Memorandum by Hector MacQueen[83]
1. I have already submitted a response to
the 2003 Consultation Paper from the Department of Constitutional
Affairs, and have given written and oral evidence to the Justice
2 Committee of the Scottish Parliament on 16 March 2004. In general
in this evidence I do not seek to repeat at length what I have
already said, but wish rather to highlight briefly some additional
points. However, I will say that it remains my view that the Scottish
dimension of the proposed Supreme Court has been inadequately
considered thus far, and the extremely general provisions of the
Bill do little to clarify the position, even in terms of the assurances
which Lord Falconer has given publicly on the matter. Just to
take a couple of minor points in illustration: why does the statutory
guarantee of judicial independence apply only to England and Wales?
Why is the provision that the court is to be a "superior
court of record" not confined to England and Wales, where
alone this expression has meaning? Scots law and the Scottish
legal system are distinct within the United Kingdom, and if the
present appeal to the House of Lords is to be transferred to the
Supreme Court, it needs to be clear that the latter will be sitting
as a Scottish court applying Scots law. It would also follow from
that that panels considering cases from the Scottish legal system
should have a majority of judges qualified in Scots law.
2. I also questioned in my previous submissions
whether, in the light of the very small number of Scottish appeals
to the House of Lords over the last 40 years, and the even smaller
number of them that succeed in reversing the court below, the
appeal should be discontinued. In an appendix I provide an up-to-date
set of figures on this, for the information of the committee.
I accept, however, that devolution issues raise different questions,
and I am inclined to think that there is a strong case for a UK
Constitutional Court, alongside whatever may be the civil and
criminal appeal arrangements for each of the UK's legal systems.
There are good parallels for this in, for example, Germany and
France in Europe, and elsewhere in South Africa.
3. The main additional issue to which I
wish to draw the attention of the committee is appointments,
funding and separation of powers. Given that the latter is
the main driving force behind the present reform, it is important
to take account of all its implications. In many countries keeping
the courts apart from the executive is seen as much more important
than distinguishing them from the legislature. The Constitutional
Reform Bill clauses 19-22 and 38 ff, however, provide for control
of appointments to the Court, and of the Court's budget, finances
and staffing by the Secretary of State for Constitutional Affairs.
It must be at least doubtful whether this is satisfactory from
the perspective of separation of powers.
4. Thus in the United States of America
(and here I paraphrase official US sources), Congress has three
basic responsibilities under the Constitution that determine how
the federal courts will operate. First, it authorizes the creation
of all federal courts below the Supreme Court, defines the jurisdiction
of the courts, and decides how many judges there should be for
each court. Second, through the confirmation process, the Senate
determines which of the President's judicial nominees ultimately
become federal judges. Third, Congress approves the federal courts'
budget and appropriates money for the judiciary to operate. Three
of the essential characteristics of federal judicial administration
are that:
(1) The federal judiciary is a separate,
independent branch of the government that has been given statutory
authority to manage its own affairs, hire and pay its own staff,
and maintain its own separate budget.
(2) The management of the federal judiciary
is largely decentralized. The Judicial Conference of the United
States (see further below) establishes national policies and approves
the budget for the judiciary, but each court has substantial local
autonomy.
(3) Judges are in charge of the judiciary
at all levels and establish the policies for management of the
courts. Court administrators are hired by the judges and report
to the judges.
5. The Judicial Conference of the United
States, established by statute in 1922, is the federal courts'
national policy-making body, speaking for the judicial branch
as a whole. The Chief Justice of the United States presides over
the Conference, which consists of 26 other judges. The main responsibilities
of the Judicial Conference are:
— approving the judiciary's annual
budget request (which is prepared by the Administrative Office
and the Judicial Conference's Budget Committee);
— proposing, reviewing, and commenting
on legislation that may affect the work load and procedures of
the courts;
— implementing legislation by promulgating
national regulations, guidelines, and policies;
— supervising and directing the Administrative
Office in such matters as human resources, accounting and finance,
automation and technology, statistics, and administrative support
services;
— drafting and amending the general
rules of practice and procedure for litigation in the federal
courts, subject to the formal approval of the Supreme Court and
Congress.
6. In recognition of the constitutional
separation of powers among the three branches of the federal government,
Congress has given the judiciary authority to prepare and execute
its own budget. The Administrative Office of the Judicial Conference
prepares a proposed budget for the judiciary for each fiscal year.
The proposed budget is based in large part on workload staffing
and resources formulas developed by the Administrative Office
in consultation with the courts. Using these formulas, a budget
proposal is developed that incorporates specific allocations for
support staff and administrative services for each court. By law,
the President must include in his budget to Congress the judiciary's
budget proposal without change. The appropriation committees of
the Congress conduct hearings on the judiciary's proposed budget
at which judges and the Director of the Administrative Office
present and justify the judiciary's projected expenditures. After
Congress enacts a budget for the judiciary, the Judicial Conference
Executive Committee approves plans to spend the money, and the
Administrative Office distributes funds directly to each court,
operating unit, and program in the judiciary. The Administrative
Office's Director has delegated to the individual courts many
statutory administrative authorities. For this reason, individual
courts have considerable authority and flexibility to conduct
their work, establish budget priorities, make sound business decisions,
hire staff, and make purchases, consistent with policies and spending
limits. The judiciary's budget includes salaries for judges and
court personnel, which typically account for over 60 per cent
of the total budget.
7. In Germany, the judges of the German
Federal Constitutional Court (16 all told) are elected by the
Federal legislative bodies (half each by the Bundestag and the
Bundesrat, and each requiring a two-thirds majority). The court
is not subject to supervision by any Ministry. The President of
the court heads its administration, and fundamental organisational
decisions are taken by the judges as a plenary group. These include
preliminary estimates for their annual budget (in 2002, 16 million
Euros). There is of course a supporting staff appointed by the
court.
8. In evidence to the Justice 2 Committee
of the Scottish Parliament on 16 March 2004 the Dean of the Faculty
of Advocates also referred to the independence of the executive
enjoyed by the High Court of Australia; and no doubt many other
examples could be given. In South Africa, I note, there is an
independent judicial appointments commission which appears to
have the final say, and which conducts its interviews in public,
while managing to avoid the less attractive politicisation which
occurs with Supreme Court appointments in the USA.
9. The implications of this material are
that if the UK executive, in the shape of the Secretary of State
for Constitutional Affairs and the Prime Minister, take too much
control of judicial appointments and court funding, then those
from other traditions may well see an infringement of the separation
of powers principle much more serious than that involved in having
a final appellate court sitting in the upper legislative chamber.
20 April 2004
83 Professor of Private Law and Director, AHRB Research
Centre on Intellectual Property and Technology Law, University
of Edinburgh; member: DTI Intellectual Property Advisory Committee;
Cabinet Office Advisory Panel on Crown Copyright; Co-ordinating
Committee, Study Group towards a European Civil Code. Back
|
