Examination of Witnesses (Questions 20-39)
RT HON
LORD FALCONER
OF THOROTON,
MP, AND SIR
HAYDEN PHILLIPS
GCB
30 JUNE 2003
Q20 Ross Cranston: Sitting in the
legislative bit and just listening to debates or being there when
debates went on. Of course the European Committee of the House
of Lords has been presided over by a Law Lord for many years,
and many good reports have been produced as a result.
Lord Falconer of Thoroton: Yes.
Q21 Ross Cranston: Now there is an
argument—and Lord Cooke is not the only one—in favour
of the existing system, so what is the rationale for change?
Lord Falconer of Thoroton: Obviously
there are arguments both ways but as a government we have come
firmly to the view that the right argument is that you should
separate the final Court of Appeal from the legislature, it is
wrong that the two are together. You could make the same arguments
about how useful it would be for judges to have more experience
of the way that the Executive operated but patently you could
not make them a member of the Executive. We think, as Lord Bingham
and Steyn have argued very persuasively, that you should clearly
separate the two. The difficulties of the final Court of Appeal
being in the legislature are to some extent revealed by the statement
that Lord Bingham made on behalf of the Law Lords in the year
2000 indicating those things they would speak on in the Lords
normally, and those things they would not normally speak on in
relation to the Lords. The two things they said they would not
normally speak on were things involving strong party political
dispute or things that they might come to have to decide themselves
in court sitting as a judge. Now, since June 2000 one can see
a large number of areas where they have spoken where it is very
difficult to know precisely where the line should be drawn, far
better, we think, that there is clarity between what is the final
court and what is the legislature. I recognise what Lord Cooke
said but I think it is the wrong argument.
Q22 Ross Cranston: We could have
a long debate about separation of powers and so on and how Montesquieu
got it wrong and Locke is often invoked, but I think Lord Cooke
pointed out that Locke was not really concerned about the judiciary,
he was concerned about the dispute between the Executive and the
legislature. He said if there was a clash one appealed to the
people or one went to heaven. Maybe the Supreme Court is going
to be the new heaven; I think we can debate that. I think Lord
Cooke's argument was that by a process of osmosis, not necessarily
participating but just being there, one could pick up an appreciation
of some of the problems of government.
Lord Falconer of Thoroton: No,
I understand that but the only way that occurs is because they
are participating members of the legislature. Those who are actively
sitting in the House of Lords, perfectly legitimately under the
current system, also express views as legislators now as well
as sitting on the final Court of Appeal. Of course it is good
that they get experience but it is more than getting experience,
it is actually about actively participating in the legislative
process.
Q23 Ross Cranston: Can I take you
to the next step then. Assuming that the issue is foreclosed,
Lord Bingham in his lecture to the Constitutional Unit set out
a number of models. Now what are we going to be looking at? Are
we going to be looking at a Constitutional Court in the American
sense? Are we going to be looking at something like the Luxembourg
Court? Are we just going to be transferring the House of Lords,
as it is, into a different sort of building and cutting them off
from legislative business? What are we looking at?
Lord Falconer of Thoroton: I think
Lord Bingham in his lecture identifies four possibles. He says,
first of all, it could be a constitutional court. We are not looking
at a constitutional court like the Supreme Court in the United
States of America. We are not looking at a court that can overturn
British legislation. Equally to try and identify a "constitutional
court" in the way that you have in other countries is very
difficult because the constitution of our country is not in one
place, there is no one constitutional document, our whole law
to some extent is our constitution. So to describe it as a constitutional
court I think would be very, very difficult. We will obviously
deal with this in the consultation document but I see it as very
difficult to identify it as a constitutional court in that sense.
The second model he identifies is the sort of Luxembourg model
where preliminary points of law without reference to facts are
put to the court. Again that is very antithetical to the way that
our courts normally decide things because they have traditionally
found it very difficult to decide things in a vacuum because to
give principles without facts proves very difficult.
Q24 Ross Cranston: It is contrary
to the whole notion of the common law, is it not?
Lord Falconer of Thoroton: Exactly,
which develops in a more evolutionary way. So, again, I am not
sure that model is necessarily an attractive one. The third model
is to say amalgamate what the Appellate Committee of the House
of Lords does with the Judicial Committee of the Privy Council.
Obviously what the Appellate Committee of the House of Lords does
should be dealt with by the Supreme Court, what about the Privy
Council? Well, I do not think the Supreme Court can do the appeals
from Commonwealth jurisdiction, they are obviously going to go
down because New Zealand wants to withdraw and various other Caribbean
countries want to withdraw. The Judicial Committee of the Privy
Council until April of this year did medical appeals, that has
now gone to the High Court, that has reduced. There are various
other more minor things but the other major thing that the Privy
Council does is devolution issues. Now I think we need to consider
very seriously whether or not the Supreme Court should do devolution
issues. It was not given to the Appellate Committee of the House
of Lords at the time of the devolution settlement because it was
thought it would be wrong for Parliament which might under a devolution
issue be at odds with the Scottish Parliament and the National
Assembly, it should be resolving, as it were, an issue with which
it was a party but that goes once you have a Supreme Court away
from Parliament. We should seriously consider, I think, whether
or not devolution issues should go there. So one model is to have
the Appellate Committee of the House of Lords jurisdiction along
with the Privy Council's devolution jurisdiction put into the
Supreme Court. The fourth model, again of the ones that Lord Bingham
suggested, was for it to take over the Appellate Committee jurisdiction
only, and we would obviously have to consider that.
Q25 Ross Cranston: So the bottom
line, in a way, is very much a continuation of the existing arrangements,
not a constitutional court, not a court of reference but possibly
having the devolution jurisdiction?
Lord Falconer of Thoroton: Yes,
but that is in terms of the jurisdiction of the court. I think
in addition to all of that would be the fact that we would have
a Supreme Court properly resourced with proper research facilities,
with the proper ability to deliver the kind of service to those
who make the decisions which other Supreme Courts are able to
give to their jurisdictions.
Ross Cranston: I think that has been
a point of criticism and I did raise it with the last Lord Chancellor,
that the resources do not compare with other high courts.
Chairman: I think we will move into that.
Ross Cranston: Sorry.
Q26 Mr Cunningham: Just to follow
on from that. Whichever model you adopt, do you intend to consult
those countries which still want to retain the right, as it were,
to appeal to the Privy Council?
Lord Falconer of Thoroton: Our
decisions about what to do about a Supreme Court it seems to us
should not affect the right of those countries outside the United
Kingdom which wish to continue to use the Privy Council as a final
Court of Appeal. I think, therefore, we will need to retain the
Judicial Committee of the Privy Council for those countries who
do wish to continue to use it as a final Court of Appeal. I would
not regard our Supreme Court as appropriate for that and I would
not regard the consultation on the Supreme Court as the appropriate
time at which to change that.
Q27 Mr Cunningham: Could you say
something about the current situation regarding the Appellate
Committee of the House of Lords in relation to resources? It is
generally acknowledged that it is under-resourced.
Lord Falconer of Thoroton: Yes,
and indeed I will provide the Committee with the details of it
but the amount of money that is spent on it—I have got the
figure here—total expenditure in 2001-02 was £623,548,
total receipt from fees was £499,000 so as a Supreme Court
it is not quite totally but pretty close to self-financing. It
costs £124,000 net a year and if you compare that with other
countries that is absolutely tiny. It needs to be properly resourced,
it needs to have greater facilities, whatever the particular jurisdiction
that it is going to cover.
Q28 Mr Cunningham: Can you give us
any indication then of what sort of resources you would like to
see? I accept it is early days but nevertheless you must have
some idea.
Lord Falconer of Thoroton: I cannot
give you an indication of what the resources it might need are
because, I think, first of all, you need to know how many people
are going to sit in it, you need to know what its precise jurisdiction
will be and you need to know, also, what the associate or reserve
members of the Supreme Court might be. If—taking up the
answer to Ross's question—one gives it devolution responsibilities,
it is perfectly plain that the people who could sit in a Supreme
Court would need to be of a wider range of people than normally
sit in the current Appellate Committee of the House of Lords because
the Appellate Committee of the House of Lords has I think 12 full-time
members, two of whom are Scots and one of whom is Northern Irish.
If it was regularly hearing devolution appeals it would need to
have to be able to draw on a wider pool than simply those numbers.
Q29 Mr Cunningham: What I am asking
really is would you expect new resources from Parliament or would
you allocate existing resources?
Lord Falconer of Thoroton: No.
On the basis of the figures that I have given you it is inconceivable
that the resources currently spent on the House of Lords Appellate
Committee would fund the Supreme Court of the sort that I have
described, irrespective of how small its jurisdiction might be.
Q30 Mr Cunningham: So you would be
asking Parliament for more resources?
Lord Falconer of Thoroton: We
would be, yes.
Q31 Chairman: You would have difficulty
finding it anywhere else in your budget which is growing at a
rapid pace?
Lord Falconer of Thoroton: I am
just coming to grips with my budget and I think you may not be
a million miles from the truth there.
Chairman: I think Mr Clappison has a
supplementary.
Q32 Mr Clappison: Can I just seek
some clarification from you in the light of the answer which you
were giving to Ross. Can you say what functions you would like
to see discharged by a new Supreme Court, apart from the functions
which are discharged by the House of Lords in the existing arrangements?
Lord Falconer of Thoroton: Going
through the possibilities, we need to consider the extent to which
it takes on the devolution jurisdiction. Essentially what I believe
the Supreme Court should be doing, it should be the final Court
of Appeal from all of the jurisdiction within the United Kingdom.
It should be the final court of law determining legal issues,
in large measure in the way the Appellate Committee of the House
of Lords does at the moment.
Q33 Mr Clappison: Is there any reason
why the Appellate Committee of the House of Lords could not do
that under present arrangements?
Lord Falconer of Thoroton: It
could not unite with the Judicial Committee of the Privy Council
on the devolution issues in the way that I have described. It
does not have the resources that a properly run Supreme Court
should have and it has the current problem, also, about the mixing
of the legislature with the judiciary which I think is inappropriate.
Q34 Mr Clappison: Keeping to functions,
because that last point is totally different.
Lord Falconer of Thoroton: I apologise.
Q35 Mr Clappison: I understand. It
could be given the resources though, could it not, or it could
have been given the resources?
Lord Falconer of Thoroton: I suspect
it is quite hard. You will know better than I that the Palace
of Westminster may not be the place in which you try to expand
the work of the Appellate Committee of the House of Lords into
a better resourced, better funded operation, simply because there
are terrible problems about space.
Q36 Mr Clappison: The upheaval which
there is and the new legislation which there is going to have
to be, do you feel the change in functions really justifies all
that?
Lord Falconer of Thoroton: I do
because I think it is very important that in the United Kingdom
there be this identifiable separate court able to resolve issues
of law, also able to resolve the devolution issues, I believe.
It will be a real flagship for the British legal system which
has consequences both domestically but also abroad.
Q37 Mr Clappison: I hear what you
are saying on the point of separation but, to be fair, the House
of Lords under present arrangements has served the legal system
well, has it not, for a long time?
Lord Falconer of Thoroton: It
has, it has served it very well and there is absolutely no criticism
that I am making on the way that it has gone in the past. The
fact that one could move on and do something perhaps more effective
in terms of resourcing, in terms of the cases that it hears and
in terms of its ability to have standing both domestically and
in the outside world is worthwhile, I think.
Q38 Chairman: If you are trying to
create a flagship for the British legal system, is it not a bit
unhelpful to do it off the back of a reshuffle? The impression
was given that it was simply a matter of allocating responsibilities.
Lord Falconer of Thoroton: I think
it is very important that it be done with clarity and that the
commitment is made because having done it that way we can move
as quickly as is reasonable to set the new arrangement up. The
effect of making the announcement on 12 June in the way that it
was made means that the process will occur and will occur with
reasonable dispatch.
Q39 Chairman: When your predecessor
wanted members of the legal profession to consider how they dressed,
a consultation paper was set out on the subject of court dress.
Lord Falconer of Thoroton: Yes.
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