Constitutional Reform Bill [Lords]: the Government's Proposals

House of Commons Constitutional Affairs Committee Constitutional Reform Bill [Lords]: the Government's proposals Third Report of Session 2004–05 Volume II Oral and written evidence Ordered by The House of Commons to be printed 25 January 2005 HC 275-II [incorporating HC 628-i to iv] Published on 28 January 2005 by authority of the House of Commons London: The Stationery Office Limited £12.00 Witnesses Tuesday 25 May 2004 Professor I R Scott Ev 1 Hon Margaret Wilson, Attorney General of New Zealand Ev 9 Rt Hon Dame Sian Elias GNZM, Chief Justice, New Zealand Supreme Court Rt Hon Thomas Gault DCNZM, President, New Zealand Court of Appeal Rt Hon Sir Kenneth Keith KBE, Judge of the New Zealand Court of Appeal Ev 13 Rt Hon Lord Bingham of Cornhill, Senior Lord of Appeal in Ordinary Ev 17 Tuesday 8 June 2004 Rt Hon Lord Falconer of Thoroton QC, Secretary of State for Constitutional Affairs and Lord Chancellor Sir Hayden Phillips GCB, Permanent Secretary, Department for Constitutional Affairs Ev 24 Tuesday 16 November 2004 Rt Hon Lord Falconer of Thoroton QC, Secretary of State for Constitutional Affairs and Lord Chancellor Alex Allan, Permanent Secretary, Department for Constitutional Affairs Judith Simpson, Head of Constitutional Policy Division, Department for Constitutional Affairs Ev 40 List of written evidence Professor Sir Colin Campbell, Her Majesty’s First Commissioner for Judicial Appointments Ev 53 Professor I R Scott Ev 54 Professor Sir John Baker QC Ev 57 Rt Hon Lord Falconer of Thoroton QC, Secretary of State for Constitutional Affairs and Lord Chancellor Ev 59 994017PAG1 Page Type [SO] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1 Ev 1 Oral evidence Taken before the Constitutional Affairs Committee on Tuesday 25 May 2004 Members present Mr A J Beith, in the Chair Peter Bottomley Mrs Ann Cryer Mr James Clappison Mr Jim Cunningham Ross Cranston Keith Vaz Witness: Professor I R Scott, examined. Q1 Chairman: Good morning, Professor Scott. We courts are managed around the world and said, are very grateful for your help in looking at some of “These seem to be the various ways.” There seems to the rather important detail about how you can be a progression from executive based to judiciary administer a supreme court. I think you had based going on over the last 20 or 30 years. The key something you wanted to say by way of question you have—is how does the relationship introduction? between the judiciary and the executive aVect the Professor Scott: Yes. I have been a bit concerned actual operation ofthe courts forgood or ill? The that I have not been as much help to this Committee received wisdom now is that the judiciary based as I might be. There are reasons for that. I think I models do better than the executive based models. In said somewhere in one ofmy earlier papers that England, we have an extreme executive based model. when one thinks about court management and court In America, they have extreme judiciary based administration with either this new supreme court or models. In some ofthe Australian courts, they have any other court unfortunately most of our thinking extreme judiciary based models. The question we gets bogged down in constitutional arguments about have with the Supreme Court in this country is where judicial independence and separation ofpowers. I should it fit on this particular spectrum. Should it be have worked in this field for 40 years, all of my executive based as the department seems to require, working life in England. I am Australian by birth but or should it be more judiciary based as the Law my commitment is to England and English systems. Lords themselves seem to want. Is that the question The line I have always run has been pretty much that you would like to help me with? Is that where along the lines that you do not get very far by you think we are? focusing on those kinds of constitutional, judge-type questions. They do not really tackle the problems of court administration and you do not get any hard Q2 Chairman: Yes. and fast answers as to how you can design a court Professor Scott: This is where I think I did not get to administration system ifthey are your starting last time. A vast amount has been written about this. V Y points. Judicial administration literature, for 30 I know your sta has had di culties in getting to years, has said that this is an organisation and grips with it but that is because an awful lot of it is management issue. The question is how do we best buried in consultants’ reports. I have dug a few out. administer courts? Let us think about this from The first thing to say about this relationship is that scratch and not be overly concerned about the kinds there are lots ofother factorsthat influence court ofquestions that lawyers like to talk about on performance apart from this thing that we are separation ofpowers and judicial independence. focusing on, apart from the relationship between the That is my starting point. I believe and I have come executive and the judiciary. Some ofthese factors to the conclusion that, ifyou look at the way in some writers say are really more important to court which courts are managed around the world, there performance. To take an obvious one, the calibre of is a spectrum. At one extreme, there are the heavily the judges which you manage to appoint. That does executive based systems. At the other extreme, there aVect executive-judiciary relationships. That is one is the heavily judiciary based system. There is a kind ofthe things you have been talking about: how ofcontinuum. I think I submitted to the Committee, should those judges be selected? I am quite relaxed did I not, a table which shows the various about that. Experience is that no matter how you classifications that have existed around the world.1 select judges you pretty much end up with the same That table was pretty much derived from one of the thing: some good, some bad. The independence of leading figures in this field, a man called Carl Baar, the Bar is a very important factor in court an American who works in Canada, now retired. performance. That is a worrying thing nowadays, as Carl Baar’s analysis was empirically based. He did we are seeing the decrease in the independence ofthe not just dream this up. He went and looked at how Bar, with a lot ofthe people having business before the courts as lawyers being executive based. Your 1 Ev 56–57 Crown Prosecution Service and emerging public 9940171001 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1 Ev 2 25 May 2004 Professor I R Scott defenders, as you turn those into less private, less exceptions. Everyone accepts that the money independent things, they are worrying, particularly allocated to courts has to be accounted for. ifyou start recruiting your judges fromthere. Sometimes when people talk about judges running Ross Cranston: On the appointment system, you are courts, they leap to the conclusion that somehow the not persuaded by what is—? judge has a licence to be unaccountable for money. Chairman: I think we should declare interests, which That ofcourse is complete nonsense. The question is I do not think are relevant to the Supreme Court. It what should be the involvement ofthe courts in the is obvious something is going to come up. process ofestimating what is required, spending Mr Clappison: I am a practising barrister. what is allocated and accounting for how it is spent. Ross Cranston: Barrister and recorder. In some court systems, the judges are virtually Keith Vaz: I am a non-practising barrister. locked out ofthis process entirely and th ey would be on that diagram I gave you at the executive centred Q3 Chairman: Secondly, I do not want us to get too end ofthe spectrum. In others—and this is probably far into it before we have cleared up some of the quite common—they are consulted and often given questions about the Supreme Court. the impression by the executive branch that they are Professor Scott: What was the question? perhaps more involved in the process than they really are. This is the English way. I was working in a court abroad just recently which has got itselfinto Q4 Ross Cranston: You dismissed all the a terrible mess, where I discovered that, yes, the considerable momentum behind the notion that we ChiefJustice had been in a sense consulted by the need an appointments body. Department ofJustice concerned about his budgets. Professor Scott: I did not think I was here to give He clearly did not understand what he was being evidence about that. I have had great diYculty in told. He clearly had made no eVort to try and explain following all the arguments and I do not have any it to his fellow judges. The court was going concluded view on how judges ought to be backwards and I was hired to try and stop the appointed to this new court. Ifyou want me to haemorrhaging. I recognised very early on that it express an opinion, the answer is I cannot because I started with the budget process and a complete lack am confused by the argument and it seems to me it ofcommunication between the court and the has become a bit hysterical. There are other factors Department ofJustice. Senior o Ycials in the apart from what I am talking about today that Department ofJustice were able to persuade me that influence court performance and maybe they are they had gone through the motions ofconsulting more important than what I am talking about today.

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