2004.007. 'House of Lords Select
Committee on the Constitutional Reform Bill - Evidence by Francis
Bennion'
Evidence to the Select Committee
on the Constitutional Reform Bill
Preliminary
I, Francis Alan Roscoe Bennion, submit
this evidence on Clause 1 of the Constitutional Reform Bill (the
Bill). My qualifications for doing so are as follows. I am a former
Parliamentary Counsel, having served in the Office of Parliamentary
Counsel in Whitehall from 1953-1965, and again from 1973-1975.
This included spells on secondment drafting constitutions for
Pakistan and Ghana. In connection with the latter I wrote my first
book, CONSTITUTIONAL LAW OF GHANA (Butterworths 1962).On
retiring from practice at the Bar in 1994 I resumed academic work
at Oxford University, where I am a member of the Law Faculty and
a research associate of the University’s Centre for Socio-Legal
Studies. Earlier I was the first lecturer and tutor in law at
St Edmund Hall, a college of the University. I have all-round
experience of statute law and interpretation. In 1948, while studying
for the Bar, I was employed as an editor of HALSBURY'S STATUTES.
I have had teaching experience in Oxford University and as a lecturer
in statutory interpretation for the Council of Legal Education
training Bar students. My other books include three on statute
law and interpretation: STATUTE LAW (3rd edn 1990), STATUTORY
INTERPRETATION (4th edn 2002), and UNDERSTANDING COMMON
LAW LEGISLATION (OUP, 2002). I wrote the STATUTES
title in Halsbury’s Laws of England, and have also
written many articles etc on the subject.
Introductory
In connection with the examination
of the Bill by the Committee a consultation website has been set
up.1 It
invites comments on the following basic question: If a Supreme
Court is established, should it be financially and administratively
independent of Government? The website continues by pointing out
that while the Bill proposes that the new Supreme Court will be
separate from Parliament and Government, it also proposes that
there will remain a number of “ties” to the Secretary
of State for Constitutional Affairs. It says that these include-
the Court’s budget being part of the annual budget of
the Department for Constututional Affairs (DCA);
the Secretary of State for Constitutional Affairs retaining
some role in the appointment of Supreme Court judges;
the Secretary of State having a role in disciplining judges;
the Court being answerable to the Secretary of State for
its administration;
the Court’s rules being subject to regulations drawn
up by the Secretary of State.
Each of these five “ties”
is a relic of the old system under which the judiciary, together
with the legislature and the executive, were treated as an emanation
of the Crown and, in relation to the judiciary, the Crown was
represented by the Lord Chancellor. Retaining the five “ties”,
and having them operate through the Secretary of State seems to
be an attempt substantially to retain the position and functions
of the Lord Chancellor under a different name.
Historical
Here it is necessary to remember that historically the executive
and the legislature, together with the judiciary, were emanations
of the Crown and operated within a royal palace, the Palace of
Westminster. Following Magna Carta, which anchored them in one
place, the superior judges sat in Westminster Hall. Parliament
still sits in the Palace of Westminster. In their judicial capacity,
so do the Law Lords. The executive now operates close by, in and
around Whitehall, the site of another royal palace. In all this
one might remember the words of Blackstone-
‘A court is defined
to be a place where justice is judicially administered. And, as
by our excellent constitution the sole executive power of the
laws is vested in the person of the sovereign, it will follow
that all courts of justice, which are the medium by which the
sovereign administers the laws, are derived from the power of
the Crown. For, whether created by act of parliament or letters
patent, or subsisting by prescription, the only methods by which
any court of judicature can exist, the consent of the Crown is
expressly, and in the latter impliedly, given. In all these courts
the sovereign is supposed in contemplation of law to be always
present; but as that is in fact impossible, the Crown is there
represented by the judges, whose power is only an emanation of
the royal prerogative.’
2
For those steeped in these constitutional principles it did not
seem surprising or awkward when in certain respects the judiciary
deferred to the legislature or the executive deferred to the judiciary,
since they were all part of the unity that was the Crown. Under
the present reforms it seems that ancient unity is to be broken.
Or is it? Nobody quite knows, a constitutional incoherence that
bodes ill.
Allocation of state legal functions
In a 2003 article3
I pointed out that in the United Kingdom – or any other
common law country – certain state legal functions need
to be carried out and financed. I identified 33 functions, falling
into six groups. The group headed “Judicial Functions”
comprised the following eight items-
1. Acting as a judge (including
magistrates and other judicial officers).
2. Appointment, promotion, disciplining and dismissal of judges.
3. Framing and administering other conditions of service of judges.
4. Initial training of, and periodic refresher courses for, judges.
5. Formulating proposals for reform of legal and court procedure.
6. Drafting reforms of legal and court procedure.
7. Provision and administration of court buildings and plant.
8. Appointment, promotion, disciplining and dismissal of ancillary
staff.
On the question of how judicial functions
are to be financed, the article said-
“Here we come to the
crunch. At present judicial services in the United Kingdom are
financed by the Treasury, directed by a senior cabinet minister,
namely, the Chancellor of the Exchequer. If he considers that
too much is being spent on legal aid or court buildings, then
it is reduced. But no public service can be truly independent
unless it has control of the purse strings so far as affects its
functions.”
1.
The URL is http://www.tellparliament.net/constitution/node/view/9.
2.
William Blackstone, Commentaries on the Laws of England (Oxford,
1768) III 23-24.
3. The Commonwealth
Lawyer Vol 12, No 2, August 2003, page 31. For the text of the
article see http://www.francisbennion.com/doc/2003/003/requiem-for-a-chancellor.htm.
