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Joshua Rozenberg in his blog refers to an interesting speech given by Lord Hope last Thursday at the Gray’s Inn Reading at Gresham College. The speech provides an illuminating inside view on the every day issues facing the Justices of the Supreme Court.
Lord Hope starts by bemoaning the process by which the Supreme Court was established noting in particular that the consultation on the Court (in respect of which he observes somewhat acerbically that the Lords of Appeal in Ordinary were not listed as consultees) made no reference to potentially important issues such as whether the Court should hear Scottish criminal appeals. Nonetheless, he considers the establishment of the Court to be of “great constitutional importance” since it has given judgments “added authority”.
He considers that the procedures of the new Court mark a radical change. Much of the grandeur of the House or Lords has gone in the more practical surroundings of the Supreme Court. He notes (perhaps laments) that: “The Justices no longer refer to each other as ‘noble’, or ‘learned’ or even ‘friends’ … No mace, no prayers, no motions put and voted on… In the House of Lords it was the Law Lords who came first. Everyone else was there, one felt, on sufferance. In the Supreme Court the reverse is true. Democracy has taken over. Access to the building is very simple. The public are made to feel that they are welcome and – as it is a public building – to appreciate that in that sense it is their court. ” To this end, he records that since October there have been some 700 to 800 visitors a week , a ten-fold increase, which some might in itself see as a success.
And Lord Hope hints as disagreements between the Justices from the substantial – such as whether to sit as benches of more then the usual five or the basis of granting permission to appeal – to the perhaps more trivial – such as how the Justices should be addressed and address each other (a difficulty exacerbated by the appointment of Sir John Dyson to the Court in Febraury, the first non-lord). To call each other “Justice” seems to grate (although collectively “Justices” is fine). But he says the Justices “are strong-minded people, and … there was ample room for different views, ranging from the most conservative to the most liberal. For us to be let loose in such an unstructured world was an interesting social experience. ”
He also notes that “we have rejected suggestions that we should strive to arrive at a single judgment in all cases. We value our independence from each other, and our right to say what we believe in if we want to”. For many lawyers and commentators, multiple consenting judgments simply adds confusion. But Lord Hope is adamant: “… if we wish to dissent or to express different reasons for arriving at an agreed conclusion then we are entitled to do this, and no one is actively discouraged from doing so. ”
Lord Hope then turns to the question of money. He states that the operation of the Judicial Committee of the House of Lords cost “no more than about £750,000 per annum” and suggests that the primary aim of the establishment of the Supreme Court, to leave the final court of appeal independent from Parliament could have been achieved at no real cost by simply amending the House’s Standing Ordersto confine Law Lords to judicial work.
He notes that budgetary of the House or Lords (including – when it had one – its Judicial Committee) was subject solely to the scrutiny of the House of Commons which appeared to be a benign regime. This he considered preferable to the new situation of the Supreme Court whose budget is under the control of the Minsitry of Justice and thus likely to be subject to greater political vicissitudes and control by the Executive.
This is a problem which has become markedly less theoretical with the onset of the crisis in the public finances with the Supreme Court inevitably facing sharp and uncomfortable cuts in its budget. Lord Hope puts this in stark terms saying “the independence of the judges may be compromised [by depreriving] the judiciary of the resources which they need to do their job properly is one of them”.
But Lord Hope ends on a cheerier note, asking whether the Justice of the Court are “… in a position to do [their job] better now than they would have been if they were still working in the Palace of Westminster” and answers “undoubtedly, yes” and proclaims “without reservation, that the creation of this new court was worthwhile”.
In time, perhaps the most significant part of the speech will be seen to be the concerns regarding costs and funding. Some will see this as self-serving of a privileged public servant facing issues similar to those of all of those in public service. Others will think this as where the pinch of budgetary restraint meets constitutional principle. In any event, it is not the last we are likely to here on the matter.
