Examination of Witnesses (Questions 500
- 519)
TUESDAY 6 JANUARY 2004
RT HON
LORD FALCONER
OF THOROTON
QC AND SIR
HAYDEN PHILLIPS
GCB
Q500 Chairman: And that will include
the Prime Minister in making his recommendations to the Queen
for judicial appointments, will it not?
Lord Falconer of Thoroton: Of
course. It would have to affect anybody involved with the administration
of justice and you are absolutely right to identify that anybody
engaged in the role of judicial appointments would be so caught,
but once you set up a Judicial Appointments Commission, then the
nature and process of appointing judges becomes a much, much more
transparent process and that transparency in itself provides a
huge protection in relation to the independence of the judiciary.
Q501 Chairman: Well, the Lord Chief Justice
said that there may now be a need "for structures which we
have not felt were necessary in the past" in order to protect
judicial independence given the changes that we are now discussing,
and that could take us quite a long way towards aspects of a written
constitution. Do you accept his argument in principle that we
may now need structures we have not had previously?
Lord Falconer of Thoroton: I do
accept that. I accept it, for example, in relation to three areas:
one, judicial appointments obviously because once you are broadly
removing from a Minister the power to appoint judges, you need
some structure specific to that in statute; secondly, in relation
to judicial discipline which is currently dealt with by the Lord
Chancellor, albeit very much in conjunction with the Lord Chief
Justice through various protocols, but again you need to set up
a structure in relation to that; and, thirdly, in relation to
the distinction between, on the one hand, judicial deployment,
but the State should not be able to say, "Judge X should
not sit there because he is too liberal", or too tough, whichever
the right word may be on crime, and that has got to be dealt with
by the judges, but, on the other hand, the State has got to be
able to provide the resources. So yes, I think it is right that
we do need new structures. I do not think that that leads to the
conclusion that you need a cross-the-board written constitution
because I think our constitutional heritage is based upon the
proposition that Parliament is sovereign and that in a sense always
militates against a written constitution. Bits of it will obviously
be contained in statute, but a written constitution is not, in
my view, the way forward.
Q502 Chairman: But you would see the
statutory expression of judicial independence as, if you like,
having that high status which might otherwise be provided elsewhere
in a written constitution?
Lord Falconer of Thoroton: Well,
there are bits of our Constitution that are not set out in statute.
We have no entrenched provisions in statute, so they could, in
theory, be changed just as at this very moment you could introduce
a statute, which of course no one ever would, which would in some
way undermine judicial independence, but I think putting it in
statute and making it clear that it forms a critical part of the
constitutional arrangements will be sufficient.
Q503 Mr Soley: Do you make the presumption
that the Secretary of State for Constitutional Affairs will be
in the Commons?
Lord Falconer of Thoroton: No.
I implicitly accepted in the Chairman's question that it was a
possibility that that would be the case because I understood the
Chairman's question to be, "Do you accept that it is a possibility?
If it is, then assume that he or she is not a lawyer in the Commons.
Is that a weaker or stronger person than the Lord Chancellor?"
I do not think it has to be, but it obviously could be.
Q504 Keith Vaz: Lord Chancellor, are
you surprised at the level of controversy that has been inherent
in your decision to make these reforms?
Lord Falconer of Thoroton: I am
neither surprised nor discomfited by the strong focus that the
judiciary have placed on judicial independence because I think
judicial independence is extremely important. I think it has been
useful and good that there has been a wide-ranging debate about
what you do about judicial independence and I think that is the
right place to focus the debate, because that is really where
the debate has been, rather than on the issue of whether you should
abolish the Lord Chancellor. Of course the two go together to
some extent, but we are the only, as it were, developed democracy
in the world that has this very, very unique arrangement. I think
it is right that there has been this great issue, great discussion
about it. I do not read that as saying, "You're wrong to
abolish the role of Lord Chancellor".
Q505 Keith Vaz: No, but in terms of the
rest of your reforms, we have had a lot of unhappy judges come
before us who are concerned about the pace, the amount of consultation
and the direction in which the reforms are going. You must accept
that that is a surprise.
Lord Falconer of Thoroton: I think
reforms of this sort would always have some people saying, "Please
don't change anything". I think if you look at the detail
of what is being said, it is focusing primarily on, "Well,
if you are going to remove the Law Lords from the Lords, if you
are going to abolish the role of Lord Chancellor, if you are going
to set up a Judicial Appointments Commission, what is the right
way to get the detail right?", and I think that is a perfectly
legitimate debate. In terms of the timing, the announcement was
made in June of last year on those three things, abolition of
the Lord Chancellor's role, the Judicial Appointments Commission
and the Supreme Court, and by the end of the legislative process
there will in effect have been a period of 18 months in which
both within Parliament and beyond there has been a wide-ranging
debate about it. I think that is a reasonable period.
Q506 Keith Vaz: In view of the submissions
that have been made, and clearly there is a falling out amongst
the senior judiciary, with half the members of the House of Lords
supporting your proposal and the other half not, surely we should
look at extending the timetable? Even those who support what you
are doing, such as Lord Bingham, for example, believe that a further
period is necessary, perhaps to the end of the Parliament rather
than to the end of this session, which will enable the reforms
to be properly addressed and for proper consultation to be made.
Surely you will agree to a slight delay in view of the amount
of interest that this has generated?
Lord Falconer of Thoroton: Well,
the way that reform is done when it depends upon legislation obviously
depends to a large extent on the parliamentary timetable. A balance
has got to be struck between there being an appropriate period
for consultation on the one hand, and, on the other, making the
period so long that there is a real blight over existing systems
and structures. Once the decision is made to make the changes,
for those changes to take years to get to a point where there
is legislation is, I think, detrimental and damaging to the system.
Q507 Chairman: Is this not an obvious
case for a draft Bill?
Lord Falconer of Thoroton: I think
this is a case where producing the Bill, letting there be a broad
debate in Parliament, just as there has been a debate before the
Bill is introduced to Parliament, over a period of six or seven
months is an adequate period for consultation because the alternative
is for the process to take a significant number of years and I
do not think that would be good as far as the administration of
justice is concerned.
Q508 Chairman: Well, remember, the devil
is in the detail for part of this sort of thing and that Bill
in this session should then lead to primary legislation in the
next session.
Lord Falconer of Thoroton: A draft
Bill in this session would then lead to, I would suspect, a further
detailed scrutiny, quite rightly, of what the draft Bill had produced.
One can think of many examples, and they will be known to the
Chairman, where the draft Bill has simply led to there being—and
this is another reason for not having draft Bills—pre-legislative
scrutiny and you then, as it were, reduce the time. It does, as
it were, in relation to non-contentious business, but it does
not in relation to that which is pretty much at the heart of political
controversy and I would suspect that this would be one where you
would have the pre-legislative scrutiny followed by just as active
a scrutiny in the following session.
Q509 Chairman: But that must mean that
there is a lot to scrutinise.
Lord Falconer of Thoroton: Well,
there are in relation to all of those things layers and layers
and layers and you can go on and on and on for a very, very long
period of time. I think what one has got to do is give a clear
direction of travel, give adequate time for the consideration
of the detail, but make it clear that it is the Government's proposal
and it should be done by a certain time. We are in effect saying
that we wish legislation to come in by the end of this current
parliamentary session, although I do not think that is unreasonable
and I do not think it gives a curtailed period of time for consultation.
Q510 Mr Soley: I am very sympathetic
to what you are doing, as you know, but I am also very conscious
of the need to get it right and it is difficult and it takes time
and the discussion is important. I wonder if you did give thought
to the possibility of taking a part-step in terms of allowing
the Law Lords to sit only in a judicial capacity and no other
while we then did draft Bills and took our evidence on that basis?
In other words, you just slow the process down a bit, and I recognise
that there are dangers in that, but you would do so in a way which
would make it very difficult to go back to the old model.
Lord Falconer of Thoroton: Well,
in some ways de facto steps had already been taken by the
Law Lords to restrict their activities in the Lords. For example,
the statement made by the senior presiding judge in the Lords
about the circumstances in which normally the Lords would speak,
and I think you are aware of it because I have seen from the evidence
that it has been referred to, when they would speak in relation
to legislative issues in the Lords was a part of that process.
Again the Lord Chancellor, myself, saying that I would not sit
in a judicial capacity was another step in that direction, but
having taken those two steps, question: is there a yet further
step that one could take without legislation? I think the answer
is no. I think the next correct stage is the creation of a Supreme
Court and taking the Law Lords out of the Lords. Now, that issue
gives rise to particular issues, like Scotland, like the position
of the Lords in the legislation, et cetera, but I do not believe
those issues are irresolvable in the timescale that we have given
ourselves and indeed if one looked at the evidence that was given
to this Committee by Lord Bingham, Lord Nicholls, Lord Hope and
Lord Lloyd, the issues there were primarily, with perhaps a slight
exception in relation to Scotland, which I will come to, issues
of principle and not issues in relation to the detail.
Q511 Mr Soley: Even finding an appropriate
building and determining the staffing, which is something we will
come to later perhaps, are actually going to be complex matters.
Lord Falconer of Thoroton: Certainly.
Q512 Mr Soley: If you are doing that,
you actually need some time. It has always struck me that the
way to deal with the issue of separating powers is simply to say
as a first step that the Law Lords would only sit as Law Lords
and would not be part of the House of Lords and in no sense other
than that would they be there. That seems to me the logical half-way
step to a full reform.
Lord Falconer of Thoroton: But
then what you would be doing would be you would have to legislate
to say that in effect and the question is that if you are going
to legislate to that effect, is not the more sensible course to
legislate to create a separate court outside the House of Lords
which is our position and that, without in any way putting words
into your mouth, is in effect your position to some degree. We
think it is the right position to reach and again I do not think
the detail in relation to how you do that in legislative terms
justifies the sort of step-by-step approach that you are suggesting.
Q513 Keith Vaz: Having had the opportunity
to study the consultation responses, do you still prefer a recommending
commission with one candidate being put up for you or your successors
to decide upon?
Lord Falconer of Thoroton: Obviously
we will have to give a detailed response to the consultation and
I think we will have to do that by making a statement to Parliament,
but without, as it were, giving the full detail away, we proposed
and our favoured approach in the consultation document is a recommending
commission, and I think there is still force in the idea of a
recommending commission for all judicial appointments because,
in principle, I think the involvement of the Executive to some
extent in the process is important. You have heard quite a lot
of evidence in the course of the inquiry that you have been conducting
in relation to judicial appointments about the need for the Executive
and the judiciary to be linked in some way and without the Executive
being in effect in the driving seat in relation to appointments,
nevertheless, some involvement on their part so that there is
proper parliamentary accountability, there is somebody who is
responsible to Parliament for the overall make-up of the judiciary
and the judiciary and the Executive not getting too distant. For
those two separate reasons—
Q514 Keith Vaz: But would you not prefer
a short-list as opposed to one candidate being put forward, say,
a short-list of two?
Lord Falconer of Thoroton: I think
that might be a way forward. I am not saying we necessarily accept
that and I am not equally seeking to imply that we are wedded
to the one-name-only approach that was referred to in the consultation
paper. We need to make decisions in relation to that, but in terms
of a recommending, as opposed to an appointing, commission, we
still tend to favour the idea of a recommending commission.
Q515 Keith Vaz: So if you vetoed one
of the appointments, you would be able to give reasons for doing
so—
Lord Falconer of Thoroton: Yes.
Q516 Keith Vaz:—and send it back
for more names, so it could be a short-list?
Lord Falconer of Thoroton: I do
not want to get into the precise details in relation to it, but
yes, in relation to reasons, I think we should have to give reasons.
There is an issue about naming individuals; it is invidious to
make public why you are rejecting a particular individual and
that is not a reason obviously for there not being a full and
frank exchange between the Executive and the Appointments Commission
and how public you made that.
Q517 Keith Vaz: Turning to the panel
that is going to select the people who are going to sit on the
Commission, which is obviously very important, deciding on who
is going to sit in there, the suggestion is that it should be
made up of a Permanent Secretary, a senior judge, a senior figure
not connected to the legal system and an independent assessor.
Lord Falconer of Thoroton: Yes.
Q518 Keith Vaz: It sounds like yet another
job for Sir Hayden Phillips!
Lord Falconer of Thoroton: I have
to say in front of Sir Hayden that I do not know if you spotted
that the consultation by and large was not that favourable to
the idea of Sir Hayden as the Permanent Secretary sitting on the
appointments panel. I can see that both in terms of perception
and in terms of relationships between Ministers and the Permanent
Secretary, maybe the Permanent Secretary is not the best person
to sit on the appointments panel.
Q519 Keith Vaz: But presumably the Secretary
of State, yourself, you would decide who sits on the panel?
Lord Falconer of Thoroton: No,
I think it should be determined in a statutory way. I do not think
that the Secretary of State should determine it. I think that
gives the Secretary of State too much apparent and real, I suspect,
influence as to who would then appoint the Judicial Appointments
Commission. It should be defined in some statutory way so that
it is beyond the reach of an individual Minister.
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