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The Duke of Montrose: My Lords, I listened with some interest to what the Minister said and I am grateful to the noble and learned Lord, Lord Ackner, the noble Lord, Lord Crickhowell, and the noble Baroness, Lady Carnegy, for their support.
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A question still hangs in one's mind and, if nothing else, there is still a slight question as to how the single doctor feels about having to give this one opinion. We must look at these matters again and I know that the Minister is worried about the wording. Meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 106 and 107 not moved.]
[Amendment No. 108 not moved.]
[Amendments Nos. 108A and 109 not moved.]
Clause 30 [Supplementary panel]:
[Amendment No. 110 not moved.]
[Amendment No. 111 not moved.]
Schedule 8 [Amendments relating to jurisdiction of the Supreme Court]:
[Amendment No. 112 not moved.]
Lord Falconer of Thoroton moved Amendment No. 112A:
"(c) more than half of those judges are permanent judges."
The noble and learned Lord said: My Lords, the amendment relates to the composition for proceedings in relation to the Supreme Court. The Government's amendments, which have been drafted in consultation with the noble and learned Lord, Lord Bingham, are designed to address concerns expressed in Committee and outside Parliament that the clauses as they stand both over-restrict the court's operational flexibility compared to that enjoyed by the Appellate Committee of the House of Lords, and inappropriately allow for appeals to be heard by a panel in which non-permanent judges predominate.
Flexibility is achieved because the clauses, by virtue of the third government amendment in this group, will work on the basis that the court is "constituted" for proceedings when the judges to hear those proceedings are "designated", rather than when the hearing commences. An uneven number of judges equal to or greater than three must still be designated. Given that an uneven number must be designated, permanent judges have to be in the majority to ensure that the composition is never "wholly or predominantly" of non-permanent judges; and the first amendment in this group, in which the noble Lords, Lord Goodhart and Lord Maclennan, may discern a resemblance to an amendment tabled by them in Committee, ensures that
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that is the case. This does not mean that the actual hearing cannot commence before an even number of judges, as "designation" by definition precedes the beginning of the hearing proper.
The final government amendment in the group introduces a new Clause 33 in place of the existing clause. New Clause 33(1) provides for the clause to apply if the court ceases to be duly constituted,
"because one or more members of the Court are unable to continue",
but because the approach now turns around "designation", rather than "commencement of proceedings", the court is enabled, for example, to start the hearing with four judges if five were designated, but one drops out, as long as at least two of the four are permanent judges.
The provision in subsection (1) of new Clause 33 that the section applies to a court constituted in accordance with a direction "under this section" is to allow for the possibility of two judges falling out of a panel which started with at least five. What might happen, for example, is that a panel of five is designated and, before the hearing commences, one judge is unable to continue and the presiding judge directs—the parties being in agreement and there still being four judges of whom at least two are permanent—that the court is still duly constituted. Then another judge is unable to continue, leaving three, of whom two are permanent and the parties are still in agreement that the proceedings should continue. Then there would be a court which ceased to be duly constituted "in accordance with section 32", but the presiding judge may direct that it is still duly constituted.
These amendments will produce flexibility similar to that enjoyed by the Appellate Committee, but with the added benefit, for those who will use the court, of clarity, certainty and transparency. I beg to move.
Lord Goodhart: My Lords, these amendments are responses to concerns which we raised in connection with amendments that we tabled in Committee. They were particularly concerned with the possibility of a situation where a majority of the judges were temporary, non-permanent judges. That concern has now been dealt with and we feel that the concerns that we raised are met by these amendments and we are happy to support them.
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendments Nos. 112B and 112C:
"( ) This section and section 33 apply to the constitution of the Court in any proceedings from the time judges are designated to hear the proceedings."
On Question, amendments agreed to.
[Amendment No. 113 not moved.]
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Clause 33 [Changes in composition]:
Lord Falconer of Thoroton moved Amendment No. 113A:
"CHANGES IN COMPOSITION
(1) This section applies if in any proceedings the Court ceases to be duly constituted in accordance with section 32, or in accordance with a direction under this section, because one or more members of the Court are unable to continue.
(2) The presiding judge may direct that the Court is still duly constituted in the proceedings.
(3) The presiding judge may give a direction under this section only if—
(a) the parties agree;
(b) the Court still consists of at least three judges (whether the number of judges is even or uneven);
(c) at least half of those judges are permanent judges.
(4) Subsections (2) and (3) are subject to directions given by the President of the Court.
(5) If in any proceedings the Court is duly constituted under this section with an even number of judges, and those judges are evenly divided, the case is to be re-argued in a Court which is constituted in accordance with section 32.
(6) In this section—
(a) "presiding judge" means the judge who is to preside, or is presiding, over proceedings;
(b) references to permanent judges have the same meaning as in section 32."
On Question, amendment agreed to.
[Amendment No. 114 not moved.]
Clause 34 [Specially qualified advisers]:
[Amendment No. 115 not moved.]
[Amendment No. 116 not moved.]
Clause 36 [Procedure after rules made]:
[Amendment No. 117 not moved.]
[Amendment No. 118 not moved.]
Lord Falconer of Thoroton moved Amendment No. 118A:
"CHIEF EXECUTIVE
(1) The Supreme Court is to have a chief executive.
(2) The Minister must appoint the chief executive, after consulting the President of the Court.
(3) The President of the Court may delegate to the chief executive any of these functions—
(a) functions of the President under section (Officers and staff)(1);
(b) non-judicial functions of the Court.
(4) The chief executive must carry out his functions (under subsection (3) or otherwise) in accordance with any directions given by the President of the Court."
The noble and learned Lord said: My Lords, these are important amendments about governance arrangements over which perhaps I may take a little time. The government amendments to these clauses are a package, which considerably revises the governance model to increase significantly the
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independence of the court. As your Lordships are well aware, I promised in the Select Committee to bring forward amendments to the existing clauses, which had been criticised on the grounds that they provided insufficient guarantee of corporate independence and, in particular, did not guarantee that the court would be,
While I remain convinced that the existing provisions provided a robust system which would ring-fence the court's budget and circumscribe ministerial discretion, I have listened to the criticisms and have negotiated a revised model in consultation with the senior Law Lord. I believe that this model meets many of the previous criticisms. I hope, therefore, that noble Lords who have tabled amendments to the clauses dealing with resources and governance will feel able to withdraw them, as I believe that the government amendments will meet their concerns for a Supreme Court with real institutional independence.
Moreover, the package of government amendments, in technical terms would pre-empt not only the amendments tabled by the noble Viscount, Lord Bledisloe, the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy, dealt with in a separate group, but those tabled by the noble Lords, Lord Goodhart and Lord Maclennan, by removing the clauses which they would amend and replacing them with new clauses. Only those amendments tabled by the noble Lords, Lord Goodhart and Lord Maclennan, offer an alternative governance model but, as I will explain to your Lordships, that would be a model that is neither viable nor advantageous to the Supreme Court.
The model now proposed by the Government is to establish the Supreme Court as an independent statutory body with its own estimate within the overall Department for Constitutional Affairs departmental expenditure limit and, as a result of a separate estimate, independent financing from the Consolidated Fund through the normal supply process. The chief executive of the Supreme Court will be a separate accounting officer in right of the court itself and not a sub-accounting officer under the DCA Permanent Secretary.
Treasury accounting regulations make it unnecessary to spell out in full detail in the Bill how the revised model will work. However, I am sure that the House will appreciate my placing on the record how the model is to operate. The Supreme Court will be an independent statutory body responsible for appointing the staff for its own administrative service. That service will be headed by a chief executive—a civil servant appointed by a process involving an ad hoc commission and designed to exclude political interference.
The staff of the court will also be civil servants, accountable to the chief executive and not to the Minister. The chief executive himself will be
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principally answerable to, and operate under the day-to-day guidance of, the President of the Supreme Court and will be accountable directly as accounting officer for the court rather than under the DCA Permanent Secretary.
The President of the Supreme Court and the chief executive will determine the bid for resources for the court in line with governmental spending review timescales, and they will pass it to the Minister, who will include it as a separate line in the overall DCA bid submitted to the Treasury. The Treasury will scrutinise the overall DCA bid and approve the overall financial expenditure before putting the bid before the House of Commons as part of the overall Estimates. The House of Commons will approve the overall Estimates and transfer resources accordingly. Because the Supreme Court will have its own estimate, the funds approved will be transferred to the court direct from the Consolidated Fund and not via the DCA. That assures the Supreme Court a high level of independence in securing and expending resources and in the day-to-day administration of the court.
In this revised model, the Minister will simply be a conduit for the Supreme Court bid and will not be able to alter it before passing it on to the Treasury. Once the Treasury has scrutinised the bid and it has been voted on by Parliament, the funds will go directly to the Supreme Court from the Consolidated Fund rather than via the DCA. That ring-fences the Supreme Court budget and ensures that it cannot be touched by Ministers. 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.
Your Lordships will note, however, that this model retains some ministerial involvement. That remains absolutely necessary as it is a key constitutional principle that a Minister must remain ultimately responsible for securing funding from the Treasury and be answerable to Parliament for its overall operation. Therefore, the amendments proposed by the noble Lords, Lord Goodhart and Lord Maclennan, in the next group are unacceptable as they leave no role for any Minister.
Moreover, under the amendments tabled by the noble Lords, Lord Goodhart and Lord Maclennan, the President of the Supreme Court, rather than the Minister, would become responsible for negotiating directly with Her Majesty's Treasury for funding and for the provision of accommodation, staff and services. The Supreme Court would effectively become a department without a Minister but with a judge at its head. It would be required to account for its use of the money voted to it by Parliament rather than a board, a commission or executive office holder. The latter clearly stands in opposition to the principle of functional separation for the judiciary from the legislature, which underlies these proposals.
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While the Minister will remain ultimately accountable for the court, his role will be reduced to the inescapable aspects of accountability—presenting and negotiating the court's budget with the Treasury as part of the overall departmental expenditure limit for the DCA and responding to parliamentary Questions about, and otherwise answering to Parliament for, the court's administration. Thus, ministerial involvement will be circumscribed so far as possible and, in all other aspects, the court will be independent.
In Committee, the noble Lord, Lord Kingsland, referred to the conclusions of the Lords Select Committee that the Supreme Court should be a non-ministerial department, suggesting that that would mean that a Minister would not be involved in the funding. That is not an accurate statement of the non-ministerial departmental model but the noble Lord, Lord Kingsland, can hardly be blamed, having regard to the rather misleading nomenclature. Only bodies which are an emanation of Parliament itself are truly self-administering. And clearly, as one of the major principles behind these proposals is functional separation from the legislature, any arrangement whereby the Supreme Court was, for example, funded through the House of Lords—as the noble and learned Lord, Lord Howe, suggested in the Select Committee—would, I believe, be inappropriate.
There is therefore no acceptable way of excluding entirely the involvement of a Minister from the process for determining and allocating the court budget. But I believe that this is the best and most effective way to exclude the Minister as much as possible. No Minister would ever be able to starve the Supreme Court of funds because his role is to pass on the bid as a conduit.
A further reality is that a process requiring the Supreme Court to bid directly for funds would not benefit the court. Without ministerial involvement, the court would not have sufficient clout to negotiate a strong settlement. I say that, of course, without in any way intending to demean the status of the President of the Supreme Court; nor is there any intention to demean that status when I say that, from a practical point of view, it is clearly not reasonable to expect the President of the Supreme Court to find and equip a suitable building for the court, but that would be the effect of the amendments tabled by the noble Lords, Lord Goodhart and Lord Kingsland.
Conversely, the arrangement to which the government amendments give effect would bring additional benefits. Should the court overspend, it would be possible for the DCA Minister to allocate part of his overall budget to the Supreme Court. Moreover, the court, should it wish, would be able to use the DCA's support services, such as human resources and IT, and to benefit from the attendant economies, rather than having to set up its own arrangements.
I very much hope that your Lordships feel reassured by the model that I am now proposing. As I have noted, due to government accounting regulations, it is unnecessary for the new clauses to set out the
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governance model in the detail that I have outlined. Nevertheless, the clauses themselves provide the Supreme Court with a great deal of protection.
The new clauses establish the post of chief executive of the Supreme Court within a clear statutory framework which places clear and complementary duties on the chief executive and the Minister. The chief executive will be responsible for the non-judicial functions of the court and any functions of the president in relation to the appointment of staff which the president delegates to him—in effect, allowing the chief executive to be responsible for appointing staff to the court.
The chief executive will be answerable to the president, in accordance with whose directions he will be required to act in carrying out his functions. The chief executive will be responsible for ensuring that the court's resources are used to provide an efficient and effective system to support the court in carrying out its business. The Minister has the corresponding duty to provide accommodation for the court and to provide other resources to allow the chief executive to carry out his responsibilities. Clearly the Minister would not be complying with his duty if sufficient funds were not provided to the chief executive to allow him to perform his functions.
I know that there has been some concern among your Lordships that the Government are not sufficiently committed to finding a suitable building for the Supreme Court. As noble Lords will now be aware, the government amendments include a new clause which places a firm duty on the Minister to find such accommodation as he thinks appropriate for the court to carry on its business.
Alongside the sunrise clause that I am tabling, which will no doubt be fully debated later, I hope that my explanation reassures your Lordships that there is no possibility of the Government housing the Supreme Court in inappropriate accommodation. I hope that it also reassures, in particular, the noble Viscount, Lord Bledisloe, the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy. They have all tabled, in another group, amendments to the existing provisions which, in different ways, seek to strengthen the duty on the Minister to provide appropriate accommodation and staffing for the Supreme Court. I hope that, in the light of the overlong explanation that I have given, noble Lords will feel able not to move their amendments.
I do not intend to dwell any further on the building issue as I gave a full explanation of the Government's position during the debate on Clause 14. In summary, these amendments will guarantee the Supreme Court real institutional independence and circumscribe ministerial involvement so far as possible. I beg to move.
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