The row that has erupted in Britain over the autonomy (or not) of the UK Supreme Court is an intriguing one. The President of the Court, Lord Phillips, has complained that the financial and administrative systems of the Court are too tied into the Ministry of Justice – for the full story see here – and this could undermine its independence.
The UK Supreme Court is very new, and was created out of the former Law Lords, which was an integral part of the House of Lords and came under the funding and administrative arrangements for Parliament. Now it is ‘serviced’ and funded by the MoJ, and its administrative staff are now civil servants (whereas previously they were parliamentary staffers). The new arrangement is normal for all courts in England and Wales (who have always been run this way in modern times), but obviously new to the Supreme Court.
I was curious to know what arrangements apply to other Supreme Courts and if similar disputes arise in other jurisdictions – so I asked international colleagues.
Philip J. Candreva (Graduate School of Business & Public Policy, Naval Postgraduate School, Monterey, California) provided this excellent explanation of the US system:
“In the USA, to maintain separation among the three branches of government while still meeting the requirement for a consolidated federal budget, the budgets for the Judiciary (including the Supreme Court) and the Legislature are included with the Executive budget, but are not reviewed or modified by the central budget office (Office of Management and Budget in the White House).
Section 1105 of Title 31 of the U.S. Code of Federal Law addresses the submission of the annual budget. Part (b) says, “Estimated expenditures and proposed appropriations for the legislative branch and the judicial branch to be included in each budget under subsection (a)(5) of this section shall be submitted to the President before October 16 of each year and included in the budget by the President without change.”
Subsection (a)(5) says, “ except as provided in subsection (b) of this section, estimated expenditures and proposed appropriations the President decides are necessary to support the Government in the fiscal year for which the budget is submitted and the 4 fiscal years after that year.”
The budget for the Judiciary (federal court system, including the Supreme Court) is distinct from the Department of Justice that includes other executive functions such as the Federal Bureau of Investigation, the Drug Enforcement Agency, and Bureau of Prisons. In fact, the Courts appropriation is included under the General Government appropriation while the Department of Justice is a separate appropriation act. They are drafted by different subcommittees of the appropriations committee in Congress.
That does not mean the process is neat and tidy. In recent history, Presidents have proposed across-the-board cuts that would include the Judiciary, they have reduced funds from other accounts that support the judiciary (e.g., construction of courthouses), in both cases raising questions of legality. Further, since the Legislature has the sole constitutional power to appropriate funds, they have proposed cuts to Judiciary budgets in the past that have rankled the courts, but the courts have had little recourse other than to appeal. Besides the power of suasion, the courts have little control over the actions of the legislature in defense of their budget proposals.”
David Falcon raised the point that we have other ‘supreme’ bodies in the UK, such as the National Audit Office. The NAO, along with the Office of National Statistics (ONS), is funded and controlled directly by Parliament. David makes the reasonable point that the Supreme Court could have a similar status. I would add that, given it always was a Parliamentary body before the change, it would make more sense for Parliament to remain its “parent” body rather than it being transferred to the “executive branch” as has now happened.
Whatever the solution, what is clear is that if the most senior justice of the land is concerned it ought to be taken a bit more seriously than the dismissive of Ken Clarke, Secretary of State for Justice and “Lord Chancellor”. His cavalier attitude rather makes the point that the Supreme Court needs to be safeguarded against the executive politicians. His remarks today should be enough to make anyone think seriously about the checks and balances needed to protect the independence of the Court.
Other responses are still coming in from the international public administration community and if there is more useful stuff I’ll report it here.
STATECRAFT - improving government 
Chosing to grant or withold funding to the courts is perhaps the greatest tool that the executive or parliament has to influence the judiciary.
In this context the debate in Great Britain is not primarily about the change in role of Law Lords to the Supreme Court or to question why the Supreme Court is fundamentally different in character from other court jurisdictions. The debate is about the inherent tensions between the Executive and Judiciary in the traditional ministerial – representative government model that functions according to the Separation of Powers Doctrine. Given that the relations between the Executive and Judiciary are much more entwined in Commonwealth Countries than those in other jurisdictions (particularly the Continental systems with other Governance models) it is not surprising that this debate has surfaced in Great Britain. Sweden and the Netherlands have undergone changes to their accountability and governance mechanisms in recent years driven by largely similar concerns.
In my view, there is in increasing need for an understanding that the Chief Justice of the Supreme Court is primus inter pares – the primarily manager of the court and that this management role differs from other government agencies due to the fundamental constitutional position of the judiciary the head of the third pillar of the framework of a constitutional (or monarchical) democracy. The working reality is that the courts are managed essentially according to a joint leadership model where executive and judicial personnel have operational mechanisms in place to deal with strategic and policy issues. This is a recipe for perpetual tension and if not appropriately understood and managed, it can develop into a real threat to peace and security for mature and less mature democratic systems.
As technology changes the speed and nature of work and the demand for performance continues to increase in a tight fiscal environment, there seems to be an increasing concern in judiciaries around the world that their independence is being compromised. This often puts judiciary leaders in the unwanted position where they need to defend themselves, often against overzealous executives, many of whom do not have the maturity, experience or perhaps education to understand the delicate mechanisms to preserve judicial independence or the serious implications if judicial independence is eroded.
A collague from New Zealand adds:
Court servicing in NZ is provided by the courts division – part of the Ministry of Justice. Courts were a stand alone department of state until around 2002.
We had a similar debate in NZ in the 1990s when the judges were pushing for responsibility to be shifted to the judiciary because of dissatisfaction with how the old department of Justice ran the courts administration .
I recall as the senior Treasury official with responsibly for Justice issues having a discussion the Chief Justice at the time. The questions I poised was – do you want to be accountable to Parliament for the use of public money in the running of the courts, for the collection of fines and have to responds to reports of the Auditor General about the quality of service if say an IT project went belly up. And is how that compatible with independence and the appearance of independence of the judiciary.
In the end ( not I hasten to add because of my powers of persuasion ) the Judiciary went along with a stand alone department and the quality of servicing went up significantly –
Shaun Goldfinch sends this useful reference:
Goldfinch, S. (1993). Judicial Independence and the Administration of the Courts in New Zealand. Political Science, 45(2), 153-171.
RFI (Bob) Smith from Australia adds:
“This is a perennial problem in many jurisdictions in Australia.
Closely associated with questions of the quantum of funding is how the money is spent. Australian jurisdictions have for more than 20 years being trying to gee up the quality of courts administration, including putting in court managers qualified in management as well as law.’’
Jan Mattijs adds:
Hi Colin,
A similar debate has been rampant in Belgium, though not limited to the supreme court but involving the whole judiciary whose means and logistics (buildings, IT, administrative support, staff allocation and training, …) has been historically managed at a very central level under direct executive supervision. The belgian judiciary doesn’t have a cultural problem nor a reputation of lack of independence, but the issue has nevertheless risen to prominence because of the rising caseload and various infamous judiciary failures.
Misgivings run deep both ways: the judges accuse the government of trying to manage them through means and/or getting them to report, and the government saying that the judges have no managerial capacity and wouldn’t be accountable for the spending of public funds.
Recent attempts at reform through decentralization of management structures have stumbled across the regionalization debate, the complexity of organizing a balanced control of hypothetical autonomous court services, and the difficulty of bootstrapping management involvement by the judges while preserving their independence (I simplify). The Dutch model has been touted a lot but it is pretty extreme.
To the best of my knowledge there is little literature about this topic (independence from a logistical perspective). There are papers on the supreme courts (Franck, R. (2009). Judicial independence under a divided polity: A study of the rulings of the french constitutional court, 1959-2006. The Journal of Law, Economics & Organization, 25(1), 262-284; Padovano, F. (2009). The time-varying independence of italian peak judicial institutions. Constitutional Political Economy, 20(3), 230-250.), but they don’t focus on management autonomy. A French report after the Outreau case miscarriage devoted a full 15 pages on this question of the effects of means restriction on judicial due process, but this was very exceptional. Literature on the Belgian case is in French or Dutch, see e.g.
http://www.revuenouvelle.be/rvn_art_list.php3?id_rubrique=132
http://www.cerap.be/spip.php?article177
I can also forward a report to the minister of justice by three universities.
Cheers,
Jan
Jan Mattijs
Département de management public, Centre Emile Bernheim
Solvay Brussels School of Economics and Management
Université Libre de Bruxelles
Jeanne-Marie Col adds
Dear Colin:
I am not surprised that this row has erupted in the UK. This is a basic issue of the difference between the parliamentary system and the “separation of powers” system. It is also characteristic of a centralized government that courts at all levels would be serviced and funded by the MoJ (as opposed to a decentralized/federal government in which courts are funded by the level they serve).
Probably this row can be seen as a stage in the evolution of an independent judiciary. Once, the function of the supreme court was in the Law Lords, which was an integral part of the House of Lords (and serviced as part of the Parliament). This new arrangement is going to be “under stress” because it is new. For instance, I can imagine that the new SC could be serviced by the MoJ for a period of time, then there might be a transition period in which the SC developed its own capacity to manage court administration, and might eventually gets its own budget line. Frankly, in the interim, staff need to be found in some existing institution.
The evolution “could” go even farther. That is, the SC could have authority to run the other courts (lesser courts and appeals courts), and get its own budget item to do this. Of course, UK has a tradition of extreme centralism. Whatever might be called decentralization in UK is really de-concentration (not devolution), as power remains at the center and is temporarily bequeathed (if at all) to so-called local governments (from which the power can be taken back to the center if the center wishes).
It seems against the tradition of the UK to have real separation of powers and an independent judiciary. But, on the other hand, the creation of the SC is a step in this direction. For this reason, I see the situation as an evolution that requires capacity building as well as policy development.
I am familiar with this discussion because I served as a UN senior interregional adviser in governance and public administration for 12.5 years. I was mainly working in Africa, Asia, Middle East and Eastern Europe.
I remember a situation in Sierra Leone, back in the 90s, after one of the re-starts of the government in a cycle of continuing conflict. I read their new Constitution and saw that it embodied the concept of separation of powers. I was in a meeting with the Cabinet Minister for Parliamentary Affairs, and as the conversation progressed, I realized that he thought that he “ran” the Parliament. When I suggested that the Members of the legislature might want to have district offices, he was delighted and said that he would run them. I mentioned that within the SL Constitution, it seemed to me that the legislature would run its own district offices. He was quite taken aback. He could not quite grasp the idea that the Speaker would run the district offices of the legislature. He saw everything from the perspective of a strong president, who managed the Parliament and the Courts and the local government. Some of these evolving countries pick up the notion of separation of powers without understanding what is really involved.
Folks who are born and bred on UK-style parliamentary government have a difficult time with the notion that anything in the whole country could be independent of the parliament. It seems that UK is setting itself up for a long and extended row over the degree of autonomy (or independence) of the judiciary. Of course, it is very popular these days to advocate for “autonomy (independence) of the judiciary (often in the context of getting rid of political influence). I wish you luck !!!
This issue is fundamental in political theory, but UK has been successful for many years with an unwritten constitution that keeps things a little fuzzy. It is like “with noblesse oblige” in the old days of the House of Lords, the judicial side (Law Lords) were expected to be fair and unbiased. It was their noble duty, etc.
The assumption that men would be angels if given the authority in a well-ordered and stratified society was rejected in designing the American Constitution. Madison in Federalist #10 argued that there will be differences of opinion and that the violence of factions might as well be written into the constitution in the form of separation of powers. Thus, the US has a very independent judiciary (although this might not appear to be absolute given a few recent decisions).
I have seen this discussion in many countries in all parts of the world. In many places, there is just no notion that there can really be different arms of the government that do not depend upon each other. In Asian, African, Eastern Europe and Middle East, there are traditions of strong men with strong central governments. In working in Cambodia recently, I ran into the same discussion. How independent is a judiciary? What model are we supposed to be following? The donors all have a different history and different conditions? What are we supposed to try to do … in order to get funding for capacity building. You can see how tricky this can be.
The UN tries not to impose any particular model, but the pressure for an independent judiciary is strong (even strong from advisers that come from countries that do not have a very independent judiciary).
You have my best wishes. I struggled with this for 12.5 years, and in virtually every country in which I worked.
There are probably some judiciary experts that can give you data on which countries do which, but my practical experience is that most countries are somewhere on a continuum,… and that the tendency is to find more ways (budget, personnel, etc) for judiciaries to become more autonomous (independent).
Good Luck … Jeanne-Marie
—
Jeanne-Marie Col
Associate Professor
Public Management and
Emergency Management
John Jay College
City University of New York
A problematic example was the EU-Commission’s purposal for an EU-patent court to be funded by patent-cases. Even cases concerning the limits of patentability were not to be appealed to the EU-court, but as other appeals to an appeal instance within the EU-patent court. Thus, a closed, self-sufficient legal-economic system was envisaged to be build upon the case-law-system developed by EPO (European Patent Office).
I have not followed this closely during the last year. But, I would be supprised if it has changed.
Philip Langbroek, Utrecht NL, says:
Usually a supreme court has a special constitutional position. The question is how arrangements for the budgeting of such institutions can be organized.
On the continent,usually and executive department should include the budget in a budgetbill, E.g. for a Council of State, this could be a special bill drafted by the ministry for the interior, which sends it for approval to parliament. Or it could be the ministry of justice. It is essential that parliament decides on the budget, not the minister, however.
in the USA the administrative office for the federal courts (supervised by the federal judicial council) drafts a budget bill which is sent to congress for approval, without interference of an executive power – body. The BBC story is not specific enough to be able to know if judicial independence is really threatened by the financial relation between the Supreme Court and the ministry of justice. It would be wrong however if the Ministry would be able to transfer money from the supreme court budget for the realisation of other aims.
Mirko Noordegraaf adds:
In The Netherlands the autonomy of regular law courts has also come under pressure (if not, has been (radically) reduced) by comparable financial and administrative reform tendencies, most specifically a (Tayloristic) time and motion control financial system (the ‘Lamici’ system). Although such weakening of autonomy has happened rather silently, internal resistance has been growing, and at the end of 2010 one of the presidents of one of our courts (The Hague) ventilated his critique on Dutch national television (Sept. 14, 2010).
(In addition, politically explosive court cases, esp. the Wilders case, as well as a growing discourse on ‘judicial mistakes’ have intensified pressures on one of the final independent and ‘isolated’ professional services.)
Prof.dr Mirko Noordegraaf
Departement Bestuurs- en Organisatiewetenschap (USBO) /
Utrecht School of Governance (USG)
Universiteit Utrecht (UU) / University of Utrecht
Andreas Lienhard adds:
The Federal Supreme Court of Switzerland has its own budget and an independent administration. Also in the Courts of the Cantons there is a tendence to administrative indepence.
Although there is a discussion about efficiency of Court Administration:
Andreas Lienhard, Supervisory Control and Court Management, International Journal for Court Administration (IJCA), Third Issue, August 2009, http://www.iaca.ws/mc/page.do?sitePageId=95527
Andreas Lienhard, CCPM University of Bern
John Alford, Australia, adds:
I did a report in 2004 looking at exactly these issues for all the courts in Australia. It was written for the Australian Institute of Judicial Administration (AIJA), and the reference is:
J. Alford, R. Gustavson and P. Williams, The Governance of Australia’s Courts: A Managerial Perspective, Melbourne: AIJA, 2004.
It includes an extensive appendix setting out the arrangements for each of the courts (supreme/high, county, and magistrates) in each state and nationally. It may be hard to obtain, but if all else fails you can try the AIJA at http://www.aija.org.au.
John Alford
Professor of Public Sector Management
Australia and New Zealand School of Government
PO Box 230, Carlton South, Vic, 3053
Australia.
Thanks to Bob Smith for sending this about reforms to the court service in Victoria (Aus)…
IPAA Breakfast Address with the Victorian Attorney General,The Hon Robert Clark MP
Friday 25 March 2011
IPAA is pleased to present The Hon Robert Clark MP, Attorney General of Victoria, speaking on the establishment of Victoria’s new independent Courts Executive Service.
Administrators working in the new Service will support all Victorian courts and the Victorian Civil and Administrative Tribunal (VCAT) and will be independent of departmental or political control. The reform will create a new group of public servants in Victoria who are responsible to the Chief Magistrate and not a Minister or a Departmental Secretary.
This event will provide an opportunity to gain insights into this very significant administrative reform and to ask questions of the Attorney General.
Date: Friday 25 March 2011