Response to the Government's consultation
on: A Supreme Court for the United Kingdom from Prof I R Scott,
laid also before the Select Committee
A. INTRODUCTION
My response is confined to the section of the consultation
paper headed "Administration, funding and support"
(para 63 et seq).
B.THE PROPOSAL
AND ITS
JUSTIFICATIONS
It is proposed that the administration of and resourcing
for the new Court should come within the responsibility of the
Department for Constitutional Affairs (part of the executive branch
of government). This proposal is justified in paragraphs 64 and
65.
It my opinion, the reasoning given in those paragraphs
is specious and weak. Certainly the arguments based on central
services and in particular on IT are disingenuous. As an organisation,
the new Supreme Court will be about the same size as a small firm
of solicitors or barristers' chambers. As such it will be perfectly
capable of administering itself in an efficient and economical
manner (and may be best advised to do so, given the appallingly
bad record that the Lord Chancellor's Department has in managing
IT provision for courts).
It would seem that the intention is to arrange for
the proposed Supreme Court to be administered in much the same
way as the existing superior courts in the United Kingdom are
presently administered. In my view that is wrong, both in principle
and from a practical point of view.
It is important, not only that judges should be independent,
but also that the courts they constitute should be independent.
Unfortunately, the superior courts in the United Kingdom do not
enjoy "corporate" independence. The fact that they do
not should not lead to the conclusion that the proposed new Supreme
Court (which is to be the highest court in the land) should be
denied corporate independence. If the Supreme Court is to be denied
corporate independence, that should be justified in a principled
way. Paragraphs 64 and 65 do not come close to doing this. All
they offer is a rag-bag of low level practical justifications,
none of which amounts to much.
C.CORPORATE INDEPENDENCE
I am aware of the fact that the argument that the
Supreme Court should be an independent corporation, administering
its own affairs, is an unfashionable one and not likely to be
welcomed by those promoting the consultation paper. It is not
an argument that can be put simply. The judicial administration
literature on the extent to which courts may and should be able
to administer themselves is considerable (though apparently unread
in Whitehall and in the Court Service) and I suspect I would be
wasting my time in trying to review it, to summarise it, and to
apply it to the proposed Supreme Court.
In this response to the consultation paper I confine
myself to a few points selected on the basis that they do not
always receive the emphasis they deserve when issues concerning
the administration of courts are debated. Inevitably, because
I am not attempting to be comprehensive, what follows is to an
extent disjointed.
D.SOME JUSTIFICATIONS
FOR CORPORATE
INDEPENDENCE
Put simply, the doctrine of separation of powers
holds that the legislative, administrative and judicial functions
of government should be discharged by separate institutions, the
legislature, the executive and the judiciary. By these means,
amongst other things, the rule of law is secured.
Within a democratic system of government, the ways
in which such separate institutions are constructed, and their
relationships one with another adjusted, can vary enormously.
No system of government maintains a strict divide. That would
be impossible. The best that can be hoped for is a system of "checks
and balances", with each branch licensed "to fish in
one another's pond" to a degree.
Neither the legislature nor the judicial branch is
self-perpetuating. The members of the legislature are subject
to periodic elections. The judges are appointed by the executive
(the significance of this "interference" by one branch
of government with the affairs of another cannot be exaggerated)
and serve only until a statutory retirement age. But once appointed,
the executive must leave the judge alone. The judge does not operate
in a vacuum. He or she operates in an institutional context. Leaving
the judge alone should mean also leaving that institution alone.
Because the ways in which that institution is structured and administered
directly affects the capacity of the judge to discharge his or
her functions.
The maintenance of the separation of the judicial
branch from the others is to an extent secured by devices designed
to ensure the independence of the judges in their day to day decision
making. But this alone does not secure the independence of the
judicial branch (in a corporate sense) from the legislature and
the executive (in their corporate senses). Members of parliament
and civil servants enjoy certain protections in their day to day
tasks (an MP cannot be prevented from attending parliament and
a civil servant cannot be summarily sacked). But no one would
suggest that these "personal protections" secure the
independence of the institutions that MPs and civil servants serve.
The independence of the judicial branch may be justified
on various grounds. One that tends to be forgotten is that it
enhances the legitimacy of the other branches of government, because
the truth is that the courts spend a lot of their time supporting
the expressed will of the legislature (by faithfully applying
enacted law in cases arising) and supporting the activities of
the executive branch (through decisions in individual cases where
executive departments and their agencies are parties to cases
arising). It is in the interests of the government of the day
and of the legislature that the courts as institutions (and not
merely judges as individuals) should be, and should be seen to
be, at arm's length, and should not be seen as their poodles.
The proper separation of powers requires the "corporate"
independence of the branches of government. Parliament is a corporation
of members of parliament, an institution that, with the help of
officers and staff, administers itself (and is not administered
by the executive branch). Superior courts are corporations consisting
of judges. They, too, should be institutions that, with the help
of officers and staff, administer themselves.
Courts have to be "administered". What
is meant by that? (It means in part dealing with the procedural
and administrative case-orientated matters traditionally dealt
with by rules of court; but it means much more than that.) And
how and by whom, should it be accomplished? It seems to be the
case that, for various good reasons, this involves some kind of
cooperation between the executive and judicial branches of government.
Elsewhere in the world, quite a lot of effort has gone into designing
mechanisms for the funding of courts and into trying to identify
and classify court administration "functions", with
a view to determining which should functions should be wholly
the responsibility of the courts (that is to say, of the judges
and non-judicial staff working for the courts) and which should
be wholly the responsibility of the executive branch and which
should be a cooperative endeavour. (A result of one such exercise
can be seen in the High Court of Australia Act 1979.)
Unfortunately, in the United Kingdom no serious attention
has been given to these issues. Over the years, slowly but surely
court administration powers have been sucked into the executive
branch. Thus, in this country court administration is not "judiciary-based"
but "executive-based". Within the executive branch of
government, a bloated, hugely expensive and inefficient court
administration bureaucracy has grown up. (Departments of executive
government may be fine instruments for discharging certain governmental
tasks, but experience has shown that running courts and justice-related
agencies (CPS, CAFCASS etc), whether directly or through "next
steps" agencies, is not one them. There are reasons for this.)
Elsewhere in the democratic world, care is taken
to protect and preserve the "corporate" independence
of the courts by ensuring that, so far as may be, they are responsible
for court administration. This is not so in the UK. This is wrong
in principle and dangerous. It would be dangerous anywhere but
it is particularly dangerous in the UK because the UK constitution
has a feature not shared by continental systems of government
or by the state and federal systems of government in the United
States.
That different feature is this. Under the UK system
of government, within the executive branch of government a distinction
has to be drawn between, what could be called, (1) the "administrative
executive", and what could be called, (2) the "political
executive". The former consists of civil servants, and the
latter of politicians (either elected or appointed) making up
the government of the day. Under the UK system, the political
executive dominates the administrative executive, and it also
(unlike the position on the Continent and in America) dominates
the legislature.
This means that, if the governmental task of administering
the courts is placed largely within the executive branch of government,
the judicial branch of government can be routinely overborne,
not only by the regular activities of the executive branch discharging
such judicial administration functions as it enjoys, but also
by the occasional activities of the legislature, spurred into
action by the political executive (perhaps reflecting short term
political pressures). (In American and Continental systems of
government, the executive, whatever its settled court administration
powers may be, cannot readily use the legislature as its instrument
for altering those powers for the purpose of interfering with
the judicial branch, for good or ill.)
Thus, in the UK the independence of the judiciary
is seriously invaded on two fronts. The judicial branch is not
"separate but equal" but rather "separate but subservient",
and subservient both to the legislature and to the executive.
Good government demands that this position be redressed in relation
to the existing UK superior courts, and that the proposed Supreme
Court should not treated in the same way as the superior courts
are treated at present.
E.CONCLUSION
It is submitted that the section of the consultation
paper headed "Administration, funding and support" (para
63 et seq) is wholly inadequate. It completely ignores the case
for "corporate" independence. The presumption ought
to be that the new Supreme Court will administer itself (as Parliament
administers itself) and attention should be focused on the arrangements
that necessarily will have to be made between the Court and the
other branches of government to ensure that this is achieved efficiently
and effectively. A few, indeed only a very few, of the arguments
in favour of corporate independence have been explained above.
Emphasis has been placed on, what could be called, constitutional
justifications for corporate independence rather that on practical
organisation and management justifications. (Justifications of
the latter type are many and cannot shortly be explained.)
8 September 2003
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