Letter from Professor Ian Scott
My basic point is a simple one. The Supreme Court
is an organisation made up of judges. The Court will be the judges
and the judges will be the Court.
The Court has no separate organisational identity
apart from the judges. It is a corporate body (just in the same
way as the House of Commons is a corporate body made up of MPs).
The Supreme Court will not be some kind of tribunal
(albeit a rather superior one) falling under the overall responsibility
of a department of executive government (eg employment tribunals).
Therefore it should not be administered by a government department.
As an organisation Court should "run itself".
All of the functions of an administrative kind that will have
to be discharged in order to ensure that the Court runs itself
efficiently and effectively are the responsibility of the judges.
But of course they will need help in order to ensure this (just
in the same way that members of the House of Commons have staff
to help them). Therefore the judges (as a corporate body) will
need to be able to recruit non-judicial staff to carry out necessary
administrative functions. But that staff will be the Court's staff
and not civil servants working within a Government department.
The Court will have to be organised so that it, that
is to say the judges, with the assistance of the necessary Court
staff, can negotiate with the Treasury over matters of funding.
There is no need for a Government Department (in the form of the
DCA) to get in the way between the Court and its staff and the
Court and the Treasury. Indeed, such an arrangement will lead
to confusion.
At the moment the independence of the judicial committee
of the House of Lords (both legally and administratively) is secured
by the separation between the House of Commons and the House of
Lords. Historically speaking, the House of Lords looked after
Law (Lord Chancellor) and the House of Commons (Chancellor of
the Exchequeur) looked after Money.
The House of Lords "looked after Law" in
two ways: first by being a brake on legislation passed by the
House of Commons, and secondly by being the ultimate interpreter
of the law by being the home of the highest court in the land
(the Law Lords).
To say that in the past we have had no separation
of powers misses the point. In the past the separation that mattered
was between the House of Lords and the House of Commons. Now that
that separation is breaking down, steps have to be taken to ensure
that the Law Lords in their new guise as judges of the Supreme
Court have as much independence from the House of Commons and
the Executive as they have enjoyed in the past. One of the important
ways in which this can be done is by making it clear that the
new Court is administratively independent.
In a democratic society, the courts (particularly
the highest court in the land) must be and must be seen to be
as quite separate from the popularly elected legislature. The
House of Lords was a safe haven for the ultimate court in the
land so long as it had the capacity to "look after Law".
Now that capacity is going so a new safe haven has to be constructed.
The process of reforming the House of Lords is incomplete. It
will be sometime before we know to what extent it will or will
not be a popularly elected part of the legislature.
April 2004
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