? Which is different, I agree, from what I said
to the Committee in the quote that you gave: because implicit
in the quote that I gave was the idea that the chief executive
could be told by the Minister, "Do not spend any more money
on law books, spend it on something else", and that is plainly
not what anybody envisages. We are in constructive, and I genuinely
mean constructive, discussions with the Treasury as to how one
gets to those, as it were, three plus four, three plus one requirements
in relation to how you manage a situation, how you get to a situation
where the Supreme Court is genuinely independent in its management
arrangements. The difficult bit to align in all of that is how
you get ministerial accountability.
Q149 Chairman: You refer to your discussions
with the Treasury. Lord Bingham, when he was speaking to the Lord's
Committee, had some rather colourful commentary on this. He said,
"I had a valuable discussion with Lord Falconer on the subject.
It was not daggers drawn or anything; indeed, I think both his
heart and his ambition are in very much the same place as ours.
He has got a difficult colleague department in the Treasury which
does not automatically say yes to every request put to it even
by such a minister as the Secretary of State for Constitutional
Affairs"?
Lord Falconer of Thoroton: With
the exception of not agreeing with the word "difficult",
I entirely agree with what Lord Bingham says. I genuinely think
myself and the Treasury are extremely aware of the need for there
to be proper operational independence. The critical arrangement
that needs to be made is that they get their money direct from
the Treasury; once that money is obtained they are—I am
about to use the words "completely free", but completely
free, subject to appropriate audit, as to how they spend it.
Q150 Peter Bottomley: Thank you for the
introduction. For the sake of the record, not to play party politics,
I am right in saying there was no consultation and no discussion
with the senior judiciary before it was decided to move the judicial
function away from the House of Lords?
Lord Falconer of Thoroton: Correct.
There was no—. The announcement was made on 12 June. I do
not know if you recall, but you have gone through this with me
before and I stand by my acceptance of the position.
Q151 Peter Bottomley: I just thought
the balance...
Lord Falconer of Thoroton: No,
no.
Q152 Peter Bottomley: I am also right
in thinking, am I not, that Lord Bingham says that all the present
arrangements passed the Bingham test of approval, the proof of
the pudding being in the eating if it did not pass Bingham, but
Bingham and Steyn are not the only members of the Judicial Committee
of the House of Lords to have views on whether it is right to
change the existing arrangements?
Lord Falconer of Thoroton: Correct;
and in the Select Committee in the Lords—I do not know if
you have had a chance to read it—the two points of view
were put by Lord Nicholls on the one hand and Lord Bingham on
the other, and if one reads the evidence one can, as it were,
form one's own view as to which strand of evidence one finds most
persuasive.
Q153 Peter Bottomley: Moving on to the
highest court being responsible for its own budget, I put in passing
but I suspect that if they had held their budget they would not
have come forward with a more costly proposal, are their any highest
courts around the world which can set their own budgets or do
they all have to go through a minister?
Lord Falconer of Thoroton: The
Supreme Court of the United States of America, I think, makes
arrangements whereby it, through a judge's council, determines
what the budget should be; it is then put to congress who are,
I think, obliged to approve it; but there is no executive intervention
of any sort between the United States of America's Supreme Court
and the Congress who determine it because the Congress vote supply,
the House of Representatives vote supply.
Sir Hayden Phillips: I was going
to say, it does go via the President, but he is constitutionally
not allowed to touch the bid. I think on one occasion in 1990
Congress did adjust the budget downwards, but that was adjusted
in relation to all federal budgets, so they were not being victimised
particularly.
Q154 Peter Bottomley: Are we to take
it from the Lord Chancellor's opening remarks that we are going
to move to a system like that, or are we going to have negotiations
between this highest court and your department before its budget
is settled?
Lord Falconer of Thoroton: What
bits of... What is being discussed in Government is how you get
to the point that I have got to but also have a minister involved
somewhere in the story. The difficulty is you do not want a situation
where minister number one, say the Department for Constitutional
Affairs, seeks to reduce the amount of the budget and then minister
number two, the Chancellor, seeks to reduce the budget. How does
one get to a position where they make their bid? It passes through
some department but in effect is then dealt with by the Treasury,
and then, instead of coming to the department, goes straight to
the Supreme Court. So I cannot say to you that the minister will
not be involved because I think there are issues about accountability,
but I want to get to a position, as does everybody in Government,
where the money comes direct from the Treasury to the Supreme
Court and it cannot be touched and it cannot be determined how
it is spent by any minister.
Q155 Peter Bottomley: That is the second
half.
Lord Falconer of Thoroton: Yes.
Q156 Peter Bottomley: But the first half,
would I be right in saying that the discussions were not concluded?
Lord Falconer of Thoroton: Correct.
Q157 Chairman: Do you not have to set
it against the background that the present situation is that the
budget for the Law Lords is not touched by a minister because
it is part of the budget that is presented to Parliament?
Lord Falconer of Thoroton: Correct.
That is because there is the situation where it is treated as
part of the Parliamentary budget of the Lords. Not in the Government,
but outside, it has been suggested: why do you not continue with
an arrangement whereby the Supreme Court's budget is treated as
part of the Lord's supply, but I think the answer to that is two-fold.
First of all, one of the purposes of the change is to separate
the Supreme Court from Parliament. The idea that it will be part
of a Parliamentary budget seems to me entirely at odds with the
principle that we are seeking to establish in part by the establishment
of a Supreme Court and, secondly, it would mean that all the staff
of the Supreme Court would be employed by Parliament and not by
the Supreme Court.
Q158 Chairman: But if the Minister has
an involvement, which he does not have now—
Lord Falconer of Thoroton: Correct.
Q159 Chairman: —in seeking from
the Treasury the budget for the court, then the court is less
independent than it is now?
Lord Falconer of Thoroton: I do
not think that would be right in practice, because if the position
were—
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