Evidence of Professor I R Scott, Institute
of Judicial Administration, School of Law, University of Birmingham
given to the House of Commons Constitutional Affairs Committee
A. INTRODUCTION
1. I understand that members of the Committee
have available to them the paper (dated 8 September 2003) that
I submitted to the Department for Constitutional Affairs in response
to the consultation paper circulated by the Department in July
2003, entitled Constitutional reform: a Supreme Court for the
United Kingdom (CP11/03). My paper was short and was confined
to the proposals put forward in paragraphs 63 et seq of
the consultation paper under the heading "Administration,
funding and support".
2. My submission was that those proposals, which
envisage that the administration of the Supreme Court should be
the responsibility of the Department for Constitutional Affairs,
were wholly inadequate. I suggested that it was important to ensure
(what I called) the "corporate independence" of the
proposed new Supreme Court. I was particularly critical of the
fact that the consultation paper made no attempt to canvass alternative
arrangements that might be made for administration, funding and
support to achieve that objective. In my submission I concentrated
on a small number of, what could be called, "constitutional"
justifications for corporate independence and only hinted at,
what could be called, practical "organisation and management"
justifications. In this paper I try to focus on the latter justifications.
(In the response to the Consultation Paper prepared by the Lords
of Appeal in Ordinary their Lordships said that they agreed with
what I had said in my paper as to corporate independence; see
The Law Lords response to the Government's consultation paper
on Constitutional reform: a Supreme Court for the United Kingdom,
paragraph 4. It may be noted that the Law Lords say that the new
court could not be appropriately administered by the Court Service,
but it is administration by the Department that is proposed, not
by the Court Service.)
3. In legal systems in countries with a system
of government similar to that in the United Kingdom (ie a system
of "responsible government", often known elsewhere as
the "Westminster system"), the arrangements for the
administration of courts vary. The various court administration
schemes can be classified according to the way in which they strike
a balance between the responsibilities and powers of the courts,
on the one hand, and of departments of central government, on
the other. In theory, at one extreme, the scheme may be "executive-based"
and at the other "judiciary-based". In practice, most
schemes fall somewhere between the two. There is a substantial
literature on the subject, and it includes a number of reports
containing wide-ranging surveys of court administration systems
in various North American and Australasian jurisdictions. Professor
Martin L Friedland's report for the Canadian Judicial Council,
published in 1995, would give any one coming to the subject for
the first time a flying start (Friedland, A Place Apart: Judicial
Accountability in Canada (CJC, 1995).
B. JUDICIAL INDEPENDENCE
AND GOVERNMENTAL
ACCOUNTABILITY
4. In 1981, Canadian authors wrote (Millar and
Baar, Judicial Administration in Canada (1981) p 53)
"The major constitutional issue in court
administration is . . . the role and authority of the judges themselves.
Does it follow from the principle of judicial independence that
judges must have authority over administrative matters incidental
to the proper administration of justice? Or do the principles
of parliamentary government require that administrative matters
be the domain of a minister of the Crown who is answerable to
the legislature? Indeed, are the principles of parliamentary government
and independence of the judiciary compatible with one another?"
5. In 1986, I ventured to write (I R Scott, "The
Future of Judicial Administration", AIJA Seminar on Constitutional
and Administrative Responsibilities for the Administration of
Justice (1986) Chapter 7):
"It is my view that there is nothing in
the doctrine of separation of powers or the principle of judicial
independence that gives a convincing answer to the question `Who
runs the courts?' I think this is partly because those constitutional
principles are indeterminate in their practical effects."
I am immodest enough to say that that view has become
the conventional wisdom amongst those who have conducted research
into court administration in the years since. The question has
become: in the interests of good government, how best may court
administration arrangements be structured? In this context, "good
government" means designing practical arrangements that ensure
the rule of law, sustain the separation of powers and protect
the independence of the judiciary. This, in turn, means giving
the courts as institutions as much control over their own affairs
as possible, whilst ensuring accountability for the expenditure
of funds that must be appropriated by Parliament.
6. In England and Wales, the arrangements for
court administration were settled in 1971 by the implementation
of the recommendations of the Beeching Commission. By the Courts
Act 1971, administrative responsibility for the courts above the
level of magistrates' courts (not, of course, including the House
of Lords in its judicial capacity) was placed in the hands of
the Lord Chancellor. The English arrangements are an extreme example
of an executive-based system and the proposals for the administration
of the new Supreme Court follow that model. It is not a model
that has commended itself to any other legal system operating
within a Westminster style of government. It has been generally
assumed that English arrangements have only been possible because
of the special constitutional position of the Lord Chancellor,
at once both head of the judiciary and a minister. (It should
be remembered that, by statute, the Lord Chancellor is a judge
of the High Court and an ex officio judge of the Court of Appeal.)
In 1968, Sir George Coldstream (who was permanent secretary in
the Lord Chancellor's Department and a member of the Beeching
Commission) fended off the suggestion that the English courts
might be administered along similar lines to American federal
courts by saying that in America "the judiciary is regarded
as a separate constitutional entity to an extent not recognised,
consciously at any rate, over here, where we are content to let
the hybrid institution of the Lord Chancellor act as a catalyst
between the constitutionally competing functions of the legislature,
the judiciary and the executive".
C.THE REVOLUTION
IN PUBLIC
SECTOR GOVERNANCE
7. In modern times, the debate about how best
to administer courts has been significantly affected by the revolution
in public sector governance that has occurred, both in the United
Kingdom and elsewhere, during the past decade.
8. As Professor Philip Williams and his colleagues
have explained (Alford, Gustavson and Williams, "Court governance:
Can justice be measured?" paper prepared for AIJA Annual
Conference, Fremantle, Western Australia, 21 September 2003):
"This revolution has consisted of two principal
elements. The first has been the move to split service-delivery
from policy, by separating agencies into a policy/purchasing function
on the one hand, and service-provision functions on the other,
with contract-like relations between them. This restructuring
has gone hand-in-hand with a second type of change: a recasting
of the budgetary framework. Most governments have adopted a form
of either program budgeting or output budgeting in which parliamentary
appropriations are allocated not by line-item functions, such
as salaries or accommodation, but rather by groups of results
sought or produced. . . . Although these changes have given line
departments more autonomy in how they do their work, they have
tightened Treasury control over the results they must deliver.
This tightening of Treasury control over the objectives of government
agencies (including courts) is at the heart of much of the current
conflict between the courts and the executive."
D.COURT ADMINISTRATION
IN THE
U.K.
9. One can see the impact of this revolution
in the way in which all government departments in the U.K. are
required to define and measure their work through a series of
objectives and targets. It is worthwhile pausing to get some flavour
of how this works.
10. By "Strategic Objectives" a department's
long-term aspirations and the general scope of its work are defined.
Among the SOs for the Lord Chancellor's Department is the following
(SO6): "Deliver justice in partnership with the independent
judiciary".
11. Public Service Agreements contain descriptive
and measurable targets that support SOs. PSAs are published periodically
to define a department's major programmes and objectives for the
period of one spending review. Among LCD PSAs is the following,
to take just one at random (PSA6b): "Secure year-on-year
increases of at least 5 per cent in the number of international
legal disputes resolved in the UK" (this PSA seems to be
unknown to those lawyers and judges anxious to see a new Commercial
Court built).
12. Service Delivery Agreements contain targets
that support PSA targets. They break down in more detail the specific
milestones that a department is seeking to reach, and can be measured
against a deadline target. SDA targets cover the ways in which
the department delivers its services, such as providing value
for money.
13. In 1995 the Court Service was launched as
a "next steps" agency of the LCD with its own Framework
Document and Corporate and Business Plans. In the documentation
produced at that time (in so far as it was made public) some feeble
attempts were made to acknowledge that judges have some role to
play in court administration. The Chief Executive was exhorted
to work closely with the senior judiciary. However, the change
of status of the Court Service did nothing to alter the fact that
court administration in England remained firmly executive-based.
14. The Court Service has its own PSA and SDA
targets. Among the Service's SDAs is the following (SDA49): "Increasing
the VFM of civil law business by increasing the percentage of
Court Service civil business dealt with in target time and reducing
in real terms the unit cost of an item of originating process
in civil courts by an average of 3 per cent per annum." The
Service labours under many other equally prescriptive SDAs (many
apparently designed to drive down costs year on year).
15. Now, what strikes one as one reads through
all of the documentation relating to the target setting in relation
to the administration of justice through the courts that has accompanied
the revolution that has occurred in the structure of public sector
governance is the sheer banality and futility of it all.
16. Objectives and targets are apparently quite
randomly selected. They are disjointed. They mix high-level, unmeasurable
goals and highly specific targets together as if they are all
of a seam. From time to time particular targets are abandoned
or significantly revised without explanation. Quite often, in
terms, they are almost meaningless. Where they are highly prescriptive
they often seem to be directed at administrative problems that
are quite puny when put in perspective. They wander back and forth
across the boundary between case management (as understood by
judges and lawyers) and what might be called "pure"
court administration. Generally, they fail to address core judicial
and court administration functions in any structured, connected
way. Many of the targets and objectives cannot possibly be achieved
by court administrators under their own steam because, as a practical
matter, their accomplishment is almost entirely dependent upon
the way in which judges go about their work (in other words, the
administrators' responsibilities far exceed their authority).
To my mind, the lack of rigour in relating targets to what courts
actually do is astonishing. If one draws all this to the attention
of individual judges they are amazed, and not a little concerned.
17. In England (and probably too in the other
constituent parts of the U.K.) we have completely lost sight of
the fact that courts are organisations consisting of judges exercising
the judicial power and that, as organisations, they require administrative
support. The LCD and the Court Service have become the central
organisational focus and judges have become marginalised. The
LCD and the Court Service, having lost sight of the distinction
between judges and courts, have no idea who their "customers"
are. Structures that have been put in place to smooth relations
between judges and administrators have not worked. Judges serving
as presiding judges and in other capacities that bring them into
working contact with court administrators are often frustrated
in their attempts to improve the working of the courts. The civil
servants, finding it impossible to serve two masters, have opted
to serve their departmental heads. The senior civil servants have
one principal objective in mind, that is, to keep their Ministers
out of trouble. Put shortly, the executive-based court administration
system is fatally flawed. The tensions inherent in it must be
resolved. Unfortunately, the prospects of any fundamental changes
being made are bleak. No political party with any hope of forming
a government in the foreseeable future is likely to put court
administration reform in its manifesto. The slogan "home
rule for the courts" (attributed to Lord Hewart LCJ) does
not have legs.
18. However, the setting up of a new Supreme
Court presents an opportunity to make a modest beginning, bearing
in mind that the best administrative arrangements for a small,
final court of appeal might well be quite different (insofar as
the respective responsibilities of judiciary and executive might
be apportioned) than the best arrangements for a network of regional
trial courts (towards which the 1969 Beeching recommendations
were directed). If, in the event, the proposals for the administration,
funding and support of new Supreme Court as set out in the consultation
paper are implemented, presumably the Department of Constitutional
Affairs will have to indulge in the fantasy world of dreaming
up some SOs, PSAs and SDAs. What on earth will they say? Will
the judges of the new Court be consulted about them? Will they
have a veto? Will the SDAs include targets designed to drive down
the costs of particular aspects of the Court's activities (and
will the judges know that)?
19. Lord Mackay LC, who presided over the LCD
during the onset of the revolution in public sector governance
referred to above, was an ardent defender of the Beeching system.
His Lordship conceded that, in order to preserve their independence
"the judges must have some control over the administrative
penumbra immediately surrounding the judicial process" ("The
Lord Chancellor in the 1990s" (1991) 44 Current Legal Problems
241), but he considered that "any move to making the professional
judiciary who are tenured responsible for administration of the
courts and for the administration of the Vote for the courts,
to the House of Commons, would be an extremely retrograde and
confusing step". In his Lordship's view, the support of the
courts in these matters is "the duty and the responsibility
of the executive and should be clearly seen to remain so"
("The Administration of Justice: The Courts" Hamlyn
Lecture 1993). The key words here are "duty" and "responsibility".
Sadly, many members of the judiciary believe that there is no
way in which that duty to support the courts can be enforced.
The legitimacy of the Beeching system hung on the slender thread
of the peculiar constitutional position of the Lord Chancellor.
(It was not unimportant that the Lord Chancellor dwelt in the
House of Lords, that part of the legislature to a degree shielded
from government pressures, and that the Chancellor of the Exchequer
dwelt in the House of Commons.) That thread has now been cut.
Judicial confidence and trust were already ebbing away; it has
now gone. The precipitate way in which the office was dismantled
has raised the question: "what will they do next?".
If they can do it once they can do it again. It is time to construct
the administrative arrangements for the courts on firmer foundations
and to make a decisive shift away from the extreme executive-based
system that is presently in place. To a significant extent, the
case for the corporate independence of the new Court is bolstered
by the feeling that the Beeching arrangements have failed. (It
is perhaps significant that some of the Law Lords attracted to
the idea of corporate independence previously served in superior
courts administered under the Beeching executive-based system.)
E.OTHER COURT
ADMINISTRATION MODELS
20. There are other court administration models
to hand. These models, devised in jurisdictions governed under
the Westminster system, recognise that courts are corporations
and seek to engage the courts in running their own affairs, whilst
protecting the public purse. It is important to note at the outset
that they do not eradicate entirely the potential for friction
between government and courts; that would be impossible and perhaps
not desirable. Judges with administrative responsibilities in
courts administered under systems that are more judiciary-based
than executive-based still face the reality of having to husband
resources and of having to accept that they live in a world where
they have to do more with less. (Justice, like health and education,
is rationed.) But judiciary-based systems do go a long way towards
strengthening the courts as a branch of government separate from
the executive and the legislature (and they have other advantages).
21. It is important to note that superior courts
are organisations that consist of judges. The court is the judges
and the judges are the court. The court is a collegiate organisation
responsible for the discharge of the judicial power (a prerogative
power).
22. The new UK Supreme Court will be a small,
final court of appeal exercising a small but very important part
of the judicial power. As an organisation, it is important that
it should be, and should be seen to be, quite independent from
the other branches of government (corporate independence). The
funding and support that it will require will be modest, and the
administrative arrangements required to support it should be quite
uncomplicated. Corporate independence for the new Supreme Court
is achievable. All that is required is some imagination and a
willingness to break free from the discredited Beeching system.
(Senior officers in the former LCD were not known for the imagination
in matters of court governance. In my opinion, they did a poor
job in adjusting the arrangements for the administration of the
courts to the new realities of public sector governance referred
to above.)
The High Court of Australia
23. The new Supreme Court will play a similar
role in the U.K. to that played by the High Court of Australia.
The administrative arrangements for the HCA may provide a model.
The primary legislation relating to the administration of the
High Court of Australia is found in the High Court of Australia
Act 1979 Pt III. Section 17 of that Act states that the High Court
"shall administer its own affairs". The Court has power
for the purposes of the Court to do all things that are necessary
or convenient to be done for or in connection with the administration
of its affairs, including power: (a) to enter into contracts (but
ministerial approval for contracts in excess of a certain amount
is required); (b) to acquire, hold and dispose of real and personal
property; (c) to take on hire, to exchange, and to accept on deposit
or loan, library material, and also furnishings, equipment and
goods needed for the purposes of the Court; (d) to control and
manage any land or building occupied by the Court and any adjacent
land or building that is declared by Proclamation to be part of
the precincts of the Court. The Court acts collectively, although
it "may appoint committees consisting of Justices, or of
Justices and other persons, for the purpose of advising the Court
in relation to" the administration of the Court.
24. The Chief Executive and Principal Registrar
of the Court is appointed by the Governor-General on the nomination
of the Court. The CEO "has the function of acting on behalf
of, and assisting, the justices in the administration of the Court".
The CEO appoints such other officers as the Court considers necessary.
The terms and conditions of employment of officers or employees
appointed are determined by the Court.
25. The High Court prepares estimates and submits
them to the Minister for Finance (the Treasurer). Monies appropriated
by Parliament for the Court are paid to the Court. The Court is
required to submit to the Minister an annual report, together
with financial statements. Before submitting financial statements
the Court is required to submit them to the Auditor-General who
shall report to the Minister as to various matters.
26. Other federal courts in Australia were given
administrative autonomy by the enactment of the Courts and Tribunals
Administration Amendment Act 1989. This legislation transferred
administrative and financial responsibility for the Federal Court
of Australia and the Family Court of Australia from the Attorney-General's
Department to the Courts. The detailed provisions in this legislation
were not the same as those found in the High Court of Australia
Act 1979. For example, the FCA model differs from the HC model
in that the Chief Justice of the FCA, rather than the Court collectively,
is "responsible for the administrative affairs of the Court".
27. In South Australia, the arrangements for
the administration of the state courts is the responsibility of
a State Courts Administration Council created by statute consisting
of the Chief Judge of the Supreme Court the Chief Judge of the
District Court and the Chief Magistrate of the Magistrates Court.
The Council administers one budget for all levels of court and
is responsible for providing, or arranging for the provision of,
the administrative facilities and services for participating courts
that are necessary to enable those courts to carry out their judicial
functions".
The Family Court of Australia
28. It is important to notice that the Australian
arrangements do not create, what Lord Hailsham LC called, a "legal
Arcadia". The budgets of the Federal Courts are still controlled
by the Government through the Attorney-General's Department. The
mechanics of the arrangement insofar as it affects the FCA may
briefly be described as follows.
29. The budget is negotiated directly by the
CEO of the Court and his staff with the Department of Finance
[Treasury]. Once agreed, budgets are submitted by the Executive
to Parliament, which make the appropriation. The Court's budget
formally forms part of the Attorney General's Department budget
but is paid directly to the Court. Once the budget has been approved
the Court has authority to allocate funds as it requires. The
Chief Justice, assisted by the CEO, is responsible for management
of the budget, but as a practical matter the CEO carries out most
of the work involved. For example, the CEO appears to give evidence
before parliamentary estimates committees. For the purposes of
the Financial Management and Accountability Act, the FCA is an
"agency" and the Court's CEO is an agency head. The
performance of the agency is subject to scrutiny by parliament
through Senate estimates hearings and through audits by the National
Audit Office.
30. As noted above, friction between the executive
branch and the judicial branch is not avoided by these arrangements,
and means for improving the relationship are constantly sought.
Sir Anthony Mason, former Chief Justice of Australia, has suggested
that, as in the United States, court funding should be determined
by Parliament, rather than through the Department of Finance.
Such a development is unlikely. What is more likely is that courts
and government will continue to build on what they have got.
31. The contrast between executive-based systems
and judiciary-based systems is striking. In judiciary-based systems
the discipline of court administration comes of age. Where judiciary-based
systems are working at their best, there is an openness about
the funding of, and administration of, the courts that is entirely
lacking in England. Because court administrators are alongside
of, and responsible to, the judges, they do not have to prevaricate
or evade when dealing with the judges. The problem of divided
loyalties goes away. A pro-active approach to court management
emerges. (In England, there are many layers of management in the
closed world of court administration, and most of them seem to
exist for the purpose of saying "no".) Judges with administrative
responsibilities and court staff are on the same team, and value
one another's ideas and sympathise with one another's difficulties
in discharging their tasks. Experiments can be tried. New ideas
for improving court performance can be worked up at local level.
Judges are not alienated. They learn about administrative matters
and understand that sometimes hard choices have to be made about
what can and cannot be done. Relationships between courts and
professional bodies and court-user groups improve immeasurably
because the judges and the administrators who serve them are able
to present a united front and, therefore, are in a position to
negotiate more effectively with such bodies and groups. (In England,
the division in responsibilities between judges and administrators
creates a serious weakness in this respect.) Court administrators
become a professional class. Leaders among them emerge, ready
and able to participate in conferences and seminars without first
having to utter weasel words about "not being able to speak
on behalf of the Department" or "Parliament have first
to be told", or "Ministers have not taken decisions",
and all of the other evasive claptrap that civil servants have
at their command when pressed. (It is significant that, in all
the years since the Beeching scheme came into force, England has
produced no single person who has made a contribution to the discipline
of court administration of national or international significance.
That is part of the price that has been paid for allowing court
administration to fall into the closed world of central government
bureaucracy.)
F.CONCLUSION
32. The existing arrangements for the administration,
funding and support for the Appeal Committee of the House of Lords
are outlined in the consultation paper. Oddly, those arrangements
would seem to give the Appeal Committee greater protection from
the executive branch of government than the proposals put forward
in the consultation paper for the administration of the new Supreme
Court. It can be argued that if there is one court in the land
that should run its own affairs it is the ultimate court of appeal.
How might that be done? As I hope I have indicated in this paper,
elsewhere in the world (not only in Australia, to which I have
referred, but also in Canada, to which I have not) judiciary-based
systems have been designed; they seem to work well and they maintain
governmental accountability. The civil servants in the Department
of Constitutional Affairs ought to be challenged to design a judiciary-based
administration system for the new Supreme Court that would be
workable in U.K. conditions so that informed decisions can be
made. The fact that the consultation paper does not offer up a
possible judiciary-based system for consideration has aroused
suspicions (perhaps the omission is simply explained by a lack
of professionalism in the Department). A bald assertion by the
Department that the proposals in the consultation paper are best
will not do. The Department must overcome its addiction to the
Beeching inspired executive-based system. The addiction is understandable
given the power and authority it gives to the Department. The
English executive-based system was devised primarily for the purpose
of providing for the administration of high volume trial courts
(particularly those operating in the regions), and not for superior
courts carrying out important appeal and review work, and certainly
not for an ultimate court of appeal discharging the enormous responsibilities
that will be carried by the new Supreme Court.
33. The salaries of the judges of the new Court
will fall on the consolidated fund and are not provided by annual
Parliamentary Vote. The key question is: how is accountability
going to be ensured for those running costs of the Court that
must necessarily come from funds appropriated by Parliament? The
new Court will need to be housed in a suitable building. The running
costs for that will be significant. It is well-known that a prime
cause of friction between courts and executives is the provision
of suitable accommodation. This should be anticipated and steps
taken at the outset to minimise the problem so that it does not
become chronic and a constant threat to the maintenance in the
long term of trust between the Court and government. There is
no reason why the new Court should not be given and should thereafter
own its own building. A radical solution would be for the Court
to be given, as a once-and-for-all settlement, a building that
is 10 times bigger than its needs on the understanding that it
would occupy one-tenth and apply the rental incomes from the other
nine tenths to the upkeep of the building (I can picture Mandarins
fainting as I write this).
34. The Court should be responsible for its own
administration. Whether administrative authority should be given
to the senior judge or to the judges collectively is not a matter
that should be difficult to resolve. The Court should appoint
its own administrative officers and employ its own staff. The
Court should have its own library and IT facilities. The Court,
with the assistance of its executive officers should prepare its
own budget and should collect and keep its own fees. The budget
should be negotiated directly with the Treasury. Any Treasury
objection to this should be met with the robust argument that
the Court is not simply another government agency or service whose
entreaties for money should be filtered through a ministry, but
an organization sitting at the top of a co-equal branch of government
and exercising prerogative power. Further, if Lord Mackay was
right in saying that the executive and the legislature have a
duty to see that the courts are properly funded, that duty as
owed to the highest court in the land must be brought home strongly
where it cannot readily be evaded.
35. It may faintly be argued, in support of the
proposals put forward in the consultation paper to the effect
that funding, admission and support should be the responsibility
of the Department for Constitutional Affairs, that, as the Department
is responsible for other courts, certain benefits would accrue
to the new Supreme Court if its administration remained within
the fold. For example, it may be said that the Department and
the Court Service is rich with highly skilled administrators available
to assist the new Court according to need. The answer to that
is that it would not be necessary for the new Court to be run
by the Department for the Court to have access to such expertise
(or indeed, expertise to be found elsewhere), if and when it is
needed. As a practical matter, help is most likely to be needed
in relation to the framing of the Court's budget. The Australian
judiciary-based systems anticipate this and ensure that the necessary
assistance from central government is available to the courts.
36. It may also be said (again faintly) that
an advantage for the Supreme Court of staying within the fold
would be that the Court would benefit from the fact that it was
administered by a Department that had large funds at its disposal
some of which could be applied to particular, special and non-recurring
needs of the Court from time to time. The short answer to this
is that it is not right that the funding of the highest court
in the United Kingdom should in any way be linked to expenditure
needs of other courts (most of which goes on supporting courts
in England).
27 November 2003
|
