Examination of Witnesses (Questions 40-59)
RT HON
LORD FALCONER
OF THOROTON,
MP, AND SIR
HAYDEN PHILLIPS
GCB
30 JUNE 2003
Q40 Chairman: When you decided that
the flagship for the British legal system would be the immediate
creation of the Supreme Court you made an announcement and then
said in a month's time you would issue a consultation paper.
Lord Falconer of Thoroton: The
effect of the announcement is saying "This is what we want
to do, a consultation paper will be how one does it".
Q41 Peter Bottomley: Was it agreed
before the reshuffle?
Lord Falconer of Thoroton: Was
what agreed before the reshuffle?
Q42 Peter Bottomley: The point we
have been discussing?
Lord Falconer of Thoroton: Agreed
between whom?
Chairman: Anybody?
Q43 Peter Bottomley: The Prime Minister,
your predecessor Lord Chancellor, you as Lord Chancellor? Up to
the time of the reshuffle, the Lord Chancellor was defending present
arrangements, including for that matter his vote on the Appellate
Committee of the House of Lords. The question the Chairman was
asking—and this is a gentle session, it is not getting at
you, it is asking a question—was there discussion the day
before the reshuffle about this change to the supreme element
of our judicial system?
Lord Falconer of Thoroton: Up
until twenty to five on Thursday 12 June I was the Minister of
State in the Home Office. I am not able to fill in the details
of discussions that went on in the weeks and days before.
Chairman: Perhaps Sir Hayden can help
us on that?
Q44 Ross Cranston: I think that is
unfair.
Sir Hayden Phillips: I am grateful
for this protection. My protection officer on the right is helping
me. It would not be right for me to go into that, that is not
something it would be right for me to do. What I can say are two
things, I think. First of all, as you know, in relation to a number
of the measures on which we are consulting Lord Falconer's predecessor
told this Committee that we were going out to consult on those.
In relation to a Supreme Court, this has been discussed inside
and out of Government over a very long time and it is not surprising,
therefore, that in the year 2003 the Government should have come
to the conclusion that it felt the present position was no longer
appropriate.
Q45 Chairman: On 25 May the previous
Lord Chancellor wrote to the Chairman of this Committee to say
that he was issuing a consultation paper on questions such as
whether it would be desirable to make certain kinds of changes,
in this case judicial appointment. These things have been in matters
of general debate but so major a change is the creation of a Supreme
Court it is surely something you would float as a Government for
discussion rather than simply announce that as part of the reshuffle
this is going to happen?
Lord Falconer of Thoroton: The
announcement was made on the same day as the reshuffle. It is
part of the process of removing the Lord Chancellor from judicial
activity because currently the Lord Chancellor sits in the Appellate
Committee of the House of Lords.
Q46 Chairman: And you would resolve
that by saying it would not sit anyway, would you?
Lord Falconer of Thoroton: Yes,
exactly right. Surely the effect of it is that you give huge momentum
to a policy that the Government thinks is right. You can say perhaps
you should have had a consultation paper. Is not the right thing,
with respect, that we should be debating whether it is the right
policy?
Q47 Peter Bottomley: Would it be
simpler to say after this meeting, not today, not necessarily
in a rush, as the Lord Chancellor or the Secretary of State for
Constitutional Affairs, you will write to us saying what discussions
there were between Cabinet ministers or members of the Government
before 12 June on this significant change? Would that not be helpful?
Lord Falconer of Thoroton: Peter,
I am not sure that would be either right or appropriate. The idea
that internal discussions within Government about a particular
policy should be given to a Select Committee I am not sure is
either normal or the way that proceedings would normally go ahead.
Q48 Peter Bottomley: But if it turned
out that the previous Lord Chancellor did not know that the Government
was contemplating this, what is the point of having a Secretary
of State for Constitutional Affairs or a Lord Chancellor if he
has these discussions hidden from him? I do not want to build
that up too much now because other things are running, but it
does seem to me that perhaps the Lord Chancellor and the Secretary
of State for Constitutional Affairs should decide about whether
it is possible to let us know whether government ministers did
discuss this openly before 12 June.
Lord Falconer of Thoroton: There
is no basis upon which you could draw the inference that you have
said is a possibility, is it correct that what the Government
should do is reveal all internal correspondence and debates—The
Chairman is helpfully shaking his head.
Q49 Chairman: He just wanted to know
whether there was any.
Lord Falconer of Thoroton: I am
sure there was.
Q50 Chairman: Perhaps someone will
show it to you.
Lord Falconer of Thoroton: That
answers the question.
Chairman: I do not think you know whether
there was, which rather confirms our impression that it all came
off the back of the reshuffle, that is really the concern that
we are expressing. I think Mr Soley has a supplementary on this
very matter.
Q51 Mr Soley: Although I can accept
that there may have been internal Government discussions, is it
not a fact that this has been discussed? It was part of the Labour
Party's policy for many years that there ought to be a Supreme
Court and there ought to be an independent appointments system
which is also in the Joint Committee of the two Houses on House
of Lords' reform. All of those things are there, are they not?
Lord Falconer of Thoroton: They
are. It is Hayden's point that it is a matter that has been discussed
over a long period of time. It has been, as Clive says, part of
my party's policy for years that there should be such a Supreme
Court. The effect of the announcement on the 12 June is that it
is now likely to happen.
Q52 Mr Soley: As someone who was
involved in those discussions throughout the 1990s, would he be
aware that I and others were discussing the importance of separating
out this role for many years and we thought we ought to do it
and we have said we ought to do it? How and when, it is true,
we left slightly open.
Lord Falconer of Thoroton: Indeed.
The Prime Minister would have been aware of that, my predecessor
would have been aware of that and it would have been well known
to members of the Government. As you say, the question is how
and when.
Q53 Mrs Cryer: This is just an absolutely
personal query. Are you aware that we had before this Committee
about two months ago a chap from the Netherlands called Erik Jurgens
who is a professor in constitutional law, he is also a senator
and he was a colleague of mine on the Council of Europe. He did
a report on the position of the Lord Chancellor's Department and
he came to tell us all about it and it was mainly to do with the
fact that we did not have a separation of powers and what were
we going to do about it. What he said was that if we did not move
towards the separation of powers they would be passing some form
of resolution at the Council of Ministers of the Council of Europe.
He also said that were we to be applying at this moment to join
the Council of Europe they probably would not let us in. I just
wondered if you were aware of any of this.
Lord Falconer of Thoroton: I was
not aware of that until after 12 June.
Chairman: But you were not aware of the
correspondence either!
Q54 Mrs Cryer: I was thinking perhaps
Sir Hayden may have done so.
Sir Hayden Phillips: I am well
aware of that and we obviously gave him evidence.
Q55 Chairman: Which you may now wish
to retract.
Sir Hayden Phillips: It set out
the historic value of the office of Lord Chancellor, which all
of you appreciate and are very pleased with its history. We were
aware of those views. When we have been dealing with the Council
of Europe and this debating point has been raised with us before,
we have always said when we go around to other countries, particularly
newly emerging democracies in Central Europe, we say: "Don't
do as we do. What you need is something quite different."
We have been absolutely clear about that under Lord Falconer's
predecessor and before so that we were not going around trying
to preach to people that what we had was right.
Q56 Mr Soley: Is it not also right
that a number of countries particularly in east Europe were asking
if they could be allowed to do it the way the British did it,
in a slightly modernised version? Is that not right?
Sir Hayden Phillips: Yes, I think
that is right.
Chairman: I do not think you should assume
from our careful probing of the way this matter was progressed
that all members of the Committee are hostile to the proposals
themselves, quite the contrary in several cases. Even the best
friends of this proposal might have hoped for a better start for
it, but let us move on.
Q57 Keith Vaz: I should declare that
I am a non-practising barrister and my wife holds a judicial appointment.
Lord Chancellor, are you happy with your job?
Lord Falconer of Thoroton: Yes,
I am happy with my job.
Q58 Keith Vaz: Is it the job you
have always wanted?
Lord Falconer of Thoroton: Is
that a reference to the Secretary of State for Constitutional
Affairs or Lord Chancellor? It is a job I am happy with.
Q59 Keith Vaz: You have held six
appointments in six different positions since you entered politics.
You were a leading QC before you came into Government. Does it
irritate you when people like my colleague Mr Field mentions the
flat sharing 30 years ago?
Lord Falconer of Thoroton: I hardly
noticed it. I think I am sort of immune to it now.
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