Examination of Witnesses (Questions 80-99)
RT HON
LORD FALCONER
OF THOROTON,
MP, AND SIR
HAYDEN PHILLIPS
GCB
30 JUNE 2003
Q80 Peter Bottomley: Can I put it
to you that if a number of people decided not to put themselves
forward for the 2003 round because they thought they had a better
chance in 2004 and if many of those were women from ethnic minority
backgrounds, there is at least an argument for saying, if there
is going to be change, let it happen after a number of those who
had been restraining themselves to give themselves a better chance
of being accepted apply because otherwise, unless the QC title
is abolished, we are going to be left with an historic imbalance
which is not necessarily desirable.
Lord Falconer of Thoroton: I understand
entirely what you are saying. Maybe one of the problems about
a lack of diversity is that the role of Queen's Counsel has played
too significant a part in who becomes judges. What you are talking
about with Queen's Counsel is people who have been high-flying
advocates and what I am saying is one needs to try and diversify
the group from which one selects judges beyond the high-flying
advocates. Of course advocacy has not been the only consideration,
indeed it is one of only a number of considerations in whether
or not judges are appointed, but we need to make it clear that
it is not just the people who are good in court, it is a much
wider group than that.[1]
Q81 Mr Soley: It is actually very
difficult to get to where we all want to be. I just wonder if
you would give some thought to the Commission having a role in
making recommendations about training, selection and so on. If
you take politics, it took all women short-lists to get to where
we are in our present Labour representation, which is still very
low and in the judicial process it would be even more difficult
unless the Commission has some formal role in actually creating
a situation in which it is more likely for people from diverse
backgrounds to become qualified and come forward.
Lord Falconer of Thoroton: I think
that is right and I think we should promote that as much as possible
and we should go further and we should think about the independent
Appointments Commission having a quite wide human resources role
in relation to attracting but then also seeing the particular
people who are appointed through their careers as judges, because
only if they are able to some extent to deal with issues about
promotion within the judicial hierarchy, for example from district
judge to circuit judge, would they be able to give the sorts of
assurances to people who are not adequately represented in the
judiciary at the moment that there is a career for them there
and that might attract them in at an earlier age.
Q82 Mr Clappison: I declare an interest
as a member of the Bar in order to avoid appearing anywhere as
a spokesman of the Bar. Perhaps I can invite you to draw on your
experience to put some of the comments which we have just heard
into context. Would you agree that it is the case now, over the
last ten or 15 years, that the composition of the Bar has become
much more diverse by way of political agenda and ethnicity than
ever it used to be and that there are grounds for optimism in
the future as to the sort of people who are coming forward who
will be appointed as QCs and judges with the right type of experience
acquired over time?
Lord Falconer of Thoroton: I do
think that the Bar has become much more diverse. If you look at
the figures for people who enter the Bar now by reference to sex
or ethnic group, it is much more diverse than it was. If you look
at the numbers at the start in any particular year, they go down
quite dramatically. You might have, for example, equal numbers
of men and women starters at the Bar now but ten years on you
have got more men than you have women because women have dropped
out in that process. We have got to do more than just attract
a more diverse starter, we have also got to make the career for
the lawyer and the career for the judge attractive for somebody
to stay in it rather than drop out.
Q83 Mr Clappison: That is a problem
which other professions have as well, I think it is fair to say.
Lord Falconer of Thoroton: If
you look at the senior appointments to the judiciary, I suspect
they are less diverse than senior appointments in other professions.
Right at the top, in the final Court of Appeal in this country
we have not had and do not have at the moment a woman senior member
of the highest court in the land and I wonder how many countries
that can be said of.
Q84 Mr Clappison: Notwithstanding
that issue, which is important in its own way, I think you would
also agree with me if I said to you that our judiciary is widely
admired because of its long-established integrity and independence.
Lord Falconer of Thoroton: Of
course I accept that entirely.
Q85 Mr Clappison: I wonder if you
could tell us what steps you intend to take to ensure that the
Lord Chancellor's responsibility for preserving and protecting
judicial independence and integrity is continued?
Lord Falconer of Thoroton: The
rule of law and the independence and integrity of the judiciary
go hand in hand. Our constitution is based on the independence
and integrity of the judiciary. As Lord Chancellor and upon the
abolition of the role of Lord Chancellor, as Secretary of State
for Constitutional Affairs, whoever holds that office, one of
his/her responsibilities will be to preserve the constitution
and the constitution depends upon the independence and integrity
of the judiciary.
Q86 Mr Clappison: Can you give us
an absolute assurance that is going to go on?
Lord Falconer of Thoroton: I give
you an absolute assurance that is going to go on.
Peter Bottomley: To the extent that if
the Home Secretary appeared to criticise the judiciary, could
a Cabinet colleague make a public noise contradicting that appearance?
Q87 Chairman: To put that another
way, might you in those circumstances be as forthright before
this Committee as your predecessor was?
Lord Falconer of Thoroton: The
critical role is to defend the independence and the integrity
of the judiciary. The fact that the judiciary do something that
the Executive may not like is not the same as saying their independence
or their integrity is affected. I give an absolute assurance along
the lines of James' question that the independence and the integrity
will be protected. As it has been in the past, so it will be in
the future.
Q88 Chairman: What about phrases
like the Home Secretary's phrase to the Police Federation, "We
only want judges who will help you and us to do our job"?
Lord Falconer of Thoroton: You
are unfair to take particular statements and put them to me. The
critical point to make is that just as Lord Chancellors in the
past have preserved the integrity and independence of the judiciary,
so I will as Secretary of State for Constitutional Affairs and
so will my successors. There is no point in seeking to draw a
division between individual ministers in relation to it. As Peter
will be aware, because he was a member of the Government, since
time began members of governments have expressed disquiet about
decisions made by individual judges. That is not remotely the
same as saying that is an attack upon the independence and the
integrity of the judiciary and one has got to be moderately sensible
and mature about what is required.
Q89 Peter Bottomley: Tell Thomas
a Becket that.
Lord Falconer of Thoroton: That
was the government before.
Sir Hayden Phillips: There was
not too much separation of powers either.
Q90 Chairman: There is a point in
another member of the Cabinet being able to make public his position
when that member of the Cabinet is the member responsible for
safeguarding the independence of the judiciary, and the fact that
your predecessor felt able to come before this Committee and indicate
his disapproval of ministerial statements which appeared to question
that independence indicates that he thought there was some point
in departing from traditional Cabinet solidarity when it was necessary
to underline that the Government as a whole respected the independence
of the judiciary. You are not saying there would not any point
in doing that in the future, are you?
Lord Falconer of Thoroton: I am
saying that my role and my successor's role must be to preserve
and protect the independence and the integrity of the judiciary.
I am trying to avoid being drawn into whether or not I agree or
disagree with individual statements made by predecessors of mine
in relation to particular issues. I think we have got to decide
at the time what the appropriate course to take is to preserve
that integrity and I will do that, as will my successors, I am
quite sure.
Chairman: We will see if a problem arises
again.
Q91 Mr Soley: I am a very strong
supporter of the action that has been taken, but I think one of
the problems you have is there are major constitutional issues
now which have to be addressed and yet at the same time there
is an incredible work burden of which the most important thing
for the average person in this country will be the efficiency
of the courts system. Also, if I could link with that the other
very big issue, that is the use of Legal Aid and the amount of
public money that goes into Legal Aid and how efficiently it is
used. How are you going to ensure that those two issues do not
get lost in the necessary constitutional challenges you are also
going to have to make?
Lord Falconer of Thoroton: Obviously
both those issues, an efficiently run court service and an efficiently
and effectively delivered Legal Aid system, are critical parts
of what my Department does. One of the effects of the constitutional
changes, namely the withdrawal of the Lord Chancellor from the
appointment of judges, the withdrawal of the Lord Chancellor from
sitting as a judge and also, hopefully in time, the withdrawal
of the Lord Chancellor from sitting as the Speaker of the House
of Lords will enable more time to be spent by the holder of the
office to drive improvements in Legal Aid and a more efficient
court service.
Q92 Mr Soley: Particularly the more
efficient court service, there is an immediate almost crisis problem
there. My concern is that your time on that will be marginalised
by all the other issues. Can you give us any indication of how
much time you think you are going to be able to spend on such
a critical issue as that?
Lord Falconer of Thoroton: I cannot
give you a percentage in terms of the day, but in terms of priorities,
making the court system and, in particular, the criminal court
system work effectively has to be a priority because it is a priority
of the Government. As well as performing the role of Lord Chancellor
I am also a member of a Government which is absolutely committed,
it is a priority, to making the criminal justice system work much
better than it does. So it is very high up the list. As to what
percentage of time I will spend on it, I cannot tell you what
the percentage is, but I must spend time making the system work
better.
Q93 Mr Soley: Do you need additional
ministerial assistance in order to do that in the short term?
By that I mean another political minister in your Department.
Lord Falconer of Thoroton: I have
got three ministers in the Department, Mr Leslie, Mr Lammy and
Lord Filkin. I do not think I need more, I think I have got the
help and the time to do it, but it is a priority.
Q94 Mr Soley: Who will focus on the
reform of the courts?
Lord Falconer of Thoroton: I am
focusing on the reform of the courts at the moment. This morning
I spent the whole morning at a conference of the Courts Service
in which we were addressing the issue of how you make the criminal
courts work better and that was a detailed consideration of the
things that need to be done, how you get co-operation from other
agencies, how you make victims and witnesses and the public who
use the criminal justice system believe that it is working better.
That will be typical of the time that I focus on that issue, because
you are absolutely right to say it is an absolutely critical issue.
Q95 Mr Soley: Who is going to spend
most of their time on Legal Aid and how sure are you that you
can keep your eye on the ball there because there are concerns
about Legal Aid?
Lord Falconer of Thoroton: Mr
Lammy is the minister responsible for Legal Aid. There are very
considerable issues about the management of the budget, the effective
use of the funds and again it is something which has got to be
given priority.
Q96 Mr Soley: How are you going to
assess the success of the reforms on the court system over a period
of time again given the need you have now to resolve some of the
issues around the constitution?
Lord Falconer of Thoroton: In
relation to the court system, as far as the criminal system is
concerned, I think the way that one will judge whether or not
the reforms have been successful is the timeliness of cases, the
number of ineffective trials there are, there needs to be a reduction
in the number of ineffective trials, the number of discontinuances
and the extent to which confidence goes up as measured by the
British Crime Survey in the criminal justice system. So there
are a number of measures by which one can measure it. In relation
to the family court system, one of the critical issues there is
delay. Cases take much too long to come on particularly when they
involve children. So one of the critical measures in relation
to the family justice system will be the extent to which one can
see delays going down.
Chairman: I think we will have to go
and vote.
The Committee was suspended from 5.07pm
to 5.17pm for a division in the House
Chairman: Gentlemen, we will just finish
off Legal Aid which I think Mr Cranston wanted to come in on as
well.
Q97 Ross Cranston: It was really
just to underline this important issue. A point I made to the
previous Lord Chancellor was that these constitutional issues
might move us here in Westminster, but out in my constituency
people are concerned about whether, if they are tenants, they
can sue their landlord or employees, their employers for unfair
dismissal and so on.
Lord Falconer of Thoroton: I entirely
accept that. Constitutional changes are important, but they are
for a purpose and one of their purposes is, as the Prime Minister
said when dealing with the reshuffle, to get the head of the Department,
of which I am now head, dealing with precisely these sorts of
problems which you and Clive have identified.
Q98 Ross Cranston: One of the particular
concerns that has come out of previous discussions is the accretion
of Legal Aid lawyers both at the Bar in terms of family practice
but also on the high street. It is early days, I know, but have
you got any thoughts on this?
Lord Falconer of Thoroton: There
is a significant number of Legal Aid practitioners. We need to
be sure that the number of Legal Aid practitioners is able to
meet the demand that is out there. You need to be sure that the
demand that comes from criminal Legal Aid and demand that comes
from family law is capable of being met. You have got to strike
a balance between not having too many out there but having enough
to meet the demand. How one makes sure that happens I would be
unwilling to express views on at the moment because it is too
early days.
Q99 Ross Cranston: There is a consultation
paper now on the CFAs where there is the criticism that insurance
companies have taken every point in the book to upset agreements.
Sir Hayden gave us evidence about the high fee criminal cases.
I am just wondering what is being done there. Maybe Sir Hayden
can answer that question.
Lord Falconer of Thoroton: I do
not feel that I have got right into the detail of this, but something
like 46% of Legal Aid in criminal cases was spent on those high
value cases. The way forward in relation to that looks like negotiated
fees for those big cases so you do not end up in a situation where
costs career out of control, but instead you end up in a situation
where people can do the work for an agreed fee and there is then
control over the expenditure. That is the way to seek to keep
a handle on those cases. As far as CFAs are concerned, in principle
it has worked well, but as you have pointed out, there is too
much satellite litigation. There needs to be agreements reached,
for example, with insurance companies to stop all of that satellite
litigation so that one can move forward on the basic principles.
Sir Hayden Phillips: I hope we
are through the worst of that now. The court cases that have come
from it should have closed a lot of this off. The Master of the
Rolls has put a lot of effort into a better costs regime and I
think we are out of the woods, but this is something you may want
to ask me about on the 15 July when I come before you then.
1 Note by witness: In fact advocacy is not one
of the criteria used to assess candidates for judicial appointment. Back
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