Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 1 - 19)



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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