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.