Examination of Witnesses (Questions 1
- 19)
TUESDAY 23 JANUARY 2001
THE RT
HON LORD
IRVINE OF
LAIRG, QC, AND
SIR HAYDEN
PHILLIPS, KCB
Mr Winnick
1. Lord Chancellor, Sir Hayden, good morning
and thank you very much for coming along, we are always pleased
to see you both. Apologies from the Chair of the Committee. Unfortunately,
Robin Corbett has not been able to come along today due to illness
and he had been looking forward to chairing this session for a
great while. I understand, Lord Irvine, that you want to make
a statement. We have had a paper circulated. Could I just ask
insofar as it is possible if you could make it as briefly as possible.
(Lord Irvine of Lairg) Chairman, I am
content not to make it at all if you just wish to read it. The
purpose of it was simply to draw to your attention important issues
that are in prospect but may not yet have gone on to your radar
because naturally you will be more concerned with contemporary
and current issues. What I really wanted to point out is that
we will be receiving two major reports shortly both of which I
think will be of very great interest to this Committee. The first
you probably know a certain amount about, the second not much
is known about. Lord Justice Auld is conducting the first ever
review of the criminal courts system from end to end. It was clear
from his published interim report which he put on the Internet
in October that he had in mind very radical changes. Things he
was looking at include: a unified criminal court with common rules
of evidence and procedure; a reassessment of the level of trial
required for charges of varying seriousness; a thorough going
analysis of the jury system; the codification (a very large project)
of the whole of criminal law; and an assessment of the law of
evidence to ensure that there was a fair balance between the interests
of the prosecution, the defence and victims. The second, which
I think very much less is known about, is a report from a retired
Court of Appeal Judge Sir Andrew Leggatt on administrative justice
and this is on the vast array of administrative tribunals. Tribunals
have not been examined thoroughly since Oliver Franks' Royal Commission
in 1957. The number has increased very substantially. It is now
91. The workload is amazing and it is larger than the whole of
the civil courts put together. It includes employment, immigration,
social security, education. It handles about one million cases
a year and there are about 15,500 members and staff. So it actually
handles more business than the civil courts which handle about
750,000 a year. It is a disparate, diverse system which has grown
like topsy in which responsibility for different tribunals is
spread across a number of government departments and in which
responsibility for appointments is divided between me for judicial
members and other government Ministers for lay members, and that
creates problems. Staff also are capable of suffering from not
working in a large unified organisation with greater career opportunities,
and economies of scale in accommodation are obviously not capable
of being realised because administrative justice is not unified.
I just thought I would flag that up for you because it is a big
future issue. I hope that by March I will be able to announce
the appointment of the First Judicial Appointments Commissioner—and
maybe you will want to ask me questions about it—and he
will be entitled to investigate every appointment, every piece
of paper, every assessment, every opinion, attend all or any interviews
he chooses and attend the meetings that I have on appointments
with the most senior judiciary. Then on 1 April two new organisations
come into effect: CAFCASS, the Children and Family Courts Advisory
and Support Service; and then the Public Guardianship Office,
succeeding the PTO. So both of these are big business and I wanted
to flag them up. I will say no more because I appreciate the purpose
of my being here is to answer your questions.
2. Thank you very much, Lord Chancellor, and
undoubtedly some of the matters which you have raised will be
the subject of questioning. Can I ask first regarding part II
of the Family Law Act 1996, as I understand it, it was decided
to drop the no-fault divorce changes. That is the position, is
it?
(Lord Irvine of Lairg) The consequence certainly will
be that the no-fault provisions will not be introduced. The way
I would prefer to put it, however, is that we took a decision
not to implement part II of the Family Law Act because we believed
that it would be ineffective.
3. It would be?
(Lord Irvine of Lairg) Ineffective to achieve its
purposes. A large part of its purpose was to try to give people
information through information meetings about how to save their
marriages and, on the other hand, about how to divorce if they
wanted to divorce and therefore the information meetings were
set up to achieve, if you like, two conflicting purposes. But
all the evidence was that it simply did not work and I can give
you details about it if you wish.
4. No doubt you can circulate a paper to us
if you wish. The point that perhaps has been made arising from
the decision is that the difficulty was over compulsory mediation
and that element, compulsory mediation, was put in because, if
you like to use the phrase, the anti-divorce lobby felt it was
necessary. Would you like to comment on that?
(Lord Irvine of Lairg) It was not compulsory mediation,
and mediation was never going to be compulsory, but you are right
in the sense that it was hoped that the information meetings would
result in more mediation. The facts are, however, that information
meetings generally came too late to save marriages and the evidence
was they tended to tip into divorce those who were even uncertain
about whether to divorce. But on your specific point about mediation,
only seven per cent of attendees went on to use mediation in the
seven months following the information meeting compared to an
expectation before the research that as many as 40 per cent of
couples would be diverted into mediation. In contrast, 59 per
cent went to a solicitor in the same period. The other thing I
can say is, and I have already mentioned it, that there was consistent
tension between presenting in one and the same meeting information
about marriage saving and information about how to handle a divorce.
The other point that I think is quite interesting, again it is
directly on your question on the promotion of mediation, only
42 per cent of attendees were in favour of mandatory meetings
although attendees at these pilots were volunteers and not conscripts
as they would be if part II had come into effect and mediation
had become mandatory. I think all the information that we as a
Government derived from these information meetings is that they
were pretty bitterly resented as the "nanny state" in
action.
5. Could it not be said, Lord Chancellor, that
however much it is unfortunate, it is a fact of life that when
marriages break down the likelihood is, with all the bitterness
that unfortunately accompanies a breakdown of the closest possible
bond between two people after childhood, that the chance of mediation
being successful was always a remote possibility?
(Lord Irvine of Lairg) I think that is fair and the
architects of part II obviously hoped otherwise. It was a perfectly
pious and responsible hope, but it simply has turned out the other
way. You might be interested, if I could just read to you something
that one of the attendees wrote complaining about the rigid and
impersonal structure of the meeting. One of the attendees is quoted
in the research as saying this: "I am very glad that I received
the information pack but the meeting was an absolute disaster.
It was not what I was expecting. Its time limit was strictly adhered
to so there was no time for my own concerns. I was not able to
make any comments about my own situation. The presenter told me,
`You have no idea the number of people who go away absolutely
furious because their expectations have not been met.' I thought,
`How can they do this to me when I am very vulnerable and could
do with some help?'" That is not a straw in the wind, there
were many such responses.
6. Some of us have been through it. Just as
a matter of interest, I was reading only in the last fortnight
Evelyn Waugh's novel, A Handful of Dust, which deals, as
you may know, with divorce—a brilliant piece of writing—and
it gives an indication in the 1930s of how difficult it was for
a divorce to take place. The next question that I would like to
ask, if I may, is do you feel, Lord Chancellor, the decision of
the Employment Tribunal last week vindicated your appointment
of a special adviser?
(Lord Irvine of Lairg) I have always abstained from
commenting about this decision when it went against me in the
Employment Tribunal and I think I should really continue to abstain
from comment when it has gone in my favour. The two applicants
concerned got leave to appeal. The case may well go to the Court
of Appeal. I think I would probably be very wise to say nothing.
But I do really think that there is a point of commonsense here
which I hope will engage the sympathy of the Committee. The relationship
between any Cabinet Minister and his special adviser is really
one of very considerable trust and confidence because of the access
that that special adviser naturally has to the inner most workings
of government, and that is true of special advisers generally.
And the view that before you appoint someone he or she must be
someone whom you have known for a very long time or a substantial
period of time and have trust and confidence in, I think does
command sympathy and understanding and, indeed, agreement by the
overwhelming majority of people. Beyond that I do not really want
to say anything about the niceties of the case.
7. We will not press you on personalities and
indeed I would be very reluctant if any member of this Committee
does so, although I understand Mr Howarth wants to ask a question
or two in a moment. Leaving aside personalities, it is said that
you were the first Lord Chancellor—perhaps this is not so
- to have a special adviser. Is that the position?
(Lord Irvine of Lairg) I believe that that is so,
yes.
8. Why did you need a special adviser when your
predecessors seem to have been able to get along without one?
(Lord Irvine of Lairg) I am sure that it has been
noticed by some people that I have got quite heavy burdens in
government and during my Lord Chancellorship I have had responsibilities
which have been given to me across a very broad area of policy.
In a sense I have been lucky because I think that if there had
been a major programme of constitutional reform under any of the
predecessor governments post-War of whatever political party,
the probability is that the Lord Chancellor of the day would have
been asked to chair the Cabinet committees concerned with the
development of policy and, of course, everything that lies behind
such Cabinet committees and seeking consensus within government.
But it was unique for me and I think that it therefore gave a
greater breadth to the office and a greater political dimension
which made it entirely appropriate to have a special adviser.
9. Did you work at all on the basis that senior
Ministers, certainly in the previous government as well as the
present one, have special advisers, and there is no controversy,
as I understand it, about that and therefore you said, "With
my burden of work"—which you have just mentioned to
us—"there is no reason why I should not have one?"
Was that your reasoning?
(Lord Irvine of Lairg) It was certainly not "me
tooism". It was because I felt I could gain from the wisdom
and experience of this particular special adviser in accepting
important duties.
10. I said we would not discuss personalities,
but when it came to the appointment you did not think it should
be an open one?
(Lord Irvine of Lairg) No, and no special adviser
across Whitehall is appointed by means of an open competition.
Mr Winnick: That is indeed so. Mr Howarth?
Mr Howarth: I am sorry to disappoint you but
I would like to say I agree entirely with what you have said,
Lord Chancellor, about the nature of the appointment.
Mr Winnick: That does not necessarily mean,
Lord Chancellor, that you are wrong!
Mr Howarth
11. I did not interrupt you, Chairman! It is
one thing for a Lord Chancellor to have a special adviser but
if it is accepted that he should, for the reasons you have given,
have a special adviser, then it seems to me that that special
adviser should be your appointment for all the reasons you have
given. Personally, and you may or may not comment as you wish,
I think it is absolutely outrageous that some tribunal should
try to second-guess your choice and your judgment for the very
reasons you have given. I do not know if you want to respond.
I would like to take you back to family issues if I may—
(Lord Irvine of Lairg) I am not going to complain
about an Employment Tribunal that chose to find against me.
12. But I think it is important in the wider
debate to make the point that the relationship between a Minister
and a special adviser is much like the relationship between a
Member of Parliament and their researcher or secretary, and it
is of a personal nature where there must be total trust otherwise
you cannot do the job.
(Lord Irvine of Lairg) I can agree with all of that.
13. Lord Chancellor, I would like to go back
to family policy, if I may, and take you slightly beyond the narrow
issue of divorce to the debate which was initiated by Baroness
Young in your House last week. Can I put it to you that there
clearly is, if not chaos, certainly complete inconsistency in
the Government's view on marriage and family policy. If I can
put it to you, you said: "A loving marriage between two parties
of the opposite sex provides, for the overwhelming majority in
our country, the best assurance of a happy personal life and provides
the surest foundation upon which to raise a successful family",
words which effectively mirror the Government document Supporting
Families where the Government says: "We do share the
belief of the majority of people that marriage provides the most
reliable framework for raising children." How do you square
that with the remarks by the so-called Minister for Women, Tessa
Jowell who said that: "Marriage could not be regarded as
the best framework in which to bring up children, but simply as
one of a series of equally valid alternative lifestyles."
(Lord Irvine of Lairg) I am not going to comment on
the way that Tessa Jowell chose to put it. I certainly heard in
that debate she had put it that way. I have not read any account
of what she said but I think it is so important in this area not
to sermonise. As I said in the debate, Christ himself never found
words to condemn any loving relationship, he reserved his strongest
language for the self-righteous, and I think we should not be
self-righteous on this subject.
14. It is not a question of being self-righteous.
It is a question of the government having responsibility for framing
laws in this country which do impinge on personal life and one
has a choice, does one not, as to whether those laws will be based
on the Christian code—and the marriage ceremony makes it
absolutely clear that it is supposed to be a life-long commitment—and
it just seems to me that you cannot simply dismiss Tessa Jowell's
remarks by saying, "I have not read them." I think you
ought to read them because these views are sending out conflicting
signals to the public.
(Lord Irvine of Lairg) I would not myself condemn
any loving and stable relationship. I have affirmed my own view
that marriage is the best and securest basis for bringing up children,
and that is my view. If you want me to be even more direct about
it, I regard marriage as best for me but I am not going to lecture
others about what is best for them, and no matter how many different
ways you put the question that is what I am going to say.
15. If you regard it, as Lord Chancellor of
England, as being the best foundation, and that is what you have
said and that is the Government's policy in the supporting documents,
if you recognise that every single report that has been produced
examining this issue has shown conclusively, incontrovertibly
that marriage provides the best framework for bringing up children
in terms of health, in terms of social well-being, in terms of
crime, how can the Government sit on its hands when, frankly,
we are descending into social disorder in this country, where
by the year 2020 it has been suggested that less than half the
population will be living in married households? Is this not a
recipe for disaster?
(Lord Irvine of Lairg) I am not going to condemn the
people who choose to live together without marrying and provide
stable homes for children. So—I repeat—any form of
this question that you ask me will receive the same answer, and
that is that I regard marriage as best but I am not going to condemn
those who choose a different lifestyle. My Department provides
funding of £4 million towards marriage support and we have
increased these figures recently. That is clear evidence of support
for marriage, but I am not going to condemn people who choose
an alternative mode of life.
Mr Howarth: Can I just finish this point.
Mr Winnick
16. I am going to quote what the Lord Chancellor
said on 17 January. You quoted Nigel Evans, a front bench spokesperson—
(Lord Irvine of Lairg) That was a spot of fun.
17. You did quote him in a pamphlet which he
launched when he said, `Conservatives should therefore support:
an equal age of consent, the abolition of Clause 28, and the right
of Gay marriage.'
(Lord Irvine of Lairg) That is what I quoted and I
asked Baroness Young if she could confirm (I think Nigel Evans
is a Vice Chairman of the Conservative Party) that that was the
Conservative position when she came to reply but she did not cover
that.
Mr Howarth
18. Perhaps I could assist the Lord Chancellor.
It is my understanding that this somewhat eccentric view does
not represent in any way official Conservative Party policy and
I think the Lord Chancellor knows that perfectly well, as he was
good enough to tell the Committee that he was having a spot of
fun.
(Lord Irvine of Lairg) I do think it does show, when
dealing with someone as senior as Nigel Evans is, that on this
subject the Conservative Party is a broad church.
19. Can I take you on because this is a serious
issue, and I am not trying to score partisan points because I
chair something called the Lords' and Commons' Family Protection
Group, as you probably know, and I have a genuine concern, as
do many people, particularly Christian groups in this country,
that marriage is being undermined constantly.
(Lord Irvine of Lairg) I do not question your sincerity
and I hope you are not questioning mine.
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