Crime and Courts Bill [HL]

Lord Mayhew of Twysden Excerpts

Tuesday 4th December 2012 Lords Chamber

[Lord Pannick]

My Lords, again, this amendment is tabled in the names of the noble and learned Lord, Lord Phillips of Worth Matravers, and myself. It raises two issues of fundamental importance concerning the independent status of the Supreme Court—that is, its independence from the Executive. The first issue is that it would make the president of the Supreme Court and not the Lord Chancellor responsible for appointing the chief executive of the Supreme Court. The current position is that Section 48(2) of the Constitutional Reform Act 2005 provides that:

“The Lord Chancellor must appoint the chief executive, after consulting the President of the Court”.

The process for the appointment of the first and current chief executive, Jenny Rowe, involved an ad-hoc commission chaired by a Civil Service commissioner and which included three of the then Law Lords along with a retired senior civil servant as the external member. The Ministry of Justice provided the commission with secretarial support and a firm of head-hunters was used to identify potential candidates. The amendment does not envisage any change in the substance of that process. It worked well and produced an appointee who is widely recognised as deserving much of the credit for the successful birth and early years of our Supreme Court. However, in principle this is an appointment which should be made by the president of the Supreme Court and not by the Lord Chancellor.

The power to appoint all the other officers and staff of the Supreme Court is already invested in the president of the court by Section 49(1) of the 2005 Act, even if, in practice, he delegates the exercise of this power to the chief executive. Section 48(4) of the 2005 Act says that the chief executive has to act under the direction of the president, so it is an anomaly that the power to appoint the chief executive is not also a matter for the president.

There is also an important question of principle: of course, the Supreme Court acts independently of the Executive, but it must also be seen to do so. Indeed, that was the major reason why the Supreme Court was created by the 2005 Act and why the Law Lords left this place. For the president of the Supreme Court to have the responsibility for appointing the chief executive would emphasise to all concerned that this is an independent institution.

The noble and learned Lord, Lord Phillips, has asked me to tell your Lordships that in his experience of the first three years of operation of the Supreme Court, the existing appointment provision led more than once to confusion in parts of the government machine that the chief executive should in some sense be acting at the behest of Ministers. The amendment is designed to put it beyond doubt that this is not the case. If the appointment power were to be vested in the president, there then arises the question why the Lord Chancellor should be consulted at all on this matter, particularly given that the chief executive is and would continue to be appointed in accordance with civil service recruitment rules, and the process is and would continue to be presided over by a Civil Service commissioner.

The Lord Chancellor is, of course, no longer a judge, and any role he might have in the process could only now be as a politician and government Minister.

I can tell your Lordships that the justices of the Supreme Court, including the noble and learned Lord, Lord Neuberger, the new president, simply do not understand how it can be constitutionally appropriate for the Lord Chancellor to exercise any such role. So the amendment would therefore confer responsibility on the president of the Supreme Court for appointment of the chief executive of that court, and would remove the role of the Lord Chancellor.

A second issue is raised by this amendment, arising from the terms of Section 49(2) of the Constitutional Reform Act 2005, which provides that the chief executive of the Supreme Court requires the consent of the Lord Chancellor when she decides on the number of officers and staff of the court, and the terms on which officers and staff are to be appointed. The noble and learned lord, Lord Phillips, has said publicly that he considers it critical to the court’s independence, and the perception of its independence, that the chief executive owes her primary loyalty to the president of the court and not to a Minister. The justices of the Supreme Court believe it would be preferable for the statutory provisions to be changed to make it even clearer that the chief executive has a direct accountability to Parliament for the proper use of the court’s resources and that she acts entirely independently from ministerial direction.

This is not just a matter of principle, important though the principle of independence is. The practical reality is that it makes no sense whatever for the chief executive to have to agree with the Lord Chancellor, which means of course his officials, on the number of officers and staff of the court. The justices of the Supreme Court are clear that neither the Lord Chancellor nor his officials can be in any position to second guess decisions that the chief executive makes in consultation with, and, if necessary—although the noble and learned Lord, Lord Phillips, assures me that it never came to that during his time—at the direction of the president, about the staffing requirements of the court.

In any event, the chief executive already has two separate disciplines upon her in making those staffing decisions—the budget that Parliament has decided to make available to the court, and the requirement on her as chief executive under Section 51(1) of the Act that the chief executive must 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 amendment would therefore remove the need for the chief executive to seek the agreement of the Lord Chancellor to these matters, to make even clearer her direct accountability to the president on the one hand and to Parliament, if needs be via the Public Accounts Committee, on the other. I can tell your Lordships that the current president of the Supreme Court, the noble and learned lord, Lord Neuberger, supports this amendment on both of the matters that it covers: removal of the role of the Lord Chancellor in the appointment of the chief executive and in relation to staffing issues at the Supreme Court.

I understand that discussions are continuing on these important issues. I hope that the Minister will agree to consider these important issues further between now and Third Reading so that we can, if necessary, return to the matter then. I beg to move.

[Lord Mayhew of Twysden]

It seems almost trite to make the point that wherever you have a chain of command within an organisation, that chain of command should be clear and not muddled or uncertain. If you find that those defects are present, you are bound to get trouble sooner or later—and it will probably be sooner. In the case of the United Kingdom Supreme Court, it seems to me to be very important that there should be no such blemish in its constitutional arrangements, for the very reason that has been explained so powerfully to us this evening, and which the noble and learned Lord, Lord Phillips—with the support of all his brethren—would have been adopting, we understand, were he present. The whole point of the setting up of the Supreme Court is that it should be operationally squeaky clean of any contamination by the Executive. That was the point of moving it away from the Judicial Committee of your Lordships’ House, something that many of us regretted. If that is to be the case, however, then it is particularly important that there should be no capability of misunderstanding and resulting conflict—let alone litigation—arising out of an assertion that there is a dual chain of command here.