Examination of Witnesses (Questions 496
- 499)
TUESDAY 6 JANUARY 2004
RT HON
LORD FALCONER
OF THOROTON
QC AND SIR
HAYDEN PHILLIPS
GCB
Q496 Chairman: Good morning, Lord Chancellor
and Sir Hayden, and welcome. You look as though you might want
to say something to us initially.
Lord Falconer of Thoroton: Although
I look expectant, no, I have nothing I want to say by way of opening.
In your inquiry there has been a huge number of issues that you
have heard about, so I think the best thing is just to go straight
to the questions.
Q497 Chairman: Well, we start, if we
may, with the implications of abolishing the post of Lord Chancellor
before we move on separately to judicial appointments and to the
Supreme Court issue. How will a future Secretary of State, perhaps
in the Commons, probably not a lawyer, who might have further
political ambitions beyond the post of Secretary of State for
Constitutional Affairs and who would not be the head of the judiciary,
be able to protect judicial independence?
Lord Falconer of Thoroton: Well,
I think one has got to look at what the consequences of the abolition
of the Lord Chancellor are in all of its emanations. First, there
will be a Secretary of State for Constitutional Affairs with a
statutory duty to protect judicial independence. Second, there
will be a Lord Chief Justice who will in effect be a chief judge
with greater powers in relation to the judiciary than previously.
Thirdly, there will be the Judicial Appointments Commission which
will provide a transparent process for the appointment of judges.
Those three things together will, I believe, provide an environment
and a situation in which judicial independence can be readily
protected.
Q498 Chairman: But you recognise the
difference implicit in the question that I put to you between
a senior figure serving as Lord Chancellor who did not have obvious
ambitions to go on to any other political post and who was rooted
in the law and the judiciary, the difference between such a person
and someone who was a Secretary of State who might tomorrow be
the Foreign Secretary and the day after the Prime Minister and
who is, therefore, more concerned to keep his colleagues happy
than to defend to the last the independence of the judiciary?
Lord Falconer of Thoroton: Yes,
I fully recognise the difference between a political, with a small
"p", Secretary of State for Constitutional Affairs on
the one hand and a Lord Chancellor on the other, whom one of your
witnesses described as having a foot in both camps, and being
a person perhaps for whom this would be his or her last job and,
therefore, not ambitious. The power of the Lord Chancellor comes
from his or her personal authority. I believe that the personal
authority of the Lord Chief Justice and the explicit statutory
obligations on the Secretary of State for Constitutional Affairs
together represent a more than adequate protection for judicial
independence.
Q499 Chairman: Have you devised a way
of drafting a statute for this statutory responsibility of the
Secretary of State in a way different from the normal statutory
drafting under which any responsibility of the Secretary of State
can apply to any Secretary of State and it is a matter for the
Prime Minister to whom he allocates particular responsibilities?
Lord Falconer of Thoroton: Yes,
I do not think there is any difficulty about drafting the statute
in such a way that a particular statutory duty resides upon a
particular Secretary of State rather than one that can be passed
around Secretaries of State when I think we need probably to think
about going further than simply placing a duty on the Secretary
of State for Constitutional Affairs. I think we also need to think
about whether or not in the statute there should be something
that encapsulates and embodies the independence of the judiciary
in a way which will have an effect on everybody engaged in the
administration of justice.
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