Lord Phillips doubts his own independence

by Carl Gardner on February 9, 2011

I never thought we needed a Supreme Court, myself. The Law Lords worked perfectly well as far as I was concerned. But we got one, the main justification for the increased expense being increased judicial independence. To me, this supposed gain was always a pure abstraction: no one really thought the Law Lords lacked independence from the executive. And now, in his lecture last night on judicial independence, the President of the Court Lord Phillips seems to be suggesting the Supreme Court is actually less independent than its predecessor because it’s funded in part by the Ministry of Justice. If he were right, it really would make the creation of the Court a national scandal. He’s wrong, though. His stance is financially and politically unrealistic as well as, again, hugely exaggerating the importance of the theoretical separation of powers.

He may have a fair point in criticising some of the things Lord Falconer, then Lord Chancellor, said during the passage of the legislation that gave birth to the Supreme Court. Perhaps Lord Falconer gave him the wrong impression about how the Court’s budget would be fixed and found. I don’t know. But the impression he gained seems to me almost innocent in its unreality:

The chief executive and I would decide how much we needed, obviously taking into account the overall financial situation. We would give our bid to the Lord Chancellor who would pass it on to the Treasury. The Treasury would get Parliament’s blessing to give us what we needed which would be paid to us straight out of the Consolidated Funds. Thereafter the normal regime of accountability would apply through audit by the National Audit Office, publication of accounts, and scrutiny by the Public Accounts Committee if necessary.

Did he really think he and Chief Executive Jenny Rowe, neither of whom is directly accountable to the public, should be able to fix their own budget unilaterally and expect it to passed on by ministers as “simply conduits” (to use Lord Phillips’s language) for automatic rubber-stamping by Parliament? The only constraint this would put on his ability to spend taxpayers’ money would be after-the-fact reporting by a quango.

In reality, he’s clearly had to negotiate his budget with ministers in advance – which must be right since a minister will have to be accountable to Parliament for it. Actually he doesn’t seem to be complaining about this. What he actually seems to be complaining about is that he should have to deal with the Lord Chancellor rather than the Treasury; an odd complaint to make given that the Lord Chancellor has a greater legal duty to defend judicial independence than the other Chancellor.

Lord Phillips admits that government has funded his new Court adequately,

The Lord Chancellor made sure that we were provided with a most satisfactory court house as I believe anyone who has visited us at the converted Middlesex Guildhall would agree.

They certainly would. He makes clear too that government tried to create for him a sort of independent funding stream,

it was agreed that the costs of Supreme Court civil business could be spread across the costs of civil business as a whole. There thus came about the current rather complex arrangements, whereby a proportion of the running costs are required to be met by contributions taken from civil court fees in England and Wales, with corresponding contributions also from Scotland and Northern Ireland.

What seems to have gone wrong is that

A major contribution has been due … from the civil courts of England and Wales, based on their assumed fee income. This has not been achieved … the Court Service of England and Wales has not been able to provide us with their contribution and we had to call upon the Lord Chancellor to make up the difference, which he did.

Again, then, there is no complaint that the Lord Chancellor has not paid up. Indeed, the complaint seems to be that he has paid up, because it is this dependence on the Ministry of Justice that leads Lord Phillips to conclude that

our present funding arrangements do not satisfactorily guarantee our institutional independence.

Where I think Lord Phillips is going wrong is in his hopeless, fetishistic pursuit of total institutional independence. Unless he wants to fund himself entirely by being a “trading fund” (a public body which stands on its own financial feet by charging fees directly to its users), an idea he describes in the lecture as

wholly impractical, not to say a denial of access to justice

which which I agree, then he has to face the fact that the court is dependent on public funds, which must be raised and transferred to the Court somehow via a publicly accountable system.

He could be allowed to levy a Supreme Court Tax directly on every citizen, I suppose. But failing that (and the direct political accountability that would involve him in) either he must present his own budget to Parliament each year and seek its support  – which is the most political activity imaginable – or else see someone else do it for him and fund him indirectly out of moneys voted by Parliament. That is what the Lord Chancellor is doing. I cannot for the life of me understand why it matters, in terms of judicial independence, that the Ministry of Justice should be the funder of last resort rather than H.M. Treasury directly. In fact as I’ve said, the Lord Chancellor’s legal obligations in terms of judicial independence must qualify him as the best minister to support the Court.

The conclusion must I think be that Lord Phillips is simply unhappy with the cuts the Court has to face. Tough luck. When legal aid is being cut his Court, the expense of which was never necessary in the first place, is simply not a priority. There may be a good argument that his and his colleagues’ salaries should be cut.

Finally, Lord Phillips rejects the idea of

some form of Parliamentary scrutiny

of proposed Supreme Court justices along the line of the confirmation hearings held in the USA (a country committed to the separation of powers doctrine Lord Phillips attaches such importance to). This he fears would politicise the judiciary. I agree. But in order to avoid political scrutiny, judges must be seen to be genuinely non-political.

Political scrutiny will be ugently and rightly demanded if judges choose to politicise themselves, as Lord Phillips has now done over the allocation of public money and as he did three years ago with his outrageous claim that it is “not very radical” to propose resolving family disputes in this country by sharia law.

{ 5 comments… read them below or add one }

1 simplywondered February 9, 2011 at 23:14

ok carl, how can i put this?
how about ‘yes’.
it’s great actually because i share a stance with someone who actually knows about this stuff. first time for everything i guess!

2 simplywondered February 9, 2011 at 23:15

repetition of ‘actually’ – actually not great, actually.

3 John Flood February 10, 2011 at 20:45

All the Federal Courts including the US Supreme Court have to go cap in hand to Congress to plead their budget every year. Is the US Supreme Court less independent? Phillips better get used to the real world. He has no justification for his stand on this. He’s lucky he doesn’t have to take a salary cut. Now there’s an idea…..

4 James Medhurst February 10, 2011 at 21:00

It is not very radical legally to allow Sharia law in family disputes – it would seem to follow from Radmacher because, presumably, if a pre-nuptial agreement requires a married couple to have a divorce mediated by the Sharia courts, this would have to be given weight.

It is, of course radical (and wrong) politically. However, to accuse Phillips of being political is a cop-out and loses sight of the wider issue, the inappropriate application of the ancient English tradition of contract law into areas of life for which it is entirely unsuitable.

5 Mark Gould February 11, 2011 at 17:27

I thought Phillips was the least impressive of the Supremes profiled in the recent BBC programme, and this recent outburst just confirms that view.

I agree that it can never be sensible for the judiciary to claim that funding limits threaten their independence. Such an argument can only have two outcomes, both harmful.

If funding is cut as planned, then by Phillips’s own logic the independence of his court has been compromised. How should we view any later judgment in which they overrule the government? Is it motivated by spite or by a proper interpretation of the law? Alternatively, if they support government action are they just sucking up in order to get a better deal in the next funding round.

Contrariwise, if the Supreme Court succeeds in becoming the only public body not to suffer cuts, what does that say about any future decisions in favour of the beneficent government? (Not to mention the fact that the distance between the court’s experience of expenditure and that of the rest of the country would cement the view that they are out of touch with reality.)

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