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At just one year old, the Supreme Court is facing potentially massive cuts – so can it still justify its role as public educator? Lord Phillips explains to Jean-Yves Gilg why it should

19 October 2010

Lawyers were stunned to see the Supreme Court on the list of quangos possibly heading for the guillotine a fortnight ago. Nobody really believed the justices would soon be packing their wigs and crossing Parliament Square back to the House of Lords, but it was a relief to hear last week that the court had survived the cull.

Why the Supreme Court – which is hardly a quango and was only established just over a year ago – appeared on the list in the first place is not clear, but it highlights two things. First, that the new court is financially accountable in a way the law lords weren’t, and, second, that the move to the refurbished Middlesex Guildhall can still come across as a project promoted by politicians seeking to secure their place in history.

Unlike the law lords who lived in the sheltered cocoon of parliament, the justices now fall within the jurisdiction of the Ministry of Justice and come in for closer scrutiny.

Lord Phillips accepts that this makes the court more vulnerable to the vagaries of the economic climate but he says it is a worthwhile price to pay for its status as the recognisable highest court in the land.

“To date it has been shielded from government cuts by its very nature but we are no longer under the umbrella of parliament so far as running expenses are concerned,” he says. “Equally, we have much better facilities so we have benefitted from the move in that way. But in relation to financial pressure, we are more exposed than we would be if we were still in parliament.”

Like all public bodies and organisations, the court has been asked to cut its budget and put forward two scenarios: one based on 25 per cent cuts, and another based on 40 per cent cuts. The difficulty for the court is that 60 per cent of its £12.5m annual budget are fixed costs. The largest part of this is the rent on the building and the salaries of the justices. “So unless you reduce the number of justices,” continues Lord Phillips, “the scope for cuts is rather limited.”

Public perception

But he dismisses the suggestion that the move was an unnecessary vanity project, emphasising instead how important it is in constitutional terms for the court to be seen as independent from the legislature and the government.

Numerous cases, from control orders to assisted suicide, have demonstrated that the law lords were not afraid of rubbing the government and the legislature the wrong way, but public perception of independence is paramount, he says.

“The man on the street didn’t understand who the law lords were and certainly didn’t necessarily appreciate that they functioned completely independently of the legislature – and of course our legislature is not independent of the executive,” he says. “So those who had promoted the establishment of the Supreme Court, including Lord Bingham, were very anxious it should be established on a formal basis.”

Was this objective sufficient justification for the £58m it cost to transform the Middlesex Guildhall? Lord Phillips acknowledges the sum is significant but, he says, “in ten or 15 years we’ll look back and we’ll find it astonishing that it didn’t happen earlier”.

It is perhaps not too surprising then, that the president should be keen to raise the profile of court. He mentions the US Supreme Court as an example of a judicial institution which is part of everyday life and naturally gets a lot more media exposure than his court. “They’re dealing with cases of great general interest. Everybody in the US knows about the Supreme Court and the individual members of the court are public figures,” he says. Apparently Associate Justice Sonia Sotomayor, who was appointed in August last year, says she now has to factor in an extra 20 minutes when she goes to the carwash because people ask to take pictures of her.

“We wouldn’t want it to develop in that way,” Lord Phillips exclaims, and he says there is “simply no comparison” with the US Supreme Court because “our powers are different”.

That may be so, but cases previously heard in the House of Lords and now in the Supreme Court have attracted growing media interest. And with the vast majority of its cases now dealing with public law, including human rights law, the new body is bound to attract more attention. In addition, although the court cannot strike down legislation before it is enacted, it has the power to curb the words of a statute to render it compatible with European Union law or the Human Rights Act, and even to disapply provisions that are incompatible.

“It is our job to make sure that administrators act within the law, and our job more recently, under the European Communities Act and the Human Rights Act, involves scrutinising legislation to decide whether it is compatible with the UK’s international obligations,” Lord Phillips says.

Educational enterprise

So surely this brings the court within seven levels of a constitutional court? “These are new developments in the role of what was the House of Lords and is now the Supreme Court, and the public is becoming more aware [of our powers] and so we are getting a higher profile, as, in effect, a constitutional court.”

For the time being, however, he is happy to cite the number of visitors to the building since it opened: 50,000, as well as nearly 200 school parties, and 19,000 visitors to its website. In August the building had 900 visitors a week, he adds.

He is visibly proud and flatly rejects the suggestion that this emphasis on casual visitors reduces his institution to a tourist attraction on a par with Madame Tussaud’s. “I don’t think it’s quite the same,” he laughs, “because here visitors are learning; they learn about our work and can even practice being a justice in our learning centre.”

But he is also aware that this educational enterprise is the court’s Achilles heel in the forthcoming round of cuts. It requires staff, it requires maintenance, and it requires the court to be open even when the justices are not hearing cases. If the prime objective of the move to the new court was to make sure that it would be easier for the public to see justice being done, then surely this objective would be met if the court was only open when the justices are in session.

“I am very anxious that we shouldn’t make economies that stop us doing the job we were intended to do when we moved here, which is not merely deciding cases but doing so in a way which is open to the public,” he says.

“I’m apprehensive that we will come under pressure to cut back on that kind of activity on the basis that it’s not essential. It’s not essential but it’s one of the reasons why the move was made and it would be a very unhappy state of affairs if we had to take emergency measures that would result in closing our doors to the public except when we’re sitting.

“Yes, we could close the building when we’re not sitting,” he says, “but it would be a great pity. It’s a very good educational tool. In a way, we would be wasting the investment.”

Jean-Yves Gilg is editor of Solicitors Journal