Lord Phillips offers to cut number of Supreme Court justices to save money
Solicitors Journal: “Lord Phillips, president of the Supreme Court, has suggested a change in the law to cut the number of Supreme Court justices. In a speech at UCL last night, Lord Phillips said the court could not be insulated from the need to cut costs and faced a “significant reduction” in its budget. He said that for many years the judicial committee of the House of Lords and the Supreme Court had managed with 11 rather than the statutory 12 justices because of the absence of Lord Saville at the Bloody Sunday enquiry.”
I am no expert in Constitutional law but I have a number of observations and invite the views of other lawyers, experts in the field or otherwise..or, indeed, any reader of my blog.
1. The UKSC: The United Kingdom Supreme Court blog – If you are not familiar with this excellent resource, here it is. The UKSC blog analyses the decisions of the Supreme Court and is invaluable in adding to the light being cast on open justice by the Supreme Court’s own initiative in providing press summaries – to ensure that some sections of mainstream press and media have a sporting chance of reporting on the important decisions of our times accurately.
Editors: Dan Tench, Oliver Gayner, Anna Caddick & Laura Coogan (Olswang)
Hugh Tomlinson QC, Matthew Ryder & Anthony Fairclough (Matrix)
Administrator: Anita Davies
2. Deficit reduction cuts: While I can appreciate Lord Phillips’ preparedness to assist in the deficit reduction needed in the country in present times, he makes a number of points which are important to ensure that our courts, and The Supreme Court itself, do not become outposts of The Ministry of Justice. The establishment of The Supreme Court, separating the final appellate court in this country from Parliament in fact and in law was not welcomed by all, but, for my part, it was a step forward in bringing depth and worth to the ideal of the rule of law in this country. One only needs to look at the decisions handed down last year in the first year of operation of the new Supreme Court to get a feel for the importance of the issues being dealt with and, dare I say it, a continuing demonstration by the judges to hold government to account and not be ciphers to government policy as Lord Bingham observed drily some time ago was the case in times gone by.
Lord Phillips has suggested that the number of justices be reduced from 12 to 11 but warns ““It would regrettable if we were to come under pressure to reduce our number below that needed to cater properly with our workload in order to accommodate budgetary constraints.”
It is unusual, in our long history, for a senior judge to be critical of government and the words Lord Phillips used in his speech were carefully chosen; but made the point well that an independent judiciary has to be independent.
“In the course of negotiating these I received a letter from the Lord Chancellor indicating the scale of the economies that he expected the Supreme Court to make in terms that I can only describe as peremptory.
“It was also suggested that to save money our administration could be amalgamated with the Courts Service of England and Wales, a suggestion that was totally unacceptable.”
“My conclusion is that our present funding arrangements do not satisfactorily guarantee our institutional independence,” Lord Phillips said.
“We are, in reality, dependant each year upon what we can persuade the Ministry of Justice of England and Wales to give us by way of ‘contribution’. This is not a satisfactory situation for the Supreme Court of the United Kingdom.
“It is already leading to a tendency on the part of the Ministry of Justice to try to gain the Supreme Court as an outlying part of its empire.”
Parliament may well be supreme – but subject to obligations entered into in terms of international treaties signed up to – The European Convention being one. If the Rule of Law is to have any meaning and respect and be perceived by all to be independent, given that our Supreme Court cannot strike law down (its function is to apply the law of the land, laws which, of course, apply to the governments of the day until Parliament changes those laws), the courts must, surely, be founded upon a statutory footing whereby the running costs are determined and covered by Parliament on behalf of the country (perhaps on the advice of an independent agency?) and not be subject to the political agenda or needs of any particular government. To ensure this the courts cannot be a part or ‘outpost’ of the Ministry of Justice and ‘peremptory’ dictats should not be given by a serving member of the Cabinet (‘be he ever so high’) of any government to an independent judiciary.
Tomorrow, Parliament will debate the issue of whether, in effect, to comply with a judgment of the European Court of Human Rights on the prisoners’ votes issue. Parliament may, in its wisdom or lack thereof, decide to withdraw from The Convention and jurisdiction of the ECHR – which may, in turn, have implications for membership of the European Union – but, for my part, chucking babies out with the bathwater is never a good thing and it would damage our international standing and erode the real value of our rule of law ideals.
Over to you…should you wish to comment….
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See also:
UK Human Rights blog – excellent piece:
Justice in the age of insecurity
Carl Gardner who writes the Head of Legal blog disagrees with Lord Phillips in a thought provoking post. I don’t always agree with Carl -I do favour a wholly independent and fixed budget, perhaps controlled by an IPSA like body? Carl has analysed this issue with his usual thoroughness and directness.. and he is an expert in this field having worked as a government lawyer for ten years.
There is actually no need to make a cut in this area at all. Money is available if they choose to apply it. We are, for example, spending some £100m on a new HQ for NATO in Belgium. [Probably agreed to by Labour and we cannot escape?]. Other examples could be given. The Supreme Court is too important constitutionally to have to suffer this cheese-paring.
I agree that the funding for at least this court ought to be taken away from the grace and favour of a Secretary of State for Justice.
If I may be rather more controversial – (who moi?) – the position (what is left of it) of Lord Chancellor should be abolished and its remaining functions transferred to either the Lord Chief Justice (who is now Head of the Judiciary) or to the Secretary of State. The historic role of LC has gone forever. You never know, even that might save a few quid.
Obiter J – When Charlie Falconer effectively tried to legislate the role out of existence, there was resistance. I cannot remember the detail. Perhaps, I should look back through my files (I noted it at the time)….
I agree… I can see no need for a serving member of Cabinet to be Lord Chancellor…save to take the Queen’s Speech to her Majesty once a year… does he need to dress up as a judge? Don’t think so…… and he could be called …Secretary of State for Justice…
We could not, after all, have The Lord Chief Justice handing the speech over….. that would not be right! 🙂
Now the law lords no longer sit in the Lords, it makes eminent sense to disband the House of Lords and use the money so saved to finance the Supreme Court. The HoL building could then be let. Was it William Morris who recommended it be used as a grain silo? A much better use that its current one, in my humble opinion.
Concerning the prisoners’ vote, I fear what may happen. If the Commons vote against the ECtHR judgement then the system of HR in Europe may collapse or be seriously impaired. Of course, this is what a right wing government wants but it bodes badly for citizens. If we are lucky the EU may respond with a Directive explicitly compelling all member states to comply with ECtHR decisions. The UK would be forced to incorporate the directive into domestic law on pain of ejection if it chose not to. However, it is still a game of chicken. Will the UK threaten to withdraw from the EU? Will the EU be ready to eject UK from the EU for non-compliance?
There is great mischief afoot, caused by the UK government that wants to wreck the status quo. I hope the ECtHR and EU stand up to our government.
This is not to say that the ECHR should not be modernised. Indeed it should as it is over 60 years old and was a reaction to the atrocities of WW2. We have moved on since then and perhaps the scope of the Convention should be extended to economic rights as well as to civil and political rights.
brief (for once) thoughts here:
1) separation of the powers is a myth per se and our view of it is a diceyan myth – i could never understand when i started to study constitutional law why we had to adopt dicey lock stock and barrel or be ‘wrong’. why do they teach young lawyers this? it’s like creationism.
i am however in favour of effective separation of the judiciary and the merged executive/legislature.
2) who gets to decide how much funding the whole court system gets? please god not the judges. that would be as absurd as oh i don’t know doctors deciding how the nhs finances are spent. government has to do something. just because they don’t have a free rein with finance does not compromise an independent judiciary.
The idea of separation of powers predates Dicey. Montesquieu (1689-1755) wrote about it.
http://en.wikipedia.org/wiki/Montesquieu
It was not fully accepted within England (and probably the rest of the UK). The Lord High Chancellor of Great Britain – (LC – for short) – was the embodiment of a complete NON separation of powers. Since the many LCs worked with the framework of various constitutional conventions the arrangement actually worked well for many many years.
On the Continent the separation of powers was accepted to a greater degree. By the early 2000s the view was gaining ground that the UK could no longer sustain such a position which, whatever the realities, was not seen to have true independence from the executive. Lord Steyn wrote about and advocated the replacement of the HofL with a Supreme Court.
Click to access snpc-02105.pdf
I do not think that Dicey’s views are accepted without question in modern times. For example, Richard Gordon QC wrote about the Supremacy of Parliament in his book “Repairing British Politics – A blueprint for constitutional change.” Gordon is critical of the supremacy doctrine which he asserts to be a “power sustaining device” and which could actually be dispensed with by the adoption of a new formal constitution. [His book even contains a draft constitution which is intended to be no more than a starting point for debate]. Very senior members of the judiciary have also commented that Parliamentary Supremacy might not always hold sway – see Jackson v Attorny-General 2005 – per Lord Steyn (paras 101 and 102) and Lord Hope (para 104. On this view, Parliamentary Supremacy is a common law doctrine and could be changed so that, for example, Parliament could not make laws which were abhorrent to human rights etc.
http://www.lawobserver.co.uk/parliament_33.html
As far as I can see, the LC role has been retained for certain ceremonial functions and some remaining statutory duties. The continued existence of the post seems to cloud the fact that the Constitutional Reform Act 2005 made the Lord Chief Justice the Head of the Judiciary of England and Wales. Perhaps the post now exists merely for the aggrandisement of certain politicians and the continued existence of expensive junkets like the LC’s Breakfast at the start of the legal year etc.
obiter – for the avoidance of doubt. i was perhaps a tad brief…
my very point is that dicey picked up the separation of powers from montesquieu – a foreign and even by dicey’s time an outmoded model. bagehot for my money is the one that articulated what was actually happening and still has great relevance.
while i am delighted that dicey is not unquestioned, i can report that he is taught very unquestioningly in some circles. tant pis.
fwiw my view is that the only separation that matters is the functional (rather than apparent) separation of the judiciary and executive/legislature. some crossover between these 2 organs is inevitable but the rule of law is not damaged as long as the judges keep out of law-making (as i feel they are scrupulous to do) and parliament allows judges to interpret individual questions. some bloke in funny stockings being allegedly part of both is to my mind neither here nor there.