Examination of Witnesses (Questions 60-79)
RT HON
LORD FALCONER
OF THOROTON,
MP, AND SIR
HAYDEN PHILLIPS
GCB
30 JUNE 2003
Q60 Keith Vaz: There is a view that
the flat sharing arrangement was wrong, that you should have been
Prime Minister and Tony Blair should have been Lord Chancellor!
You have announced and the Government has announced the consultation
on judicial appointments. What is going to be the arrangement
over the next 18 months or three years until this goes through?
Are you going to continue to make these appointments?
Lord Falconer of Thoroton: I will
continue to make the appointments. I have made it clear that I
will continue to perform the functions previously performed by
the Lord Chancellor. I think, pending the setting up of the Appointments
Commission, it is right that there be certainty about how the
process is going to go ahead. The right thing is to continue with
the existing arrangements otherwise there would be uncertainty.
Q61 Keith Vaz: Bearing in mind you
do not think the existing arrangements are right, those who you
appoint may not feel particularly legitimate in their appointment
considering the whole process is going to change.
Lord Falconer of Thoroton: I think
it is important that an Appointments Commission be set up. I do
not think there is a realistic alternative to continuing with
the existing arrangements because any attempt to try to create
some sort of interim position will simply complicate and confuse.
I think the right thing to do is to be absolutely clear we are
going on as before, recognising—because it is implicit in
the determination to have an Appointments Commission—that
we do not think it is the best way to do it. I do not think for
one moment those who are appointed during that 18 month period
should feel that they are in any way illegitimate as holders of
judicial office.
Q62 Keith Vaz: When I put down a
Parliamentary Question which was answered by one of your junior
ministers, I asked what research had been conducted by your Department
and I think the answer came out that no research had been conducted
into judicial appointments elsewhere.
Lord Falconer of Thoroton: One
of the things we have had to do—and it will come out in
the consultation paper which is being drafted at the moment and
the drafting of it has been going on for some time because you
will know that my predecessor was going to produce a paper in
relation to it—is we have looked at other countries' experience
in relation to Appointments Commissions in some detail.
Q63 Keith Vaz: Sir Hayden is nodding.
There has been research, has there?
Sir Hayden Phillips: We must check
the answer to your question. If that was wrong then we must put
it right. We have done research into other jurisdictions, we hired
academics to do it and we have been quite well informed about
what goes on elsewhere.
Q64 Keith Vaz: Is there any country
or model that you particularly like? I accept that it has only
been two weeks since you took up this appointment.
Lord Falconer of Thoroton: I am
not keen in the course of today's hearing to give a steer as to
which precise model of Appointments Commission one should adopt.
The range is basically from an Appointments Commission that in
effect decides without state intervention but by formally making
a recommendation to the Government as to who to appoint and the
Government is obliged to accept that through to a model whereby
they identify who can be appointed as judges, and the Government
can only select from that pool. Somewhere between the two there
is a series of models and we need to decide which is the best
one. I think consultation on that before we come to a conclusion
is very important.
Q65 Keith Vaz: So everything is up
for grabs?
Lord Falconer of Thoroton: Yes,
in the sense that we need a very full consultation on the detail
of what the Appointments Commission does and how it operates.
Q66 Keith Vaz: When I put this question
to your predecessor—and obviously you cannot take responsibility
for him because you were there not but Sir Hayden was sitting
next to him at the time—this is what Lord Irvine said, "All
major English speaking countries locate the power for judicial
appointments in the Executive. If that activity were out-sourced
to a quango, the quango would be seen by many as bypassing the
democratic process." Do you agree with that?
Lord Falconer of Thoroton: One
of the issues we need to accommodate in the Appointments Commission
is accountability to Parliament for the judges in this sense:
suppose you had a quango that only appointed people who were totally
unacceptable for some reason or another, if there was no means
by which you could change the members of a quango or explain how
that had happened you would have a completely unaccountable appointments
system. So there needs to be some involvement at some stage in
Parliament so there is a means of ensuring the system is producing
the right result. How you do that and at the same time insulate
the appointment of individual judges from politics is what the
consultation has to be about, it seems to me.
Q67 Keith Vaz: I understand that.
So you are not ruling out no intervention by the Executive, there
must be some?
Lord Falconer of Thoroton: I am
not ruling out no intervention. We need to discuss in the consultation
how the role of the Executive and how the role of Parliament is
incorporated into the process.
Q68 Chairman: Are you looking at
the Scottish experience? We have done so as a Committee and we
hope to produce at least a short report indicating some of the
practical experiences of the creation of the system in Scotland.
Lord Falconer of Thoroton: Yes,
we are looking at that.
Q69 Keith Vaz: You have decided not
to sit as a judge and this is obviously an historic decision as
no previous Lord Chancellor has not sat as a judge, but the Lord
Chief Justice and senior Law Lords continue to speak in Parliament
on issues of importance and indeed Members of Parliament have
judicial appointments, part time or full time. Do you have any
advice for them?
Lord Falconer of Thoroton: Implicit
in the decision to take the highest Court of Appeal out of Parliament
is that we do not think it is right that the Appellate Committee
of the House of Lords is made up of people who are, in effect,
appointed to the legislature as a part of the appointment. We
think that mixing is inappropriate. As to the question of Members
of Parliament or peers who are also Recorders, I think that is
a much lesser level of actual problem. I have no reason to suppose
that it is a practical problem, but it is something that we need
to look at as well.
Q70 Chairman: It was not a practical
problem in the case of the judgments, was it, it was a problem
of principle?
Lord Falconer of Thoroton: There
is a fundamental problem of principle which is that you should
not be both legislating and sitting as the highest Court of Appeal.
The obvious way that that could demonstrate itself is a member
of the highest court speaking out against Government proposals
and then sitting in judgment on those proposals. I am absolutely
sure that the current members of the Appellate Committee of the
House of Lords would only decide the matter on the basis of the
law and nothing else, but it could lead to confusion.
Q71 Chairman: The speech that was
made a couple of weeks ago by a senior Law Lord on one of the
Bills that was going through the Lords, you would have thought
that was wrong to have spoken up in that way, would you?
Lord Falconer of Thoroton: I think
it would be inappropriate for me to comment.
Q72 Chairman: But you are the head
of the judiciary.
Lord Falconer of Thoroton: It
would be wrong for me to speak on the specific case. I would simply
seek to identify what the danger is and the extent to which it
can cause confusion and difficulty in the public's mind about
the difference between a judge on the one hand and somebody who
is engaged in a process of seeking to support or oppose particular
legislative principles.
Sir Hayden Phillips: Just on the
point of principles, in the House of Commons you are allowed to
sit in a part-time judicial office, but if you were offered and
accepted full-time judicial office the House of Commons' Disqualification
Act applies and you would not be able to sit as a member and a
full-time judge. It is an interesting contrast and piece of history
and it is well worth thinking about.
Q73 Keith Vaz: I have two final questions.
First of all in respect of the reshuffle and bearing in mind what
you have said to the Chairman, it was a bit of a shambles, was
it not?
Lord Falconer of Thoroton: As
far as how we will look back on the reshuffle is concerned, I
hope the way we will look back on the reshuffle is that it was
the moment at which a Supreme Court and an independent Appointments
Commission had its birth. Whatever view you take about the precise
way it was announced, without the sort of momentum that came from
that I wonder whether or not those two things would be happening
with the momentum and the reasonable speeds with which they are
now happening.
Q74 Keith Vaz: On the question of
disciplining judges, will you continue to exercise that function
over the next 18 months and will that function then go off to
some other body, perhaps to judicial appointments?
Lord Falconer of Thoroton: I will
continue to exercise that function over the next 18 months in
accordance with agreements already reached with the judiciary
in many cases in conjunction with the Lord Chief Justice. As far
as what happens after the 18-month period, that is something we
need to consult about. In particular, we need to consult about
whether if appointments are going off to the independent Appointments
Commission, to what extent should discipline go off there as well.
Again, we are completely open minded about that, but that is something
over which there needs to be significant consultation.
Q75 Keith Vaz: If Parliament does
not back the proposals and the Lord Chancellorship remains in
its present form, how would the Government feel about that?
Lord Falconer of Thoroton: We
have set out what our policy is: we would like to see the role
of Lord Chancellor abolished, we would like to see an independent
Appointments Commissioner, we would like to see the vast majority
of the functions of the Lord Chancellor, apart from the appointing
of judges, conducted by the Secretary of State for Constitutional
Affairs. So we have made it clear what our policy is.
Mrs Cryer: Since I did my `O' Level in
British constitution I have looked forward to the abolition of
the position of the Lord Chancellor's Department.
Chairman: I thought you were going to
mention you are a retired Justice of the Peace or a non-sitting
one.
Q76 Mrs Cryer: I am on the supplemental
list. It is not that sitting is against the law, it is just that
I do not have the time to do it. I assume you take the view that
the judiciary should be more diverse both from a gender and a
racial point of view. I wonder if you have any ideas on how we
should be moving towards that position. I did ask this question
of a number of organisations when we went to Edinburgh two weeks
ago, the Judicial Appointments Board and The Law Society and I
did not really get any very satisfactory answers.
Lord Falconer of Thoroton: Yes,
I do think that the judiciary should be more diverse both in relation
to gender, ethnic mix and experience mix. How do you achieve that?
I think there are a number of things that can be done. First of
all, I think setting up an Appointments Commission to be in the
driving seat on the selection of judges is bound to have some
effect, though by itself it will not be sufficient to bring the
degree of diversity that is required. Secondly, making it much
more open and public how judges are appointed. You will be much
more unwilling to apply if you think it is a process shrouded
in secrecy or you do not know how your application will be dealt
with. Thirdly, I think we need to look very carefully at the career
structures of people who become judges. Of course there will always
be a place for people who have been very successful lawyers in
private practice and who in their late forties want to become
judges, but we need to have a system that is also able to welcome
people as judges at a younger age and who perhaps have a desire
to do it part-time to start with because they have family commitments
but who can then move from that job to a higher job in the judiciary.
We need to change the appointments system not just to make it
more transparent but also to change the sorts of career structures
that are available for people who want to become judges. Only
if we do that will we have a much more diverse judiciary and I
think we do need a much more diverse judiciary and I believe that
we can have a much more diverse judiciary without diluting merit.
Q77 Mrs Cryer: Do you think if we
have a very diverse Appointments Commission that may help?
Lord Falconer of Thoroton: I think
it will help, but I do not think of itself it is sufficient. I
think you need to do much more than simply set up an Appointments
Commission. I do not put that forward as the only way in which
one is going to make the judiciary more diverse.
Q78 Mrs Cryer: I think this is very
important. I am not just trying to be politically correct. In
the northern cities where we have large Asian communities there
is a growing feeling of us and them amongst the young men in those
communities. I am thinking about after the riots in Bradford for
instance when 2000-odd young men took to the streets and many
of their number are now in prison or are about to come out of
prison. The sentences may have been more readily accepted had
there been an Asian judge involved.
Lord Falconer of Thoroton: Overall,
I think we do need to make the judiciary much more diverse. It
is about race but it is also about gender and it is also about
experience as well. Of course the non-magistrate judges have got
to be qualified lawyers, but one could have a much wider experience
base of lawyers who become judges and that opens the door to a
much wider group of people than I think is currently the case.
I think the time has come for a fundamental change in that.
Q79 Peter Bottomley: We all look
forward to the day when the colour of anyone's skin is as unimportant
as the colour of their eyes or the colour of their hair and whether
they are going to be a judge, a QC, a prison officer, accepting
people on their merits and their behaviour and experience. There
has been quite a lot of support on all sides to get more women
and more people with a minority ethnic background into the QC
business. I understand that there has been a suspension of consideration
for people asking or being considered to be QCs. Is it possible
for that suspension to be lifted and for the process to go on
until there is a conclusion on the senior advocate's position?
Lord Falconer of Thoroton: The
reason why my predecessor, in my view rightly, suspended the Queen's
Counsel competition was because he made it clear he was going
to consult about whether or not the role of Queen's Counsel should
continue. He was in effect posing the question—and we are
going to produce a consultation paper about that on the same day
as the other consultation papers on the constitutional issues—is
it right that there should be a kite-mark given to a particular
profession and is it right, if there is such a kite-mark, for
it to be given by the Government. These are pretty fundamental
issues. If the conclusion of the consultation paper is that the
role of QCs should not go on then plainly it is right to suspend
the process now. If it is decided that it should go on and the
Government have a role on it then the 2004 competition which has
been suspended will take place a little later than it would otherwise
take place. I do not think any prejudice has been done by suspending
it, but I think it is the right thing to do to suspend it pending
the results of the consultation.
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