Supreme Court status “still to be decided” in bonfire of quangos

24 September 2010 by Adam Wagner

Updated x 3 | The UK Supreme Court Blog has pointed out that the UK Supreme Court is listed as “still to be decided – options being considered” in the quango reform document which was leaked this morning.

But what does this mean? Surely not that the new UK Supreme Court, after £56m of investment and a successful first year in operation, is for the chop?

Not a chance. The Supreme Court is the highest appeal court in the land and an integral part of the UK justice system. Whilst the name and venue are new, the court itself is almost identical to the House of Lords committee which it replaced, and most (although not all) consider its new independence from Government to be a positive step for the rule of law.

What may be under consideration is the  team which runs the court. The 2005 Act of Parliament which created the court states that the Lord Chancellor “must” appoint a chief executive, and “may” appoint officers and staff of the court. At present, the court has 10 executive staff in addition to around 30 other staff.

Should we care if this staff is cut or merged with another office? Absolutely. The underlying aim of the new Supreme Court was to move towards a separation of powers system. Justice must be done and seen to be done, and before the new court’s creation it was too confusing, for example, for members of the public suing the government under the Human Rights Act to have their appeals heard by a House of Lords Committee. Although the justices themselves were fiercely independent, the appearance was of the government adjudicating upon its own actions.

An essential element of the court’s new independence is its ability to run its own affairs. Baroness Hale recently made exactly that point, arguing that even a tiny detail such as who decides what is on the menu at the court’s new cafe should be decided by the court, not the government. And of course this principle extends to who is running the court, and how it is being paid for.

The court has a statutory duty to be “accessible” to the public, and it has done a lot in its first year to discharge that duty. This includes public tours, opening the courts to TV cameras for the first time, and excellent use of the web and online press summaries. Next week, it will be opening its doors to school children for mock debates. These should be considered as basic requirements to ensure access to justice, not frills to be cut after a year.

Lord Hope, the court’s second-in-command, said recently that “[o]ur concern is that having started on this enterprise … we should be able to sustain that operation.” So the government should think very carefully before it considers cost-saving options for the UK Supreme Court. Because how this court is administered is not just about practicalities and cost-saving, it affects the separation of powers and the rule of law.

Update, 28 Sep 10 – This post was reproduced via the Guardian Legal Network. I have responded to some comments made on the article, which can be found below the article here.

Lexis Nexis’ James Wilson has also blogged on the issue on the Halsbury’s Law Exchange Blog (for more info on the HLE, see our post). He thinks it unlikely that the court will be replaced wholesale, but says “it would only be moderately less astonishing if the size of the court was to be reduced or subject to some visible cost cutting measure out of budgetary concerns. As part of an independent judicial system the funding for the courts has to be seen to be outside the day to day control of the executive; the running of the court is a matter for the court itself. It is ironic that the separation of powers was the primary, indeed about the only, stated reason for its creation in the first place.”

Update, 29 Sep 10 – Afua Hirsch blogs on the school visit which I mentioned in the blog, during which a group of school children interviewed Lord Phillips.

Update, 1 Oct 10 – The Economist: “Whatever the long-term effects of making the court independent, in the short run it has one presumably unintended consequence. As part of Parliament, the law lords had a relatively direct tap into government coffers; the free-standing court must bid for money through the Ministry of Justice, which has cash-guzzling prisons to fund too. Almost any outfit can lose some fat but the Supreme Court’s budget, currently £12.8m a year, is not especially bloated. If losing the funds it needs to do its job proves the price of independence, this particular bit of constitutional reform will come to seem inept.”

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