Select Committee on Lord Chancellor's Department Minutes of Evidence


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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