Crime and Courts Bill [HL]

Debate between Lord Pannick and Lord Phillips of Worth Matravers

Tuesday 18th December 2012 Lords Chamber

[Lord Phillips of Worth Matravers]

My Lords, I apologise for the fact that I was not able to be present to move a similar amendment on Report, but I could not have improved on the explanation of its merits given then to the House by the noble Lord, Lord Pannick. The amendment is needed to remedy two anomalies in the Constitutional Reform Act 2005, which, in its present form, impacts adversely on the independence of the Supreme Court.

The first anomaly arises from the terms of Section 48(2) of the Act, which provides that the Lord Chancellor must appoint the chief executive after consulting the president of the court. The effect of the amendment is to make the president of the Supreme Court, rather than the Lord Chancellor, responsible for the appointment of the chief executive of the court. The amendment is appropriate because the Act expressly provides that the functions of the chief executive of the Supreme Court are to be carried out in accordance with the directions of the president of the court. Those functions include the non-judicial functions of the court in so far as the president delegates them to the chief executive.

More generally, the Act requires the chief executive to ensure that the court’s resources are used to provide an efficient and effective system to support the court in carrying on its business. The president and chief executive of the court work in partnership to ensure that the court operates efficiently. Under Section 50 of the Act, the Lord Chancellor is responsible for ensuring that the court has the resources that he thinks are appropriate to enable the court to carry on its business, but he has no role under the statute in relation to the manner in which the court is run. This is quite deliberate. The whole object of the creation of the Supreme Court was to make sure that it was, and was seen to be, independent of the legislature and the Executive.

The chief executive is the accounting officer of the Supreme Court and, as such, reports not to the Lord Chancellor but direct to Parliament in accordance with Section 54 of the Act. This requires the chief executive to prepare a report after each financial year, which the Lord Chancellor is required to lay before each House of Parliament.

The first danger of the provision that the chief executive be appointed by the Lord Chancellor is that the Lord Chancellor, when making the appointment, will be concerned to appoint a candidate who will have regard to his wishes when deciding on the administrative arrangements of the court. Let me make it plain that there is no suggestion that this consideration influenced the appointment of the first chief executive of the court. The noble Lord, Lord Pannick, explained to the House how she was appointed by an ad hoc commission that included three Law Lords, under the chairmanship of a Civil Service commissioner. There is no complaint about what happened on that occasion. That process resulted in the appointment of Jennifer Rowe. I take this opportunity to recognise the admirable way in which she has performed her duties under my presidency, and to confirm that she is rightly recognised as deserving much of the credit for the successful birth and early years of the Supreme Court.

The second danger of the provision is that, because the Lord Chancellor appoints the chief executive, the chief executive will be expected to defer to the wishes of the Lord Chancellor in relation to the manner in which the Supreme Court is managed. Such an interpretation of the Act might not seem unreasonable. After all, the Lord Chancellor is to provide the court with such resources as he thinks are appropriate for the court to carry on its business. Why should he then not have a say in how those resources are used? The answer is of course that this would be in conflict with the objective of the creation of the Supreme Court, which was to give effect to the separation of powers. Lest there be any doubt about this, perhaps I may remind the House of what the noble and learned Lord, Lord Falconer, the then Lord Chancellor, said to the House on 14 December 2004, when bringing forward the amendments which became the governance sections of the Constitutional Reform Act. He said:

“The chief executive will be able to allocate resources as he considers appropriate to ensure an effective and efficient system to support the court in carrying out its business. In other words, the chief executive will be solely responsible for the administration of the court, in accordance with directions from the president, and will be free from ministerial control”.—[Official Report, 14/12/04; col. 1237.]

The danger that there will be a perception that the chief executive should defer to the wishes of the Lord Chancellor is a real one. I must tell the House that during my presidency it was made quite clear to me that those who served in the Ministry of Justice at all levels were of this view. It made relations with the Ministry of Justice difficult. When responding on Report to the noble Lord, Lord Pannick, the Minister, the noble Lord, Lord Ahmad of Wimbledon, said that,

“the Government retain a fundamental concern with regard to accountability and proper lines of accountability which need to be established so that the elected Government are responsible for the proper fiscal and managerial operation of the court”.—[Official Report, 4/12/12; col. 653.]

Far from justifying the Government’s opposition to the amendment, that statement underlined its desirability, for the chief executive of the Supreme Court is accountable not to Ministers but to the president of the court and to Parliament.

The second anomaly that the amendment is designed to cure arises from the terms of Section 49(2) of the 2005 Act, which requires the chief executive to obtain the agreement of the Lord Chancellor on the number of officers and staff of the court, and on the terms upon which they are to be appointed. The staffing needs of the court are quite complex. They include security officers; secretaries for the justices and administrators; librarians; judicial assistants; operators of the television system that provides live coverage of the proceedings of the court; the staff of the communications department; cleaners; and the staff of the public cafeteria. It makes no sense at all for the chief executive to be required to obtain the consent of the Lord Chancellor, through his officials, on the number and terms of employment of this diverse staff complement. These are matters which pre-eminently should be decided by the chief executive, working in consultation with the president, who himself will be in a position to obtain the views of the other justices as to their needs. There is nothing useful that the Lord Chancellor’s officials can add. Furthermore, the requirement to obtain the consent of the Lord Chancellor to these matters detracts from the independence, and the appearance of independence, of the Supreme Court, which was the objective of its creation. On Report, the noble Lord, Lord Pannick, did not press this amendment on the understanding that it raised a live issue that was subject to ongoing discussions in which the president of the court was involved.

This morning, the president, the noble and learned Lord, Lord Neuberger, informed me that these discussions had not borne fruit and that, in particular, he had been given no justification for the present form of the relevant provisions in the 2005 Act. Shortly before I came into the Chamber, I received on my BlackBerry a copy of a letter written by the Lord Chancellor to the noble and learned Lord, explaining that the Government would not be in a position to agree to the amendment because further time was required to consider its implications. I am not at present persuaded that there is any need for further time, but I look forward to hearing what the Minister has to say about this in due course. I beg to move.

[Lord Pannick]

My Lords, perhaps I may add two points to what the noble and learned Lord, Lord Phillips of Worth Matravers, said. The first is to inform your Lordships that the chairman of your Lordships’ Constitution Committee, the noble Baroness, Lady Jay of Paddington, whom I am pleased to see in her place today, wrote to the Minister on 10 December stating the committee’s support for the amendment on the basis that,

“it is not constitutionally appropriate”,

for the Lord Chancellor to retain his present functions in relation to the appointment of the chief executive of the Supreme Court and in relation to the deployment of the court’s staff.

The second point that I want to emphasise is that allowing the Lord Chancellor to retain these functions is impossible to reconcile with the Supreme Court being seen as independent of the other organs of government. The need for the Supreme Court to be seen as independent was the main reason why it was created by the 2005 Act and why the Law Lords left this place. It is of especial importance that the administration of the Supreme Court is seen to be independent of the Executive when the Executive are the respondent in a very a large proportion of the cases heard by the Supreme Court. This amendment is of constitutional importance; the arguments in its favour are simply overwhelming.