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

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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

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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. with the ChiefJustice but it had been completely The conclusion reached by researchers is empirically ineVective. It was not really consultation, when I based. It is that the relationship between the think about it; it was manipulation. An alternative judiciary and the administration or the executive way is to allow the court itselfto draw up its own does aVect court performance. It is a relationship budget, to submit it to the government and to hope that is important to court performance and I that the government will be able to see its way clear suppose this is the hard part. I will highlight four to appropriate from Parliament the money things because everybody who writes about this does requested by the court. In other words, to behave it in a slightly diVerent way. First is money, like many other institutions do, I suspect even financing, the budgetary process. The second one Parliament itself, even the House of Commons, in that occurs to me is staYng and the way the Bill is getting its funding. drafted that bothers me a lot. The third is accommodation and, for heaven’s sake, I dare not say anything at all about that, although I might just Q5 Chairman: Parliament does not have to have the make a few points. The fourth thing is what is called government’s approval. Its estimates are put before case processing or case management. I thought I itself, in theory at least. would talk about money and then stop. Ifyou think Professor Scott: I should worry about that as a I am not helping you at all, I will leave. First ofall, taxpayer perhaps but all right. You are in a special there is a given. All governments, whether the position. Some people argue that the courts ought to United Kingdom Government, the Australian be in exactly the same position as you are. I would Federal Government, the state governments or any not go that far. Is this a better way to run things? Let ofthe Americans, all these jurisdictions around the us leave on one side the terribly powerful signal that world work within the government’s budgetary gives to the world at large about the independence of system. In the last 20 or 25 years, you know better the courts. It gives a very powerful signal that the than I do that these systems have changed very court is independent. Ifyou are worried about dramatically. Put crudely, we used to talk about line judicial independence, one ofthe simplest, clearest item budgeting and now we talk about programme ways ofdoing it is to give the courts the power to budgeting and output budgeting. You know about design their own budgets and to submit them that and it has aVected all aspects ofgovernment: through the process. A lot ofjudicial independence education, which I have worked on, health—I have is symbolism. A lot ofit is signals as much as been a non-executive director ofa hospital so I am practical realities. Symbolism in government is pretty familiar with the problems in health—and terribly important. Such research as has been justice. In other words, the government’s basic undertaken seems to suggest that, yes, this is a better budgetary system is a given. We have to work within way to proceed because it makes the courts that. Courts are not going to be treated as operationally more eVective and better. The 9940171001 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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25 May 2004 Professor I R Scott question we have today is why does budgetary constituted through the appointing process, but independence, autonomy or participation, whatever once it appoints it has to leave alone. Ifthe court is you call it, have this eVect. The points that are made not performing, that will certainly be very quickly seem to be these: where the court is eVectively locked known. I know that is the answer that the civil out ofthe budgetary process, what you get are servants oftengive but best o fall what budgetary constant complaints, not only from the judges but participation brings is a greater willingness by the from court staV, about the inadequacy ofthe court to discipline its users, particularly t he legal funding, a constant moan, a running sore, which profession. You break the bad aspects of the link takes up time and energy ofo Ycials and all the rest between the legal profession and the courts. The ofit. The legal professionvery readily joins in on the courts in Australia are far franker with the legal side ofthe moaning and sometimes becomes the profession,in saying, “Look , we cannot allow you to mouthpiece for the courts in all this. It is also said it run the courts the way you want them run. We have has an impact on staYng. You tend to get a lack ofbudgetary constraints. We have decided this is t he opportunities for staV development. I will come to way we are going to do it”, and you get a greater that later on. You get low morale. The most discipline ofthe court over its p rincipal users. important thing is that you get this running bickering that goes on between the two branches of Q7Chairman: Does that process depend on very government. Ifwe can avoid it, it is a good idea to close involvement by the judges or is it satisfied by avoid it. You get a consistent lack ofconfidence of having an executive which is responsible to the the judiciary in the executive branch. You get a judges? breakdown oftrust. Some ofthe most interesting Professor Scott: That comes into staYng, and that work that is now being done by judicial leads to the next question: how are the judges going administration experts in this field is saying that to participate in this budgetary process, given that these kinds ofbreakdowns oftrust happen you cannot expect the ChiefJustice to do it himself. elsewhere. They happen in the commercial sector. Can we leave that until we get to it? They happen between big companies and their subsidiaries. People talk about “relational Q8 Chairman: I am rather conscious oftime. contracts” and how you build trust in relational Professor Scott: Okay. The question is why would contracts. Some people say the relationship between not the government say yes to this idea that I am the executive and the judiciary is a relational trying to advocate. I suspect there are various contract. There are ways ofbuilding trust and reasons. They say, “Ifwe do it forone court, other making sure that these contracts work. Ifthe court courts will want to do it and we do not think that is is not in control ofits own budget, what you get is a a good idea. Ifwe do it forthe courts, other branches settled feeling that the executive are determined not ofhealth or education will want the same deal and to understand the needs ofthe court and not to take we are not going to agree to that.” I will not go responsibility for funding them adequately. What do through all these points I made as to why they would you get ifyou go to the opposite extreme and engage not want to do it. You have thrown me a bit because the judiciary strongly—the best example I know is there were other things I was going to say. the Family Court ofAustralia—in the budget process? You get a far greater understanding by the court that resources are necessarily limited. You get Q9 Chairman: I think they might emerge in the the court engaged in setting priorities. You get the course ofquestioning. Some ofmy colleagues might court engaged in planning ahead. You get the court want to clarify some of the things you have dealt thinking creatively about how to make more and with so far. I want to clarify to what extent in better use ofthe resources they have. You get the principle the operation ofthe kind ofdiscipline court committed to change because it knows that if which the court imposes on the legal profession is it gets money for a particular purpose, if it does not something that depends on having very close then achieve that goal, it will be accountable for the involvement by the judges, because the profession failure. Courts quickly understand they cannot have obviously will have a greater willingness to be everything at once. ordered about by the judges than by the administrators; or whether, ifyou have administrators who are genuinely responsible to the Q6 Chairman: Accountability in normal experience court and not just an outpost ofcentral government, means ifsomeone really makes a mess ofthe budget you can achieve that objective then. their job might be on the line. That is not a discipline Professor Scott: We are not disagreeing, are we? This that can exist in the relationship between the brings us on to staYng. In the courts, they have executive and the judiciary. within their own non-judicial staV people who Professor Scott: I would say that it is not one that prepare their budgets and people who liaise with should exist. We are talking about a third branch of their counterparts in the Treasury or the government. There are limits to accountability. We Department ofJustice or whatever. It is a very have got ourselves into a silly frame of thinking interesting, iterative kind ofprocess that goes on about accountability that unless somebody is before the Chief Justice presents his budget. It is a accountable to a vote on the floor ofthe House of public process. What happens is that the court Commons he is not accountable. The courts are a makes its bid and the government responds. The separate branch ofgovernment. The executive greatest security ofindependence at the end ofthe branch has a considerable influence over how it is day is public awareness ofwhat is going on. It is 9940171001 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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25 May 2004 Professor I R Scott pointless to have, as we have in this Bill, things professional civil servants have not been able to saying portentously that the minister ofstate has a advise you and the world at large ofthe alternative duty to secure judicial independence and a duty to scenarios. It seems to me disgraceful. support the courts. It is a meaningless thing to say. How is that duty going to be enforced? It can only be Q14 Peter Bottomley: Surely they cannot because enforced by a public awareness of what is going on. they have to get ministers’ approval to do it? The court is best placed to know what its needs are. Professor Scott: You are giving another reason for The government is best place to tell it what money it why the courts should run their own show, it seems can have. Justice is rationed. That is the point. That to me. We tend to talk about the government as has to be brought out into the open. People have to being monolithic. You and I know that the real understand that ifthe court is not performing battle is probably between the DCA and the properly for budgetary reasons then it is clear where Treasury. I would not be at all surprised ifindividual the responsibility lies. The court always has to be people in the DCA would agree wholeheartedly with aware ofthe factthat it is working within financial what I have said. They cannot say it. Central limits and that it can always strive to do better within government departments are rather closed those limits. Ifit is not seen to be doing better, the organisations. They have to operate confidentially. public knows that it is the court that is to blame and They are brilliant at laying down policy and all the not the government. rest but they are no good at running things. They are no good at running courts and they should just get Q10 Peter Bottomley: The way we got into this was out ofthe way. through the government’s proposals for reforming the Judicial Committee in the House ofLords. It Q15 Peter Bottomley: You have very fairly put the seems to be quite clear from what you have said and argument as to how most ofthe process of our observation that, were it to have been left to the government is to work. You put the case that this is judges themselves, they would not have gone in for diVerent. a far more expensive way of running the system in a Professor Scott: Yes. building that is not necessary. In a way, what you have said is illustrated by recent history. To sum things up, you are saying that at least the Supreme Q16 Peter Bottomley: The fact that the heavens have Court, not necessarily other courts, should be able to not fallen in when Lord Bingham and other judges appoint their own chiefexecutive. It should not be come and talk to this Committee illustrates the point down to the permanent secretary in a minister’s you are making that judges are perfectly capable of department to make those sorts ofarrangements. Is explaining what they have in their minds? that right? Professor Scott: I do not know. I do not talk to the Professor Scott: I have not got on to staYng, but I judges but they seem to talk about me. The Law might have said that. Lords produced their response to the paper and said, “We want to do what Professor Scott has done.” That was simply a piece ofpaper that I submitted in Q11 Peter Bottomley: Is the answer to the question the first consultation, exercising a fit ofpique pretty yes? The Supreme Court should appoint their own much because I was exasperated that this debate was functionaire, the person who does the work for going on at such a low level. There is one very them? important thing to say about staYng. Ifyou look in Professor Scott: Yes. I do not see any reason why it the Bill, it says that there is to be a supreme court of should not. the United Kingdom and it should consist of12 judges. Every other Act I have seen setting up a Q12 Peter Bottomley: Secondly, they should set their superior court then goes on to say that the court shall own budget and be prepared to defend that, both to have certain judicial oYcers, usually somebody whoever the paymasters are and to the public? called a registrar. There is no sign ofany court Professor Scott: Absolutely. oYcers at all here. Apparently, it is all to come from the department. IfI was a Law Lord, I would refuse Q13 Peter Bottomley: They should be able to say to to join a court which told me that we did not have people involved in the process who bring cases to our own court oYcer, which would seem to suggest them, “This is the way things are going to run that we are not even in control ofour own records, because that is the responsible way to do it within that somehow they are going to be controlled by the reasonable cost eVectiveness”? department. This is absolutely outrageous. All other Professor Scott: That is right. That is the way the things I have seen say that there will be a registrar world has gone. I can sit here and give you an and he shall be responsible for the court oYce. Then argument to the contrary as to why you should not they will go on to say how that person might be do that, but you will get all that from the DCA. I do appointed. He may be appointed by the ChiefJustice not know whether they will be able to cope with this or the Department. He may be appointed by some because they have not ever been able to present, in kind ofcollaborative process but at least there is a the paperwork that I have seen, the alternative ways court oYcer who is there to do the administrative offinancing this new court. They have always just work for the judges. There is no sign of any such slavishly gone down the way ofreceiving this system. court o Ycer here and this is absolutely staggering. I There are no other ways ofdoing it. That is the main just cannot understand how you are letting the reason why I am here. It irritates me that department get away with such nonsense. 9940171001 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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25 May 2004 Professor I R Scott

Q17Chairman: Those functions are currently entirely with the friction between government and provided by oYcers ofthe House ofLords. They courts. It is always there. I think ifwe go down the seem to have overlooked the fact that this gap then route we are going to go down here and structure has to be filled. things the way you are talking about, it is going to Professor Scott: Ifyou look back at one ofthe exacerbate a tension which is always there. We are papers I wrote, under this regime, the House of going to have judges and administrators spending an Lords as a judicial institution is less protected from awful lot of their time managing a conflict which I the executive than it currently is because at the think, ifyou design it correctly at the outset, can be moment it can hide behind the skirts ofthe House minimised. That is my bottom line. ofLords.

Q20 Mr Clappison: In a nutshell, you are advocating Q18 Mr Clappison: May I oVer up a comment? In the position that we now find ourselves in with the to us the case for greater judicial independence and proposals which have been made, there does seem to autonomy? be an awful lot to learn from what you are telling us Professor Scott: I have only talked about budgetary about administrative and budgetary independence. matters. We are not going to get to the other three I As a broad brush comment, going back to the came to talk about: buildings, accommodation and V situation which existed before the proposed reforms, sta . You are right, yes. one had the feeling that the old system was working reasonably well. It was producing high calibre Q21 Mr Clappison: Could I tempt you very briefly judges and judicial independence. Whether it was on one other slightly naughty issue? What is your suYcient judicial independence now appears to be in view on accommodation? dispute, but we had a system which seemed to be working. Would you agree that part ofthe reason for Professor Scott: I am worried about the Chairman the system working and having the independence being worried about time. What is happening which it had was because ofthe august, venerable around the world in accommodation is that that figure ofthe Lord Chancellor and the prestige and is always something that is inevitably the influence which he carried within government on responsibility ofthe executive branch of behalfofthe judicial system in discussions with the government. It is complicated nowadays because Treasury, Prime Ministers, Cabinet colleagues, courts that are being built tend to be built under because ofhis powerfulpresence? private finance initiative schemes or similar. There Professor Scott: Yes. When I go around the world have been some astounding successes in this. The and talk to other jurisdictions, they used to be rather County Court in Melbourne, in the state ofVictoria, envious ofthe institution ofthe Lord Chancellor, is a PFI venture. The judge is heavily involved from saying, “We have gone down this judge based route start to finish. I was involved in the early stages of because we do not have a Lord Chancellor. You do. this. Tensions arose early on about the PFI The Lord Chancellor is not transplantable. We initiative. It was not only going to build the court; it cannot introduce him.” That was kind ofa single was also oVering to run the services for the court. thread but it was assumed to be a thread ofsteel. We Then, in a very highly developed state, you got the felt very comfortable with that. We never problem ofwhere does the judge’s responsibility understood it was going to be taken away, which begin and end. This was a building built with IT is what has happened to us, but you are quite provision, right from the start. On the whole, our right. That was a very singular, constitutional judges are badly accommodated at all levels and arrangement that was not replicated elsewhere English judges who were in Australia last year for round the world. the Commonwealth Law Conferences looked at the County Court building in Melbourne. They came Q19 Mr Clappison: We cannot go back over the old home feeling very, very disgruntled. It was a PFI ground. Thinking forward, would you share the initiative. It was not the easiest thing to do, but it has concern which I have that, instead ofthe Lord worked in its way very well and everybody seems to Chancellor, we have a much more junior Cabinet be very happy. There was heavy judicial involvement figure in the Secretary ofState forConstitutional right from the very start. AVairs and he will be the person who is responsible for negotiating with Cabinet colleagues, the Treasury, the Prime Minister and so forth? If power Q22 Chairman: Have you looked at the point at is to be vested with him and ifthere is not to be which the issue offinancial independence starts to independence in the judicial administration, do you have a bearing on the administration ofjustice? think there is a risk there ofa lower quality of There are serious rubbing points where someone administration and more risks generally? could say, “I am not getting justice because the court Professor Scott: I do not know about lower quality. has been told to cut its budget by 1.5%.” Lord Hope I am sure it is going to exacerbate the relationship talked, for example, about the pressure he did not between the executive and judges. That tension is want to see on the supreme court, the pressure of always there, even in those systems like the High being told, “You have to cut by that percentage. Court ofAustralia and the Family Court of There is no excuse; it just has to be done.” Have you Australia, where the courts are heavily involved in looked at the points where the availability ofjustice running their own aVairs. You do not do away is aVected? Is it possible to define those? 9940171001 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Q23 Professor Scott: I have not looked at it in detail administered by oYcials in the department, but but I have seen reactions to it. The Family Court of there is in the Bill this power for the department to Australia, like all courts that have this budgetary contract out administrative functions. Somewhere arrangement, know that they have to make their so in the explanatory notes, the Lord Chancellor says, I many per cent eYciency gains every year. This is think rather disingenuously, that we are only talking across the board. This does cause problems but it is here about things like cleaning and catering. It does out in the public domain. The court is able to say, “Ifnot stop at that. The po int is they can contract out you expect us to cut by 5%, for example, our anything which they regard as administrative mediation service, it will have the following support for the work of the court. When the Courts impacts.” Ifit does, it is clear where the Act was changed in 1994, when the Deregulation responsibility lies. That is a trial court. We are and Contracting Out Act was passed, there was a talking about budgetary autonomy for a purely very careful exchange of letters between the then appellate court. This is dead easy. Getting a trial Lord ChiefJustice, Lor d Taylor, and the then Lord court right in its budget is a very complicated Chancellor, Lord Mackay assuring the Lord Chief process. We are talking about the simplest court one Justice that the department would not contract out can imagine, almost the lowest form of life when it functions of an administrative kind that could aVect comes to the development ofcourt, purely an case processing, which has alw ays been traditionally appellate court consisting ofa very small number regarded as a function which is very much under the ofjudges. control ofthe judiciary rather than under the control ofthe executive. This Bill, it seems to me, creates the Q24 Chairman: It is also a court in which it is same room for manoeuvre but we have no sign of an assumed that all English, Welsh and Northern undertaking ofthe type that the Lord Chancellor, Ireland cases on the civil side will be self-financing Lord Mackay, gave to Lord Taylor in 1994. That and only criminal cases will require any subvention section is designed to enable the department to from public funds. Is there any parallel to that, in contract out. This is a very common provision, ever your experience? since the Deregulation and Contracting Out Act was Professor Scott: No. Ultimate courts ofappeal are passed in 1994, but it does raise interesting rather interesting. The only close one I can think of questions. The administrative tasks in relation to the is probably the High Court ofAustralia, which Supreme Court: to what extent can they be does have its budgetary and administrative contracted out. What powers does whoever is independence. I think the High Court ofAustralia is responsible for administration, whether it is the probably the best model for you. I remember the ChiefJustice, the senior Law Lord or a minister of night we invented it. It was at an American Legal state, have? What is the extent oftheir contracting Conference and Sir Garfield Barwick, locked in out powers in relation to the administration ofthis conversation with Bora Laskin and the ChiefJustice court? ofCanada, on a restaurant napkin sketched out what he was going to do. Q28 Mr Cunningham: Ifthe court was independent, who exactly would negotiate wages and conditions Q25 Chairman: That sounds a little more ofsta V? sophisticated than what happens here. Professor Scott: This varies, depending on how it is Professor Scott: It is certainly a lot better than what organised. In most ofthe Australian jurisdictions, we have managed to do here, which is disgraceful. If where they have the courts running their own show you look at section one ofthe Bill, there is this rather now, it is still the case that most ofthe sta V are interesting clause 39. subject to the Public Service Act, when it comes to pay, conditions and things like that. There is no Q26 Peter Bottomley: It is not paragraph 13 ofyour suggestion that the court, in appointing staV, can note to us, is it, on page two? somehow escape the Public Service Act. All the Acts Professor Scott: I have lost my note. I have seen make that perfectly clear. When you look at court staV, they are at three levels. You have the Y Q27Peter Bottomley: One is coming towards you. judges; the court o cers, who are usually statutory Professor Scott: Perhaps the first thing to do is to appointments, registrars, maybe a notary or something like that and then you have what I might draw your attention to the Courts Act 2003, which V amends section 27 ofthe old Courts Act. Some years call the ordinary sta below them. In a sensible court ago, the Courts Act was amended at section two. system, they all work to the ChiefJustice. I have just When the Deregulation and Contracting Out Act been in Australia to the farewell celebrations for the ChiefJustice ofthe Family Court ofAustralia. The 1994 was enacted, that amended the Courts Act V provision about the Lord Chancellor’s power to enthusiasm ofthe sta for the court and for the Chief Justice is absolutely phenomenal. It is such a team administer the courts above the level ofmagistrates’ V courts. It made elbow room for the Lord Chancellor e ort. to contract out court administration matters to the private sector. It seems to me that, in the Bill that we Q29 Mr Cunningham: Did the ChiefJustice fix this are now looking at, they have tried to do the same up or was it the chiefexecutive? thing. My concern would be, ifthe executive branch Professor Scott: The ChiefExecutive, in negotiation ofgovernment is administering the new Supreme with the appropriate executive branch of Court, we are led to believe that it is going to be government, I think does it. The ChiefExecutive is 9940171001 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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25 May 2004 Professor I R Scott appointed by the ChiefJustice. One ofthe great themselves so that they can participate eVectively in advantages ofthis sort ofcourt centred approach is the administrative process? It is a nightmare for a that the judicial administration becomes a discipline. ChiefJustice to have serious divisions amongst his Here it is all buried. There are no training courses for judges as to what he should do and how he should judicial administrators. It is not a professional move. You have to have a court which is capable of discipline ofits kind. Judicial administration comes almost Cabinet solidarity; to have their arguments alive and develops as a discipline. I can point to behind closed doors as to what they ought to be people all around the world who are giants in the doing administratively, and then to agree on the end field ofjudicial administration, who work forcourts. result. That is not always easily achieved. A lot ofit I cannot point to any single person ever in this comes down to the pure power and personality ofthe country who has written an article or provided a ChiefJustice. Sometimes, all ofthe power will lie in conference paper which in any way has moved the hands ofthe ChiefJustice. Other times, it will lie forward our thinking about judicial administration. in the hands ofan executive group ofthe judges. It That is because they are all civil servants, wonderful depends how big your court is. Again, here we are people doing wonderful jobs for certain purposes, talking about a very simple court with maybe a but completely the wrong kind ofpeople in the dozen judges. This is easy. Ifyou have a court like wrong kind ofculture to administer courts. Courts, the Family Court ofAustralia, you are talking about after all, operate in public more than any other 80 judges spread over 3,000 miles in one direction institution we know and their administration ought and 3,000 miles in another. The problems the Chief to be in public too. Justice has in getting his judges to agree on how he should administer things are not always easy. Q30 Chairman: In the Australian system, is there any way in which the courts can meet particular V Q32 Chairman: We are not in this case presumably problems in recruiting sta in certain areas by talking about the Lord ChiefJustice but about the raising salary levels, or are they tied to some very president ofthe Supreme Court, which is a di Verent rigid framework that runs right across the Civil role. Do you accept that, whatever the merits of Service? moving other parts ofour system over towards a Professor Scott: One ofthe things that does tend to judge based administration, it is perfectly possible to go on is that court poach staV, one from the other. consider such a model specifically and exclusively For example, not so long ago, one court I was for the Supreme Court for a number of reasons? working for was very keen on poaching a very good First, because it is having to replace an statistician from another court. It is a bit like administration which is not part ofthe court service? football managers and players. That can be a bit debilitating and unfortunate. The courts that are Professor Scott: Yes. most judge centred in Australia are the federal courts and they, on the whole, tend to have better Q33 Chairman: Secondly, because it is a United paid oYcials anyway. There is a tension between the Kingdom court which ought not to be administered state courts and the federal courts because the by the court service ofone or indeed, in this case, federal courts generally are just better funded. The perhaps three ofthe fourparts that make up the salaries and conditions are laid down by trade union United Kingdom, since it would not then be and public service negotiating procedures in the properly a creature ofthe UK as a whole? usual way. I am not aware ofpeople joining a court Professor Scott: That was a point you almost made because they thought they would be better paid in a in your report and which, in the government’s court than, say, working for some other department response, they absolutely ignored, it seems to me. ofgovernment. They have just brazened it out by saying, “We do not agree” without any reasoned answer to that. I would Q31 Chairman: Do you think judges have or are agree with you, yes. You have to understand that I likely to acquire the necessary management and have made what academic reputation I have over the financial skills that are involved in the process you years in judicial administration by pushing this line. have described? I am far from a lone voice but this is what I have Professor Scott: Ifthey are thrown into it, they do done. get it up very quickly. The ChiefJustice ofthe Peter Bottomley: Is there anything Professor Scott Family Court in Australia very recently retired. He intended to say that he wants to say? was a man who had had a very predictable legal career. He had been at the Bar; he had been a state judge and then he became a federal judge. Q34 Chairman: In seeking to compress your Fortunately, he had around him on his staV some argument and indeed give ourselves time to ask people who had been recruited from the Department questions, have we missed something crucial that ofJustice, who knew their way around government you would like to mention to us? and who were alongside him right from the start. He Professor Scott: I know the minute I get outside the had his team ofmanagers with him who kept him door I will think ofsix things that I should have said. straight. The problem does arise ofwhether judges I will go home and my wife will say, “What kind of can carry their brother judges with them. One ofthe a day have you had?” and I will say, “Miserable”. great problems with courts generally is intra-court That is always the way but I am in touch with your governance. 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25 May 2004 Professor I R Scott to them. We have said something about aggravation between the judiciary and the executive, accommodation. I made the point about my worry with civil servants wasting an awful lot of their time about the Deregulation and Contracting Out Act. and energy in dealing with it, with Members of Parliament and ministers worrying about it. Why Q35 Chairman: By all means get in touch with us. not get these things right at the outset as there will be Professor Scott: Your staV have a diYculty because enough to worry about anyway in the relationship not a lot ofthe things I am talking about are easily between the courts in years to come? Why worry found. Unfortunately, most of the writing on the about these things when they can be solved at the subject focuses on the judicial independent outset? separation ofpowers and constitutional reasons for Chairman: Thank you very much indeed, Professor doing this, rather than what I have tried to focus on, Scott. We are very grateful to you. You have enabled which is the organisation, management and good us to look in much more detail at areas which have government ideas. You can get this right at the start. not had suYcient consideration so far. The Ifyou do not get it right at the start, you will have Committee is adjourned u ntil 3.15 in the Wilson years and years ofdebilitating, frustrating Room in this building. 9940171002 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Tuesday 25 May 2004

Members present

Mr A J Beith, in the Chair

Peter Bottomley Mrs Ann Cryer Mr James Clappison Keith Vaz Ross Cranston

Witness: Hon Margaret Wilson, Attorney General ofNew Zealand, examined.

Chairman: Attorney General, you are most think that surprised some people, but there are lots welcome. We are pleased to have you here and get ofpractical and logistical issues associated with the benefit ofyour advice. Because judicial inviting judges fromother jur isdictions to sit on appointments issues do tend to come up a bit, I will other courts and we know the President ofHong ask Members to declare their interests. Kong was mentioned, but most final courts do not Mr Clappison: I am a non practising member of have many spare judges, though there are some, of the bar. course, who are retired and may be available to sit Ross Cranston: I am a barrister and recorder. when needed. So at the end I think it was as much a practical issue ofjudicial administration than any in Q36 Chairman: Now, you have had some experience principle sovereignty issue that probably swayed the of setting up a court from scratch over a period of, select committee. Other issues emerged in terms of what, four years? what was in the purposes provision ofthe legislation Margaret Wilson: Yes. We issued a discussion paper to make quite clear principles, so arguments relating in the year 2000, and that went out for quite to the Treaty ofWaitangi and what its status should extensive consultation, and the options that were put be were prominent, and that was because ofthe there were those that were essentially carried over special relationship through the treaty that Maori from attempts by previous attorney generals to had with the Crown, and it is fair to say that most of establish a Supreme Court, so we by and large the submissions we heard on it from Maori were not reproduced that but undertook a diVerent process of in support ofdis-establishing appeals fromthe Privy consultation. The principal option there had been Council but there were some submissions that were, one ofdo nothing or basically convert the Court of and by and large I think it was also quite Appeal into the highest court, in other words only understandably a question ofnot wanting to change have one appeal, and what came through clearly was when you were not quite sure what you were getting that, ifwe were going to do anything, two appeals into. So we tried to ensure at each stage that there would in fact be seen as preferable, so from that idea was adequate consultation with Maori and we had came the notion ofa Supreme Court, interestingly, a special hui relating to that, and in the end on the as a result ofthat consultation process. So what advisory group that was set up to advise emerged from there is that I set up an advisory appointments to the Supreme Court we ensured committee upon which the bar, the Law Society, the there was Sir Paul Reeves, who was Maori but had judiciary, Maori and others were represented, and been Governor General and Primate ofthe Anglican they in eVect recommended what became the Church and was represented there as well, so at each Supreme Court Act, and the structure emerged from point we did try to accommodate. that. That took just over three years, and the legislation was enacted last year. Q38 Ross Cranston: In terms ofbackground, do you anticipate that the Supreme Court is going to be Q37Chairman: So did most ofthe modifications and diVerent from the Privy Council? Is the notion that changes to the plans take place during the advisory they are going to be performing a diVerent function, committee process, rather than during the or basically are they going to be performing the same legislative process? function? Margaret Wilson: Yes. During the legislative Margaret Wilson: I think on one level the answer is process, because we are a minority government and yes and no. Yes, they are envisaged to be the final therefore the government does not have a majority Court ofAppeal and, therefore,it is envisaged that on the select committee, or very few select obviously that court will create the precedent and we committees, there is quite genuinely a process of hope will develop a New Zealand jurisprudence negotiation and contribution into legislation, not which, ofcourse, wil l be based on common law but only this legislation but all legislation. On the will also perhaps take account a little more ofthe Supreme Court one issue was that we should invite context within which the legislation and cases arise. judges from overseas to sit on the final court, and Probably what has not always been understood, while the legislation did not provide for that, I had however, is that many cases were statute barred from made it clear that we were happy to take advice coming to the Privy Council, so in a way the Privy basically because the matter was such an important Council only ever got a few cases. The Court of one, so at the end ofthe day, afterquite a lot of Appeal in many ways was eVectively the final Court submissions and consultation, the advice was no. I ofAppeal forthe majori ty ofNew Zealanders, and 9940171002 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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25 May 2004 Hon Margaret Wilson so the combination ofbeing statute barred plus cost court. Also, it was imp ortant that we provide a time eVectively meant that it was important that we for transitions; there was no need to rush anything, established our own final court. it seemed to me. These things can take their own time but ifyou leave them too long—and in a way we may Q39 Ross Cranston: There is some talk here that, if have almost left it too long—then that creates its we are going to establish a Supreme Court, then own issue so, in terms oftransition, there will be really we are establishing a diVerent sort ofcourt cases still going to the Privy Council as a result of from the existing House of Lords Judicial appeals from the Court of Appeal decisions. The Committee, and there is some talk that we really Supreme Court came into life on 1 January this year need a written constitution for that Supreme Court but it starts hearing cases on 1 July, and those other to interpret and all the rest ofit. So in a way, raising cases will continue on. So we tried to make it as that particular issue, do you anticipate this new smooth as possible but I think what happened in the court to be doing something diVerent? end was that some sections ofthe community and Margaret Wilson: Not in that sense, I think. Really the media discovered the proposal, and that what was envisaged by some, and everyone has their highlighted some issues, which came mainly from own view I guess, is that they would have the time to some sections ofthe business community, which was be able to consider those cases upon which it was the same when I did my researches. In all other important that there be guidance given so there can jurisdictions that have gone through this process, be some certainty when people come to advise on very similar sections ofthe community raised very what is the law, and I think it was fairly well accepted similar issues, so it was generic. that, while we had very good and high quality judiciary in New Zealand, the Court ofAppeal was overworked. There were just too many cases to be Q42 Chairman: Was there an issue about the able always to provide the opportunity for reflection corporate independence ofthe court and how its that I think is needed, so we do not see it as being funding was achieved, how its staV were appointed, diVerent qualitatively, I think, at all. One comment and, ifthere was, how did you resolve it? It is one of about the written constitutions that I will make is the areas where there can be conflict between judicial that in the course ofthe submissions that were given independence and accountability to Parliament for on the Supreme Court Bill, I would say the vast money spent. majority had nothing to do with the Supreme Court Margaret Wilson: Yes. I do not think it has been Act itselfbut had everything to do with the whole addressed as being perhaps any more diVerent from range ofconstitutional issues, including whether or funding of other courts, I must say. The process we not we should have a written constitution, so the used was that, when we agreed in principle to select committee, as you may know, in its report did proceed to the Supreme Court legislation, then suggest that perhaps an opportunity should be obviously the costings were done, the business case provided at some stage for reflection on those was made, and it was factored into the budget. When matters, but it was not appropriate in this context. it came nearer the time, though it was about a year I think before the legislation was passed, I put a Q40 Mrs Cryer: Can you see any friction between business case and proposal to Cabinet for funding of the two concepts ofthe rule oflaw and the accommodation and a building, so it was all done I sovereignty ofParliament? think in a timely and what would have been normal Margaret Wilson: No, not in principle, no. way to do it. We have in the meantime merged our Parliament should act consistent with the rule of Ministry ofJustice and the Department ofCourts law, as should the courts, so I think it would be quite into a Ministry for Justice, and issues of court strange ifthere was. administration generally have been raised, and I am sure the ChiefJustice and Justices will be able to Q41 Mrs Cryer: You have already touched on a comment from their perspective on that but number ofissues but, simply forclarity, why did it certainly the involvement ofthe judiciary and take almost four years for New Zealand to establish judicial administration personally I think is its Supreme Court, and what steps were taken along important. However, I do know that some judges the way to ensure a smooth transition to the Judicial have felt this might intrude on judicial Committee ofthe Privy Council? independence, so I suppose it is a question of Margaret Wilson: Contrary to some reports this was balance. not rushed. What happened, however, is that we did the discussion papers; I deliberately recommended to my parliamentary colleagues that we did not rush Q43 Chairman: So is the court dependent on you and the legislation before an election, so we had an your successors in the future for its budget? Is it you election intervening. We had, however, made the who go to your equivalent ofthe Chancellor ofthe decision in principle to proceed with legislation Exchequer and to your Treasury to say, “The courts relating to a Supreme Court so that people knew that need more”, or “They will have to manage with less” was a part of the manifesto, a specific manifesto or “No, they cannot accept 5%”? commitment. We also had the issue ofMaori, and it Margaret Wilson: That has always been the way it was important to take time I think to try and work has been.. There was a briefmoment in the 90s where out really what would be the best way to go for their there was a Treasury view, as I understand it, that involvement but also for the outcome of what sort of courts could be self-funding. 9940171002 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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25 May 2004 Hon Margaret Wilson

Q44 Chairman: We have that here! been issued and one ofthe reasons I am visiting the Margaret Wilson: That was highly optimistic and I United Kingdom is to have an opportunity to think in many ways, having come to the position observe your experience, but also I went up to much later, it did raise some infrastructure issues for Edinburgh and met with some members ofthe the court and I personally do not think it was a wise Scottish Judicial Appointments Board because they policy to follow. I think our Budget is tomorrow so have had the opportunity oftwo to three years’ I would not want to anticipate our Minister ofexperience now in this matter . So what drives it I Finance’s announcements but I think there is think is probably the same reasons; it is felt that the recognition that certainly administration ofjustice is judiciary is not representative enough ofthe an important infrastructure issue for any society in community it judges, and at the same time I think roads, water, etc. everyone would accept that appointments should be on merit, and therein I guess lies the dilemma. So I Q45 Chairman: You have the same title, Attorney- have no doubt at all we probably will merge to some General, as the member ofour administration. He form of appointments body. has responsibility for prosecutions. Do you share that responsibility? Q49 Ross Cranston: Yet you yourselfappoint a Margaret Wilson: No. That is the Solicitor- number ofthem, and obviously the distinguished General’s responsibility. ChiefJustice who we are going to hear from,but they are also members ofthe Court ofAppeal, and Q46 Chairman: That is wholly separate? there are some quite young members as well. Margaret Wilson: Yes, and an apolitical position, so Margaret Wilson: The ChiefJustice was appointed it has nothing to do with political parties’ by the Prime Minister and by a previous Prime appointments at all. Appointed on merit. Minister who also happened to be a woman. My experience would be this; that women have been Q47Chairman: And does the judiciary in any way graduating from law schools in New Zealand about look to you, do you think, as a defender of the 50% plus of the graduating classes for maybe fifteen judiciary against other parts ofthe administration years, maybe a bit longer in some law schools. The and other ministers who might start to encroach on reality is, however, they are not so represented in the their territory, at least in their rhetoric? profession and they are not so represented at the bar Margaret Wilson: The way the system in New or in those areas oflitigation that one would look to Zealand is set up the Attorney-General has see for those skills when one was appointed to the traditionally had that position, and certainly I think bench. I think the issue lies very much now with the it is an important position to defend the judiciary. profession. Personally I have not detected in our Certainly one ofthe more di Ycult positions we had processes a gender bias but you have to have a pool during the Supreme Court debate was criticism from ofpeople who have had the experience to be able to Y the bar, which did provide some rather di cult have the position, and I think that is a challenge for conflicts potentially, I think. Certainly I felt the us. I know there are some jurisdictions in Australia criticism ofthe judiciary fromthe bar was totally that are also looking at this, and Victoria has unwarranted, and certainly the Solicitor-General engaged in a more proactive approach now I formally said that and I said it in as many ways as I understand, engaging the profession to see what it is could without further politicising it. doing. Also to ensure that work is given and opportunities provided. Q48 Ross Cranston: The other issue associated with the establishment ofthe Supreme Court is the establishment ofa Judicial Appointments Q50 Ross Cranston: Could I ask you about whether Commission, and our diligent staV have come up there has been criticism ofpolitical appointments to with a press release that you recently issued about the higher judiciary? Here, in the first part ofthe 20 th this. Could you just say a little bit about this in the century it was quite openly political and then it New Zealand context? You quite rightly say that in became depoliticised, and in recent times there has the past there has been no question about the not been criticism ofLord Chancellors fromeither outstanding nature ofthe judiciary in New Zealand, ofthe major parties in terms oftheir appointment but also about the integrity ofthe appointment but, all ofa sudden, there seems to be a criticism that process. But what has led to this, and how do you appointments would be political ifwe do not change envisage it being taken forward? You probably to an Appointments Commission. appreciate that here a lot ofthe pressure is because Margaret Wilson: There certainly was criticism that ofthe diversity issue, and the need to address that. appointments would be political. I suppose it Margaret Wilson: Certainly one ofthe issues that depends on what you mean by “political”. They have emerged from the submission process on the Bill was always been political in the sense that Parliament has a Judicial Appointments Body. I felt it was too the authority to remove judges and they are, in important a step to rush without putting out a eVect, appointed by the Governor General through discussion paper in an opportunity for full a process ofrecommendation fromthe executive, so consultation, so undertook to issue a discussion the assumption I guess has been, ifyou look for paper with a view to introducing legislation, or a those lines ofaccountability, there is a synergy there. diVerent process, according to what emerged as a The allegations I suppose are more party political result ofthat process. That discussion paper has now allegations, I presu me. There seems to have been 9940171002 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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25 May 2004 Hon Margaret Wilson very little evidence from whoever has been the Court of Appeal to the Supreme Court. Whether government that that, in fact, has been borne out that continues in the future or not I guess time will in reality. tell. V Q51 Ross Cranston: Has there been any criticism? Q54 Ross Cranston: So this was a one-o body— Margaret Wilson: There does not appear to have Margaret Wilson: Yes. I thought it was important, been from whatever government. There has been and important not just to automatically make some criticism but ifyou look at the appointments the assumptions. That was a judgment call; as I said it would have been politically more comfortable just to reality does not seem to justify the amount of say seniority prevailed. The legal profession concern. However, perception is very important and operates on precedent and, once you do it once, it is that is why I think a Judicial Appointments very diYcult to justify doing it diVerently again, so I Commission body probably will be required, but felt it was important to keep that option open. then the question becomes to whom are they accountable, and ifthe diversity does not emerge or Q55 Ross Cranston: Can I ask ifthere was any move ifit does emerge but merit does not emerge, then that Parliament should be involved in judicial what happens? appointments? Margaret Wilson: Yes. My opposition Q52 Ross Cranston: I take the view that there has to parliamentary colleagues and many ofmy legal be some minister making the appointment or the colleagues did suggest from time to time that judges Prime Minister because there has to be some sort of should be appointed by select committees, that I accountability; that it cannot be completely suppose a process that might be more akin to depoliticised—but this is not necessarily the view of perhaps that ofthe United States would be everyone. preferable, or that there should be some direct Margaret Wilson: Well, in our system anyway, or endorsement from Parliament. My own personal while I have had the position it tends to be as view on that is ifyou wanted to depoliticise it that consultative a process as you can make it, with the may not have been the appropriate way to do it in judiciary being consulted and the profession, both the New Zealand context. I do not know about the Law Society and the bar, and from there your own. recommendations are made so it will be interesting to see. Various models are out there and we have Q56 Ross Cranston: There is no great pressure to go been looking at them. I understand that in South down that particular avenue? Africa they have a very interesting model of sectors Margaret Wilson: I did not feel personally any ofcivil society who are very actively involved in all pressure, but I have to say that was put out. levels ofrecommendation. Presumably it works there. Certainly their constitutional court is an Q57Chairman: And is there a relationship ofthe extraordinarily distinguished court. It does not seem kind that we have developed in this Committee, for to suVer as a result ofthis quite extensive example, with senior judges, and Lord Bingham will involvement from communities, so I suppose any be in later this afternoon, whereby, quite outside the appointment system at the end ofthe day will be context ofconfirmation hearings or anything like reflected in society because it is really the confidence that which we do not have, judges do feel free to ofthe people in the process that is most important. come and speak to this Committee on matters aVecting the judiciary? Margaret Wilson: Certainly. The ChiefJustice can Q53 Ross Cranston: Was there any pressure to create talk directly to that, but from my perspective there a distinct system for the appointments to the are no issues with that. The only precautionary is I Supreme Court as opposed to the rest ofthe suppose that from time to time matters can be taken judiciary? out ofcontext so it is always a matter ofjudgment on Margaret Wilson: There was a lot ofpressure just to these matters, but judges have been appearing before automatically appoint members ofthe Court of select committees, both open and not open Appeal, and I suppose that would have been an committees, for some considerable time. I personally option. However, there were seven members ofthe think it is extremely important that the judiciary has Court ofAppeal and five forthe Supreme Court so an input into matters relating to judicial it was not just as simple as a transfer. Also, my own administration. After all, they know how the job is personal view was that it was important that the to be done because they do it and how it can be body was appointed on merit and not just on improved and done better, so it seems to me that on precedent. Others may disagree with me on that. It those matters they should have an influence on what is politically more comfortable to appoint on goes in the legislation. seniority, but it may not always produce the best court. I think in this instance we were fortunate that Q58 Chairman: Thank you very much indeed. I am the committee that advised me on the appointments, very grateful for your help. Best wishes to New which was a special committee set up, did Zealand’s new Supreme Court. recommend basically in line ofprecedence fromthe Margaret Wilson: And to yours! 9940171002 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Witnesses: Rt Hon Dame Sian Elias GNZM, ChiefJustice, New Zealand Supreme Court; Rt Hon Thomas Gault DCNZM, President, New Zealand Court ofAppeal, and Rt Hon Sir Kenneth Keith KBE, Judge of the Court ofAppeal, examined.

Q59 Chairman: ChiefJustice and colleagues, stage. Do you anticipate that the Supreme Co urt welcome. Perhaps you would introduce yourselves? might have more academics because ofits nature? Is Dame Sian Elias: Thank you. I am the ChiefJustice, there any move towards that? and with me are Justice Thomas Gault and Sir Dame Sian Elias: We have been quite receptive to the Kenneth Keith. We are three ofthe five members of appointment ofacademics. There have been a few the New Zealand Supreme Court. appointed, I should not exaggerate—

Q60 Ross Cranston: I guess I am going to ask you the Q63 Ross Cranston: I should say that this is in a way same question as I asked the Attorney. Do you a self-interest question! envisage the job as being diVerent now that you are Dame Sian Elias: I understand that! There is no real in the Supreme Court as opposed to what you were impediment. We are, ofcourse, in appointments doing in the Court ofAppeal, or is it simply that in looking for experienced people but you can gain experience in a number ofdi Verent areas. All things the Court ofAppeal the pressure ofwork was such V that you could not be as reflective as you might want being equal, the higher judiciary is likely to be sta ed to be? Do you see it as a stepchange in terms ofthe by people who have had substantial experience in the nature ofthe work? practising profession, but that does not exclude Dame Sian Elias: It is a court ofgeneral jurisdiction exceptional appointments, and Sir Kenneth is and not a constitutional court so that does not clearly an exceptional appointment. change. As the Attorney said, there are areas ofNew Zealand law which have not had eVectively the Q64 Ross Cranston: He is not going to comment! benefit ofsecond tier appeal, so I expect this will be Some ofmy colleagues are going to ask about some a court with a sense ofthe scope and reach ofthe ofthe mechanical issues, the Supreme Court as a whole law, which is not something that a Privy corporate body and running the ship itselfrather Council has been able to have in relation to our law. than having the Attorney General provide rations So that will be a change. Also, as the Attorney said, and so on, but can I just ask you a practical question? the Court ofAppeal has been a very busy How much assistance will you have in terms ofclerks intermediate appellate forum and that has led to or associates, or whatever you might call them? some strains in terms ofresourcing, so there are Dame Sian Elias: We each have a secretary and we community expectations ofthe court which we will each have a clerk, and in addition to that the Chief have to try to fulfil. Some of those are expressed in Justice has some administrative support—not the legislation; others have been expressed during lavish. the process ofputting the court in place; and one of those expectations is for raising the game. Q65 Ross Cranston: And the clerk would be a recent Justice Gault: I could perhaps add that, the way the graduate who would be there to help with legal jurisdictions fell in the courts in the past, in some research? civil case hearings there was virtually a right of Dame Sian Elias: Yes. Usually a graduate student appeal to the Privy Council and very few criminal progressing on to further education. appeals were accepted by the Privy Council, so the Supreme Court is likely to better sift the civil cases Q66 Ross Cranston: Yes, because, until recently, the and focus on the more appropriate ones through the House ofLords did not have that sort ofassistance. leave mechanism, and will hear more criminal Dame Sian Elias: Yes. appeals than the Privy Council did, so there are those diVerences. Q67Chairman: Did you have some influence into the kind ofbuilding that you were going to use? Dame Sian Elias: No. Q61 Ross Cranston: I guess it is appropriate to note for the record that in the Naomi Campbell case the Q68 Chairman: You had none? other day a New Zealand case was cited; I think it Dame Sian Elias: I would like to correct I am sure an was a five judge Court ofAppeal case. So—how can inadvertent matter that the Attorney raised and that I put this—it is not as though you need to lift your was that there had been judicial input throughout. In game, as it were, to have an influence in the common fact, there was no judicial membership of the law world because your Court ofAppeal has had Steering Committee. I declined an invitation to that influence over the years with the quality ofits participate in it and one ofthe reasons is because of judgments. my view that communication between judiciary and Dame Sian Elias: I think that is true and I think some the executive and Parliament needs to be formal and ofthe criticism that was voiced during the process, needs to be public and I was not prepared for the which has been fairly bruising, has been unfair in judiciary to participate in committee discussions in that connection. That was a bit ofspecial pleading camera in a back room. So the judicial by particular interest groups to some extent. representation which I think the Attorney was referringto was one ofthe retired judges ofthe Court Q62 Ross Cranston: Could I just ask this question? I ofAppeal, who accepted a personal appointment met Sir Kenneth many years ago when I was a but was not representative ofthe j udiciary, and graduate student and he was a professor at that another judge who was the President ofthe Law 9940171002 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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25 May 2004 Rt Hon Dame Sian Elias GNZM, Rt Hon Thomas Gault DCNZM andRt Hon Si r Kenneth Keith KBE

Commission, again without reference to the Q72 Chairman: And there is not a point to be made judiciary accepted appointment. What we did, that this new court is no longer a part ofthe House however, when the working party came out with its ofLords, which is obvious ly not a factor. report, was we responded formally after I had Dame Sian Elias: Exactly, so our reforms are really consulted my colleagues, and our concerns were quite diVerent. matters such as institutional independence, fragmentation of the judiciary—because I think Q73 Chairman: Gar’s Mahal comes from Sir there is real risk in a country like ours where you do Garfield Barwick who was the Attorney General and not have a Scotland issue, for example, that we then became the ChiefJustice, but a very shrewd should not set up a court that is oV on its own but is operator, and got them a very good building with part ofthe general judicial system—and also excellent facilities. appointments because they had arisen. It was our Dame Sian Elias: Which shows that the separation strong contention that the stability ofthe judiciary ofpowers does not always work to the advantage of had to be maintained and that really meant that, in the judiciary. Our most eVective ChiefJustice was the creation ofa new court, the only safeway was to probably Sir Robert Stout, who had been a former take senior members ofthe Court ofAppeal, and Prime Minister and managed to achieve quite a lot there was quite a lot ofcriticism in public or of too, but we do not have that pull any more! anxiety about the possibilities ofpolitical appointment. I think that was the solution Q74 Peter Bottomley: Can you as the Supreme eventually adopted by the appointing committee, Court rule that an Act ofParliament is either and I think that diVused a lot ofanxiety. unconstitutional or unjust? Dame Sian Elias: We can make declarations about Q69 Chairman: So your responses on some ofthese compatibility with our equivalent ofyour Human matters significantly influenced the decision-making Rights Act, not that that is legislatively conferred by government and Parliament when it came to the but it follows from the function being pursued but legislation? no, we have the same system that you have and Justice Gault: I think they did but it was through an indeed our legislation, as you are aware, aYrms open and formal process rather than through parliamentary sovereignty and the rule oflaw. participating in a committee which was not an Parliamentary sovereignty is a concept that has been open forum. developed by judges, by judicial determination, so this system is not going to give us the power to strike Q70 Chairman: And you did not have a concordat down legislation. like our Lord ChiefJustice which was not publicly arrived at but then became a public document? Q75 Peter Bottomley: In any way, at any time? Dame Sian Elias: Well, there is nothing wrong with Dame Sian Elias: The New Zealand constitution, working something up as long as, in the end, it is laid whatever it is, is not changed by this, just as the open and transparent and people can comment on it. British constitution, whatever it is, would not be changed by the setting up ofa Supreme Court—well, Q71 Chairman: Did you have a view about the issue that is not quite right because you have the which Lord Bingham has raised that the kind oflegislative dimension which will alter a bit, but I courtroom which is appropriate should be partly think Maitland and Bagehot—everyone—has based on experience in the House ofLords, and I always said that you cannot t ake a snapshot ofthe suppose not unlike that ofthe Privy Council Judicial constitution ofa country, it evolves, or you only Chamber either, which is not a very grand sort ofhave a snapshot but it evolv es over time, and what room. What have you finished up with? Something the constitutional limits are has not really been which suits the style that you have to produce for the explored recently in jurisdictions like mine or, court, or have you had the sort offearsthat Lord indeed, in jurisdictions like yours, and we can all Bingham has ofbeing elevated like a criminal trial to hope that we do not hav e ever to get there. some high judicial bench? Sir Kenneth Keith: Each time I come here and hear Dame Sian Elias: We have had almost no judicial discussions about the sovereignty ofParlia ment I input into that and I have been concentrating on think ofthe paragraph that Lord Bridge included in temporary accommodation because I think it might his Factortame judgment in 1991 in which he said be preferable for us to be in temporary that in 1972 things happened and things changed accommodation. The Supreme Court ofthe United and power went to Brussels, and so on. It is a very States was in temporary accommodation for 100 cautious and in some ways slightly confusing years, and I think it is the mental freedom you are paragraph and I think probably deliberately obscure after more than the physical space as long as you at times, but things do change, do they not, and the have the facilities to do the job, including, say, the context in which a constitution works changes. In library facilities and so on. But we do have 1986 when our constitution was rewritten and the preference for a committee-style room because New Zealand Parliament finally repealed the 1852 appellate argument is conducted like a seminar so we New Zealand Constitution Act that had been passed agree with Lord Bingham, but we are less anxious to here, all that the law-making provision said was get into our Gar’s Mahal than perhaps the House of “Parliament continues to have full powers to make Lords understandably is, because after all they are laws for New Zealand”, and that is a provision that already housed. We are not, yet. can only be descriptive I guess, or declaratory, and 9940171002 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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25 May 2004 Rt Hon Dame Sian Elias GNZM, Rt Hon Thomas Gault DCNZM andRt Hon Si r Kenneth Keith KBE now ofcourse we do have, in terms ofAnn Cryer’s undermining some fairly imp ortant principles, we question, that reference to New Zealand’s felt that we should express our concerns about the continuing commitment to the rule oflaw and the way in which the appointmen ts should be made, that sovereignty ofParliament. sort ofthing; the fragmentationofthe judiciary.

Q76 Ross Cranston: There is an article by one ofthe Q80 Peter Bottomley: Is there any parliamentary many New Zealanders in academic life in this oversight in judicial appointments and, ifso, at country about this clash between sovereignty and what levels? rule oflaw in section 3(2). Dame Sian Elias: No. Sir Kenneth Keith: Yes. Comparing the view ofthe one time Professor Wilson with mine, I still think, as Q81 Peter Bottomley: Turning to the mechanics, Dicey said all those years ago, that ifyou tried to put what administrative arrangements are made for the those two things in the same sentence you would funding of your Supreme Court? have real problems, but that is a matter that Dame Sian Elias: This may have been a feature of the academics can argue about for a long time and like controversy surrounding the primary decision which the ChiefJustice, who I think was implying this, I was whether or not to set up a new court. There was trust the issue does not ever arise in a sharp way in no judicial input into that; it was assumed I think New Zealand. I was really interested to see from a that the budget for the Court of Appeal could just be distance the debate that you had here about the replicated for the Supreme Court. As a result there inclusion ofthat very strong ouster clause in the are some omissions and there are some public Immigration Bill and the way in which the expectations which will not be able to be met out of constitutional debate was carried on in public and that, so I see this as a work in progress and not a final resolved in public, and I would have thought very position. Things like institutional independence I am fortunately did not get into the courts, but you had, getting concerned about because I think we are now did you not, the robustness ofexchanges between getting out ofstep with countries that we would politicians and judges and so on. benchmark ourselves against. As the Attorney said, we did have a department for courts. Last year Q77 Ross Cranston: This Committee did a strong government decided, probably for very sound report. government reasons, to collapse it back into the Sir Kenneth Keith: Yes, I saw that, and then I kept Ministry ofJustice, the department which has major getting sent copies ofspeeches that various people law reform responsibilities, including for criminal were making, and I thought that was a very justice. I do not think it is satisfactory that our interesting and proper way in which constitutional immediate judicial support is provided by that debate should be carried on quite separately from ministry which has to prioritise across the board, what might have happened in the courtroom. and I do not see that the Supreme Court should be treated distinctly from the rest of the judiciary. I Q78 Peter Bottomley: Do you appear in front of the think it is time for matters of direct judicial support New Zealand Parliament? And do you? to be under judicial control with a one-line budget Dame Sian Elias: I have only done it once since I for that, so that is libraries, secretaries, clerks, who became ChiefJustice which is now five years ago, so should be, I think, employees ofthe judiciary acting it is not anything that I am very keen to do. I have through a chiefexecutive as they have in Australia, put in submissions, however, to select committees on rather than being employees ofthe ministry. The particular Bills and provided what the judiciary does security ofour IT communications and so on is a is formal and open and able to be publicly disclosed matter ofreal concern to me. The Ministry does not I do not see problems in communication between the really have any incentive to respond to our concerns judiciary and the executive or the judiciary and there and I feel that amount of independence really Parliament. I think there is a variety ofways in which is required. I would not like to see us assume you can do it. responsibility for running the courts which seems to me to be a core government function, and I am Q79 Chairman: Do your colleagues do so, or other worried about co-opting the judiciary into some of members ofthe judiciary, or is it quite rare fora the rationing decisions that have to be made in those personal appearance by a judge in front of a sort ofcases, because cases will come beforethe Committee like this? judiciary on stay applications, for example. If the Dame Sian Elias: It is quite rare at higher court level judiciary has made some ofthe decisions which and it would always be something I would expect to create the delays or has assorted priorities, I think be co-coordinated through the ChiefJustice. It you compromise. Personally, therefore, I would not would not necessarily be the ChiefJustice who like to see us go quite to the stage ofsome ofthe would go along; we would probably send somebody Australian jurisdictions; there is a halfway house but who has particular expertise in a particular area, but I think it is time you moved to it. we do exercise judgment about that. We did not get involved at all in the decision whether appeals to the Q82 Peter Bottomley: I do not want to get into how Privy Council should be abolished, because it was a to run the lower courts because it may logically judgment for the people of New Zealand to make. follow from the question I am going to ask. In some On the other hand, when it came to looking at how jurisdictions, when a Supreme Court is established you would go about implementing that without and written into the Act which establishes the 9940171002 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Supreme Court, which is not a title I like but I am been trying for the last six months to have their using it for working purposes, there is provision in wages reassessed. We have no power at all. I cannot the legislation for the court to appoint a chief commission a review of our IT security, and I have executive and for the court to appoint a registrar, been asking the Ministry to do that ever since we and in other places it is left to the kind Minister to have had some very bad leaks, and real anxiety being oVer up someone who will come through the expressed by the judges. That is why I say I think the Permanent Secretary’s club, which works very well situation is really intolerable. We do have parallels despite that but has a diVerent kind offunctionand with, for example, the Governor of the Reserve culture and corporate responsibility. What sort ofBank where it is though t that it is important enough view would you and your colleagues have which is to set up some institutional independence with a the preferable way forward? budget which is administered and which is a one-line Dame Sian Elias: The former, I would say. budget like the Australian High Court, for example, has. It is not regarded as a matter ofpriority at Q83 Peter Bottomley: The key oYcers ofthe home, and I am hoping that some ofyour Supreme Court should be appointed by the deliberations will assist us in continuing the dialogue Supreme Court? on this topic. Dame Sian Elias: Yes. Personally I would not extend that to the registrar function because, again, I think Q85 Chairman: Is it your idea that that one-line that is the provision ofthe courts, that is a budget should be confined to a limited area of responsibility ofgovernment, but there are di Verent judicial support, rather than being the budget of perspectives there. Certainly, however, I think it is either the Supreme Court as a whole or the court intolerable that our immediate judicial support staV system as a whole? are not answerable to the judiciary but are Dame Sian Elias: That is one option and, as you employees ofthe ministry, and all our have heard, probably Justice Gault and I are on communications are arguably subject to the OYcial slightly diVerent ends there. I do not have a problem Information Act. We are judges, and that is it, really. with the Supreme Court having a one-line budget Justice Gault: I have a slightly diVerent view on that because it is quite an easy exercise. I worry a little for a number of reasons but, particularly having about the smugness and the separateness oftotally regard to the debate leading up to the establishment stand-alone courts, which is why I would prefer to ofthe court and the anxiety expressed quite widely see the same sort ofarrangement put in place forthe ofpolitical influence in appointments and political High Court, the Court ofAppeal, and the Supreme influence in the courts’ work, I believe it is important Court, the higher judiciary, where you really do need that we establish a new court with as much to maintain your judicial independence. Ifyou are autonomy and apparent independence as possible. going into that it is a much bigger operation, and I Establishing public confidence after this rather would prefer to see that personally as just the bruising debate will be very important, and for that immediate judicial support. reason I favour perhaps a greater degree of Y autonomy. I also have some di culty in separating Q86 Chairman: Has your Lord ChiefJustice now quite as clearly the, let us say, administrative, changed, because you are on the Supreme Court, are registry type ofsupport fromthe judicial support in you not? a small court with only five judges, all ofwhom sit on Dame Sian Elias: Yes. The ChiefJustice has always every case, but that is rather a detail ofthe practical been said in the legislation to be leader ofthe operation ofthe court. I am concerned at the judiciary and a member ofboth the Court ofAppeal perception ofindependence being very clear. and the High Court. EVectively because we are a court offive and a quorum offive I do not think I will Q84 Peter Bottomley: Do you or will you produce an be able to sit in the High Court and I am now not a annual report or some equivalent, and will you have member ofthe Court ofAppeal. But the Chief some control over making sure that your own staV Justice can really only lead the judiciary, I think, by do not get held back on some general service pay being a sitting judge, so I would hate to see the restraint, so that you use competent people? administrative responsibilities ofthe ChiefJustice Dame Sian Elias: There are two questions there. We swamping the judicial responsibilities ofa Chief have had an annual report; it has been a very Justice. pedestrian, not terrifically illuminating, document and also it has been very expensive to produce. We Q87Chairman: So every case that the Supreme just do not have the resources to do a good job on Court deals with must be dealt with throughout by it. I have wanted to have that published on a website all five justices? because it will save us $60,000 in terms ofproducing Dame Sian Elias: Yes. the hard copy and it is going to be available. Getting that on a website has proved almost impossible. It has taken months and it is not a ministerial priority. Q88 Peter Bottomley: Five plus one, or four plus They have lots ofother things and I am not blaming one? them, but it is like pulling hen’s teeth. On pay for key Dame Sian Elias: Five. I am one ofthe five. staV, my ChiefJustice support sta V consists ofthree key people I suppose, including the person who is Q89 Chairman: And therefore you preside over probably head ofmy little department, and I have every sitting that takes place? 9940171002 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Dame Sian Elias: Yes, except where there is a conflict Q92 Chairman: Is there not a risk that an expensive when we have the ability to bring in retired judges case would have to restart because ofthis quorum from the Court of Appeal. requirement? Dame Sian Elias: No, it would not be embarked upon. Q90 Chairman: The quorum is met by bringing in a Ross Cranston: It probably would be always at the retired judge? outset that— Dame Sian Elias: Yes. Q93 Peter Bottomley: And can four of you carry on ifone ofyou kicks the bucket? Q91 Ross Cranston: What about leave applications? Dame Sian Elias: Yes. Dame Sian Elias: For leave we sit two or three. We could sit any number really but we can sit two. The Q94 Chairman: Well, let’s not dwell upon that! Supreme Court ofCanada has the ability to bring in Dame Sian Elias: Not yet anyway, but we may look retired judges and the ChiefJustice ofCanada has forward to some peace at some stage. told me that they have never used it, that they have deliberately done what they could to avoid that. We Q95 Chairman: Let us instead express our warm do have provision for an additional appointment, a thanks for all the useful advice you have given us and sixth appointment, and ifit looked as though we the shared experience and repeat our good wishes to were going to have to pull on retired judges the Supreme Court ofNew Zealand. frequently, I think it would be better to activate that Dame Sian Elias: Thank you very much. sixth appointment. Chairman: Thank you very much.

Witness: Rt Hon Lord Bingham of Cornhill, Senior Lord ofAppeal in Ordinary, examined.

Chairman: Welcome. has come up in the evidence he has also given to the Keith Vaz: I would like to declare an interest, that I Select Committee ofthe House ofLords. You may am a non-practising barrister. not want to go through that because I think you were Peter Bottomley: I repeat what I said the last time we very clear last time about— were together, that we are fellow members of a partly Lord Bingham of Cornhill: Well, it is certainly not a charitable, partly corporate body ofno importance point which impresses me at all. The truth is that the to this. Law Lords have played less and less and less part in the business ofthe House ofLords. Ifyou drew their Q96 Chairman: Other interests were declared earlier contributions to debates on a graph, it would go this afternoon. Well, we are very glad to have you plummeting down and there are a number ofreasons back again for something of an update. Quite a lot for this which are very familiar to you and also to has happened since the last time you were before us. me, but the truth is that we are very inactive Do you want to comment initially on that at all? members ofthe House. Lord Bingham of Cornhill: No. Chairman: I am sure it will all emerge in the course ofthe questions. We are obviously aware ofthe Q98 Ross Cranston: I do not think it was the proceedings which are going on in the House of contribution which the Law Lords would make, but Lords on the Bill and indeed the existence ofthose more what they could learn by sitting there. I think proceedings, I think, in part reflects this that was the way he put it. Committee’s express desire that we should take a Lord Bingham of Cornhill: Well, ifyou plotted on a slightly more measured approach to considering the graph the amount ofhours per month that the Law legislation and that seems to be happening and we Lords spend sitting in the Chamber, it would be want to continue to play a part in it. I wonder ifwe negligible. They basically do not do it. People do could perhaps start by looking at the nature ofthe sometimes forget that we have a rather demanding Court and any issues which that gives rise to. We full-time job which keeps most of us extended most have just been talking to your New Zealand ofthe time. I am not accusing you offorgettingthat counterparts and we had a rather interesting session because I appreciate you know that very well. with them. Perhaps Mr Cranston would open up on that. Q99 Ross Cranston: Could I ask you about Q97Ross Cranston: This may take you back to appointments. The Bill has a clause which says that ground which you do not want to traverse again, but the appointing body will put forward two, three, Lord Hope has made an interesting comment and I four names, but the Lord Chancellor has think some ofthe other Law Lords have made this subsequently said that he is considering an comment, that the association with the House of amendment whereby only one name would go Lords as a parliamentary body is useful and sitting forward. I personally, just to state my own view, in on, and listening to, debates gave him a dimension prefer the existing provision in the Bill, but I do not to some ofthe issues which would come beforehim know whether you have any thoughts on that as a judge which he would not otherwise get. That change. 9940171002 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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25 May 2004 Rt Hon LordBingham of Cornhill

Lord Bingham of Cornhill: It has been the subject of Lord Bingham of Cornhill: I have strongly urged that correspondence between myselfand the Lord the three territorial commissions, which are very Chancellor and we have not reached agreement, responsible bodies and they are making enormously although certainly his position has moved a little. important decisions, should themselves decide who The history is that he originally wanted five names they want to represent them on this body. Let us take and that is actually simply too many because whilst this example. Suppose that the President and the you could probably find, and I think you could find, Vice President ofthe Court, given an appointment, five thoroughly credible names ifit was, so to speak, are both from England as is, as it happens, the case an English appointment, it could be harder to find at the moment and suppose that a choice was to be five credible names ifit were a Scots appointment made from Scotland. Now, if I were a member of the bearing in mind that you would not want to Scottish Commission, I would definitely want a recommend anybody who did not want to come and judicial or professional representative on the it could be impossible in a very small judiciary like in Commission because I would wish to make Northern Ireland to find five credible names. I have absolutely plain that in the deliberative body which discussed this with Lord Carswell and I am not was going to make a recommendation there was saying anything behind his back; it is a view he fully somebody who could speak with authority and shares. Therefore, the proposal of five names was expertise about the legal system in Scotland. If, on modified to not fewer than two, no more than five, the other hand, in the same example, it was an but among my colleagues there has been quite a lot English appointment which was to be made and I ofresistance to that and we have reverted to thinking was the Chairman ofthe English Commission, I that the suggestion which we originally made is would say, “Let’s have a layperson because we have actually the right one, which is that the Commission got enough people who think they know about the English legal system. Let’s get somebody who will puts forward a name and the Lord Chancellor can V ask the Commission to think again giving reasons bring a di erent perspective to bear”. I think ifwe are going to have these bodies, we have to trust them. why he wants it to think again. The Commission As I say, they have got very, very responsible would then, in good faith, think again. It might come decisions to make and I think it should be left to up with the same name or it might come up with a them who they choose to represent them. diVerent name, but whichever name it came up with on the second occasion would be accepted. Now, that seemed to us to be a good formula and it is our Q102 Chairman: So that for any given appointment preference, but I cannot claim it is one which the to the Supreme Court, you would see the Lord Chancellor has as yet accepted. composition ofthe special body varying in the nature ofthe appointments? Lord Bingham of Cornhill: Yes. I think that the Lord Q100 Ross Cranston: What about distinguished Chancellor is proposing to ensure, and I do not resist advisers? Dr Kate Malleson said that maybe you do this, but I think he wants to say that there must be at not mind that the appointing body might in one least one lay representative ofthe territorial bodies particular case think, “Well, we cannot really decide so that ifthey all nominated judges or professional between A or B. We will put forward two names”, lawyers, there would be one decent, honest citizen to but you do not put it in the legislation. speak for the common man. Lord Bingham of Cornhill: Well, I myselfthink that the appointing body should be the body which Q103 Chairman: Can I attend to the vexed question makes the choice rather than the Minister because ofaccommodation. As you say, part ofthe purpose the whole object ofthe exercise is to make this ofthe exercise is to demonstrate that this body is demonstrably independent and devoid ofpolitical diVerent and that applies to appointments and input. presumably it applies to its sittings, so would you then not want to exclude the possibility ofthis new Court appearing hardly diVerent at all because it Q101 Ross Cranston: We could debate this at great continued to sit in a corridor ofthe House ofLords, length. I do take a diVerent view on this, I think you perhaps delivering its judgments there, during a long can have non-party-political appointments by a Y period while the authorities looked for somewhere politician. The law o cers act in a non-political way else for you to go? in many ways and so too even the Home Secretary Lord Bingham of Cornhill: I think there is bound to in certain ways which require acting in a judicial be an interim period because ifthe legislation were capacity and not in a party-political capacity. enacted, let us say, by the end ofthe year, there Lord Bingham of Cornhill: I accept that without any would be simply nowhere we could conceivably go reservation whatever. The Lord Chancellor has to, so there has to be an interim period. I myself indeed behaved in a totally unpolitical way, a totally think it would be a great mistake to bring the unpolitical manner, but the object ofthis exercise legislation into force until there is somewhere for us has to be to remove any room for suspicion to go to because, as you point out, this is a sort of whatever. phoney war situation which could last for some time Ross Cranston: What about the composition then of and I would find it very gravely embarrassing ifthree the appointing body—does that need to change? or four appointments fell to be made (most of us are There has been some suggestion that there needs to ofa certain age) and I ended up with a team, or any be a greater lay input. President ofthe Court ended up with a team, of 9940171002 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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25 May 2004 Rt Hon LordBingham of Cornhill whom halfwere members ofthe House ofLords and Q108 Mr Clappison: Can I follow up on the range of the other halfwere not so that one had a situation in options which we are discussing here for the future which you, you and you could eat in the dining housing ofthe Court which has s eemed to become a room, but you, you and you could not. That would very important issue as far as the Court is concerned. be, I think, quite unacceptable, so I think the only Given that you would be unwilling to have the Court acceptable arrangement really is that until there is sit temporarily in the House ofLords, and that somewhere to go, things carry on as they are, but I would seem to be at odds with the main purpose of certainly do not think that it can be seen as a long- separating the Court physically from the term solution. Ifone were envisaging that as a long- Legislature, and give n that you want purpose-built term plan, it would not have been worth embarking accommodation or accommodation which is fit for on the exercise at all. the purpose at any rate, would it be the end ofthe world, given that things are not satisfactory at the Q104 Chairman: Could you not go into some other moment, that rather than have something which was temporary accommodation while the real long-term less than ideal as far as you are concerned, the solution was found as long as it met your present arrangements continued? requirements? Lord Bingham of Cornhill: Well, I fear I may not Lord Bingham of Cornhill: I think there are two have made myselfquite clear. I am, and I think my points to make about that. The first is that the colleagues are, perfectly happy to carry on as we are Department for Constitutional AVairs, as I until there is somewhere suitable so that I am not understand it, are very much against it because they resisting our remaining here in the short term at all. feel it would be vastly more expensive if you spend a lot ofmoney equipping one place and then aftera Q109 Chairman: But remaining as the Law Lords short period everybody moves out and goes to rather than as halfa Supreme Court? another, so they think it would cost a great deal Lord Bingham of Cornhill: Well, I think we should more. I think from our perspective we are extremely remain exactly as we are until the legislation can be resistant to that because history shows that ifyou go the subject ofa Commencement Order and into temporary accommodation, you are still there everything will be transformed. 200 years later. Q110 Chairman: Do you think that should be Q105 Chairman: And you have rather taken against written into the Bill so that the Commencement the Middlesex Guildhall because you do not see Order in some way was devised so that it was the yourselfsitting in one ifits two grand chambers and commencement ofa Supreme Court sitting in its you are not too pleased with the other courtrooms in own premises? the Middlesex Guildhall either. Lord Bingham of Cornhill: I do not see much point Lord Bingham of Cornhill: We do not think, unless it in simply rechristening the Lords ofAppeal in is virtually demolished internally, that it can provide Ordinary and calling them a Supreme Court and the ambience which the Supreme Court needs. It was otherwise carrying on exactly as they are. There are built, as we all know, in 1912 to house downstairs other bits ofthe legislation, as you will be better some criminal courts and they are very typical and aware than I am, which could be commenced much useful criminal courts of the period no doubt sooner, like the judicial appointments thing which I intended to strike horror into the breast ofthe think everybody would like to see commenced as malefactor who was standing trial, but it is entirely soon as possible really. the wrong ambience as it now is for a Supreme Court. Q111 Peter Bottomley: When we last had the benefit ofyour presence, we had a bit ofwhat I called “the Bingham pudding test and Bingham”, which were Q106 Chairman: What is wrong with the smaller not always the same. Can I ask what your view is on courtrooms which are rather more like the some ofthe administrative arrangements. We have committee rooms ofthe House ofLords? had the benefit ofProfessorIan Scott talking to us Lord Bingham of Cornhill: Well, we have expressed and he says or he indicates, and I think I would agree the view that it would be really extraordinary to that he even said, that it would be wise to write into house your Supreme Court in the attic ofa museum! the Bill that the Supreme Court, which was the expression he used in discussions, should be able to Q107Chairman: Are you not beginning to sound a appoint its own chiefexecutive rather than having bit like the popstar who rejects all hotel suites which one sent along from the Department for the manager has oVered? Constitutional AVairs, that it might have the Lord Bingham of Cornhill: No, we are concerned to authority to appoint its own registrar and that it try to provide the United Kingdom with a great ought to have budget independence and should not Court. We think it has got a pretty good Court now have its staV treated as though they are ordinary in the way that it actually functions, but we think it members ofthe Civil Service and subject to the ups could be better and we think it would undoubtedly and downs ofpay. Could you tell us how you and be worse ifit were shoehorned into a building which your colleagues might respond to those issues? is really quite unsuitable, unless you were to do a Lord Bingham of Cornhill: I do not ofcourse know great deal more to the interior than it seems to us exactly what Professor Scott told you this morning, English Heritage are likely to countenance. but I have seen a certain amount which he has 9940171002 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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25 May 2004 Rt Hon LordBingham of Cornhill written on the subject and I have spoken to him and Lord Bingham of Cornhill: Yes. I think it is most unlikely that there is anything which he said which I and my colleagues would not Q116 Peter Bottomley:—how much ofthat should agree with totally. He is very, very insistent, as you be paid for by the public purse and how much of it will have heard, on giving the thing operational should be properly put as a fee to those who are independence and functional independence and we applying to the Court for cases to be heard? would enthusiastically endorse both ofthose Lord Bingham of Cornhill: You are touching on a ambitions. The Committee will be very well aware subject which has been, as you probably know, quite that there are probably very few people in the world a long-running source ofargument between the who are really more knowledgeable on this subject judges and successive governments, the philosophy than Professor Scott. He was, as you will know, the ofwhich has been that civil justice should pay for Director ofthe Institute ofJudicial Administration itself. The judges have actually always resisted this at Birmingham which does actually specialise in philosophy because they feel that providing a system this subject. ofjustice is something that a civilised state has to do, like providing other forms of social service, military Q112 Chairman: Is it not a logical consequence of protection and so on. That does not mean to say that moving out ofthe House ofLords that the litigants should not pay anything, but it does mean independence that the Law Lords have in their that ifthe public purse has to meet some ofthe administration, because it is not part ofthe expense ofproviding an alternative to violence or Executive, it is part ofthe House ofLords, ought in self-help, it should. Now, my opinion would be that some way to be reproduced in any new system that it would be unrealistic to expect the relatively few you have ofadministration around you which is litigants who reach the Supreme Court to pay the answerable to you? costs ofthe operation. We have to assume, and I would have no diYculty in assuming, that, as the Lord Bingham of Cornhill: Absolutely. It is one of final domestic source oflaw, it is providing a service the sort offaintanomalies in a way ofthe whole for three jurisdictions. It is, we hope, laying down discussion that, as a result ofour current status, we sensible principles which the courts in England and do have extraordinary independence in some Wales, Scotland and Northern Ireland can apply, so respects. The Lord Chancellor, for example, has it is really, I think, wrong in principle that the really no say in the way anything happens. He used litigants who come to the Court should pay for all of to compose the panels, but gave that up some time that, which is not to say that they should not pay ago. reasonable fees, but of course potentially the fee could be prohibitive which would just mean, Q113 Chairman: And none ofthis is written into the attractive though it might be, that there would be no Bill at the moment, is it? cases to try because nobody could aVord it, except Lord Bingham of Cornhill: No, the Bill, it seems to no doubt some criminals. me, is extremely spare on this whole topic and for the best ofall possible reasons that I do not really think Q117Keith Vaz: Lord Bingham, can I take you back anybody knew what arrangements they intended to to what you said earlier on, that you felt that the provide. Lord Chancellor had behaved in a non-political way as these proposals have developed. Lord Bingham of Cornhill: Well, I said in the course Q114 Peter Bottomley: Because they have not ofmaking judicial appointments. consulted Professor Scott no doubt. Every other country in the world does, but not this one. How could the Court be accountable for its expenditure Q118 Keith Vaz: Well, let’s talk about the proposals ifit had what we might call “corporate now. How did the Government handle these independence”? proposals? Lord Bingham of Cornhill: I would envisage that Lord Bingham of Cornhill: Well, I share the view there would be an accounting oYcer and a very which has been voiced by others that there would detailed and careful bid would be made for money have been a lot to be said for a period of quite detailed consultation before the plans were actually and the Treasury would plainly be scrupulous to announced. I think many ofus can understand some make sure that there were no extravagant and reasons why there was not such a period of avoidable sources ofexpense in the bid and then at consultation, but ifyou compare it, forexample, the end ofthe year there would be a report and no with the Judicature Acts of1873 and 1875, there was doubt the accounting oYcer, like others, could be a Commission which was formed in 1867 which called before the Public Accounts Committee to be heard an awful lot of evidence, provided some very politely questioned about where all the money had big books and they really chewed that subject up and gone. they were, as we both know, very successful reforms and they have stuck. Q115 Peter Bottomley: If, under the new arrangements, the costs are significantly higher, and Q119 Ross Cranston: They were going to abolish the we have to assume that the premises costs will House ofLords as a judicial body. certainly appear far greater and I would suspect that Lord Bingham of Cornhill: Well, they never did it for the support costs would be significantly higher— Scotland and Ireland. 9940171002 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Q120 Keith Vaz: So had there been this consultation, written Constitution and when he gave evidence to had there been a period which would have allowed us, he was not quite so controversial. Do you have both the judiciary and others to have their say, do to go abroad to criticise the Government? you think that we would have made better progress Lord Bingham of Cornhill: Certainly not, certainly with these proposals? not. Lord Bingham of Cornhill: Yes, I do because I think there would have been very much less opposition to Q125 Keith Vaz: So you feel that those views which them. My own view, which I have expressed before have been expressed have been made known to the and will express again, is that it would have Government, that the Government are clear that been perfectly reasonable to reform the Lord there is still a division amongst the higher judiciary Chancellor’s oYce by removing his judicial function about these proposals? and his Speakership function, but there was no Lord Bingham of Cornhill: The Government are very overwhelming case for abolishing it altogether since well aware that some ofthe Law Lords favourthe there is a big department there and somebody has to Supreme Court proposal and others do not. run it and there are advantages in having the Lord Chancellor running it. I think that a lot ofthe Q126 Chairman: Have you given up on the oYce of opposition has flowed from the sort of rather casual- Lord Chancellor entirely or do you take the view, seeming abolition ofthe o Yce ofLord Chancellor. which this Committee made some reference to when we published our Report, that there might be merit Q121 Keith Vaz: Sure. It remains the case, does it in retaining the oYce for at least some period of time not, that there are still a number ofsenior judges and that ways may have to be found of avoiding the who are very unhappy with these proposals and anxieties created by the fear that the judiciary’s would actually like a pause in the discussion so that relationship with the Government will be dealt with there is further consultation? Lord Hope is not on in future by a Minister who might have further hopes board yet, is he? ofpromotion, who might be relatively junior Lord Bingham of Cornhill: No, there are some judges compared to Lord Chancellors ofthe past, might not who would favour delay or never, never, yes, there be a lawyer and might not be so ready to express are. On the other hand, I would simply perhaps concern when the judiciary’s interests are at stake as make the point that ifjudicial reformhad awaited some previous Lord Chancellors have done? the enthusiastic support ofthe judges, we would still Lord Bingham of Cornhill: I have not led a personal be whipping people at the back ofa cart! crusade on the subject ofthe o Yce ofLord Chancellor. Others have and the House ofLords Q122 Keith Vaz: Indeed and we would not want to Select Committee is very interested in the question. be in that position! Having accepted these reforms I have said clearly and publicly what I think I would and clearly gone along with them, as the most senior have done ifI had been the Prime Minister last June. Law Lord, are you in dialogue with the Lord On the other hand, it seems to me slightly diYcult, if Chancellor? Do you have meetings with him about the Government do not want to have an OYcer of these proposals as they go on? Are you being kept State, to say, “Well, you have jolly well got to”. fully informed? Are they terribly apologetic about Apart from anything else, they could frustrate such the way things are done? Do they ring you up? Do a scheme by simply giving him or her very little to do, they call you in for tea? How are you kept informed so I do not know ifthe o Yce is salvageable myself, ofwhat is going on about what is the most major but it is not a cause which I have gone to the change in British legal history? barricades on myself. Lord Bingham of Cornhill: I have known the Lord Chancellor for a very long time. He was a member of Q127Chairman: Is there any other way, in your my Chambers and my relationship with him is view, in which this concern about the nature ofthe cordial and I hope mutually trustful. We exchange person who does some ofthe things the Lord letters. I usually answer his very quickly and he in Chancellor used to do becoming simply a middle- due course answers mine! ranking political function fully subject to all the pressures that all other Ministers are put to and Q123 Keith Vaz: We all have that problem! rendering rather ineVective the writing into the Lord Bingham of Cornhill: I have no inhibition about legislation ofa duty to uphold the interests ofthe making my views known to him at all. He has got a judiciary? lot ofconstituencies and when you say, “Does he Lord Bingham of Cornhill: I remember a former keep you fully informed?”, I do not really know. Lord Chancellor, forgive me if I am anecdotal in my reply, who said to me on one occasion that his life Q124 Keith Vaz: But you have expressed to him the was really very diYcult because all the politicians concerns which still exist amongst the higher viewed him as a judge and all the judges viewed him judiciary about what is happening because I think as a politician. I am not absolutely sure that the Lord there was a view that the senior judges are blowing Chancellor’s oYce could have maintained his hot and cold? Publicly they are not critical, but traditional function as head of the judiciary if he privately they are very critical. We had the problem were no longer a judge. To call somebody the head with the Lord ChiefJustice in that he had to go all ofthe judiciary ifthey are not a judge is actually a the way to Jerusalem to make a speech about nonsense, so once the decision is taken that he is not constitutional reform and the possibility of having a to sit as a judge anymore, which I think is the right 9940171002 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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25 May 2004 Rt Hon LordBingham of Cornhill decision for reasons that I can go into if you wish me Q132 Chairman: So there is quite a lot more to do in to, I think to the extent that the oYce derives terms ofthat, forexample, some ofthe issues which strength from the Lord Chancellor’s role and the Mr Bottomley raised about the appointment ofkey perception ofhim as a judge, it probably was oYcers ofthe Court which really needs to be written destined to decay. into the Bill before the process is over? Lord Bingham of Cornhill: Yes, there is also, which Mr Bottomley did not quite correctly raise, but no Q128 Chairman: Do you see any merit in the doubt Professor Scott did, the question of how the suggestion that the Attorney General’s role might be Court gets into possession ofthe money. The increased to fill some ofthe gap on the basis that he question ofaccountability we touched on and the is, by definition, a lawyer and is somewhat detached question ofan annual report and that sort ofthing, from day-to-day political argument and is in other but I think there is a diYcult issue as to how it sets jurisdictions the person who carries out that role? Is about the bidding process. My impression is that the that a runner? Lord Chancellor’s ambition, ifhe could get his way Lord Bingham of Cornhill: Well, up to a point, but it with the Treasury, would be to give the Court a very would seem to me that the real clout is going to rest great deal ofauthority to make the running in this with whoever runs what is still quite a big field, but he feels that a Minister, such as himself, Department ofState, which the Attorney General is would be very much more successful at extracting never going to do. I may be wrong about this and it money from the Treasury than someone who is the is a rather minor thing in one sense, but I think he chiefexecutive ofthe Supreme Court because he has been given an enhanced role in relation to silk. I makes the point that a Minister’s reputation in may be wrong about that, but I think he is going to government and in Whitehall stands or falls by his have some function in sort of vetting the candidates success as an extractor ofmoney fromthe Treasury for silk. and, therefore, it is very much in the Minister’s interest to do well by the Supreme Court. Q129 Chairman: Could I just draw attention to something which Professor Scott drew to our Q133 Chairman: It could be said that the reverse is attention which is that in the context ofcontracting now the case, that Ministers are judged according to out services by courts, getting private organisations how successful they are in reducing their claims to provide some ofthe services forcourts, there was upon the Treasury. concern as to what a judicial function was and what Lord Bingham of Cornhill: Well, he did not put that. ought to be protected from being privatised and this was resolved by an exchange ofletters between Lord Mackay and Lord Taylor which was then read into Q134 Chairman: The point I want to put to you is the Hansard record. As far as I am aware, this has that the present situation is because the bill for the not been brought up in the course ofthe proceedings Court is part ofthe House ofLords’ funding,then so far on this Bill. that budget is presented to Parliament without the Lord Bingham of Cornhill: I think I was, so to speak, intervention ofa Minister as part ofParliament’s around the table at the time and this was when the budget. Court Service Agency was established and I think Lord Bingham of Cornhill: Yes. that Lord Mackay gave an undertaking, and I am really dredging the recesses ofmy memory now, that the purpose ofthe Court Service was to forwardthe Q135 Chairman: So the logic would be that ifyou are administration ofjustice in conjunction with, and moving out ofParliament, you should preserve that subject to, the direction ofthe judges, or something relationship with the Treasury by ensuring that the ofthat sort. There was, as I recall, something written Court can bid for its funds and have that estimate in broadly to that eVect. Am I right about that? put before Parliament which must ultimately decide upon it without the direct intervention ofa Minister? Q130 Chairman: It included the assertion that case Lord Bingham of Cornhill: Well, I do not know, Mr management functions are judicial functions and Chairman, whether you saw some questions which ought, therefore, to be protected in some way. Lord Howe was putting, I think, to the Lord Lord Bingham of Cornhill: And listing functions, Chancellor, but in the Select Committee anyway, which are closely allied. some very interesting questions which he was putting against a background ofhaving served both as Chancellor and as Leader ofthe House of Q131 Chairman: Are you happy that the legislation Commons. He made the point that, as Chancellor, at present will meet that along with assurances given he had tried to impose some sort ofcorset on in the past or does that need to be rewritten into the parliamentary expenditure and completely failed, Bill or restated in some way? but had then exploited that freedom when he became Lord Bingham of Cornhill: It needs to be rewritten at Leader ofthe House ofCommons. He was rather a great deal more length, I think, really unless one is suggesting that that particular mechanism could be going to have a clear statement ofprinciple which used still which would in many ways be ideal ifit will govern everything. could. 9940171002 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Q136 Peter Bottomley: What better option is there Lord Bingham of Cornhill: No, it is not an unfair than for the Supreme Court to tell Parliament, “This question. I would actually be rather against that is the money we believe we need to run the because I think the notion ofthe Lord Chancellor operation”? Why in any sense would it have been comes with a lot ofbaggage and everybody who better for it go through a Minister? knows anything knows that the Lord Chancellor has Lord Bingham of Cornhill: Well, we obviously would a political dimension and one ofthe things we will prefer it did not. The answer which we would get at want to try to make as plain as can be is that the the moment is that it is completely unthinkable that President ofthe Supreme Court would have no Parliament, the House ofCommons would vote any political dimension whatever, so I think there are money for which a Minister was not accountable or disadvantages about that. without its going through the sort ofo Ycial channel and the notion that you would say, “Could we have Q141 Keith Vaz: When you were last here, I asked X please?”, and there would then be a vote ofX or you a question about diversity and the ability ofthe new Commission to ensure that the vision ofthe something approaching X is just not the way it judiciary which was representative ofsociety as a would work. That is the line and I am caricaturing it whole meant that we had more women, more black a little. and Asian judges and indeed perhaps a black or Asian person sitting in the Supreme Court. Your Q137Peter Bottomley: In that case, surely for answer to me was that you felt that any committee Parliament to say to the Government, “This Bill, the would be suitably qualified to make those Act ofParliament, which is going to make the judgments. I then put it to you that the merit changes, should direct that the budget required by principle is sometimes as a means ofpreventing the Supreme Court shall be submitted to people ofcalibre frombeing appointed. I do not Parliament”? know whether you have seen the very interesting Lord Bingham of Cornhill: Yes. Well, that would of paper produced by Thomas Legg on a definition of what is merit where he set out his views in a speech course be very attractive indeed and I do not think in Cambridge as to what is the minimum personally the Lord Chancellor would actually qualification and what is the maximum qualification oppose it. I think there are two points to make, first, for someone to be appointed. Have you seen that that it is going to be, in United Kingdom terms, a paper? unique institution, this, and, second, that although it Lord Bingham of Cornhill: I read a lecture which he will cost more than the existing operation, in terms gave in Manchester a year or two ago and it may be ofcomparable expenditure, we are really talking in that it is the same lecture. relatively small sums. Q142 Keith Vaz: When do you foresee someone who is ofAfro-Caribbeanorigin or Asian origin sitting in Q138 Ross Cranston: Just a` propos this Scott model the Supreme Court because under the present system ofcorporate independence forthe Court, I am just this is going to take a very long time indeed? wondering ifthat is going to change the nature ofthe Y Lord Bingham of Cornhill: Well, I recall being asked presiding o cer or the President ofthe Court in the the question not so long ago, “When do you sense that that person, even ifthey did not relish envisage there being the first female Lord of Appeal administration, would at least have to be in Ordinary?”, and I replied that I would be amazed comfortable with administration or would it be, do ifit did not happen within five years. I pitched it at you think, just a matter ofsupervising the chief five years because I did not want to excite anybody executive? unduly, but in fact I think it was probably two or Lord Bingham of Cornhill: I would very, very much three years ago that I said that. hope that ifone had, as one would assume, a competent and experienced chiefexecutive and a Q143 Keith Vaz: So what is your timescale? good relationship between him and the President Lord Bingham of Cornhill: It would be longer. On the that the President could leave most ofthe running to other hand, I can immediately think ofseveral him. I really cannot imagine him wanting to pore people ofoutstanding ability belonging to minority over the accounts every night or anything like that. communities who again I would be astonished not to see holding very high oYce when they are a bit older.

Q139 Keith Vaz: I wonder whether the new President Q144 Chairman: Well, thank you very much indeed. ofthe Supreme Court could take on the title ofLord I think we will probably meet again because this Chancellor and take on some ofthose functionsso show is going to run and run and certainly this that we preserve the historic nature ofthe o Yce and, Committee hope to assist the process ofgetting the therefore, recognise that whoever is going to be the right answers and getting a carefully considered President ofthe Supreme Court will be in e Vect the outcome, so we are very grateful for your help in leader ofthe judiciary. that. Lord Bingham of Cornhill: Well, ifany ofus can help you at all, let us know because we would very much Q140 Chairman: Perhaps that is an unfair question like to do that. to put to a person personally involved. Chairman: Thank you very much. 9940171003 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Tuesday 8 June 2004

Members present

Mr A J Beith, in the Chair

Peter Bottomley Mrs Ann Cryer Mr James Clappison Mr Hilton Dawson Ross Cranston Mr Clive Soley

Witnesses: Rt Hon Lord Falconer of Thoroton QC, Lord Chancellor and Secretary ofState for Constitutional AVairs, and Sir Hayden Phillips GCB, Permanent Secretary, Department ofConstitutional AVairs, examined.

Chairman: Welcome, Lord Chancellor, welcome Sir and provided by the court are ofgenu ine Hayden. We are pleased to have you with us again. importance. As we all know, the accommodation for We will just go through our usual routine declaring the Law Lords within this building leaves a lot to be interests. desired. We see scope for real improvements in the Ross Cranston: I am a barrister and Recorder. provision ofinformationtechnology; ofadd itional Mr Clappison: I am a non-practising member of research assistants; and ofadditional secretarial the Bar. support. We are committed to providing a world class law library; and, very importantly, we will Q145 Chairman: Thank you very much. I think you ensure that the public—including visitors from might have an opening statement? overseas—have the opportunity they deserve to see Lord Falconer of Thoroton: A very short one, ifthat the Supreme Court ofthe United Kingdom at work. is okay. Since I last appeared before the Select Committee in January, we have made considerable progress on the evaluation ofpotential buildings forthe Supreme Q146 Chairman: That is very helpful. Court. The potential options identified through a Lord Falconer of Thoroton: The Government comprehensive search ofpossible sites in central believes that it is now time for the establishment of London have been analysed against a number a Supreme Court for the United Kingdom. The ofcriteria, including functional suitability, creation ofa Supreme Court is a key element ofour deliverability, prestige and location, and value for Constitutional Reform Bill, which, as you know, is money and aVordability. Following this detailed currently being considered by a Select Committee in evaluation exercise, two building options remain another place. We agree with Lord Bingham of under active consideration. These are Middlesex Cornhill, who has said that he regards “the Guildhall and the new wing ofSomerset House. We establishment ofa suitably accommodated, will continue to investigate the relative qualitative adequately resourced, appropriately staVed, and financial merits ofthese two options in Supreme Court, visibly separate functionally, consultation with the Law Lords before reaching a institutionally and geographically from either final decision. We are also responding to concerns House ofthe Legislature, as an all but imperative raised on a number ofissues, including both the feature of a modern democratic State.” He went on system ofappointments and the way the integrity of to say that he had yet to hear any principled the Scottish legal system can be preserved, and we argument to the contrary. The Government are considering how the management and the respectfully agrees. The Law Lords are judges and financial framework for the court can sustain both not legislators: the separation between those two the vital principle ofjudicial independence and at the roles should be made explicit. It is time, as Lord same time ensure accountability ofministers to Bingham has argued in his evidence to this Select Parliament. The Government’s proposals have been Committee, for our institutional arrangements to put forward following an extensive consultation reflect the reality ofthe constitutional position. The during the summer and autumn of2003, and quality ofthe current Law Lords is undisputed. I pay following a series of detailed discussions with the tribute here to the work that they do. The senior judiciary. They will bring greater clarity and Government believes strongly that our highest court transparency to our constitutional arrangements, should be one to which the world can look as a but I very much welcome the opportunity for further beacon ofexcellence. But we believe that ifour consideration ofthe proposals and forthe highest court is to be an example to all, it must also opportunity to look for improvements to those be demonstrably independent ofthe Legislature—it proposals. Thank you very much. must be, in Lord Steyn’s phrase, “a badge of independence and neutrality and a potent symbol of the allegiance ofour country to the rule oflaw”. We Q147Chairman: Thank you very much. We will turn believe that the establishment ofa Supreme Court to the accommodation issues quite shortly, but since will provide clarity in our constitutional you started your statement by referring to the arrangements and give people confidence that the importance ofdoubting the independence ofthe institutional arrangements for our highest court are court from the Legislature, but I take it you would robust and will endure. The facilities available to also intend from the Executive— 9940171003 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Lord Falconer of Thoroton: Yes. automatically say yes to every request put to it even by such a minister as the Secretary ofState for V Q148 Chairman:—it might be appropriate for us to Constitutional A airs”? Lord Falconer of Thoroton: With the exception of start with an issue which the Committee itselfraised, Y namely whether the management arrangements of not agreeing with the word “di cult”, I entirely the court reflect that kind ofindependence. IfI could agree with what Lord Bingham says. I genuinely simply quote one ofthe Committee’s own think myselfand the Treasury are extremely aware recommendations. We referred to the dangers of ofthe need forthere to be proper operational giving the Government control over the independence. The critical arrangement that needs administration ofthe court because it might o Vend to be made is that they get their money direct from against the principle ofjudicial independence, and the Treasury; once that money is obtained they your reply, the formal reply of the Department, are—I am about to use the words “completely free”, referred to “the chief executive being accountable to but completely free, subject to appropriate audit, as the Secretary ofState forthe financial management to how they spend it. ofthe Court”. I think that phrase would seem rather chilling to some ofthose in the judiciary who were Q150 Peter Bottomley: Thank you for the concerned about judicial independence. Has your introduction. For the sake ofthe record, not to play thinking moved on since then? party politics, I am right in saying there was no Lord Falconer of Thoroton: Yes, it has. I think this is consultation and no discussion with the senior a very, very important issue and the discussions we judiciary before it was decided to move the judicial have had with the Select Committee in the Lords, the function away from the House of Lords? discussions we have had with the Law Lords and the Lord Falconer of Thoroton: Correct. There was paper, the document this Committee have produced, no—. The announcement was made on 12 June. I do have all thrown considerable light in relation to it. I not know ifyou recall, but you have gone through think there are three matters that are vital: first ofall this with me before and I stand by my acceptance of that the chiefexecutive ofthe court report to the Law the position. Lords, to the Supreme Court Justices, not to a particular minister; secondly, that the money that is obtained is obtained direct from Treasury to the Q151 Peter Bottomley: I just thought the balance... Supreme Court; and, thirdly, once the money is Lord Falconer of Thoroton: No, no. obtained, it is entirely a matter for the Supreme Court executive to determine how it is spent in relation to it. Those seem to me, in the light of Q152 Peter Bottomley: I am also right in thinking, mature consideration, to be the three conditions that am I not, that Lord Bingham says that all the present need to be fulfilled. There is one other thing that arrangements passed the Bingham test ofapproval, needs to be dealt with, which is that there needs to be the proofofthe pudding being in the eating ifit did some arrangement for ministerial accountability in not pass Bingham, but Bingham and Steyn are not relation to what the Supreme Court does. How does the only members ofthe Judicial Committee ofthe the requirement for ministerial accountability match House ofLords to have views on whether it is right with those three requirements that I have just gone to change the existing arrangements? through? Which is diVerent, I agree, from what I said Lord Falconer of Thoroton: Correct; and in the Select to the Committee in the quote that you gave: because Committee in the Lords—I do not know ifyou have implicit in the quote that I gave was the idea that the had a chance to read it—the two points ofview were chiefexecutive could be told by the Minister, “Do put by Lord Nicholls on the one hand and Lord not spend any more money on law books, spend it Bingham on the other, and ifone reads the evidence on something else”, and that is plainly not what one can, as it were, form one’s own view as to which anybody envisages. We are in constructive, and I strand ofevidence one finds most persuasive. genuinely mean constructive, discussions with the Treasury as to how one gets to those, as it were, three Q153 Peter Bottomley: Moving on to the highest plus four, three plus one requirements in relation to court being responsible for its own budget, I put in how you manage a situation, how you get to a passing but I suspect that ifthey had held their situation where the Supreme Court is genuinely budget they would not have come forward with a independent in its management arrangements. The more costly proposal, are their any highest courts diYcult bit to align in all ofthat is how you get around the world which can set their own budgets or ministerial accountability. do they all have to go through a minister? Lord Falconer of Thoroton: The Supreme Court of Q149 Chairman: You refer to your discussions with the United States ofAmerica, I think, makes the Treasury. Lord Bingham, when he was speaking arrangements whereby it, through a judge’s council, to the Lord’s Committee, had some rather colourful determines what the budget should be; it is then put commentary on this. He said, “I had a valuable to congress who are, I think, obliged to approve it; discussion with Lord Falconer on the subject. It was but there is no executive intervention ofany sort not daggers drawn or anything; indeed, I think both between the United States ofAmerica’s Supreme his heart and his ambition are in very much the same Court and the Congress who determine it because place as ours. He has got a diYcult colleague the Congress vote supply, the House of department in the Treasury which does not Representatives vote supply. 9940171003 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Sir Hayden Phillips: I was going to say, it does go via Lord Falconer of Thoroton: Correct. the President, but he is constitutionally not allowed to touch the bid. I think on one occasion in 1990 Q159 Chairman:—in seeking from the Treasury the Congress did adjust the budget downwards, but that budget for the court, then the court is less was adjusted in relation to all federal budgets, so independent than it is now? they were not being victimised particularly. Lord Falconer of Thoroton: I do not think that would be right in practice, because ifthe position were— Q154 Peter Bottomley: Are we to take it from the Lord Chancellor’s opening remarks that we are Q160 Peter Bottomley: I am sorry, not describing it going to move to a system like that, or are we going accurately or it would not be a right thing to do? to have negotiations between this highest court and Lord Falconer of Thoroton: I do not think that the your department before its budget is settled? Chairman is right when he says it would be in Lord Falconer of Thoroton: What bits of... What is practice less independent than it is at the moment: being discussed in Government is how you get to the because ifthe chiefexecutive puts forwarda point that I have got to but also have a minister provision which is then, in eVect, put forward by the involved somewhere in the story. The diYculty is Minister, passed from the Minister to the Treasury you do not want a situation where minister number in just the way, for example, the Attorney General one, say the Department for Constitutional AVairs, will do in relation to the New Zealand Supreme seeks to reduce the amount ofthe budget and then Court, then there is not that undermining ofthe minister number two, the Chancellor, seeks to independence ofthe chiefexecutive or the Supreme reduce the budget. How does one get to a position Court that undermines the independence. where they make their bid? It passes through some V department but in e ect is then dealt with by the Q161 Chairman: They do not have to do any of Treasury, and then, instead ofcoming to the that now? department, goes straight to the Supreme Court. So Lord Falconer of Thoroton: They do not, that is I cannot say to you that the minister will not be correct; but they are dependent upon persuading the involved because I think there are issues about House ofLords as to what bit they should put in. It accountability, but I want to get to a position, as is not the House ofLords in terms ofthe Lords does everybody in Government, where the money themselves, but, as it were, they discuss with the comes direct from the Treasury to the Supreme Lords what the amount they want for their Court and it cannot be touched and it cannot be corridor is. determined how it is spent by any minister. Sir Hayden Phillips: It is not, in the real sense ofthe word, as we would understand it, a budget at all. Of Q155 Peter Bottomley: That is the second half. course it has got the salaries ofthe sta V—that is Lord Falconer of Thoroton: Yes. clearly known—the salaries ofthe Law Lords—they are clearly known—and all the rest ofthe costs are Q156 Peter Bottomley: But the first half, would I be tucked away across a variety ofprovisions in the right in saying that the discussions were not House ofLords. So there is no identifiable budget. concluded? We have done work in trying to pull that out, and we Lord Falconer of Thoroton: Correct. can talk about that, but in fact, there is not the same, as it were, process of putting forward a proposal for Q157Chairman: Do you not have to set it against the a budget as would occur in an independent background that the present situation is that the institution. As Lord Falconer says, in Australia and budget for the Law Lords is not touched by a New Zealand the process is perfectly independent minister because it is part ofthe budget that is but the Attorney General is involved in being the presented to Parliament? accountable minister. Lord Falconer of Thoroton: Correct. That is because Lord Falconer of Thoroton: One can draw whatever there is the situation where it is treated as part ofthe conclusion one likes from this, but because the final Parliamentary budget ofthe Lords. Not in the Court ofAppeal is in the Lords, there is, in e Vect, no Government, but outside, it has been suggested: why budget issue: because obviously their pay is dealt do you not continue with an arrangement whereby with entirely separately from the Lords, they live in the Supreme Court’s budget is treated as part ofthe that particular bit—I do not know ifyou have ever Lord’s supply, but I think the answer to that is two- visited it, but they live in that particular bit ofthe fold. First of all, one of the purposes of the change Lords; all the cleaning, etcetera, etcetera, etcetera, is to separate the Supreme Court from Parliament. the functioning, is dealt with by the Lords; the The idea that it will be part ofa Parliamentary library they use, in eVect, is the House ofLords budget seems to me entirely at odds with the library for issues beyond law reports and budgeting principle that we are seeking to establish in part by issues do not really arise. the establishment ofa Supreme Court and, secondly, it would mean that all the staV ofthe Supreme Court Q162 Chairman: So they have no problem, but you would be employed by Parliament and not by the threaten to give them a problem! Supreme Court. Lord Falconer of Thoroton: That raises the question: because we have got this rather idiosyncratic Q158 Chairman: But ifthe Minister has an situation at the moment which has that eVect in how involvement, which he does not have now— they get their money, is that forever to be a bar to 9940171003 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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8 June 2004 Rt Hon LordFalconer of Thoroton QC andSir HaydenPhillips GCB there being a Supreme Court: because you could they get. For obvious reasons, that it is a national never think ofa situation whereby they would not be institution that has got to be preserved in a as independent ofbudgetary considerations as they completely apolitica l way. But somebody has got to are in the Lords? I think one recognises that one answer for the national archive when, for example, could never get to the sort ofParliamentary nirvana questions arise, as th ey did a year or two ago, about that they currently live in in the House ofLords, but the wisdom ofa particular—it was the 1901 census. that is not a reason for working hard to get There was an issue about how much money had been arrangements which might not be the same as the spent on making available to the public through IT current ones but give a more than adequate degree the results ofthe 1901 cen sus, and the Lord ofindependence. Chancellor answered questions in the House about that, but that does not seem to be to be a bad way of Q163 Mr Clappison: I think you have slightly pre- looking at it. empted my question. I was also going to ask the Peter Bottomley: We will not solve this in one Lord Chancellor a little later on what problems have session, but can I put it to you that anyone who has arisen with the oYce ofLord Chancellor which has seen government budgeting knows perfectly well been in existence, I think, since 1066, but the present that that at some stage the ChiefSecretary to the arrangement— Treasury and the Secretary ofState get together to Lord Falconer of Thoroton: Before, I think. resolve a settlement; and what actually happens on a number ofoccasions—I do not think I am giving Q164 Mr Clappison: Even before perhaps. Your away any secrets—is that the Treasury says to the website says 1066. You can take it before if you want Department, “Look, this is the sum you are going to to go further bank. The present arrangements for the get and you can carve it up, with minor adjustments, House ofLords have been in place since roughly the to make it fit.” It is inappropriate that our highest court should be subject to that process, and that is, 1870s. You are accepting there have not been any V problems in respect oftheir independence since I would suggest, di erent to accountability when then? something odd has happened. I think that one needs Lord Falconer of Thoroton: Yes. to separate the audit from the sense within the word “accountability” ofsaying that the highest judiciary, through their chiefexecutive, having to actually get Q165 Mr Clappison: You are not saying there has through a department before getting to the been a problem? Treasury. I want to put it to you that the most Lord Falconer of Thoroton: No, I am not sure there satisfactory situation around the world, whether it is has been any problem in relation to independence, the American one or any other, is for the highest but I am saying—I hope I made it clear in my judiciary to be able to say, “This is the money we opening remarks—I think the time has come, need”, and, in fact, they are more likely to decide particularly as the roles ofthe court have changed in how the money is spent ifthey are responsible, and relation to their role in protecting the rights of they will probably spend less in the end than having individuals, that you should have a clear institution to fight departments. So I hope you will put to the that is the final Court ofAppeal in this country; and Treasury the view you have been getting—not only I have absolutely no doubt that the quality ofthe from the House of Lords but also from the House of Law Lords, which is recognised throughout the Commons—that anything below that standard is world, will be replicated in the Supreme Court substandard. because that quality, I think, comes from the quality ofthe people who sit there, not the precise place in which they sit. Q167Chairman: I think you have to ask yourselfthe question: why does the House ofCommons have the Q166 Chairman: What I would like to take away opportunity, through the Commission chaired by from this exchange is the need to look again at the Speaker, to go itself, as it were, and say, “This is whether an arrangement more comparable to that of the amount ofmoney we need”, to negotiate that the House ofCommons Commission and the House directly with the Treasury in the process in which the ofLords vote could not be devised which does not Leader ofthe House is only a participant, not as a involve the direct intervention ofthe Minister? Minister, only as a Member ofthe group ofpeople Lord Falconer of Thoroton: Can I kindly respond to because the Legislature is thought to need some that? The comparisons you are drawing are with the independence from the Executive. That is why that arrangements for the Legislature at the moment. I arrangement is created. Is not the better analogy the am sure you agree with my first three principles. It is National Archives, the analogy with the Legislature very diYcult to see how you deal with organisations itself and the need for those responsible for it, in this without there being some degree ofministerial case the leading members ofthe judiciary, to have accountability. I do not know ifpeople have drawn the means ofcoming to us as Parliament and saying, to your attention the national archive example, “This is what we need”? which is in broad terms, ifI may use this phrase, part Lord Falconer of Thoroton: I do not think we are... ofthe DCA familybut is separate and has got a chief Peter’s point, I mean basically, “Ifyou reduce your executive, has got a very high degree of budget on the National Rivers Authority, I will give independence, for example, is not part of Hayden’s you for more environmental aid”—to take an team ofpeople who report to him, and has a high example miles away—that is the danger all the time degree ofindependence in relation to the money that that one has when one is a minister negotiating on a 9940171003 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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8 June 2004 Rt Hon LordFalconer of Thoroton QC andSir HaydenPhillips GCB whole range ofparticular parts ofone’s budget. The Q169 Peter Bottomley: It is rather the other way Supreme Court is unlikely to fall into that category: round. You as Government need to come forward because although it involves a lot ofmoney in one with proposals which we as Parliament believe are sense, in terms ofa spending round it may not totally fireprooffromthe point ofview ofthe necessarily figure that high on the radar in relation highest court. to the amounts ofmoney that are involved. Equally, Lord Falconer of Thoroton: Yes I think it would be possible to get to a position where the Supreme Court’s budget was, in eVect, ring- Q170 Peter Bottomley: So it is not a question of fenced at this first stage: because I appreciate there is whether there are— no disagreement on the second stage, namely what Lord Falconer of Thoroton: No; and I apologise ifI happens once the money is awarded by the Treasury; sounded— the question is how you get to that at the first stage. I am not at all unsympathetic to what the Committee Q171 Peter Bottomley: Can I turn to some lesser is saying, the question is how does one practically get level issues that I think are worth airing? Clauses 40 there, and I am not in a position, nor do I think it is and 41 ofthe Bill allow you to agree contracts with necessarily right to say, you should knock the third party contractors to supply services and staV to minister out altogether, although I do want to get to the court and the obligation to consult with the a position where in practice money comes direct as a senior judiciary. Ifthe court does not have what they result ofthe bid that is sensible because it is made. and others might see as full corporate independence, Sir Hayden Phillips: Could I just add, I think you what are the safeguards which can be put into place used the phrase “somehow the bid had to get to guarantee independence in the administration of through the department”. That will carefully and justice? deliberately not be the case here. The chiefexecutive Lord Falconer of Thoroton: It seems to me that ofthe Supreme Court will be the accounting o Ycer; comes back to the role ofthe chiefexecutive ofthe he, with the President ofthe Supreme Court, will Supreme Court, does it not? He has got to be the submit to the Secretary ofState the bid; the person who determines how the administrative Y Secretary ofState will transferthat to the Treasury. arrangements are made. He is the accounting o cer; There will be no second-guessing process that goes so he can indicate that it would not be acceptable for on from within the DCA, and that will be absolutely something to happen. In those circumstances, you straightforward. I would be enormously surprised if can ensure that every financial arrangement that is made is acceptable to the accounting oYcer; and if you had a position in which governments sought to he is not happy, he reports that to the Parliamentary tinker with a perfectly sensible budget from the committee, which would be the PAC, the Public Supreme Court. After all, this Committee and the Accounts Committee. PAC will summon, not me, but the chiefexecutive of the Supreme Court, as the accounting oYcer, to give evidence. The checks and balances ofthe system Q172 Peter Bottomley: Is there any reason for you to therefore seem to me to be pretty disciplined, but be able to agree the contracts rather than for the highest court to be able to agree the contracts? that is not to say, as the Secretary ofState has said, Lord Falconer of Thoroton: That was put in with a that we are not going to try to see whether we cannot view to dealing with a situation where it could be strengthen that position in some way. that the Supreme Court benefited from being the beneficiary of, for example, IT contracts which other courts in the country dealt with as well, or other bulk Q168 Peter Bottomley: I look forward to hearing contracts that the Minister entered into on behalfof what your concluded results are, but I think that if the Court System as whole. It was certainly not the Permanent Secretary is saying that ifin intended to deal with the sort ofsituation where, as legislation it says that the Treasury will receive the it were, the Minister contracts for the building, the V request for an e ective demand for an appropriation services, etcetera, and ifit is necessary to make that from this highest court, that, I think, begins to get clear we certainly will. away from the substandard and the risk point. If it is not in legislation and it is not straight through the Q173 Peter Bottomley: Turning to what the Treasury, the substandard question remains. Department might be responsible for in terms of Lord Falconer of Thoroton: Your model is slightly appointing ancillary staV while the judges appoint V di erent, with respect, from what the Chairman is key court oYcers, say, with the sort offunctions saying: because in the Parliamentary commission relating to case management, listing, IT and records model, as I understand it, the Commons management. Have you given thought to having Commission, the Parliamentary Commission, in that kind ofsplit model? eVect, votes itselfthe money and the Government is Lord Falconer of Thoroton: We discussed this before. not allowed to interfere with that. What you are We are very keen for the appointments to be, in envisaging is that, instead ofit being through the eVect, in the hands ofthe chiefexecutive ofthe DCA you would answer on Supreme Court issues in Supreme Court. Hayden made the point last time— Parliament, it would go to the Treasury, which I do not know ifyou remember—that you wanted means, quite appropriately, Treasury ministers; not, good quality staV to come; you might need to make as Alan is suggesting, as I understand it, an some arrangements with the Civil Service as a whole automatic, “We want a billion quid; we get it.” so that people could come into the Supreme Court 9940171003 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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8 June 2004 Rt Hon LordFalconer of Thoroton QC andSir HaydenPhillips GCB as part ofa series ofjobs in the Civil Service. How Q176 Ross Cranston: The latter. that would be arranged I am not sure, but, Lord Falconer of Thoroton: We get currently, or the ultimately, the question ofwho was engaged, House ofLords gets about £500,000 currently from whether on employment contracts or secondments, fees charged by them for cases to be heard by them. should be a matter for the chief executive working to It makes a significant contribution to the costs. Yes, the Supreme Court Justices. there is a precedential value, a huge value, in relation Sir Hayden Phillips: That is absolutely right. That to the cases that are determined by them, in the sense would be his or her responsibility, and, as with the that it helps litigants as a whole because it appointment ofthe chiefexecutive itself,that would determines the law, but it is also ofreal value to the be policed very carefully by the Civil Service individual litigants who get there, very many of Commission. There will not be any DCA whom—and we are only talking about civil cases, involvement in that process at all other than trying not criminal cases or devolution cases here—it is to support the Supreme Court by reaching out and also ofvery considerable value to those civil litigants encouraging good quality staV to apply for their who go to the final Court ofAppeal. I do not think jobs. there is anything wrong in principle in asking them to pay some contribution in relation to that, just as they are asked to pay a fee at every level in the civil justice system. Accepting the value across the board, Q174 Ross Cranston: In relation to this first bracket that does not seem to me to lead to the conclusion ofquestions, formy own part I would say that you those who actually benefit from the individual have come an awful long way and it is very much the judgment or resolution ofthe dispute should not be Secretary ofState as conduit. We have had evidence pay a contribution by way offee. from an expert, Professor Ian Scott, who said that this issue is not concerned with high-falutin issues of Q177 Ross Cranston: I was asking, say, in relation to separation ofpowers or independence ofthe an important human rights decision. judiciary, it is really how the court is going to be run Lord Falconer of Thoroton: Yes. most eVectively. I say that because I will become agitated about something else a bit later on, but I am Q178 Ross Cranston: Where you have got someone not as agitated as some about this first bracket of who might not be able to make that contribution? questions. Lord Falconer of Thoroton: No individual— Lord Falconer of Thoroton: I am trying to convey that I am completely sympathetic to what you are saying. I know exactly how in practical day to day Q179 Ross Cranston: Particularly those on legal aid, things the sorts ofthings that Peter said, but even less ofcourse? high level things than that would be aVected ifthe Lord Falconer of Thoroton: There is no bar in the fees chief executive did not feel completely free about in terms ofaccess to justice. So, ifthere is a legitimate both how he spent the money and how he bid for point to be argued in the Supreme Court for which, for example, leave has been given and you are the money. dependent upon legal aid, that legal aid, as you know, would cover the fee. There are lots of civil cases, as you know, where great commercial parties Q175 Ross Cranston: I want to ask you about go to the final Court ofAppeal in order to get great something quite diVerent. It is about fees. You have commercial issues resolved in which millions of got your consultation document out about that, and pounds are involved; and they are going there not to I do not want to raise the general issue and the get the law resolved but because they are moneyed debate you have had with the Civil Justice Council litigants who are able to drive the thing to the top of over a number ofyears about whether there should the system. I do not see any reason why they should be full cost recovery; but one of the interesting points not pay as long as you can make sure there is access that they have always made is a point that writers to justice for those who are not moneyed who want about this area have made for years and years, which to get to the final Court ofAppeal. is that judgments have a public value. Some ofthe writers talk about the radiating eVects ofjudgments. Q180 Ross Cranston: That is the category ofcase I So there is a public value in having judgments and am thinking about. It may be over the years that that therefore the Civil Justice Council says, rightly in my category will grow. view, that you cannot always have full cost recovery. Lord Falconer of Thoroton: Which, the human rights Putting aside the general issue about fees, what cases or— about fees in relation to the Supreme Court? Because iftheir judgments have great public value, and Q181 Ross Cranston: Yes, human rights cases, cases arguably a greater public value than the judgments where people are going as a matter ofprinciple, as ofthe lower courts— the character ofthe court changes. Lord Falconer of Thoroton: Are you talking here Lord Falconer of Thoroton: I think we have seen that. about recovery ofthe cost ofthe Supreme Court In the mid seventies, when I started in the law, ifyou right across the civil litigation field in civil litigation looked at what the Judicial Committee ofthe House in England and Wales, or are you talking about the ofLords did, there would be much more fees charged by the Supreme Court? commercial cases. 9940171003 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Q182 Ross Cranston: In those days there were many, want a situation where the Supreme Court Justices many tax appeals. You do not get those these days. are sitting in an elevated position from the litigants Lord Falconer of Thoroton: Tax appeals and or their counsel or advocates. He is very keen that commercial cases. There are still commercial cases, the building be reconfigured so that the hearing but there are also a much greater number ofboth rooms represent, as it were, not quite identical to this human rights appeals and judicial review and but an arrangement that vaguely reflects this sort of Administrative Court appeals than there ever were arrangement. I am completely sympathetic to that in the past. Ifyou look at the law reports you will see, point, and that ifwe cannot solve that point within for example, many immigration and asylum appeals Middlesex Guildhall I think there would be real being heard by the House ofLords than there were, diYculties in relation to it, but that is an issue that you know: one very, very rarely. So the trend has needs to be taken up with English Heritage and I am already started in a way. not sure that those problems cannot be resolved. I should make it clear that Lord Bingham on behalfof Q183 Ross Cranston: I think we may come back to the Lords has another point about Middlesex this issue of fees at some future point. Guildhall in which he says it is not a sort ofstriking Lord Falconer of Thoroton: But I remain ofthe view enough building in Parliament Square because there that we should get some contribution from fees is the Palace ofWestminster in one place and the because there are litigants, only in civil cases, but Treasury building in another. That is quite there are litigants who can aVord to pay and they subjective. should make that contribution. Q187Chairman: Unless he is going to take over Q184 Peter Bottomley: Can I ask roughly what the Westminster Abbey, it is diYcult to think ofa more estimate ofthe cost ofcivil appeals is in the House striking building in Parliament Square! now and roughly what it might be when the new Lord Falconer of Thoroton: It seems to me that the system is up and running, and then go on to say two issues fall into two separate categories. The first roughly how much ofan increase do you expect to issue, I am sympathetic to. We need to deal with be met by higher charges? those points before it would be appropriate. It is not Lord Falconer of Thoroton: I do not want to give you a question ofhaving a veto. It is just a good point the wrong figure. Can I get somebody to get the right that needs to be dealt with ifwe are to proceed with figure and tell you in the next minute or two? The that, but we are going to look into that. On the other figure does go up. The cost ofrecovery is going to be point, I think diVerent people might have diVerent paid in relation to civil from two sources: (1) the judgments about that issue. Supreme Court’s own fees that it charges to litigants, but also from an increase in fees across the whole of Q188 Chairman: Do you think that it has to be civil litigation in England and Wales, which we think resolved, ifMiddlesex Guildhall is used, by changes will be about 20 or 30p a fee, because there will be to the two main court rooms and, therefore, you rule some millions ofpounds increase in the cost ofcivil out the use ofall the other court rooms as the appeals in the final Court ofAppeal as a result of accommodation that could be reconfigured for their there being a Supreme Court as opposed to it being purposes? dealt with in the House ofLords. Lord Falconer of Thoroton: No, I would not like to rule out any internal solution in relation to that Q185 Chairman: Let’s have a look at this building. accommodation issue. Have the judges got a veto on Middlesex Guildhall or Somerset House, and would Q189 Chairman: Ifyou cannot solve this problem it not be reasonable for them to exercise one? over a reasonable period oftime, you remember that Lord Falconer of Thoroton: No, they do not have a this Committee said that ifthe reformis inaugurated veto, but we are as keen as we possibly could be for in the form of a Supreme Court which is still them to feel content about the arrangements that temporarily sitting in the House ofLords looking are made. much like its predecessor, it will not meet the desire ofthe Government to make the court appear clearly Q186 Chairman: Do you think that there is separate from the Legislature. In your response you substance in Lord Bingham’s view expressed to us showed some sympathy with that view and said that that Middlesex Guildhall, without configuring the it would fail to meet the important principle of main courts, would be condemned to be an attic in drawing a clear distinction between the judiciary and a museum or is there actually rather more scope for the Legislature. You surely do not seriously envisage creating adequate hearing rooms and proper that the new Supreme Court could camp out in the accommodation and library facilities in that House ofLords, do you? building than he suggests? Lord Falconer of Thoroton: I see it this way. I assume Lord Falconer of Thoroton: I think unless one could the following set of facts. Assume that Parliament, solve the points that he has made about the meaning both Houses ofParliamen t, has passed an configuration ofthe inside ofMiddlesex Guildhall, Act ofParliament that says that there should be a there is real force in what he says. I think one of his Supreme Court, assume that progress is going to be points—it is not his only point in relation to the made, or is being made, to an appropriate building interior, but he has points about the interior and the being kitted out for the Supreme Court, either exterior ofMiddlesex Guildhall—is that he does not Somerset House or Middlesex Quarter Sessions, but 9940171003 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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8 June 2004 Rt Hon LordFalconer of Thoroton QC andSir HaydenPhillips GCB assume it might take some time to get there, would Q193 Mr Soley: I understand what you are saying, it be appropriate in those circumstances if and I would not go to the stake through it, but it does Parliament, by which I mean the House ofLords, seem to me that, given the rea son we are doing this, agreed for the final Court of Appeal to be the because there is a necessary requirement for a Supreme Court in the House ofLords pending the modern Legislature and to dr aw a very clear move to one or other ofthose two sites that I have distinction between courts and the Legislature, the identified? I would not want to rule that out in the case for having a separate building and setting it up context of, as I say, Parliament having passed an Act as a new thing straightaway must be much stronger ofParliament saying there should be a Supreme than continuing as we are, mu st be much stronger? Court. Lord Falconer of Thoroton: Ofcourse. That is obviously right. The discussion I was having with the Q190 Chairman: But why should Parliament pass an Chairman was not seeking to suggest that what you Act ofParliament which allows forthe creation ofa are saying is not right. I was simply saying I do not Supreme Court without anywhere for it to sit other want to rule out the position where you have got the that the place which you think gives it the impression Act, it is going to take you a year or two to get the ofbeing part ofthe Legislature? building because it is being refurbished, what do you Lord Falconer of Thoroton: Because a balance has do in that two-year period? Do you only start the got to be struck, has it not, between the decision to Supreme Court once you have got the building, or have a Supreme Court, which Parliament has do you start it before? That is a judgment to be made endorsed, and the time it takes to get there in the at the time, it seems to me. hypothesis that I have indicated. I am not saying this is going to happen, but I am very reluctant to rule Q194 Mr Soley: I can also say, I suppose, I am fairly out, ifthe Act is passed, the possibility ofit used to defendants being of no fixed abode, but it is becoming a Supreme Court sitting in the House of not normally the court! Lords ifwe are on the way to the building being Lord Falconer of Thoroton: No, it would be ofa fixed kitted but it is not ready for a period of time. abode in the corridor over there, but there would be a new and better abode coming. Q191 Chairman: So you could have a situation in which the Lords were sitting in the former House of Lords, looking very much like their previous Q195 Mr Soley: There is a history ofbuildings not existence, with no real hope over the completion of always being ready on time? the building, and the Scottish Parliament might have Lord Falconer of Thoroton: I am aware ofthat. I was nothing on this ifthe process ofcreating the building about to say the building I was involved with opened went wrong in some way and another decision had on time. to be taken to try for another building; still you would have something that looked exactly like the Q196 Chairman: Let me put it the other way round. body that some people think you do not need to Have you ruled out giving either in the legislation or change anyway? in the ministerial statements in the course ofthe Lord Falconer of Thoroton: As you know, the passage ofthe legislation some assurance that this is Supreme Court ofthe United States ofAmerica was not likely to happen and that the bringing ofthe in the basement ofthe Congress building until the commencement order, or whatever the Act requires mid 1920s, approximately 150 years after the to set up the court, will be done in the light of creation ofthe United States ofAmerica, and you progress and availability ofthe building? know— Lord Falconer of Thoroton: Yes, I would hope that I would be in a position to give assurances as to where, Q192 Chairman: That is just what the judges are and I would expect to give assurances as to when I frightened of? would expect the building to be usable, in an Lord Falconer of Thoroton: But there having been a operational sense, by the Supreme Court. decision made that there should be a Supreme Court, ofcourse the best solution is that the Act of Parliament is passed and then, within a reasonable Q197Chairman: Ifthat is a year, or 18 months, or time thereafter, move into a building. But suppose two years, is that not a reasonable time for the court we are in the middle ofthe renovation ofone or other to have to set up its procedures anyway and ofthe two sites that have been identified in the therefore you do not need to make the change until evidence that I have given, I would suggest that a the building is ready? judgment should be made as to whether or not it is Lord Falconer of Thoroton: Yes, I would hope that right that the Supreme Court be up and running, would be the position. I make it clear that my albeit sitting in the Lords, with a view to getting into favourite position would be to pass the Act, then its new home as quickly as possible. I do not think it there would be a short period oftime in which the would be sensible or necessary to rule it out, and I building was being prepared and then the final Court particularly do not think it would be necessary or ofAppeal moves in there and that is when, as it were, sensible to rule it out simply because you could not the provisions come into force; but there is many a distinguish the accommodation arrangements pre slip, and I am aware, as Clive was saying, that you the creation ofthe Supreme Court frompost the cannot guarantee that the building will not be done creation ofthe Supreme Court. on time. 9940171003 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Q198 Mr Clappison: Can I put a question to you as Q201 Mr Clappison: Yes, coming to the Lord somebody, ifI can comment honestly, who does not Chancellor, the same thing applies there. You see the necessity for the changes that you are referred in your initial statement to the questions bringing about, thinks that it could have been better which you were asked in the Select Committee ofthe carried out in any case, but, given that we are where House ofLords. Can I take you back to the line of we are, there is a public interest in maintaining the questioning, which you may remember, which came esteem and the standing ofour highest court. Could from Lord Howe which echoed what many other I suggest to you that looking at it from the point of people have said, but he said it as a particularly view ofthat public interest and trying to make the distinguished person, putting to you the gap that new arrangements work, even from the point of view there was between the politician in the Government ofsomebody who is not enthusiastic about it, to say and the Secretary ofState forConstitutional A Vairs the least, it is getting oV to the most inauspicious would be perceived as and the standing ofthe start if it starts its life in full view of the public in Lord Chancellor’s venerated figure occupied by temporary accommodation? distinguished persons, yourselfincluded, and also by Lord Falconer of Thoroton: I do not think the public other distinguished persons going over a long period would regard the House ofLords as temporary who built up a standing and had an ability to speak accommodation. Secondly, I think the esteem in on behalfofthe judiciary, carrying a certain amount ofauthority. Is there any way that you can still which the court is held is most determined by the bridge that gap and save what were the very good quality ofits judgments. Imagine ifthere was a things from the old system? position where, for example, there was a Supreme Lord Falconer of Thoroton: The reason for the Court, whether sitting in the House ofLords or change is not constitutional theory, though we think sitting in its own building, presided over by Lord it matches constitutional theory. It is because the Bingham with the Deputy President being Lord role ofthe Lord Chancellor, as I think most people Nicholls, would that be a body that was not held in who have been involved the actual operation ofthe public esteem? I think it is a body that would be held job have recognised, has dramatically changed over in public esteem and I think its judgments would be the last 50 years, over the last 30 years. The Lord not less respected than they are now. Chancellor has become a minister responsible for a budget ofaround £3 billion. That is not because ofparticular accretions coming fromgetting Q199 Mr Clappison: Ofcourse those are all responsibility for human rights or electoral law, it arguments which go against your arguments in the comes from his two mainstream functions: namely, first place, ifI can put it that way. But, putting that legal aid and running the Court Service. It is not to one side, this question, as you yourselfadmitted, appropriate, as time goes on, for a minister with that is one ofperception; and the way in which the public budget to be not potentially, ifthat is what the Prime would see it would be that it has not got oV to the Minister wishes ofthe day, to be in the commons and best possible start to say the least: to be created in accountable like other ministers for that degree of order to create the impression ofindependence and expenditure. Equally, I do not think that it is then finding out it is back where it started from in the appropriate that the Prime Minister, in determining first place? who should be that minister, is constrained to Lord Falconer of Thoroton: I am not sure that is appointment a senior lawyer in the Lords, which is right, Mr Clappison. I think, in any event, as I say, the current position; but there are things that the that which determines the esteem in which the Lord Chancellor does that we would be very, very organisation is held is the quality ofwhat it does. keen to preserve. In particular there are two things: (1) his responsibility in relation to the independence ofthe judiciary and (2) his responsibility to ensure Q200 Mr Clappison: Can I finally suggest to you, the rule oflaw is complied with. I think the way to that Lord Bingham—I have asked for the deal with that is to try to see in the statute how one transcript—from my recollection was most incorporates that particular function in the role that V unenthusiastic, to put it mildly, about this prospect, the Secretary ofState forConstitutional A airs and it seemed to me that whatever division there may plays, because I think those are very, very important be amongst the Law Lords about the creation ofthe things and they are picked up specifically by this new Supreme Court, roughly halfin favourand half Committee in relation to what it said in its report. against, it seems that you will be creating unanimity, You have to strike a balance between the increasing ministerial role ofthe Lord Chancellor which leads from what he said, if you want to suggest that they to the conclusion that it is probably no longer go into a temporary home? appropriate for that job to be done by, in eVect, Lord Falconer of Thoroton: I think that may well be somebody who is a judge as well and instead should right. Lord Bingham may well take the view that you be done by somebody who is a more mainstream should not start it until the home is ready. I think minister but a more mainstream minister who has you are right about that. I think he said that in particular responsibilities both independent ofthe evidence to both this Committee and the Select judiciary and the rule oflaw. Committee. Chairman: Does Mr Clappison want to take further Q202 Mr Clappison: I would suggest to you that the question about the position ofthe Lord there have been examples ofthe way in which the Chancellor? role ofthe Lord Chancellor has evolved, as it 9940171003 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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8 June 2004 Rt Hon LordFalconer of Thoroton QC andSir HaydenPhillips GCB certainly has, over the years whilst the title and the think are sensible detailed arrangements for the standing ofthe Lord Chancellor has been preserved. future, but (2), and Lord Woolf made this clear in You are saying to us that now, after June 12th last the evidence he gave to the Select Committee in the year, there is no way that the Lord Chancellor’s title other place, it is probably right as a matter of can be preserved. principle that we do move on from a situation where Lord Falconer of Thoroton: I think at the heart ofthe the minister is the head ofthe judiciary and that change is the recognition that the role that the Lord instead the head ofthe judiciary should be the senior Chancellor plays is one that may now need to be professional judge in England and Wales rather than done by a more mainstream minister; that the Prime a minister. So, yes, they saw and discussed in full and Minister ofthe day should have unconstrained raised all those points. Now I think it would be not choice in relation to who he makes that minister; unfair to say that they would probably favour a that you cannot get to that point ifyou keep the situation where there is now a very clear distinction oYce ofLord Chancellor: because although the between the head ofthe judiciary, namely the Prime Minister might want the Secretary ofState for professional judge, and the member of the Constitutional AVairs to be in the Lords, he should Executive, the Secretary ofState forConstitutional be able to choose to have that person in the AVairs, who performs the interface role with the Commons ifhe so chooses; but, as I say, and I head ofthe judiciary. So they are accepting, I think, recognise your point, there are things that need to be and indeed would now be supportive of, the preserved—the rule oflaw and the independence of proposition that you do not want two senior judges the judiciary—and we need to put that into the because it leads to confusion. statute to try to get to that same position. Sir Hayden Phillips: Could I add a word in relation to those two things from my own perspective. Both Q203 Mr Clappison: It has not proved to have been the Lord ChiefJustice and I gave evidence to the an insuperable problem for previous Prime Select Committee in the other place from quite Ministers in the century that has just gone and so far diVerent perspectives, describing how literally over in this century offinding suitably distinguished the last six years the role ofthe Department had people to occupy the post in the House ofLords? changed enormously, hence the creation ofyour Lord Falconer of Thoroton: No, and indeed there own Committee, and how once it was no longer have been extraordinarily distinguished Lord possible—and Lord Irvine had not sat as a judge Chancellors in the past, but they are a diVerent sort since 2001—no longer sensible or possible for the ofmember ofthe Government fromthat which is Lord Chancellor to sit as a judge, and once it had envisaged in the future. What prior to about 1970 been announced, which predated 12 June, that there Lord Chancellors were doing was two things: (1) was to be a Judicial Appointments Commission they were chairing, as Speaker, the House ofLords, seriously considered, the two central strands ofthe and (2) they were presiding over the judicial House historic nature ofthe o Yce ofLord Chancellor, ofLords and appointing judges, and they had a very, namely head ofthe judiciary and the appointer of very limited role in relation to the management of judges, had already gone, and both the argument the courts and the running ofthe courts. Afterthe from the point of administration and the argument Courts Act 1971 they got, in eVect, responsibility for from the perspective of the judiciary, as it were, come all ofthe courts above the Magistrates’ Court, not together and now are refl ected in the concordat the House ofLords, and, as Lord Hailsham has which you have settled with the Lord ChiefJustice. written pretty eloquently, their role changed I think one has to try and look at that as a real fact dramatically. What the constitutional proposals are but then try to do what the Secretary ofState has seeking to deal with is how that change in what the indicated, namely to make sure that certain key roles Lord Chancellor does now needs to be reflected in that are not infected by either of those points about new constitutional arrangements. being the head ofthe judiciary or being the sole appointer ofjudges, like independence ofthe Q204 Chairman: Do you think you under-estimated judiciary and the rule oflaw, are secured under our the extent to which, particularly in the judiciary and new arrangements, and that is now what we are in the legal profession generally, importance was trying now to craft; and that seems to me to fit with attached to the Lord Chancellor as a minister who the history rather than go against it. (a) had that title, (b) was senior without expectation Lord Falconer of Thoroton: One other point. The ofsubsequent political promotion? These factors Chairman’s points about did you reckon with the seem to have loomed much larger in the discussion concern that we expressed about the fact that the since the decision was announced than you might judges would value the fact that it was an end of have expected them to do? career job, all ambitions spent. It is worth pointing Lord Falconer of Thoroton: I think that the way the out that the judiciary accept the proposition that the announcement was made on 12th June, as Peter has nature ofthe relationship in the concordat is identified in his first questions to me, without any between, on the one hand, the judges as represented warning meant that the process ofthe by the Lord ChiefJustice and, on the other, a announcement lead to very grave scepticism, member ofthe Executive, rather than somebody concern, about the way that it happened. In relation who is in the anomalous and unusual position ofthe to what has happened subsequently with the Lord Chancellor, who is both a judge and a member judiciary, I think two things have emerged: (1) they, ofthe Executive. So in a sense they have come to with myself, have in eVect negotiated what they terms with, I think, the change that has occurred. 9940171003 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Q205 Chairman: The goal post moved so they aimed Lord Falconer of Thoroton: Possible in what sense? for the new goal? Lord Falconer of Thoroton: Ifyou look at the Q209 Peter Bottomley: Could Parliament bring in evidence that Lord Woolfgave, and I do not want to legislation or could it become the practice that the be accused ofmisquoting him, to the Select V title ofLord Chancellor is not put in the dustbin as Committee in the Lords, he said in e ect that 12th a result ofthe changes ofresponsibility and the June turned out to be a catalyst for revealing a whole Secretary ofState forConstitutional A Vairs but is range ofchanges that were already occurring. actually preserved? The role ofLord Chancellor has Without wishing to quote somebody else, the plates changed over the years, as we know. It picked up had already moved in a number ofrespects. judicial independence points about 140 years ago. That has not been an historic role ofthe Lord Chancellor; it has been a modern role ofthe Lord Q206 Peter Bottomley: Picking up the situation as it Chancellor? is now and recognising that although there are many Lord Falconer of Thoroton: Indeed, one oftheir old things which now appear to be clear to a number of roles before that was to ensure a lack of judicial people they will not be clear enough to be discussed independence. with your predecessor as Lord Chancellor, and skipping gently and diplomatically, ifI may, over what you might call the ambiguity ofthe response as Q210 Peter Bottomley: So the question remains: is to whether the Permanent Secretary was involved there any reason why it is not possible for Lord before the Lord Chancellors were or, more gently, Bingham’s successors to carry the name “Lord the clarity ofthe non-respondent forthat question Chancellor”? some time back, can we move forward? The answers Lord Falconer of Thoroton: I assume you are in fact to James Clappison’s questions would be on the referring to the Lord Chief Justice. basis that the ministerial role has changed. Is there any particular reason why it would not be feasible to Q211 Peter Bottomley: No, I am not. give the title ofLord Chancellor to those roles which Lord Falconer of Thoroton: You are referring to the ministers will not have, which is heading the senior Law Lord. judiciary and defending the independence of the judiciary, in eVect Lord Bingham and successors being those who carried the title ofLord Chancellor Q212 Peter Bottomley: At the moment we have Lord V without being a minister and without presiding over Woolfand Lord Bingham, and they have di erent V the debates in the House ofLords? titles and di erent roles. Lord Bingham has not Lord Falconer of Thoroton: In relation to the really got a big title: he is Lord Bingham and he is the senior Lord. defending of the independence of the judiciary Lord Falconer of Thoroton: Yes, he has the title of within the Executive, that role will be performed by the senior Law Lord. the Secretary ofState forConstitutional A Vairs.

Q213 Peter Bottomley: So ifwe have the Lord Chief Q207Peter Bottomley: Forgive me. I did not use the Justice and we have the person who is going to be the word defending in the Executive, but being the senior member ofthe highest court, other than defender of role. The person who when they speak criminal cases in Scotland, is there any reason why the plates start saying, is it time to move; the person that person cannot be carrying the title Lord who might, for example, be granted access, at Chancellor? request, to the Prime Minister ifthey perceive a Lord Falconer of Thoroton: I am sure that there is no threat to the independence ofthe judiciary? legislative reason why such a provision should not be Lord Falconer of Thoroton: It would be the Lord put in a Bill. Although you are not asking me this ChiefJustice, not the senior Law Lord. But the Lord question, could I say I would not favour it for (a) the ChiefJustice is plainly the appropriate title in reason I have indicated, but (b) there is a separate relation to that. What you are trying to convey there reason, which is the Lord Chancellor’s role in is the chiefprofessionaljudge, and I think it would relation to the independence ofthe judiciary, as has be—I would strongly resist the idea ofthe Lord become apparent throughout the debate, and in fact ChiefJustice changing his title to become the Lord was known before, is in relation to England and Chancellor. I have not asked him actually, but I do Wales. He appoints judges in England and Wales. not think he would welcome being called the Lord He does not have a role in relation to the Chancellor. I think he would much prefer the clarity professional judiciary in relation to Scotland. I ofhim being the senior judge. So I would not favour query what Scotland’s view would be about the senior UK judge, because Lord Bingham is the the Lord ChiefJustice’s title being changed from senior Law Lord, in eVect, for the final Court of Lord ChiefJustice to Lord Chancellor. Appeal for the whole of the United Kingdom, taking on— Q208 Peter Bottomley: The question was not whether you favoured it; it was whether or not it is Q214 Peter Bottomley: Except for Scottish possible? criminal cases. 9940171003 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Lord Falconer of Thoroton: I apologise, you are quite had said put forward one name and the majority of right. I query what they would think about their final us said “No, we support Lord Falconer’s proposals Court of Appeal for everything except for criminal in the Bill”. cases having what, in eVect, is a title most relevant to Lord Falconer of Thoroton: Oh no! the English judiciary. Chairman: This does not happen very often but I cannot deny that it did on this occasion. Q215 Mr Soley: Is not a lot ofyour problem in bringing this institutional change about that the vast Q218 Ross Cranston: Like all votes one does majority ofpeople, including those involved in these not know the motivations ofcolleagues but I discussions, recognise that the role has to change voted for your original proposal on the basis of and the whole thing has to change but, in Walter a notion ofdemocratic accountability, ministerial Bagehot’s phrase, the decorative parts ofthe British accountability. I can see the problem that with a constitution cling on and we hear words like “Lord small jurisdiction like Northern Ireland you will Chancellor” and our eyes cloud over in mists and never get five names put forward, possibly two but bands ofangels sing when actually we just need to in most cases you would be putting forward one get rid ofthat, do we not? name. I do not want an answer now. I know you Lord Falconer of Thoroton: I think that ifone ofthe have only said you are minded to go towards the one purposes ofthe change is clarity in arrangements name and you have not come up with a conclusive then I am quite sure that we do need to get rid ofthe view in your evidence to the Committee, but you name because we need to identify what people’s roles have heard the arguments because you sit on the are. That is important because, as I said briefly, the Lords’ Select Committee. You have heard Professor courts are very, very important. As time has gone on Hazell and others, like our advisor, you have heard Dr Kate Malleson and so on, saying that in terms of the increase ofjudicial review and the importance of democratic accountability, once you get down to the Human Rights Act means that their role in one name and eVectively you as Secretary ofState vindicating individual’s rights, particularly against have only got a veto, you do not have that the state, is ever more important and there needs to accountability. I am asking you to reflect on that. be clarity about who is doing what. I also think it is Personally I am much more attracted to what you not right, as I said before, that expenditure of that were originally putting forward. sort should not be dealt with a mainstream member Lord Falconer of Thoroton: I am sorry to hear that ofthe Government. having, as it were, voted on my original proposal I have now joined with the Chairman who is in the Q216 Mr Soley: Much as I like a bit ofcriticism, I minority. I made it pretty clear in the Second have to tell you it is not just the man on the Clapham Reading in the Lords that I was minded to change it omnibus but the man or woman in Acton or and various proposals are now going forward in Shepherd’s Bush who actually thinks we have got a relation to whether it should be one name. The Supreme Court, who thinks it is in Strasbourg, who argument that is the one that I find the most thinks it is called human rights, so the more persuasive against my original proposal is that the pragmatic and straightforward and down to earth it Supreme Court is obviously going to be a hugely is, from my point of view, the better. important court and although it will be for the Lord Falconer of Thoroton: You have no doubt committee to decide whether five names come heard the same anecdotes that we have heard about forward, if one of the things that one is seeking to do how it leads to confusion. Lord Bingham himself is to reduce the ability ofthe Executive to choose the always refers to what happened in relation to the judges, whilst they need to be involved in a Pinochet case, the sense around the world that the meaningful sense so they can reject or ask for British politicians in the Lords had dealt with the reconsideration, to be able to choose from one of five names would give the Executive—it is a question of issue about what happened to General Pinochet in balance—too great a choice in the sort ofperson relation to the ability to try him here or in Spain. who would go into the Supreme Court. There is quite a lot oflack ofclarity.

Q219 Ross Cranston: As I was suggesting, I would Q217Ross Cranston: I agree with Mr Soley that with not go to the barricades on five names but I think people like Lord Hailsham, who was a very eminent there needs to be an element ofchoice. What other politician who then became Lord Chancellor, the common law country does not have that sort of eyes mist over. Frankly people forget a lot of history. choice? I do not think there is any country that is Lord Mackay and Lord Irvine were both in political faced with the proposition of one name coming up hot water in lots ofcases but that is also forgotten. and then the Minister simply having a veto. Anyhow, I want to ask you about something on Lord Falconer of Thoroton: I am quite sure that the which I have some passion and that relates to the name has got to come through the Appointments number ofnames being put forward.In the Bill the Commission and I think the choice has got to be proposal was two to five. We considered that as a constrained to some extent because that is the only Committee and, although like all the select way that is consistent with the approach ofthe committees in the House ofCommons we try to Judicial Appointments Commission generally. We reach a consensus, on this particular issue we voted have got to have some real input in the Executive so and we rejected the Chairman’s draft. The Chairman that we have a stake in the person who is appointed, 9940171003 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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8 June 2004 Rt Hon LordFalconer of Thoroton QC andSir HaydenPhillips GCB so ifthe Secretary ofState does not object to being Q225 Chairman: There is not bound to be a lay asked that he or she be reconsidered then you are, as element unless one ofthe territorial jurisdictions it were, committed to that particular choice. I submits a lay member. understand the arguments. Lord Falconer of Thoroton: I am minded to introduce an amendment that there has got to be some lay element in it because I think that would be Q220 Ross Cranston: I am not saying that you are appropriate. not conscious ofdemocratic accountability at the other end ofthe building, but possibly at this end we are more attuned to these notions ofaccountability Q226 Chairman: In the interests ofbalance, perhaps for decisions. With one name you are basically I should put to you that the initial reaction to your putting this decision in the hands ofa quango. proposal demonstrated the danger that a list of Lord Falconer of Thoroton: Yes. names submitted to you would be seen by a lot of people as allowing you to make choices between judges in a way that was damaging to the perception Q221 Ross Cranston: There is no political ofthe independence ofthe judiciary. Although that accountability for the decision being made. That is was not the basis on which the proposal was put what concerns me and, as I say, my colleagues forward, there is no doubt that perception arose in supported me when I moved that particular a lot ofthe comment followingthe initial amendment to the Chairman’s draft, but I do not announcement. know what motivated them. They can speak for Lord Falconer of Thoroton: Yes. There was support themselves. There is that sort oftheoretical for the proposal from some places but there was also argument but there is also the argument about how very vigorous dissent from it because it appeared to committees put forward names. If they are putting be contrary to the flavour ofthe Judicial forward one name, the concern that I have generally Appointments Commission which applied to with putting forward one name is committees a England and Wales but we had to be consistent with priori might go for the safest choice, the it because it would lead to the Secretary ofState unimaginative choice, and that is another concern, a having much too strong an ability to intervene in no-risk appointment. who individually was appointed. Lord Falconer of Thoroton: There would be Ross Cranston: As I say, there was support down this individual appointers, individual Lord Chancellors, end for the original proposal. in the past who no doubt were much more cautious Chairman: I think we have established the view about who they proposed than the Judicial which prevailed among the Committee on that Appointments Commission will be. I suspect you particular day. would find that the Judicial Appointments Ross Cranston: I am not trying to rub the Commission from time to time would be much Chairman’s nose in it! more— Q227Mr Dawson: Can we look at the relationship Q222 Peter Bottomley: Bold. between the Supreme Court and Parliament. Once we have quite properly achieved this separation Lord Falconer of Thoroton: Bold, thank you. People between the legislature and the judiciary, how would have made the point that Lord Chancellors will you conceive ofways ofbuilding a good working always be more bold than the Judicial Appointment relationship, a good constructive dialogue, between Commissioners but I think that depends upon the judges and Members ofParliament? character ofboth, does it not? Lord Falconer of Thoroton: I think it is very important that there should be such a relationship. I Q223 Ross Cranston: It certainly does, yes. I was think there should be arrangements whereby the possibly overstating it by saying a priori but, to make judges do, as it were, discuss matters ofmutual it non-political, we had a very imaginative Lord interest with Parliament. It has obviously got to be Chancellor in Lord Mackay in terms ofsome ofthe clear that that is not talking about individual cases. appointments that he made. It has obviously got to be clear that that is not on the Lord Falconer of Thoroton: Yes. basis that you want to try to find out how particular judges might decide particular types ofcases in the future. I would not support at all any sort of Q224 Ross Cranston: I guess my fear is that a confirmation or post-appointment hearings where committee could make the unimaginative you seek to delve into the processes by which appointment. It depends, ofcourse, on composition particular sorts ofdecisions are taken. Judges have but you are going to have the senior judges there. quite regularly given evidence to this Committee Lord Falconer of Thoroton: The Appointments with, as far as I can see, absolutely no diYculty at all Commission for each appointment to the Supreme about where the line is drawn between policy issues Court is the President and Deputy President ofthe on the one hand and judicial decision making on the Supreme Court and one member ofeach ofthe three other. I would encourage some sort oflink like that territorial Appointments Commissions, so it will being established. I think it is for Parliament to have elements on it that would not be represented determine what the best way to do it is: should it be before and there would be bound to be some lay dealt with through an existing committee like this; element in relation to it. should there be a joint committee ofboth Houses; 9940171003 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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8 June 2004 Rt Hon LordFalconer of Thoroton QC andSir HaydenPhillips GCB should there be a new committee? I am agnostic as Q232 Peter Bottomley: Just going backwards, which to how it should be done but I would strongly is not my usual habit, ifa Lord Chancellor has not welcome it happening because I think it would had responsibility for the immigration and asylum greatly reduce mutual misunderstanding. system, would a Lord Chancellor object to the Government’s Ulster clause? Lord Falconer of Thoroton: Could you say that Q228 Mr Dawson: Indeed. Do you think there is a again? role in relation to particular policy areas? I know there was a very good example ofthe way the President ofthe Family Commission, forinstance, Q233 Peter Bottomley: We have had a discussion in gave evidence before the Adoption of Children Bill. both Houses about the Ouster clause over immigration and asylum and the Secretary ofState Lord Falconer of Thoroton: That is an extremely for Constitutional AVairs and Lord Chancellor, as good example ofwhere evidence by the judiciary you are, has responsibility in eVect both for the could help in relation to particular policy issues. system and for the judicial— Lord Falconer of Thoroton: The judicial bit ofit, the Q229 Chairman: She also gave evidence to this appeals system. Committee when we did our report on CAFCASS. Lord Falconer of Thoroton: Another good example. Q234 Peter Bottomley: Do you think ifthe Lord One could think ofhundreds ofareas where it would Chancellor had not accumulated these immigration be ofuse to hear fromthe judiciary which would not and asylum responsibilities that Lord Chancellor trespass at all on either the confirmation type would have objected to an Ulster clause being put hearing or interfere with judicial decisions. forward in legislation? Lord Falconer of Thoroton: I understand the question. Q230 Mr Dawson: In your response to our previous report you said you would carefully consider our recommendation that the general work ofthe Q235 Peter Bottomley: I also want to ask whether a V Supreme Court Appointments Commission could role which the Lord Chancellor has had is in e ect be scrutinised by this Select Committee. Have you disappearing with the present arrangements and the given any further thought to that? future ones. Y Lord Falconer of Thoroton: Yes, I have. I am wary Lord Falconer of Thoroton: It is quite a di cult ofsaying on behalfofthe Executive what the most question. It really raises the question ofissues that appropriate way for Parliament to scrutinise that is, judges think raise rule oflaw issues which are not in I think it is much more appropriate for Parliament the Lord Chancellor’s policy area, does the Lord itselfto determine how that should be done. In Chancellor object to them? Apart from that one eVect, for us to give a strong steer at this stage rather which I was involved in, there have not been than simply giving an option seems to me significant rule oflaw issues that I can recall since I inappropriate. became Lord Chancellor. Hayden has been in the department for the last six years, so it may be he can say what the practice has been. Q231 Mr Dawson: Moving on to the relationship with the Executive, can you tell me what you think Q236 Chairman: I am not sure it is a fair question for might be the most appropriate platform for the a civil servant. senior judiciary to make its views on legislation Sir Hayden Phillips: I take rather dangerous views known to the Executive? on this subject in the sense that I think so much Lord Falconer of Thoroton: We make it clear in the depends not so much on the nature ofthe o Yce material that we have given that we want there to be somebody holds but on their personality, attitude, close links in terms ofpolicy formulationbetween experience and strength. You can look back over the the judges and the Executive. That does not mean last 30 years and you can see some profound they get involved at an early stage, but that they be defendersofthe rule oflaw who were not Lord consulted on those that might aVect them. We have Chancellors and they might have been stronger also, as we have said, sought to have the judges more defenders of the rule of law than some Lord involved in the administration ofthe court service Chancellors. Having said that, which I am sure I am and the administration ofthe Department for not supposed to say, ifyou put the question the other Constitutional AVairs. Lord Justice Judge, the way round, in 1985 when I was the head ofthe Deputy Lord ChiefJustice, is now a non-executive Immigration and Nationality Department, I found I director ofthe DCA. It is intended that there are to was responsible for not just running the system but be non-executive members ofthe judiciary who sit also appointing the judges who sat in judgment on on the chiefboard ofthe unified court the decisions my staV made and the whole appellate administration. There are channels whereby they get mechanism and funding them and it struck me even involved in expenditure issues and policy issues. then in relative youth that there was something What happens where they disagree with the wrong about the issue ofindependence here and, Executive and they want to make that disagreement indeed, was instrumental in selling the immigration public? I think that is why having some sort of appellate authorities to the Lord Chancellor’s formal relationship with Parliament is quite a useful Department, which I am sure was the right decision and important way ofachieving that. and that is being logically followed through in our 9940171003 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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8 June 2004 Rt Hon LordFalconer of Thoroton QC andSir HaydenPhillips GCB new proposals for a unified tribunal service so Supreme Court. Perhaps rather than go into the departments should not find themselves conflicted detail now, Secretary ofState, ifyou are content, we by, as it were, appointing and funding the appellate can send a note which sets out the figures, but puts bodies who are sitting in judgment on their cases. them in the context so that we are genuinely Once you have accepted that and you have accepted comparing like with like because actually it is rather that the Department for Constitutional AVairs, the confusing if you just try and do it too quickly. Lord Chancellor’s Department, is a proper home for that leadership, then the minister concerned is stuck Q239 Peter Bottomley: Will there be a view on how with those issues. I think the alternative would be far much ofthe extra cost is likely to be recovered by worse, so I shall avoid answering the question in fees or whether the fee recovery is going to be based that way. on present levels of fees rather than on future costs? Lord Falconer of Thoroton: Immediately I can think Sir Hayden Phillips: Yes. ofa whole range ofissues that are not issues at the moment which are not within my policy area where Q240 Chairman: Do you now have a policy on that plainly the Lord Chancellor would intervene and or is that still being evolved? make his views known on rule oflaw issues. Yes, you Lord Falconer of Thoroton: We have a policy that would definitely in relation to rule oflaw issues in there should be full cost recovery across the civil other areas ifit was appropriate. The only slight litigation system ofthe costs ofthe Supreme Court caveat, however, is quite a lot ofissues are described insofar as they relate to civil cases. That is the policy. as rule oflaw issues when they are not. The best How that is to be done between the Supreme Court example is the one about the rights ofsolicitors to fees and the wider fees has not yet been resolved, but appear in High Court. I do not know ifyou I have got no plans to increase the level of fees for the remember, but Lord Mackay proposed that greater Supreme Court, so it would have to be done elasticity be given to solicitors to appear in the primarily by increasing the civil litigation fees. Crown Court and the High Court and large numbers ofpeople said that was contrary to the rule oflaw, that he was acting in breach ofit. That is an example Q241 Mr Soley: Are you actually saying that you are where quite a lot ofthings are described as rule of going to try and do a comparison ofthe costs forthe law issues when they are not, but there are a lot of new Supreme Court with what the costs are now? issues that are genuinely rule oflaw which do not Lord Falconer of Thoroton: Yes. necessarily fall within the Lord Chancellor’s bailiwick which he would intervene in. Q242 Mr Soley: How on earth are you going to strip out House ofLords’ costs as they are now? Q237Chairman: Perhaps I should remind Sir Lord Falconer of Thoroton: We do the best that we Hayden there is a piece ofunfinished business on the can in relation to it, but that, as I understand it, is work to which you referred. It is still the case, as this what the Chairman and Mr Bottomley have asked Committee has reported in a diVerent report, that for and that is what we will try and do in relation when somebody applying for immigration to this to that. country is turned down and they appeal, it is to the Home OYce, not the appellate body, that they have Q243 Mr Soley: Try and do it, so be it, but I have to to submit their appeal and it is when the Home OYce say that it has to be a terribly arbitrary exercise given passes on the appeal to the appellate body that the the nature ofthe costs ofthe House ofLords. process is activated, something this Committee Lord Falconer of Thoroton: Yes, I agree with that. found very unsatisfactory. We started this process Sir Hayden Phillips: We have done quite a lot of and we hope that it may be continued. work with the Judicial OYce and with the House of Lord Falconer of Thoroton: Yes, it picks up Mr Lords’ authorities and we will obviously let you see Clappison’s point which is that there are certain the results ofthat work and you will see the things which are certainly worth preserving and in assumptions we have had to make in order to make the role ofthe Lord Chancellor in relation to the the calculation we need to do. rule-of-law issues of the sort which I have described, though I have not indicated what they are, but which Q244 Mr Soley: You add up the costs ofthe House are non-DCA policy areas where genuine, which ofLords and divide it by 1,000, or whatever number means serious, rule-of-law issues arise, then he or she ofLords it is. Is that roughly right? most certainly should intervene, not necessarily Lord Falconer of Thoroton: The point does not arise successfully, I have to say, but he or she should at the moment for the reason we started with, that we intervene. are not trying to recover the costs ofthe final Court ofAppeal ofthe House ofLords at the moment Q238 Peter Bottomley: We had a question about the because we are not paying them. fees issue. Was that something we are going to get a note on or is that information we might have now? Q245 Chairman: In asking that question, I think we Sir Hayden Phillips: Sorry, but I did not want to were conscious that a fair amount of this interrupt the flow by presenting it. The current fees information is available, is in the system and is in the appellate committee raise about £560,000 a material which you have had to use in order to begin year and that would continue. 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Lord Falconer of Thoroton: Yes. others as the show goes on. Sir Hayden, we will see you back once more before your impending retirement and we look forward to that. Q246 Chairman: Thank you very much, Lord Lord Falconer of Thoroton: This is his penultimate Chancellor and Sir Hayden. We expect to see you appearance before you. again on this issue several times, I suspect, and on Chairman: Thank you. 9940171004 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Tuesday 16 November 2004

Members present

Mr A J Beith, in the Chair

Peter Bottomley Andrew Rosindell Mr James Clappison Keith Vaz Ross Cranston Dr Alan Whitehead Mr Hilton Dawson

Witnesses: Rt Hon Lord Falconer of Thoroton QC, Secretary ofState forConstitutional A Vairs and Lord Chancellor, Alex Allan, Permanent Secretary, and Judith Simpson, Head ofConstitutional Policy Division, Department for Constitutional AVairs, examined.

Chairman: Good morning, Lord Chancellor, Mr is that proposed by Lord Howe, which says the Allan, Judith Simpson. We will do our usual thing money comes, in eVect, through the House ofLords by declaring interests first. to the Supreme Court. I am against that, on the basis Mr Clappison: I am a non-practising Member of that that is simply preserving the link with the Bar. Parliament, which is one ofthe things that one Ross Cranston: I am a barrister and Recorder. would like to break in relation to the arrangements Keith Vaz: I am a non-practising barrister. My wife with the Supreme Court. The second proposal is that holds a part-time judicial appointment. something called a “non-ministerial department” is set up. A non-ministerial department, as you would Q247Chairman: In that case can we welcome you. expect, involves the Minister in the sense that the We are anxious to get up-to-date on various things. administration ofthe Supreme Court would be in Is there anything you want to say to us before we the hands ofa chiefexecutive reporting to the start? Supreme Court justices. He would determine how Lord Falconer of Thoroton: No, I think not. Would the money was spent. At the spending round you like me to formally introduce the rest of my moment, he would put the budget that he and the team? rest ofthe Supreme Court thought was appropriate to the Minister, who would then, in eVect, pass it on Q248 Chairman: Yes, by all means. to the Treasury. It would be identified separately in Lord Falconer of Thoroton: Judith Simpson, who is the relevant department’s budget, which would be in charge ofthe policy team on the Supreme Court the Department ofConstitutional A Vairs. The and Alex Allan, the Permanent Secretary ofthe fourth model is exactly the same as the third except Department for Constitutional AVairs. that, instead ofpassing the bid to the DCA minister, you pass it direct to the Treasury. The choice is, in V Q249 Chairman: You are formally before us for the e ect, between those last two. The Select Committee first time, I believe? in the Lords indicated they would favour the non- Mr Allan: Indeed, yes. ministerial department approach. No conclusion has yet been reached. It may well be that the best Q250 Dr Whitehead: When you gave evidence to us model is the non-ministerial department. You have in June you mentioned the diYculty ofsquaring the still got the Minister passing it on, you have got two principles ofthe Supreme Court’s independence a minister, therefore, who is accountable in ofoperation and the issue ofministerial Parliament for budgetary issues, but you have got a accountability for what the court does. I think you very high degree ofindependence in the way that the also said that there needs to be some arrangement court is run and you have got clarity about what the for ministerial accountability in relation to what the Supreme Court says it needs in monetary terms. Supreme Court does? Lord Falconer of Thoroton: Yes. Q252 Dr Whitehead: So this is a sort ofagency model without the key performance indicators and the Q251 Dr Whitehead: What progress have you made contract between the department and the agency? in reconciling those what appear to be opposing Lord Falconer of Thoroton: It would be a body which principles? entirely set its own administrative arrangements. Lord Falconer of Thoroton: In the Bill itselfat the There would plainly be no key performance moment there are arrangements that reflect, I would indicators, or targets, or anything like that, set by say, normal ministerial accountability for a any ministerial department; it would be entirely statutory body, which means, in eVect, the Minister, separate. For example, in relation to the subject to whatever representations are made by the appointment ofthe chi efexecutive, rather than people in the body, determines what he should bid being appointed in accordance with ordinary for and then negotiates with the Treasury. I do not patterns and then accountable to the permanent think anyone thinks that is an appropriate secretary in my department, the chiefexecutive governance arrangement for the Supreme Court. I would be entirely separate from any departmental think there are three alternative models in play. One responsibility ofthat sort. 9940171004 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Q253 Dr Whitehead: So far as the issue of the budget Lord Falconer of Thoroton: Would you say that is concerned, you emphasised the need for the chief again? executive to draw up the budget and present it? Lord Falconer of Thoroton: Yes. Q257Dr Whitehead: Would that create a diVerence that is not a diVerence as far as the question of Q254 Dr Whitehead: Would you envisage that the whether they are civil servants is concerned? budget would eVectively be a one line agreement? Lord Falconer of Thoroton: I think they would still When we were in Australia as a committee we did remain civil servants; whether they would be discuss the issue ofthe one-line budget and its seconded from their department or not, I am not merits. Is that what would be envisaged by the sure. They would still presumably retain benefits like process? group pension rights, accrued promotion rights, Lord Falconer of Thoroton: Yes. What you would etcetera. Again, I think it is for the chief executive to envisage is that the Supreme Court body would set work out what the correct relationship is, but in what it thought its budget was, it would then pass terms ofadministrative viability, are you going to be V it—this is on the non-ministerial department able to attract good sta ifit is such a small model—to the Minister, who would then pass it organisation? The chiefexecutive would obviously straight on to the Treasury. The negotiations would be a fabulous job, but if you want to get good people then take place between the Minister in the DCA to come I think career prospects and protection of and the Treasury, but it would be absolutely clear, rights is quite important. Again, I think it is for the because it would be transparent, as to what the chiefexecutive to decide in relation to that. Supreme Court said its budget or its bid was for that particular period. Q258 Chairman: How are you getting on with finding somewhere for the Supreme Court to sit? Lord Falconer of Thoroton: There are two buildings, Q255 Dr Whitehead: Some ofthe evidence we have as you know, Middlesex Guildhall and Somerset received, and, indeed, as we discussed with some House. Both ofthem raise di Verent sorts ofissues. judges in Australia and New Zealand, suggested that Both ofthem raise planning issues, both ofthem there is a substantial antipathy towards the idea of raise financial issues, because, as you seek to solve the new Supreme Court being, as it were, substantial the planning issues, so greater expenditure may be administrators in their own right. Have you required in order to achieve that. We are in the considered the possibility ofperhaps the DCA process ofworking through development plans for V remaining responsible for ancillary sta whilst the both models to see which one can be delivered. I V key sta are appointed separately through that and cannot tell you what the result would be at the by the agency ofthat one-line budget? moment and I cannot give you detailed financial Lord Falconer of Thoroton: Yes, but the balance in figures at the moment, because we are in the process considerations seems to me to be that the Supreme ofworking them through. Court and those who talk about it are very keen that there should be genuine administrative independence. Ifyou set up an arrangement where Q259 Chairman: So neither Somerset House nor the chiefexecutive reporting to the Supreme Court Middlesex Guildhall have been eliminated, but no- justices determines how it is run, I think it is for him where else is currently in the frame? to decide what relationship he wants with Lord Falconer of Thoroton: Exactly. Those two are government departments. There will be plain the shortlist we are considering. benefits from his or her point of view in having relationships whereby you can get certain economies Q260 Chairman: In the case ofSomerset House, we ofscale, etc, but let the chiefexecutive and the were relieved to discover, although only in the last Supreme Court decide what they want in relation to couple ofdays, that it was not one ofthe buildings that. There is one caveat to that, which is the which the Inland Revenue sold oV in their great relationship between employees in terms oftheir clearance sale? career prospects and the Civil Service. From the Lord Falconer of Thoroton: Yes, I noticed that, but point ofview ofproviding a proper career path, it is they still have their maintenance done by them. You sensible, as I said the last time I was here, that people noticed that. who go into the Supreme Court should continue to have some sort ofrelationship with the Civil Service Q261 Chairman: I did. There is a maintenance ifthey want to. The Supreme Court will be a very contract? small organisation without traditional promotion Lord Falconer of Thoroton: Exactly. prospects, except in a quite limited way. As long as the people who go in feel they can come back to the Q262 Chairman: Is that going to be a diYcult thing Civil Service afterwards if they want to, I think that to disentangle? provides enough career progression to encourage Lord Falconer of Thoroton: I do not think so, but them to go in there. again, all ofthose things need to be bottomed out.

Q256 Dr Whitehead: Would that not create a Q263 Chairman: What is the likelihood that the diVerence so far as the question whether they are Supreme Court will in fact be sitting in the House civil servants or not is concerned? ofLords? 9940171004 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Lord Falconer of Thoroton: I think once one has got Australian High Court, which is on a vast scale and both ofthose options bottomed out, we then choose the nature ofthe court is relatively little used as a one. Having chosen one, we would then identify the building, and the New Zealand Supreme Court, likely date at which the Supreme Court could start. which is still based in temporary accommodation, As I said to you the last time I was here, the best still considering whether to move into an historic arrangement is that we get an end date (i.e. when the building. They are two wide extremes. Where do you court building is ready) and we start the Supreme think the proposed Supreme Court sits? Court then: because one ofthe aims ofthe Supreme Lord Falconer of Thoroton: I think both proposals Court proposal is that you have clarity about the we are discussing at the moment, Somerset House arrangements for the final Court of Appeal, and I and Middlesex Guildhall, strike about the strongly feel, like I think this Committee feels, that appropriate balance. There needs to be a suitable to have that as an aim but then muddle it in the start hearing room, but there also need to be good by not having clarity ofstart, namely a separate discussion rooms for the Supreme Court justices, building, etcetera, would prejudice the policy to library facilities and suitable individual start with. accommodation. I think both are capable of providing that. Q264 Chairman: This change is significantly about perception, is it not? Q271 Peter Bottomley: Can I leave a thought for you Lord Falconer of Thoroton: Yes. to consider? Lord Falconer of Thoroton: Sure. Q265 Chairman: About how people see the Supreme Court in relation to the legislature? Lord Falconer of Thoroton: Yes. Q272 Peter Bottomley: Assuming that you or your successor does not need to go on living in the Lord Q266 Chairman: And that would not be achieved if Chancellor’s house, that house is declared as being it still looked much like— outside the House ofLords and that is used, which Lord Falconer of Thoroton: The cleaner and clearer would allow the top judges to go on benefiting from the start the better, so that, ifpossible, you should security screening and from the canteen and we bring the proposals into force at the same moment would have none ofthe extra cost involved in the as there is a separate building for the court to go into. alternative arrangements. I leave the thought for you. Q267Chairman: Are you still in discussion with Lord Falconer of Thoroton: That is a very helpful English Heritage about either ofthese buildings? thought. Can I make two points about it? Firstly, as Lord Falconer of Thoroton: Yes. I was saying to Alan when he was asking the questions, one ofthe purposes ofthe change is that Q268 Chairman: Those discussions are not there be an identifiable separate Supreme Court. So concluded? I do not think, with great respect, following that Lord Falconer of Thoroton: They are not. suggestion would necessarily meet that. Secondly and separately, whatever views I would take about Q269 Chairman: What about the judges? Has there that, I should tell you that there are those in the been a fresh round of consultation with the Law House ofLords who are eyeing those apartments Lords about what the court has to be like and what very avidly for, as it were, non Law Lord or non scope there is for compromise between what I call Lord Chancellor accommodation. the two extreme positions, represented on the one Peter Bottomley: I leave the thought because it might hand by the existing two courts in Middlesex save an awful lot of money and an awful lot of Guildhall and on the other the feeling that it should bother. be like a seminar room or a committee room in the House ofLords? Q273 Mr Clappison: On the subject ofmoney, are Lord Falconer of Thoroton: There has been no you any closer to telling us how much this is all going further discussion in terms of them changing their to cost? requirements which have been set out previously, Lord Falconer of Thoroton: I am closer but not so nor would we wish them to. The nature ofthe close that I could tell you now. As we work through discussion at the moment is talking to the planners the detail ofthe plans the costings have obviously and English Heritage about the two proposals and become more detailed and more fine tuned. In other then, from time to time, informing the Law Lords as experiences in other emanations I have had I have to what progress has been made with them. It is not always thought it a mistake to give running a question ofthem changing their requirements; it is commentaries on where you have got to in relation keeping them up-to-date with the progress that has to the costs. From my point ofview, my appropriate been made. course is to wait until the work has been done. Q270 Chairman: Have you got a clear plan ofhow much is needed by way ofsupport and library Q274 Mr Clappison: So you cannot give us an facilities,and things ofthis kind, in each ofthese estimate? buildings? The Committee has seen the two extremes Lord Falconer of Thoroton: No, I think it would be ofthese possibilities. On the one hand, the a mistake to do so. 9940171004 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Q275 Mr Clappison: This morning at about 7.30 I is a matter for the Commons. The aim is to seek to was sitting on a bus travelling to St Albans Railway deliver the reforms that were outlined in June 2003. Station. It was the number 84 from Potters Bar. How Those reforms are about the Lord Chancellor no would you justify all of this to the man sitting on the longer sitting as a judge, the Lord Chancellor no number 84 bus from Potters Bar? longer being the head ofthe judiciary, the concordat Lord Falconer of Thoroton: I think it is extremely with the judges, the Judicial Appointments important that there clarity about the arrangement Commission and the Supreme Court. We believed for the final Court of Appeal. For example, in the that the best way to deal with that was by the last few months a very important appeal, namely the abolition ofthe role ofLord Chancellor. That may appeal ofthose being held in Belmarsh under the remain the best way to do it, but ifthere are anti-terrorist legislation, has been going on in the alternatives which can deliver the reforms sought, House ofLords. We all understand that it is the which I have just outlined, obviously we would court offinal appeal that is hearing it, we all consider them. understand that it is not the politicians or the legislators who are deciding it, but I am not sure throughout the whole ofthe nation and throughout Q278 Mr Clappison: You seem to have gone a long the whole ofthe world that that is clear, and I think way to meet your critics on the reform proposals. it is incredibly important, particularly when rights You seem to have won the argument, certainly in the are so important, that there be total clarity about speeches that Lord Kingsland made, that they had to where a court is deciding something and where the be changed. Everyone agrees now, whereas they did legislature is deciding something. I am not sure that not agree a year ago after the reshuZe, that there has that would have been adequate for the people on the bus with you, but that is our reason for doing it. to be change. They seem to have conceded the fact that the Lord Chancellor should not be Speaker of the Lords or sit in a judicial capacity, but they seem Q276 Mr Clappison: Can I finally suggest to you that to want to keep this title. There seems to be a great we may be thinking that that is what they are aVection for the title rather than the role. Do you thinking about, but I have not had any constituents, think that is the way it has moved? and I am not sure any other member ofParliament Lord Falconer of Thoroton: It is the point this has had a constituent or is aware ofanybody else at Committee made a year ago, which is that there are all having complained about this in the past and that certain values associated with oYce ofLord they would be conscious ofthe cost as faras this is Chancellor. Those values are the rule oflaw, the concerned. I would rather you than me to explain it independence ofthe judiciary and the embodiment to them? ofa state that stands by the rules. Ifthat can be Lord Falconer of Thoroton: I am sure you are right. achieved in other means, the embodiment ofthose Certainly I have never been approached by people values, then we should do it, but strong arguments on the street saying, “Please let us have a Supreme Y Court”, and I am quite sure it is not an issue that is have been put from all sides that the o ce ofthe on the doorstep, but I think it is the right thing to do. Lord Chancellor, ifyou could make the reformsthat I fully appreciate what you are saying about the we have made, might still be a force for embodying diYculty ofexplaining it to the audience generally, those values. So we have a choice to make about how but I think it is a very important thing to do and I you embody those values, because, like everybody, think it is the right thing to do. we must not lose those values; I think we must not lose those values. Q277 Keith Vaz: On 11 October, after a defeat in the House ofLords, you said this: “We will ensure that Q279 Mr Clappison: At the time ofthe changes there the Bill is amended as follows. The Lord Chancellor was a lot ofcriticism, and you have spent the last will perform those functions that the Bill in its year, presumably, convincing people that those present form currently allocates to the Secretary of criticisms were not well-founded. Do you think you State for Constitutional AVairs.” You go on to say, have won the argument in the Lords, in Parliament, “But, ofcourse, that does not preclude the Government from seeking to restore the position of in the country, that there ought to be that change, the Secretary ofState forConstitutional A Vairs in that the change has to happen ifwe are going to have another place.” Will the Government seek to reverse a modern system, and that all we are now concerned Y the changes to the Bill made in the House ofLords about is a title, not an o ce? to preserve the title of“Lord Chancellor”? Lord Falconer of Thoroton: I do not know whether I Lord Falconer of Thoroton: The comments I made have won the argument. I think there is very on 11 October were in the context ofhaving been widespread acceptance that the reforms that you defeated at the committee stage. It is necessary, in went through need to be eVected. I think the reform parliamentary terms, to respect the eVect ofwhat has agenda laid out in June 2003 has been accepted as been decided. The clear intention ofthe House of sensible and necessary. As far as the Lord Lords in that vote was to say that the oYce ofthe Chancellor’s oYce is concerned, I think the issue is Lord Chancellor should not be abolished. We must not what is the outcome you seek to achieve, because respect that in an amendment we are bringing we all want to achieve the same outcome, namely, forward for the purposes of the House of Lords. Will the preservation ofthe values is identified. The we seek to reverse it in the Commons? Plainly, that question is how you achieve it. 9940171004 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Q280 Chairman: Was there not also an issue around Q284 Keith Vaz: But the most senior judges like the the title ofLord Chancellor that there was a general idea ofhaving that big figure in the Cabinet, desire—and this was one expressed by the someone whom they can trust? Committee as well as many in the Lords—that the Lord Falconer of Thoroton: Yes. person responsible for the relationship with the judiciary in government should not be a junior Q285 Keith Vaz: They must have said this to you in minister with a hope ofsubsequent promotion, but the meetings that they have had with you? should be someone who is, without making any Lord Falconer of Thoroton: Yes. personal reference, at a point in his career where he is not worried about what his next job is going to be Q286 Keith Vaz: They like that idea? and can therefore take on other ministers if he feels Lord Falconer of Thoroton: They do. that they are in some way imperilling the independence ofthe judiciary or the way it is Q287Keith Vaz: How can we ensure that that trust perceived? remains with someone else who holds that oYce who Lord Falconer of Thoroton: Yes, I agree with that. does not happen to be that senior figure? The oYce, whatever you call it, has to have suYcient Lord Falconer of Thoroton: You have come straight clout both from, as it were, what surrounds it and the back to the question: could that trust only be created holder ofit to be able to take a stand on issues that between a lawyer and the judges? I do not think it transcend politics. does require a lawyer to do it.

Q281 Keith Vaz: The issue ofclout is important as to Q288 Keith Vaz: Can I ask you one question about whether or not the Lord Chancellor or the holder of the judiciary at the moment? In giving evidence to us the oYce ofSecretary ofState should be a lawyer? last week, the President ofthe Family Division, Lord Falconer of Thoroton: Yes. when I put a question to her about meeting various campaign groups certainly in family law, said she was reluctant to meet one particular group. What is Q282 Keith Vaz: Do you not agree now that it your policy on senior judges meeting groups and should always be a lawyer who holds this position? individuals outside the judicial system? Lord Falconer of Thoroton: We have had this Lord Falconer of Thoroton: It is entirely a matter for discussion. Did we have this discussion before? It them whom they meet, and I would entirely respect should be the person most able to defend the values the President’s judgment in relation to determining I have identified. There will be occasions when, I whom she should meet or not. Plainly, I neither believe, somebody who is not a lawyer would be could, nor would, seek to impose any restrictions in much better at defending those values than any relation to whom she met, and I would trust her lawyers that might be in the frame. If you go back in good judgment in relation to that. time, do you think that Roy Jenkins, as a Member of Parliament who was not a lawyer, would have been Q289 Mr Clappison: What plans have you to a good defender of those values? Do you think he introduce an amendment relating to the rule oflaw? would have been a better defender of those values Lord Falconer of Thoroton: We had discussions in than some lawyers that might have been available at relation to that at the Select Committee. An the time? It is diYcult to say, but should not the amendment was discussed there as to the form of a Prime Minister ofthe day be able to judge who is rule oflaw amendment. I am keen that there should best to do the ministerial job, relate to the judges and be such a rule oflaw amendment. Plainly, the issue defend the values that the oYce embodies? ofthe rule oflaw amendment and the o Yce ofthe Lord Chancellor are quite inextricably linked, because ifultimately the best way to preserve the Q283 Keith Vaz: Sure, but from the point of view of values ofthe rule oflaw is by preserving the o Yce of your biggest stakeholders—the judiciary—they were the Lord Chancellor, then the need for a rule of law keen to have this big figure in the Cabinet who was amendment dramatically decreases. able to stand up for them. Irrespective of whether the Lord Chancellor sits as the Speaker ofthe Lords or Q290 Andrew Rosindell: Lord Chancellor, when you sit as a judge, they wanted that big figure. When the gave evidence to the Committee in June you referred Home Secretary gets too big for his boots—I am not to the relationship between judges and Parliament, suggesting that David Blunkett has done so—they and you said at the time you were agnostic as to how want someone who is going to be able to stand up to this should be done. Have you had any further the Home Secretary to be able to discuss in Cabinet thoughts about the best way this could be managed and say, “Who is going stand up for the judges if it in the future? is not the Lord Chancellor”? Lord Falconer of Thoroton: My own view is the best Lord Falconer of Thoroton: You put it extremely way it could be managed in principle is that senior well, but the question is: would they feel comfortable judges should readily come to select committees in only with a lawyer? Is not the question: who is going both Houses and give evidence on appropriate issues to be most eVective at doing that particular job? to select committees. I think ifa relationship was There are some lawyers who would be good at it and built up whereby, ifa senior judge wanted to come some who would not. There would be some non- and express views about a particular thing, he or she lawyer politicians who would be excellent at it. could be moderately certain that the select 9940171004 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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16 November 2004 Rt Hon LordFalconer of Thoroton QC, Alex Allan andJudithS impson committee would provide an opportunity for that to the judges. One of the things that it involves is much be done within a reasonable time. That would seem closer daily relations between oYcials and the to me to be the best way to do it, because I think that Minister and the judges. So they have got every is more appropriate than a senior judge being a opportunity, and I see them regularly. I do not think member of the legislature. they would feel for one second any inhibition about saying, “We think this is a sensible proposal.” You Q291 Andrew Rosindell: Would that be a joint can see that, for example, in relation to criminal committee ofboth Houses, or would you envisage a procedure and substantive criminal law proposals new committee being established? over the last few years; you can see it in relation to Lord Falconer of Thoroton: I am afraid I remain immigration and asylum. Their views have carried agnostic. I think that is a matter for both Houses to very considerable weight both internally and decide what the best way to do it would be. I think externally in determining what policy is. There is no there is something to be said for having a committee diYculty about the informal channels. in each House that does it. I am not sure that you need necessarily to change the arrangements. This Q294 Keith Vaz: You have lifted the veil. People Committee has regularly, on a whole range ofissues, know what the Lord Chancellor does now. They had senior judges before it, and it seems to me to know what kind of budget a holder ofthat o Yce has? have worked pretty well. I do not know that it has Lord Falconer of Thoroton: People knew that before, ever been raised, but ifa senior judge indicated that I think. they wanted to come before this Committee, I cannot believe this Committee would not facilitate Q295 Keith Vaz: Not in quite such a public way. You it. Ifthat works well, that might be a template forthe appear on Question Time, for example. No Lord future. Whether the Lords have a committee as well, Chancellor in the past has ever appeared on I do not know, but I suspect it is probably more Question Time. Do you think that the veil has been important that the senior judges have an lifted too far? Are the judges a little too worried opportunity to address a committee ofthis House about the fact it is all out there and the mystery rather than the Lords. has gone? Lord Falconer of Thoroton: The big change that has Q292 Chairman: You refer to the fact that judges happened, I think, is that the ministerial, political come before this Committee. I had a discussion with function of the Lord Chancellor, which has always the Lord ChiefJustice beforewe started this process existed to a greater or lesser degree, has become and, therefore, we had a clear understanding of the much more apparent. There are obviously risks in basis on which it is done. You agree with my view relation to that, but I think it is extremely important that we have to have a degree ofself-disciplineabout that it becomes more a pparent because I think things how Parliament deals with the judges ifwe are not to like the administration ofthe criminal courts or the put them in a false position of having to account for family courts, decisions about legal aid, are issues individual decisions or, indeed, be trapped into that ultimately are political (with a small “p”) defending some kind of policy in relation to the decisions rather than decisions that are oV-shore of handling ofcases rather than giving evidence to us the politicians. Because I do that as a minister, I about their experience or, indeed, indicating where think it is right that it is apparent and public that I the problems are in managing the system? do that, but I consciously have to do it without in Lord Falconer of Thoroton: I agree with all ofthat. any way prejudicing or compromising my objective They have confidence that when they come here they independent role in appointing judges, in preserving are not asked inappropriate questions about the rule oflaw, in protecting the independence ofthe individual cases, nor are they asked, as you rightly judiciary; but I think it is much better that it is say, to defend what is eVectively executive policy apparent, and I think it is much better that I am a rather than administrative matters so they have the figure who is not kept in the dark. confidence to come here. Keith Vaz: When you open your birthday presents on Friday morning, what is the one birthday present Q293 Keith Vaz: Your ambition was to modernise you would like from the combined opposition in the position ofLord Chancellor to be an active order to get your proposals through Parliament? Is Secretary ofState. Hardly a week goes by without there one particular issue that you would like them some new initiative coming from your department. to understand that you are prepared to compromise In the past the judges were coming to you and they on in order to get this through? would say to you, “We are concerned about a particular piece oflegislation that is coming Q296 Chairman: That sounds like the last question forward.” If they are not in the House of Lords how on Question Time! would they make their views known to government, Lord Falconer of Thoroton: The critical thing from to the Executive, about proposed legislation? Would my point ofview is that we get the fourelements of they have to make controversial speeches? Would the reforms, which is the Lord Chancellor doing a they have to make statements? Would they have to diVerent job, not a judge, not head ofthe judiciary; give press conferences? we get the concordat, a new relationship with the Lord Falconer of Thoroton: The concordat envisages judges, we get a Judicial Appointments Commission a close relationship between the Executive and the and we get a Supreme Court. That is the present I judges without transgressing the independence of would like. 9940171004 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Q297Keith Vaz: That is four presents? evidence; it is the role of the oYce-holder to protect Lord Falconer of Thoroton: Four presents, but I the independence ofthe judiciary. Those are the think two ofthem, the Judicial Appointments three things, I think, which will continue with the Commission and the concordat, are broadly not an political classes being involved enough not to attack issue. I think the Supreme Court is not an issue, but individual decisions. increasingly I sense people accept the principle ofa Supreme Court; their concerns are around the sorts ofissues we have been discussing this morning, Q303 Chairman: Before you move forward, could I which is governance, the building, etcetera. I think clarify the details of the process you have been the Supreme Court is there and I think there is describing? We have moved from a position where a widespread acceptance ofwhat we want the o Yce- slate ofnames fromthe Supreme Court would go to holder to do, but the issue is not about what he or the Lord Chancellor and he would choose from that she should be doing, it is about what oYce he or she slate to a position where— should hold and whether he should be a lawyer and Lord Falconer of Thoroton: There is one name. a Lord. Q304 Chairman:—there is one name. The Q298 Ross Cranston: Could I take you to judicial commission recommends one name to the Minister appointments? We had this discussion last time in but sends the detail ofthe others considered. I have relation to the Supreme Court. You may recall that some diYculty in working out what that process Professor Hazell gave evidence to the Lords’ Select Committee and said that he thought there ought to means: because ifyou look at the first name and say, be more than one on the list, and he said that that “I am not sure about that”, you look at the details of was important in terms ofretaining the confidence of the others, which presumably have a name attached the judiciary. Have you moved at all on that to them, and you go back and say, “I do not like the particular point? recommendation. I see that there are other good V Lord Falconer of Thoroton: I have not, no. I think it names on the list.” What is the di erence between should still be one person on the list. I think the that and choosing between— balance you have to strike is between the power the Lord Falconer of Thoroton: Because you have a Executive has on the one hand and on the other the limited ability, you could only say, “I reject the fact that the Executive has got to have some name” once. Ifthey come back with the same name, responsibility for the appointment of judges. If you you have to accept. It seems to me it must be possible go above one, you significantly increase the ability of for a minister to say, “Here are five names. We select the Executive to actively make a choice rather than name A.” You look at the other four names. On the simply to approve the choice ofsomebody else; and faceofit, ifevery single one ofthe other fourlook I think the right role is to approve the choice of immeasurably better than the one that was somebody else rather than to make the choice appointed. “You have appointed somebody who has ourselves? been at the Bar for five years. Everybody speaks badly ofthis person. He appears to have an Q299 Ross Cranston: What about the argument that appalling disciplinary record and here are four of the we as a political class, because we do not have as finest legal brains in the history oflegal brains and great an involvement, will be more inclined to attack you have selected A. Might you reconsider?” That the judiciary—involvement through your discretion would be a perfectly legitimate thing to do. in making an appointment? Lord Falconer of Thoroton: I hope the answer is our involvement is enough. You can send the name Q305 Chairman: It is a pretty hair-brained scenario back, and, ifyou do not send the name back, then though, is it not? you are, in eVect, accepting that an acceptable choice Lord Falconer of Thoroton: Unless you have some has been made. idea ofthe basis upon which the choice has been made, it is diYcult to be informed about whether Q300 Ross Cranston: What other mechanisms are you accept it or not. It picks up Ross’s point though. you going to put in place so that we as a political The more you know the more your endorsement to class will not attack the Supreme Court? the appointment is a real endorsement. What you Lord Falconer of Thoroton: You mean the decisions cannot do is say, “I like the look ofname C. Ifyou ofthe Supreme Court? come back with C I will accept it.”

Q301 Ross Cranston: Yes. Q306 Chairman: Can you not? Y Lord Falconer of Thoroton: First ofall, the o ce- Lord Falconer of Thoroton: No, because ifthe holder’s role— selection panel come back and say, “No, it is A. We want A”, then you can reject it, but then they chose Q302 Ross Cranston: So you feel some sort of and you have to accept that name. involvement there? Lord Falconer of Thoroton: I think it is the appointment process, which involves the Executive; Q307Ross Cranston: You remember last time there it is the links between Parliament and the judges, not was some disagreement between the Chairman and in individual cases but in terms ofbeing able to give myselfabout this? 9940171004 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Lord Falconer of Thoroton: I do. Q312 Ross Cranston: Do you provide them in some way with guidance? Lord Falconer of Thoroton: There was widespread Q308 Ross Cranston: I think he had some agreement for this in the Select Committee in the disagreement with his party as well, but we will not Lords. We need to give the Executive power to give go into that! Could I take you to judicial guidelines on diversity which the Judicial appointments generally? Appointments Commission is obliged at least to Lord Falconer of Thoroton: Yes. have in mind. We cannot interfere with their independence and selection, but we need to give Q309 Ross Cranston: Since we met I think you have them, without diluting the merit principle, the ability appointed Mrs Justice Gloster and also Mrs Justice or hopefully the obligation to consider diversity Dobbs, an appointment, in fact, widely welcomed as issues as well; but ifthe state is keen that this should a commitment on your part to diversity; and we also happen, ifthere is that political will there in the state, welcome, I think, the very detailed paper you put out one hopes it would be reflected in the Judicial on diversity in the judiciary. But how do you get the Appointments Commission as well. Judicial Appointment Commission to implement those policies on diversity? How is it going to be Q313 Ross Cranston: One would hope that, but I done as a matter ofmechanics? think the Scottish example is used, is it not? They Lord Falconer of Thoroton: It is for the Judicial have a judicial appointment body but I am not sure Appointments Commission to determine precisely any more women have been appointed, or any how they do it, and it will be things like much greater women at all have been appointed? information about what judicial appointments are Lord Falconer of Thoroton: It has not been going available, discussions with the professions about that long. Ifyou go to Canada there are provincial how they encourage a particular thought oftraining, appointments bodies and national appointments and entry, and encouragement ofjudicial bodies that operate in a slightly diVerent way. Both appointments so that the profession is encouraging ofthem have produced more diverse Benches. people, discussions with the government about sitting hours and other arrangements making it as easy as possible to do it. It is a whole range ofthings, Q314 Ross Cranston: I am underlining your point as the judicial diversity paper says, but, perhaps that political will is crucial. more significantly, there must be a will on the part Lord Falconer of Thoroton: Yes. of, first of all, the Government before the JAC comes in and then the JAC to make a diVerence in terms of Q315 Keith Vaz: This is to Mr Allan. Obviously the the diversity ofthe Bench without diluting merit. I Lord Chancellor has appointed the first black think it was you who drew my attention to the woman to the High Court Bench, which is Canadian example. Did you have the ChiefJustice something that is very welcomed on the basis of ofCanada giving evidence some time ago? merit, but there are criticisms about the way in which the process ofthe Department works as faras feedback is concerned for those who have not Q310 Chairman: Yes. managed to get a judicial appointment. Are you Lord Falconer of Thoroton: I went to Canada a few satisfied that that process is working, because I have months ago, or a month or two ago, and everybody anecdotal evidence from black and Asian people there said to me that the Government for the last 15 who have applied for judicial appointment, who or 20 years has had a real will to diversify the Bench have been turned down, who have then tried to use without diluting merit. I was there when they swore the feedback process; they get to people in your in two new women Supreme Court justices, making department, who seem to be invariably on voice- the number ofSupreme Court justices fourwomen mail, and they do not get the feedback that they need and five men, and that was a product over a long to make them ready to take up the appointments period oftime, but they would all say it was that the Lord Chancellor has just talked about? transforming. So it is about specific measures, but it Mr Allan: We have certainly put a big eVort into is also about political will, and we need to exercise making our whole appointments process more that more to show we have got that will before the professional, more open, more transparent, and, Judicial Appointments Commission comes in. indeed, to provide the sort offeedbackthat you have been describing as necessary. I am sorry ifin Q311 Ross Cranston: I think the Canadian individual cases it has been hard to get the feedback, experience demonstrates that, and that is the point and I am certainly happy to investigate any ofthose, that ChiefJustice Beverley McLachlin has made on but we do attach great importance to making sure a number ofoccasions. It is political will, which goes that we have genuinely improved and made more back to the question about appointments, but let us professional the way in which judges have been leave that to one side. How do you actually ensure recommended for appointment. that the Commission does take that political will and then implements it? How do you do it mechanically? Q316 Keith Vaz: You have just advertised in The Do you set down guidelines for them? Times and The Guardian for a number of part-time Lord Falconer of Thoroton: I think we should set district judges. Have you looked at that form? Have down guidelines. you seen that form yourself? 9940171004 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Mr Allan: I am not sure I have seen it myself, no. Lord Falconer of Thoroton: Yes, I think we have now, as it were, worked those issues through. This Q317Keith Vaz: Because the form requires people to only applies to the civil business ofthe Supreme know very senior people in the profession. If you Court. The funding of the Supreme Court’s civil operate on a diVerent level, ifyou are a young, black business should partly be from its own fees, its or Asian barrister often years standing who wishes charges, but that produces, I think, only about to get one ofthese appointments, your ability to get £500,000, £600,000, and partly from fees that the to know the people who count to act as referees is not Civil Justice System ofEngland and Wales also very great, and that is where the disadvantage starts, charges. In order to finance it, because the Supreme the fact that you are asked for referees who have Court will be more expensive on a yearly basis than knowledge ofpeople’s work. The people who are the House ofLords Judicial Committee, that will applying, especially from the ethnic minority mean we will need to increase civil fees in England community, simply do not have that access? and Wales, and it might be by something like 50 or Mr Allan: That was one ofthe issues covered in the 60p in an individual case. consultation paper on diversity in the judiciary which the Lord Chancellor launched a few weeks Q324 Chairman: Right down to the County Court? ago, very much inviting feedback on those sorts of Lord Falconer of Thoroton: The County Court issues where people from black and minority ethnic would have to pay as well. The County Court case communities may feel disadvantaged. That is very will have to pay as well in relation to it. It would be much the sort ofissue we want to take on board. an average, so it would not be 50 or 60p in relation to a county court. That is fair, we believe, because Q318 Keith Vaz: Have you as the Permanent you are providing a court system and the court Secretary ever attended one ofthese feedback system includes making available a first instance sessions? judge, which very, very frequently is not used Mr Allan: A feedback session from a— because so many cases settle, but it also means a Court ofAppeal or a final Court ofAppeal or a Q319 Keith Vaz: From an applicant who has been Supreme Court once the Supreme Court is set up. So refused? I do not regard that as either unfair or unnecessarily Mr Allan: No. onerous. You will know that there are provisions that excuse people quite legitimately from paying Q320 Keith Vaz: Ifsomeone who has applied to be a fees if they cannot aVord the fees. So it does not deny QC or a judge has been turned down they have the access to justice and it is a fair way of doing it. Judith option ofringing someone like your Department is correcting me; it is 20 to 50. I was grotesquely and asking for the reasons why they have not been weakening my case by saying 50 to 60p. It is 20 to appointed. Have you attended one ofthose sessions 50p. yourself? Mr Allan: No, because the feedback is given by the Q325 Ross Cranston: Say for a small claim it is £80 people who have been involved in doing the so, £80 plus either 20 on 50p? interviews, involved in the process. Lord Falconer of Thoroton: Judith, you are the expert on fees. Perhaps you would help me with that? Q321 Keith Vaz: As Permanent Secretary, since you Ms Simpson: On the basis ofcalculations which we have overall responsibility for the processes in the did in the summer, so obviously on various Department, not the policy but implementing the assumptions about overall costs which may or may process, do not you feel you should know what not change, we thought it worked out at about 20 to people are told at such an interview? 50p per fee across the whole of the civil business. The Mr Allan: I certainly feel I should be satisfied that costs for a case, of course, work out at rather more people have had appropriate feedback based on than that, but we are talking about low numbers in what they have been told. single figures ofpounds per case.

Q322 Keith Vaz: How can you be satisfied, Mr Q326 Chairman: You were about to say what would Allan, ifyou have never attended one ofthose happen in Scotland and Northern Ireland. sessions? Lord Falconer of Thoroton: Northern Ireland is yet Mr Allan: As I say, the sessions themselves are to be resolved. Scotland do not want to charge feedback from the people who have sat in, who have additional fees, so that is going to be dealt with by a actually been on the panels and, where necessary, if public expenditure transfer. complaints are made, they are investigated and they may come to me. I have not, as it happens, had any Q327Chairman: A bit ofthe Barnett Formula will in the time since I have been Permanent Secretary? go pay for the Supreme Court? Lord Falconer of Thoroton: It is quite small amounts Q323 Ross Cranston: When you last came we ofmoney, well under a million pounds. It is discussed fees, the full cost of recovery and the hundreds of thousands rather than anything else. implications for the Supreme Court, and I think at That is the way they wish to do it and they are plainly that stage you said that you had not finally worked entitled to determine what is the way that they do out the implications ofthat. I am wondering ifyou it—we have no diYculty about that—but it is a have made any progress? sensible way ofdealing with the issues, in my view. 9940171004 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Q328 Ross Cranston: It is not designed to cover the Q337Peter Bottomley: You moved from the use of capital costs? two or three rooms in somebody else’s building to Lord Falconer of Thoroton: It is not designed to having a building with its own security, its own cover the capital costs, no. It is designed to deal with catering, its own back-up staV, its own library, the running costs. everything? Lord Falconer of Thoroton: Exactly. Yes. It is, in terms ofpercentage, significantly higher, but in Q329 Ross Cranston: Have we had a consultation terms ofoverall costs, I do not believe it is a great paper on this? price to pay for something like an independent Lord Falconer of Thoroton: I was not envisaging one. Supreme Court, which, to use Lord Bingham’s words, is a necessary part ofany liberal democracy. Q330 Ross Cranston: Or did you not do it because it was such a low amount? Q338 Peter Bottomley: Lord Bingham said that the Lord Falconer of Thoroton: I do not think that a present arrangements passed Bingham; the pudding consultation paper would be appropriate. I think it test did not pass Bingham. So I think he argues both needs to be dealt with in the course ofthe Bill being ways, or could be held to? approved. I think the parliamentary scrutiny process Lord Falconer of Thoroton: He unquestionably has got to be the way that is dealt with. supports the setting up ofa Supreme Court. He, like any person, is very keen that proper arrangements be set up to deliver it, but he is a strong supporter ofa Q331 Chairman: What happens to the existing Supreme Court being set up. budget ofthe Judicial Committee ofthe Privy Council whose work is a component ofthe new Q339 Peter Bottomley: We are aware ofthat, Supreme Court? because he told us that he did not say that any part Lord Falconer of Thoroton: The cost ofthe Privy did not work at the moment; it just did not look Council will plainly not be borne by civil fees. The right. You are putting this eVort into break the link amount of civil fees only relates to civil cases from with Parliament. Are you putting the same eVort the United Kingdom. into breaking the link between this top court and the Executive? Q332 Chairman: I was thinking ofdevolution cases. Lord Falconer of Thoroton: I am sorry, that is too Lord Falconer of Thoroton: They will not be covered clever a question. by these. Civil means only civil litigation. Devolution cases and criminal cases are paid for by Q340 Peter Bottomley: You put a lot ofe Vort into the state. There will be no impost ofany sort in breaking the link between the top court and relation to them whether by fees for the Supreme Parliament? Court directly or by impost ofany part ofthe Lord Falconer of Thoroton: Yes. justice system. Q341 Peter Bottomley: Are you putting the same eVort into breaking the link between the top court Q333 Peter Bottomley: My recollection, I may be and the Executive? wrong, is that the cost ofthe top court at the Lord Falconer of Thoroton: Is that a question about moment, other than the judge’s salaries, is about the governance questions? I am sorry, there would £600,000 a year. not be a link save in the governance and the funding Lord Falconer of Thoroton: Slightly more, I think, arrangements ofthe sort that we discussed at the but something like that.2 beginning.

Q334 Peter Bottomley: How many more millions are Q342 Peter Bottomley: Yes, but part ofour we going to be spending with the new arrangements, discussion earlier on was whether the funding do you think? arrangement should, in eVect, be through Lord Falconer of Thoroton: We estimate the cost will Parliament or should it be through ministers? be about £7 million per year, but is significantly Lord Falconer of Thoroton: Yes. higher. Q343 Peter Bottomley: You have explained that the Q335 Peter Bottomley: About seven times higher? purpose ofmultiplying the cost ofthis top court by Lord Falconer of Thoroton: Yes. ten times is to avoid the perception ofthe link between this top court and Parliament. I am asking for confirmation, but contradict me if I am wrong, Q336 Peter Bottomley: Or more? that you are not putting the same eVort into Lord Falconer of Thoroton: That is the inevitable breaking the perceived link between this top court consequence ofsetting up a separate building, a and the Executive ofministers? separate body, rather than it being, in eVect, Lord Falconer of Thoroton: The one thing that we financed from another building of which the Law have already done is to make it clear that the Lords bit is a tiny part. Chairman ofthe final Court ofAppeal is not a member ofthe Cabinet, which is the current 2 Ev 59–60 arrangement. That is a pretty strong link between 9940171004 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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16 November 2004 Rt Hon LordFalconer of Thoroton QC, Alex Allan andJudithS impson the Executive and the final Court ofAppeal. Money uncommitted to it without giving any prior has to come from somewhere for this court, and indication that this was being reviewed within money for Parliament comes from the Executive, so government. What does that make ofa government money for the court has to come ultimately from the commitment? Executive. I cannot think ofa way that you could Lord Falconer of Thoroton: Neither myselfnor the ever break that link. Prime Minister has sought subsequently to defend the way that the announcement was made, and nor Q344 Peter Bottomley: How at some stage do you do I do so today, but during those 17 months there manage to insert into the Bill the power for ministers has been very detailed consideration in a whole to define or redefine merit in terms ofjudicial range ofways at these proposals. In particular, in the appointments? House ofLords they inserted an additional stage in Lord Falconer of Thoroton: It is not there now. the parliamentary process, which is only to the good. These proposals should, I think, now be judged on Q345 Peter Bottomley: How did you come to have it their merits, and I think quite a lot ofpeople think in the Bill in the first place? there should be a Supreme Court, there should be Lord Falconer of Thoroton: I do not know is the the concordat that was negotiated with the judges, answer, but it should not be there and it has gone. there should be a Judicial Appointments Chairman: One ofthe many usefuljobs in the House Commission and there should be fundamental ofLords is followingthe method ofconsideration in reform, at the very least, in the role of the Lord the first place! Chancellor. It is absolutely legitimate for you to raise these points, but it seems to me the important Q346 Peter Bottomley: Can I put to you, Lord issue is the merit or otherwise ofthe proposals. Chancellor and Secretary ofState, a question which has, I think, been worrying a lot ofpeople, and it has Q350 Peter Bottomley: Part ofthe sense of come up at this Committee before and with you. In constitutional government in the role ofSecretary of the absence ofan emergency, how did it come about State for Constitutional AVairs is that people might that abolition ofthe position and the role ofthe Lord be expected to believe that the Government believed Chancellor should become settled government three years ago when they wrote in their Green Paper policy without consultation, proper public debate or that the judicial element ofthe House ofLords was carefully planned legislation? important and they were committed to it. Seventeen Lord Falconer of Thoroton: The aim ofthe reform months ago they were uncommitted to it. You have was as set out by the Prime Minister on 12 June. As described the changes that have taken place in the he recognised, they required legislation. The process last 17 months, which are interesting and important, ofParliamentary scrutiny has led to a huge number but the question is about how we moved from 2001, ofchanges being made to the initial proposal, and it where there was a commitment, to 2003, when there has also led, I believe, to there being widespread is not? support for significant elements in the proposal. Lord Falconer of Thoroton: Does the process not in a sense illustrate the strength ofour constitutional Q347Peter Bottomley: That is not an answer to the arrangements in that an announcement is made question I think I was putting. How did it come without prior warning. It was done much too about the proposals came about 17 months ago abruptly. The consequence is that subsequently without consultation, proper public debate or there has been very detailed consideration ofthe carefully prepared legislation? respective proposals that have been made and Lord Falconer of Thoroton: That occurred before I people, both in Parliament and outside, have been became Lord Chancellor; not very long before I able to judge the merit or otherwise ofthese became Lord Chancellor, but before I became Lord proposals, and some ofthem have been amended Chancellor. and some ofthem have stayed as they were. I entirely Ross Cranston: Which is the point you made last agree with you about the method ofannouncement, time. but I think a consensus is emerging as to what the right changes are. Q348 Peter Bottomley: Are you aware ofanyone having explained it? Q351 Peter Bottomley: Is the rule oflaw, which has Lord Falconer of Thoroton: The Prime Minister gave had some attention in the House ofLords, capable evidence to the Liaison Committee in June or July of ofjudicial review and enforcement? this year and was asked questions, among others, by Lord Falconer of Thoroton: No, it is not intended to. the Chairman ofthis Committee about that very point and by, I think, Chairmen ofvarious other committees about this very point. Q352 Peter Bottomley: Is it capable? There are two questions, one as to whether it is capable and the second as to whether it is desirable? Q349 Peter Bottomley: I will try another tack then, Lord Falconer of Thoroton: What are you asking ifI may. About 17 months beforeyour post was about: the proposed amendment? abolished and then resurrected, the Government in a White Paper said that they were defending the judicial appointment ofthe House ofLords, that Q353 Peter Bottomley: Would the provision ofthe they were committed to that. They then became rule oflaw be capable ofreview and enforcement? 9940171004 Page Type [O] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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Lord Falconer of Thoroton: It is not intended— Q358 James Clappison: Lord Chancellor, you have Every time I say “it is not intended” you instantly mentioned what you see as agreements on the put your hands up in the air! Ifthere is a provision Government’s proposals , and you used the word in the Bill and the legal intention is that it should not “consensus” a moment ago, and I do not doubt the be judicially reviewable, is it capable ofbeing personal care and attenti on which you have given to judicially reviewable subject to the court’s decision all this, but you would accept, would you, that there on that, but the intention ofthe drafteris that it is a distinction between agreeing with the wisdom of should not be. the Government’s proposals in the first place or disagreeing with them and then, in either case, trying Q354 Peter Bottomley: It is possible to declare that to make the best ofthem once the Government has this declaration ofthe rule ofthe law is not intended made clear the determination to press ahead, come to be enforced by the courts. It is not intended that what may? One should not be mistaken for the it should be reviewed by the courts. That is the former. decision. That is the intention? Lord Falconer of Thoroton: I do not think that is the Lord Falconer of Thoroton: Yes. position though. I think, for example, and it has been referred to already, that in the House of Lords Q355 Peter Bottomley: The previous question I was the Conservatives have broadly supported, not faute asking was would it be capable to write it in such a de mieux, but because it is the right thing to do, the way that the courts could review it and could proposition that the Lord Chancellor should no enforce it? longer sit as a judge, the proposition that the Lord Lord Falconer of Thoroton: I understand your Chancellor should not be in the judiciary, the question. Yes, ofcourse, you could write it in a way proposition that relations with the judges should that the courts could review it. now be governed by a concordat and the proposition that there should be a Judicial Appointments Commission, and all ofthese things, not faute de Q356 Peter Bottomley: In terms ofseparation of mieux, but because they are sensible things whose powers, what is the summary reason for not? time has come. Lord Falconer of Thoroton: I think it is wholly inappropriate for the court to be determining how a minister should conduct what is in a sense his Q359 James Clappison: Well, given that is where we relationship with his colleagues. When a minister is are starting from, they are trying to make the best performing a particular function, like determining of— planning permission or making decisions ofa quasi Lord Falconer of Thoroton: No, that is not their judicial nature, plainly it is appropriate that that position. Their position is that these are the right minister or his department be subject to judicial things to do. I assume you disagree with them. review. Where an issue arises as to whether a minister has broken the law, again it should be Q360 James Clappison: Well, you will accept there is subject to the courts, but what view he takes about V particular changes in the law, in particular, whether adi erence between accepting in the first place the they oVend against the rule oflaw in a sense beyond wisdom ofthem and then trying to make the best of simply whether they break the law, that is a matter what is being presented to us. for his judgment and it should not be the courts Lord Falconer of Thoroton: Ofcourse I accept that determining what role he should take in Cabinet. It there is. does not feel appropriate and people would think it was wrong. It is a political, with a small “p”, job Q361 Chairman: I think the point is made and I am rather than one where the courts could determine not sure we are here to debate quite how the legal standards. Conservative Party got to its position. Can I just invite you to tell us what you are hoping to achieve Q357Peter Bottomley: Why not abolish this idea of by the pilot oftele-recording proceedings in the a top court and go back to the Judiciary Acts of1873 Royal Courts ofJustice. and 1875 and just combine the Court ofAppeal and Lord Falconer of Thoroton: The pilot is only in the the High Court as the Supreme Court? Court ofAppeal and it is not to be broadc ast. It is Lord Falconer of Thoroton: Because I think there is for the judges, the lawyers involved and the real benefit from having a court above the Court of broadcasters to see how it would look, so the way it Appeal. The Court ofAppeal deals with a very high would work is that you would do, as it were, a mock volume number ofcases. It is dealing with, as it were, news broadcast witho ut what went on in the Court specific error right across the judicial system. What ofAppeal being available and then do it with Court the final Court ofAppeal is doing, whether it is in the ofAppeal material and you would then be able to see House ofLords or whether it is in the Supreme what it looked like and make judgments about Court, is dealing with a comparatively small number whether or not that should be broadcast. If, ofcases, no more than 80 in a year, as opposed to the informed by that and by the rest of the consultation thousands that the Court ofAppeal does, setting process, people thought a nd there was a widespread legal norms, moving the law on and making view that they should be broadcast, then we would decisions ofprinciple rather than simply, as it were, proceed to change th e law, as appropriate, to allow stopping errors ofthe lower courts, which is the filming and broadcasting ofcertain limited parts of main role ofthe Court ofAppeal. the court process. 9940171004 Page Type [E] 26-01-05 22:24:07 Pag Table: COENU1 PPSysB Unit: PAG1

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16 November 2004 Rt Hon LordFalconer of Thoroton QC, Alex Allan andJudithS impson

Q362 Chairman: And do you have a view about problems in the Court ofAppeal end, which is the n o whether this should be done in the end or are you witnesses bit, my inclination would be that we waiting for the outcome of the pilot to make up your should do it. I think the more that people can see of own mind? what goes on in the courts, but without prejudicing Lord Falconer of Thoroton: I am waiting for the pilot the interests ofvictims and witnesses, the better. to inform us and I wait to hear what other people say, so I am going to be guided by the consultation, Chairman: Thank you, all three, and we look but I think ifthe consultation shows that there are forwardto seeing you ag ain before very long. 9940171006 Page Type [SO] 26-01-05 22:24:23 Pag Table: COENU1 PPSysB Unit: PAG2

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Evidence submitted by Professor Sir Colin Campbell, Her Majesty’s First Commissioner for Judicial Appointments

Second reading of the Constitutional Reform Bill The Constitutional Reform Bill will receive its second reading in the House ofLords on 8 March. Prior to its publication you requested from the Commission for Judicial Appointments (CJA) some background information on the issues raised by the bill, which I hope you have already received. Subsequent to its publication the Commission for Judicial Appointments has been able to consider the bill’s specific provisions. As a result, I enclose a further briefing note which addresses a number ofspecific concerns that the Commissioners have with regard to the legislation as currently framed. They are: — The new arrangements do not provide for any proactive audit of judicial appointment competitions. — The proposed new Judicial Appointments Commission (JAC) will not have a lay majority as recommended by the CJA. — The new JAC should be able to make appointments up to Circuit Judge level directly, rather than merely making recommendations to the Secretary ofState. — Merit should be a matter for the JAC alone to determine, in the light of the circumstances ofeach appointment, without the possibility of interference from the Minister. — Similar concerns apply to the Supreme Court Appointments Commission. As you know, the CJA is an independent body with responsibility for reviewing the appointments process and investigating individual complaints. Since its establishment in March 2001, the CJA has had unparalleled access to the workings ofthe appointments process: studyin g paper trails; attending sifting, interview and assessment centre meetings; work-shadowing members ofthe judiciary; and so on. It is on the basis ofthis unique insight into the workings ofthe current system that we make our comments.

Commissioners for Judicial Appointments concerns on the Government’s proposals for judicial appointments

Audit The role ofthe present Commissioners forJudicial Appointments in auditi ng judicial appointment competitions will be lost under the present Government proposals. The new arrangements do not provide for any proactive audit of judicial appointment competitions. The Commissioners regret this. The proposed new Judicial Appointments and Complaints Ombudsman will only respond to complaints (and to any other matter referred to him/her by the Secretary of State or the Lord Chief Justice), but, as things stand, will not have any ability to initiate scrutiny ofcompetitions as a whole. Nor will t he function be given to any other existing body such as the OYce ofthe Commissioner forPublic Appointments. This would be a significant loss. The audits the Commissioners have carried out over the last two years have been key in enabling them to highlight some ofthe worst previous appointme nt practices and help to drive them out. It will not be a suYcient safeguard on the system and will be insuYcient to provide public confidence, simply to hand over judicial appointments to the new Judicial Appointments Commission (JAC) as an independent non-Departmental Public Body. A key principle ofgenuin e audit is that an independent body, separate from the body responsible for the process that is being audited, should carry it out. Without genuine audit the public cannot have confidence that the judicial appointments system will become fully transparent, fair and accountable. The present Lord Chancellor and his predecessor have both publicly acknowledged this.

Lay majority on the JAC The present proposals for lay representation on the JAC are also insuYcient. Although there will be a lay chair, those who exercise a judicial function (7) and those who are practising lawyers (2) will have a clear majority on the Commission of15 members. This will not give the public the a ssurance that is needed that the Commission will take the lead in changing appointments culture. The present Commissioners believe that, in the interests oftransparency, there should be a clear lay majorit y on the JAC. In particular the JAC needs to continue the process that has begun ofmoving away from appointments made in practice largely or solely on the basis ofresponses from“automati c consultees”, which, at its worst, has in the past given every senior judge a black ball. The public needs to be sure that the JAC will instead bring in the best modern Human Resources practices, in order to deliver a fair, transparent and accountable system. This is especially important for ensuring the delivery of much greater diversity in appointments, and that the JAC can be relied on always to act first and foremost in the public interest. 9940171005 Page Type [E] 26-01-05 22:24:23 Pag Table: COENU1 PPSysB Unit: PAG2

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Appointments made by the JAC The Government has decided that the new JAC should only make recommendations for appointments to the Secretary ofState, who will have the discretion to reject them. Althou gh the Commissioners can see there is an argument for this with a small number of the most senior appointments, providing this power to the Secretary ofState forthe 2,000 plus appointments made each year up to Circ uit Bench level creates an opportunity for massive political patronage. Even if it were operated properly, this process would still require wasteful bureaucratic double-checking of recommendations just to have them pointlessly rubber- stamped. The Commissioners therefore continue to believe the new JAC should make (or recommend themselves to the Queen, as appropriate) all appointments up to Circuit Judge level.

Definition of merit The Constitutional Reform Bill is worrying, because, although it says selection must be on merit (Clause 52), it contains a power for the Secretary of State to “specify considerations that are to be taken into account in assessing merit”. In other words the Secretary ofState ofthe day can say what should constitute merit to suit the circumstances ofthe time. The requirements ofdi Verent judicial appointments will obviously be diVerent (eg trying family business is diVerent from trying crime); and the JAC would need to set diVerent appointment criteria accordingly. Nevertheless, merit should be a matter for the JAC alone to determine, in the light ofthe circumstances ofeach appointment, without the possibi lity of interference from Ministers. Only in this way can Parliament and the public be sure that the relevant standards will be applied objectively and fairly to all candidates.

Supreme Court Appointments Commission (SCAC) Similar concerns apply to the SCAC. First, under the present proposals this could comprise five judges, if the three territorial commissions each chose a judge to represent them, as the judicial members ofeach may well try to insist There should be a requirement for the territorial commissions to be represented by a lay (ie non-judicial, non-legal) member on the SCAC. This would ensure a lay majority (three out offive) on the SCAC. Secondly the SCAC is required to put forward at least two candidates for each vacancy to the Minister. Again this creates space for political interference in what should be an appointment strictly on merit. The SCAC should be able to submit just one candidate, with a requirement on the Minister to give it reasons for rejection ifs/he did not afterconsultation find that candidate acceptabl e. Thirdly, under the Bill at present the SCAC must consider candidates “according to prescribed criteria”— prescribed that is by the Minister in regulations. The Commissioners’ view is that there should be a clear requirement on the face of the statute for the SCAC, as there is for the JAC, to select on merit Ministers should not be allowed to interfere with this. Sir Colin Campbell Her Majesty’s First Commissioner for Judicial Appointments 4 March 2004

Evidence submitted by Professor I R Scott

Organisational and management justifications for administrative independence 1. The starting point is to see the proposed Supreme Court as a formal organisation. 2. It is, in essence, a professional practice consisting of a dozen or so people who have voluntarily joined. Those people are judges. 3. We have to be clear about what the functions of the organisation are. 4. Prima facie, the discharge ofthose functionsis the responsibility ofthe judges. 5. It is fairly easy to state the Court’s primary function. That is to hear and determine appeals from other courts. We would regard this as a function that the judges could not delegate. 6. But in discharging this primary function, other functions (or tasks) have to be discharged. 7. We need to identify what those functions are and to ask, can they be delegated by judges to non-judges? 8. The easiest one to identify is the “registry” function. Traditionally, courts have had registries, and the nature ofthe work that goes on in them can fairlyeasily and certainly be ide ntified. It is a “case-orientated” function. Essentially it involves communicating with persons having business before the court and managing the paper flow. Usually, the constitution ofsuperior courts includes a cou rt oYcer ofsome kind, appointed for the purpose of running the registry. 9940171005 Page Type [O] 26-01-05 22:24:23 Pag Table: COENU1 PPSysB Unit: PAG2

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9. We would not insist that judges should discharge the registry function themselves. We would accept that it is a function that they could delegate to non-judicial staV. However, we would not accept that the judges collectively should be able to shirk responsibility for how the registry operates. Further, we would understand that there may be some operations that registry staV could not discharge entirely on their own, but may have to refer to a judge for authorisation or approval. 10. Another fairly easy function to identify is the scheduling function; that is to say, the function of determining the order in which cases are heard and the allocating ofjudges to cases and cases to judges. I think we would regard this as a function the judges could not delegate, but we would accept that the judges would need the help ofnon-judicial sta V in discharging it. 11. Now we could go on trying to identify those functions that a court has to discharge and asking the questions: (a) is this a function that the judges themselves must discharge? or (b) is it one that they could to delegate to non-judicial staV? And in relation to functions falling into the latter category we could ask: given that the task may be delegated, as a practical matter how are we going to ensure that judicial supervision or oversight is maintained? 12. It seems to me, that ifwe were starting fromscratch, it would be obvious that we would agree that the non-judicial staV should be people appointed and employed by the court, that is to say, by the judges. Why on earth would we think that the non-judicial staV should be appointed and employed by some other organisation? What may be called “administrative independence” should not have to be justified. Quite the reverse, the denial ofadministrative independence should be justified. 13. That brings us to clause 38 ofthe Constitutional ReformBill. It states that the Minister must: (a) ensure that there is an eYcient and eVective system to support the carrying on ofthe business ofthe Supreme Court, and (b) ensure that appropriate services are provided for the Supreme Court. This is the so-called “general duty in relation to the Supreme Court”. Clause 39 says the Minister may appoint such oYcers and staV as he thinks appropriate for the purpose of discharging his general duty. And clause 40 states that he may make staYng arrangements with other persons as he thinks appropriate for discharging this duty. 14. In my view it seems that the Minister has appointed himselfChiefExecut ive OYcer ofthe Court and in doing so has trampled all over what I would regard as the duties and responsibilities ofthe judges. I would have expected that the Bill would provide for the creation of a court oYcer who would discharge the functions traditionally discharged by a registrar. 15. Now we know why this has been done. It follows from the Beeching “executive-centred” model of judicial administration introduced in 1971. The organisation and management weakness ofthat system are obvious enough. 16. In 1987, when giving evidence to the Select Committee on the Parliamentary Commissioner for Administration, Lord Halisham, the Lord Chancellor, said his understanding ofthe Beeching system was that the staV ofthe court came under the Lord Chancellor “forrations and discipline”, t hat is to say, appointment, dismissal and conditions ofservice, and forcertain admini strative functions for which judges have no responsibility at all, but that the staV ofthe actual courts remained, forcertain purposes, under the operational control ofthe judicial o Ycers. By “judicial oYcers” Lord Hailsham meant the judges and the oYcers ofthe court, such as masters and registrars. 17. The distinction between authority over court staV, on the one hand, for “rations and discipline” and, on the other, for operational matters, has proved diYcult to maintain. 18. From an organisation and management point ofview, the principal weakn ess in the Beeching “executive-centred” system in relation to any particular court to which it is applied is that it ensures that there is a constant tension between the court (ie the judges) and the responsible minister, not over mere “rations and discipline” matters, but over operational matters. 19. A further weakness is that it ensures that court staV have to serve two masters, on the one hand the judges, and on the other the minister. 20. Furthermore, it causes judges to withdraw from involving themselves in administrative matters, even when they impinge closely on core judicial functions. This means that judges cease to understand the resource constraints under which the courts work and therefore cease to apply their minds to ways in which the court’s operations could be made more eYcient and eVective. 21. Also, ifit is obvious that judges are not responsible through their sta V for administrative matters they are likely to be too ready to agree with criticisms made by lawyers. The risk ofcourts being “captured” by lawyers is a very real one. Lawyer complaints about how a court is being run should be ironed out by dialogues between the court and the profession; the court should not be in a position to say “don’t blame us, it’s all the Minister’s fault.” 9940171005 Page Type [E] 26-01-05 22:24:23 Pag Table: COENU1 PPSysB Unit: PAG2

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22. Ifthe judges are not given “ownership” ofthe administration, the seed s for a never-ending wrangle between the Court and the Executive are sown. This will be wearing for all concerned. 23. Civil servants, working in executive-branch departments, develop certain attitudes and habits that do not equip them for court administration. In organisational terms, executive-branch departments are very peculiar entities. They may be well designed for serving ministers primarily engaged in determining policies and directly responsible to Parliament. But they are not designed to run courts, any more than they are designed to run hospitals, schools or unsaleable power stations. 24. In modern times this has been well-recognised with the development of“ next steps” agencies, trusts and other devices designed to enable executive government to distance itself from the task of “delivery”. The strong trend has been to put administrative responsibilities “at the sharp end”. With the setting up ofthe Supreme Court the Government is presented with a golden opportunity to do just that. Why have they not done it? It is highly doubtful that, were it a matter purely for him, the Minister for Constitutional AVairs would not agree that the Supreme Court should administer its own aVairs. This raises the question: where is the opposition to “home rule” for the Supreme Court coming from? And what is the basis for it? 25. Ifan organisation is going to survive, it has to be successfulin winnin g resources. The resources for the proposed Supreme Court, excluding the salaries ofthe judges, will come fr om money voted by Parliament. Money cannot be won from any other source. (In some other jurisdictions, autonomous courts have the opportunity to seek funds from sources other than the legislature.) By whom should this money be appropriated? The contenders are the Department ofConstitutional A Vairs, or the Treasury. 26. A key question is: how is the Supreme Court to be involved in the appropriation process? This is quite a separate matter from the question: how should the Court run its day-to-dayaVairs? It does not follow that, because funds will have to be appropriated by an executive department, therefore court staV will have to be members ofthat department. 27. Courts operate in public, executive departments do not. Relations between the treasury and the DCA are steeped in mystery. It is important that there be transparency in the budget processes for the funding of the new Supreme Court. The best way for ensuring this is to arrange for the budget to be prepared by the Court and to be submitted to the Government with suitable explanations as to what money is required for which purposes. The Government should be expected to give a reasoned response to the submission and that response should be published. 28. Under the Act setting up the Supreme Court it may be said that Ministers have a duty to “uphold the continued independence ofthe judiciary” and to “ensure that there is an e Ycient and eVective system to support the carrying on ofthe business ofthe Court” but where is the power t o ensure that Ministers live up to these responsibilities going to come from? The only real sanction is the glare ofpublicity. Professor I R Scott May 2004

Annex

Models of Court Administration

A. Executive-centred models — Administration by a central non-legal executive department. — Administration fragmented among executive departments and/or local government. — Courts administered as part ofthe law enforcementresponsibilities oft he law-centred executive department. — Courts administered by a division or branch ofthe law-centred executive department. — Administration by executive department(s) with regular judicial consultation.

B. Transitional models — Most administrative responsibilities belong to the law-centred executive department, but specified responsibilities are designated for judges. — Administration by a separate oYce or cabinet department with regular judicial consultation or limited judicial supervision.

C. Judge-centred models — Administration is the responsibility ofjudges who direct an o Yce or department that reports to parliament through the Attorney-General. 9940171006 Page Type [O] 26-01-05 22:24:23 Pag Table: COENU1 PPSysB Unit: PAG2

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— Administration is the responsibility ofjudges who direct an o Yce or department responsible to the legislature through a minister, but not subject to executive management controls. — Administration is the responsibility ofjudges who direct an o Yce or department responsible directly to the legislature. — The judiciary operates on a self-suYcient basis in which individual judges generate revenue and personnel resources.

Supplementary evidence submitted by Professor I R Scott

I am sorry I did not manage to say much today about the second ofthe fourtopic s I alluded to, ie staYng (the other three were budget process (on which we spent a lot oftime), accom modation (which we touched on very briefly) and case processing (ofwhich we said nothing)). I am worried that I did not convey clearly to your Committee the general distinction between court oYcers, appointed under statute and serving the court, and other court staV who, under executive-based court administration systems, are civil servants and find themselves in the position ofhaving to serve two masters. I would be pleased ifyou would explain to your chairman that one ofthe reaso ns why I am disturbed about the bill making no provision for the appointment of a court oYcer (perhaps in the form of a registrar) or oYcers for the proposed Supreme Court, is that I believe that one of the most important court administration functions is records management. If the judges, through their registrar (or what ever their oYcer is called), are not wholly responsible for and in charge of the court’s own records, that is a serious weakness in the court’s structure. I would go so far as to say that the suggestion that a department ofthe executive branch should be in charge ofthe records ofthe proposed new Supr eme Court (which is what the bill proposes) is intolerable. The new court will need a person to play the role presently played for the House ofLords in its judicial capacity heretofore played by the Judicial Clerk. In some judiciary-based court administration systems, the court registrar is appointed by the court or by the court in conjunction with the executive and is often given some security oftenure. In executive-based systems, they may be appointed by the executive but they are not civil servants. Professor I R Scott 24 May 2004

Evidence submitted by Professor Sir John Baker QC

I have only just discovered that there has been an opportunity to make comments on the Constitutional Reform Bill and am annoyed that, having registered to do so, I am too late. The opportunity to make comments is a valuable one, but it is new, and it cannot be expected that everyone will know about it. The current constitutional changes are being driven through too rapidly for full discussion, and for informed comment to be made at the right moment. The consultation process has therefore been defective. I know that the Constitutional Reform Bill has now passed through Parliament, but I nevertheless wish to state my opposition to much ofwhat it proposes. I would also wish to add my own protes t at the way the reform was introduced, at the refusal of the Government to allow discussion of the abolition ofthe Lord Chancellor— which was announced as settled Government policy before anyone knew it was being considered—and at the appallingly inept way in which the Bill has been drafted. Changes of such magnitude deserve proper public debate and carefully prepared legislation. There is no conceivable case for treating them as an emergency. There are three main provisions, dealing with: 1. judicial appointments; 2. the headship ofthe judiciary; and 3. the establishment ofa new appellate court. All ofthem have been broadly accepted by the Lord ChiefJustice, and (it see ms) by Parliament, but in my view they are still full of dangers. The broad language of Clause 1, designed to preserve judicial independence, was apparently inserted at the insistence ofthe Lord Chief Justice; but I cannot see how that provision—which does not seem even to apply to the appointment process—would be in any way enforceable in the courts. It is the system as it operates in reality which matters. The principal reason advanced by the Government for these changes is some misunderstood theory about the separation ofpowers. We have never had a separation ofpowers, but rath er an interlocking balance of powers. Ifwe were to have a real separation ofpowers, we would have to remov e ministers from Parliament, give the Commons more independence, and establish a Supreme Court with powers ofjudicial review. There 9940171006 Page Type [E] 26-01-05 22:24:23 Pag Table: COENU1 PPSysB Unit: PAG2

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is a good case for all of that, but I do not imagine the Prime Minister would find it very appealing. The other reason advanced was that the Lord Chancellor somehow infringes the principles ofhuman rights. I think that argument applies only to his judicial work. No doubt it was inappropriate for the Lord Chancellor to sit on appeals in cases aVecting the Government, such as judicial review cases; but that was solved very simply by his ceasing to do so. No further change was called for by any human rights principles ofwhich I am aware. I am left with the unhappy conclusion that the driving force is an unworthy one which the Government has tried to disguise. Let me, then, consider the three proposals in the Bill one by one:

1. Appointment of judges Judges have been appointed on the advice ofthe Lord Chancellor since medie val times. That does not in itselfmake it right, yet everyone accepts that—forthe last century at lea st—it has worked perfectly well. The Lord Chancellor, though a party politician and a member ofthe Cabinet, accepted the personal responsibility imposed by the judicial oath, by his professional background, and by long convention, and genuinely sought out the best candidates. He held the highest secular oYce ofstate in the kingdom, and had no thoughts offurtherpolitical advancement; this unique stature gave hi m a valuable position in Cabinet as a semi-independent protector ofthe rule oflaw. Ofcourse, his o Yce was held at the will ofthe Prime Minister; but no Prime Minister ever dared to remove a Lord Chancellor because ofa dispute over a judicial appointment. Recently the selection procedures, which involve a large staV ofcivil servants, have been made subject to independent scrutiny. Nevertheless, I believe that the idea of a Judicial Appointments Board is not in itselfobjectionable. A predictable result ofthe Human Rights Act is that the courts are increasi ngly obliged to frustrate Government decisions, and this inevitably results in a desire to increase political control ofappointments. That has long been the system in the United States, where (I am told) you need a campaign manager and substantial funds if you wish to stand for certain judicial oYces. It is widely believed that the Supreme Court will change direction after the next few appointments by President Bush. It is immaterial whether or not one supports Mr Bush’s views: the lesson is that the Supreme Court may simply change American law in a number ofimportant areas as a direct result ofparty politics. That is some thing we have not seen in this country since the 17th century. But it should not be assumed that it could not happen here, that English judges are somehow diVerent, because Lord Falconer has made it clear that he wants a diVerent judiciary. He wants judges to be more “representative” ofthe population, whatever th at means. He even inserted in the Bill a power for the Minister to redefine “merit” for the purpose of judicial appointments—though that was so outrageous that he has now agreed to take it out. In my submission, the notion that the judiciary should be “representative” ofanything other than the highest standards o fprofessionalexpertise is dangerous nonsense. How long will it be before the policy is extended to surgeons and generals as well? As it happens, I read recently that the Government indeed does wish merit to be redefined in the case ofmedical practitioners, so that doctors will be more “representative”. I suggest that it is self-evidently dangerous to treat judgeships, or licences to practise medicine, as mere job opportunities to be distributed proportionally across the population. It is in this context that I am able to accept that perhaps too much has come to rest on the ultimate judgment ofone man. I do not know how many suitable candidates there are forthe post o fLord Chancellor; but there is no real safeguard against political pressure upon those who accept the post, and no safeguard against incompetence other than removal by the Prime Minister. The time may therefore be ripe to formalise control of the process for sifting judicial candidates, so as to bring it under the scrutiny ofan independent commission. But what is now proposed is that, after the sifting, the appointments should be made on the advice ofthe Minister for Constitutional AVairs, who need not be a lawyer and will certainly be a rank-and-file politician aspiring to higher oYce. The Minister will have most ofthe powers ofthe Lord Chancellor but none ofthe historic qualifications or responsibility. Members ofthe commissions se t up to advise him will be appointed by the Minister—the majority ofthem on his own initiative—and he will have the right to reject their candidates. In the case ofthe new Supreme Court—the one that matters most o fall—three out ofthe five members ofthe commission will be nominated by the Minister; they will prod uce up to five candidates for the Minister to choose from, and he will be entitled to reject them all. Not only does such a system lack even the appearance ofindependence, but there will be no individual on whom per sonal responsibility for decisions can be pinned: the Minister will be able to shelter behind the obscurity ofa semi-anonymous non- autonomous body; but that body will not itselfhave made a decision; it will have had to list a number of candidates who are not front-runners, some of them slipped in (perhaps) to appeal to the Minister. It is true that the judges and the legal profession will be represented on the commissions; but the net result is that the potential for political influence will have increased. The problem would be overcome very simply by the continuance ofthe o Yce ofLord Chancellor, provided that the Prime Minister continues to observe convention in appointing the right kind ofsenior lawyer to the position. Lord Falconer’s recent assertion that the dispute is simply about the title ofhis post shows a serious lack of understanding—unless it is a wilful distortion—of this fundamental point. 9940171006 Page Type [O] 26-01-05 22:24:23 Pag Table: COENU1 PPSysB Unit: PAG2

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2. Head of the judiciary The second reformis the replacement ofthe Lord Chancellor as head ofthe ju diciary by the Lord Chief Justice, who will be given a budget, a staV of30 or 40, and a press o Yce. The “Lord” ChiefJustice will, however, no longer be a Lord—since that would fall foul of the newfound Separation ofPowers doctrine— and will have no voice in Parliament or in Government. He will therefore be less well placed than the Lord Chancellor to protect the Rule ofLaw extra-judicially against assaults f rom ministers. Moreover, he will have less time to spend in court; and it may be unduly hopeful to suppose that the same kind ofcandidates will come forward for the oYce when it has become more administrative than judicial. A further concern is that the Home OYce has plans to take over the administration ofthe court system, which will be easier to achieve when the staV ofthousands employed in what used to be the Lord Chancellor’s Department h as been detached from the judiciary. The takeover was reportedly attempted not long ago by Mr Blunkett, but fought oV for the time being by Lord Irvine and the judges. The courts certainly cost money, for which someone should be politically accountable; but control ofthe purse-stri ngs in this instance could very easily facilitate political interference. The Lord Chief Justice will not be in a strong position to stop it.

3. The Supreme Court As it happens, I do not believe this is very significant constitutionally, though it might have been. The general public may not be aware that we already have a Supreme Court, established under the Judicature Acts of 1873–75, comprising the Court ofAppeal and the High Court. In 1876 the Hous e ofLords decided it did not want to lose its appellate jurisdiction, and so it was brought back by a supplementary statute. The Supreme Court of1875 kept its incongruous name, but with the House ofLords above it. By a clever expedient, however, the judicial House ofLords after1876 was almost comp letely separated from the upper chamber ofParliament: lifepeers were invented, so that judges could be en nobled for the purpose of sitting in the highest court, and they sit in committee outside the chamber. The system has worked extremely well. In its White Paper on the House ofLords (2001), the Government vigorously d efended judicial membership ofthe Lords and said it was “committed” to maintaining it. The commitment d id not last very long. Somebody has decided that Law Lords contravene our new-found doctrine of separation ofpowers; so they too must be done away with. However, instead ofreverting to the original Vi ctorian scheme, we are to have a second supreme court, erected above the old one. But this will not be a supreme court in the sense in which that term is widely used in other countries: that is, a constitutional court. It will have some constitutional functions in relation to devolution, though even these will not quite be supreme. What it will not have is the power to strike down legislation. Many believe this to be a lost opportunity. I have myselfuntil recently been averse to th e idea ofa written constitution, with an American-style supreme court having the power ofjudicial review, because it would turn unelected judges into legislators. We must not think in terms ofempowering the judge s as we know them today—the character ofthe judges will change with their function.I am still on balan ce unpersuaded. But I am not alone in wondering whether, now that our unwritten constitution is beginning to unravel, judicial review might not be the lesser oftwo evils. Some kind ofcheck is better than none. Finally, I believe the very concept ofa Minister forConstitutional A Vairs to be outrageous. It means that we no longer have a constitution, in the sense ofa body ofprinciples and pra ctices above Government, limiting what it may legitimately do. The constitution has been taken over by the Government and put on a par with the health service, or education. We are heading fast towards an absolutist model ofgovernment, without any ofthe checks and balances foundin written constitutions. Ift he Government does not care about this, I earnestly hope that others will. Professor Sir John Baker QC St Catharine’s College, Cambridge 7 November 2004

Supplementary evidence submitted by Rt Hon Lord Falconer of Thoroton QC, Secretary of State for Constitutional AVairs and Lord Chancellor

UK Supreme Court During the evidence session on 16 November, I was asked about the running costs ofthe Appellate Committee and the UK Supreme Court. I thought it might be helpful to the Committee to provide some additional information. While ofcourse I do not have the benefit ofthe Hansard record, my recollecti on is that Mr Bottomley questioned whether the current running costs ofthe Appellate Committee a re in the order of£600,000 and how much the Supreme Court running costs would be in comparison. In my response, I may not have made clear that the running costs ofthe Appellate Committee are actually signi ficantly higher than Mr Bottomley suggested. 9940171006 Page Type [E] 26-01-05 22:24:23 Pag Table: COENU1 PPSysB Unit: PAG2

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It is not entirely straightforward to separate the administrative costs ofthe Appellate Committee fromthe generality ofexpenditure within the House ofLords but, fromdiscussions with the Judicial OYce, my oYcials have produced what we regard as a reasonably reliable apportionment. Existing expenditure on staV salaries and other administrative costs for 2002–03 in the Judicial OYce amounted to approximately £680,000. A further £180,000 can be attributed to the Judicial OYce for the cost of utilities, accommodation, overheads, telephone and postage. The Judicial OYce also benefits from the use of staV employed by the wider House ofLords (library, catering etc), costing around £250,000. To this must be added the costs of judicial remuneration, which is £2.1 million, paid annually from the consolidated fund. Altogether this implies an approximate annual cost to the public purse ofj ust over £3.2 million per annum in order to service the existing judicial work ofthe Appellate Committee o fthe House ofLords. It is impossible at this stage to give an exact figure on the likely running costs ofthe Supreme Court as this is dependent on the building ultimately selected to house the Court and the chosen procurement route. Nevertheless, it is fair to say that the running costs are likely to be in the region of£7 million–12 million (including judicial salaries). This does not take into account the likely eYciency savings resulting from co- locating the Judicial Committee ofthe Privy Council with the Supreme Cour t. By way ofclarification, I should also explain that feeswill be recoverable on the proportion ofthe running costs which relate to the civil work ofthe Supreme Court. Although the overall running costs are higher than those currently required to support the Law Lords, the new Supreme Court will bring with it improved facilities and greater accessibility for the public. I think it is a small price to pay for what Lord Bingham has described as a “cardinal feature ofa liberal democracy.” Rt Hon Lord Falconer of Thoroton QC Secretary ofState forConstitutional A Vairs and Lord Chancellor 17 November 2004

ISBN 0-215-02165-7

Printed in the United Kingdom by The Stationery OYce Limited 1/2005 994017 19585 9 780215 021656