Examination of Witnesses (Questions 540
- 559)
TUESDAY 6 JANUARY 2004
RT HON
LORD FALCONER
OF THOROTON
QC AND SIR
HAYDEN PHILLIPS
GCB
Q540 Dr Whitehead: Lord Wakeham, when
he reported on the reform of the House of Lords, listed a number
of positive contributions that Law Lords make to the Lords over
and above the cases made to it by the Law Lords themselves. For
example, he said they chair and serve on committees, they chair
the Joint Committee on Consolidated Bills, they give incisive
opinions on the Privileges Committee in addition to contributing
to general debates and so on drawing on their commitment to the
rule of law. Do you think Wakeham is simply wrong?
Lord Falconer of Thoroton: No,
I think he is right that that they make that contribution, but
that is very much a collateral side issue. I think you should
approach it, first of all, as a matter of principle and if it
is a matter of principle that you do not think that they should
be there, that should be the driving force, not whether or not,
as they have done, they have chaired Sub-Committee E very, very
well. One of the witnesses, I noticed, and I did not know this
until I read the evidence given to you, said that before 1832,
High Court judges had been called in by the House of Commons to
chair committees of the House of Commons. Now, I have no doubt
that the High Court judges performed that task very, very, very,
very well, but the idea that because they performed it well, it
should continue does not seem to me to be a very strong argument.
Q541 Mr Soley: Have you made any decision
yet about how you would select staff for the new Court? Would
they be staff drawn from the Department for Constitutional Affairs?
Would they be civil servants? Where do you anticipate getting
the staff from for the Court?
Lord Falconer of Thoroton: The
staff of the Supreme Court have got to be patently and clearly
separate from the court service because the Supreme Court has
got to be the Supreme Court for the whole of the United Kingdom,
not in any way connected with the England and Wales court service.
There is a very significant issue which I think has been raised
by Lord Bingham and Lord Nicholls about what should the administrative
arrangements be for the Supreme Court and I see very considerable
force in the Supreme Court with the judges in charge having a
very considerable role in their own administration, so, for example,
I would see a very considerable benefit in there being a chief
executive of the Supreme Court, that he or she would be the accounting
officer in relation to it and that chief executive could make
decisions, reporting to the members of the Supreme Court, about
who is to be appointed to be the staff because I think you need
a separate and identifiable group of employees supporting the
Supreme Court.
Q542 Mr Soley: And separate also from
the Department for Constitutional Affairs and the Civil Service
structure or not?
Lord Falconer of Thoroton: I expect
you would not want it to be entirely separate from the Civil Service
structure because you would want a good career path for the individual
civil servants, but run by a chief executive of the Supreme Court.
Q543 Mr Soley: How would you ensure that
the staff would not have a greater loyalty, if they had some connection
with the Department for Constitutional Affairs, to that Department
rather than to the Supreme Court?
Lord Falconer of Thoroton: Because
they would be under the direction of the chief executive who would
be reporting in terms of day-to-day administration to the Supreme
Court. I do not think there will be significant difficulties in
relation to that, but the chief executive would have to make judgments
about their ability to serve adequately the interests of the Supreme
Court justices.
Q544 Mr Soley: Would it not be at least
worth considering whether the chief executive could not have entirely
his own staff, separate from the rest of the Court staff and Civil
Service staff?
Lord Falconer of Thoroton: Well,
it would be certainly separate from the court service. I think
that would be a matter of judgment for the chief executive, and
if he or she thought that it was the appropriate way to do it,
then so be it. I am only, as it were, keeping alive the issue
in relation to the Civil Service because, question: do you provide
a good enough career structure in what would be quite a small
organisation? That seems to me to be a judgment for the chief
executive of the day as to how it would be dealt with.
Sir Hayden Phillips: You want
to keep open the opportunity for secondment, civil servants going
on secondment to work for the Supreme Court. It is quite important
that that organisation, which will be small, should be able to
have fresh blood in it as well as people who have served there
for a long time. We have, on a minor, but important point, already
said to staff of the Judicial Office in the House of Lords that
those who wish to transfer across to the Supreme Court should
do so, and that will be welcome to a number of them and it would
be very welcome to the Law Lords because it will give them the
continuity to the part of their work that they will appreciate.
I do not think that there will in practice be any difficulty in
those people who are civil servants and who are seconded rather
than recruited permanently to the Supreme Court having their loyalty
very clearly, while they are there, with the Supreme Court rather
than with any other Department. In practice, it works all the
time.
Q545 Mr Soley: But it is very important
that there is a clear separation, that their loyalty is to the
Court and not to the Department from which they are seconded?
Lord Falconer of Thoroton: The
description of how we envisage, as it were, the structure working
does indicate to me, and I hope to the Committee, a very clear
sense of separation from the organisation of the Department and
I think we want to make that very clear indeed.
Lord Falconer of Thoroton: Yes.
I totally accept the principle that is implicit in all of your
questions, that there must be a staff working to the Supreme Court
justices who are, as it were, directly working to them without
outside considerations. That is why a chief executive reporting
to the justices, able to make judgments about that precise issue,
is an important way of achieving that.
Q546 Mr Soley: And bearing in mind that
this is the Supreme Court of the United Kingdom, if you located
in London, how are you going to give suitable representation of
Scotland, Wales and Northern Ireland in terms of the staffing
of it or do you envisage it perhaps not being located in London?
Lord Falconer of Thoroton: I would
envisage it being located in London, just as the United Kingdom
Parliament is located in London. There should be proper representation
of all of the parts of the United Kingdom in the staffing of the
Supreme Court. Again that would be a matter that the chief executive
would have to focus on. It cannot be done by external imposition,
I do not think.
Sir Hayden Phillips: In practice,
the secondment of civil servants from Scotland and from Wales
into the Scotland Office and the Wales Office in London works
perfectly well. People are often very keen to come down for a
period of two or three years, so even if they did not wish to
uproot themselves, as it were, completely and permanently, that
option is open, and I think the chief executive and those concerned
with this would be very wise to actually reach out and try to
ensure that sort of representation was there in the staff of the
Supreme Court.
Q547 Mr Soley: So you are confident at
all levels of the staffing that you would get a reasonable representation
from the other parts of the UK?
Sir Hayden Phillips: Yes. You
have to work at it, you have to do it, but I think if we were
to set that out as a point, that there should be that sort of
representation, there would be quite a lot of pressure on the
chief executive to ensure that happens, and I think if there is
that pressure there, it can be made to happen.
Q548 Mr Soley: Behind my question of
course is this acknowledgement that we are setting up a very important
and new institution of the United Kingdom State and in doing that,
that institution ought to represent the United Kingdom State,
not a part of it, and that is very important. Would you agree
with that?
Lord Falconer of Thoroton: I would
agree with that entirely and that is both in relation to the justices
themselves and in relation to the people who work in the building.
My own experience in relation to people who work in Westminster—and
the Department for Constitutional Affairs has got for pay and
rations only the Scotland Office and Wales Office civil servants—is
that there is a great mixture and they do represent adequately
the various bits of the United Kingdom.
Mrs Cryer: I wonder if I could ask a
few questions about accommodation of the Supreme Court. The first
question I think you have more or less answered, but you may want
to clarify it further. If the reforms should take place, but the
Law Lords remained in the House of Lords, how would this affect
the perception of independence both in terms of the Law Lords
and users of the Court? I think you have already touched on that
quite a lot actually.
Q549 Chairman: Although we have touched
on it, we perhaps have not explored this issue. Were it to be
the case that you could not house the Supreme Court, and we will
go on to the detail of what we will do about that, in the very
short term and you decided or it was decided that the Supreme
Court should sit in the same rooms in the House of Lords as the
Appellate Committee currently sits, what would have been the point
of rushing the legislation through given the perception, which
is central to this, that what people observe is roughly the same
people sitting in roughly the same building and doing the same
thing as they did before?
Lord Falconer of Thoroton: On
the question of the housing of the Supreme Court, as a preliminary,
I agree with all of the points that have been made by the Law
Lords, that it should be in an appropriate building of appropriate
prestige and with adequate accommodation. Whether that is done
by refurbishment or whether it is done by new build, that is something
that we are looking actively into at the moment and I would like
to say as little as possible about that because I do not want
to create false expectations and nor do I want to damage the Department's
commercial position in seeking to obtain the best value-for-money
arrangement in relation to the arrangements made. If there is
a period of time after the Act is passed, should Parliament pass
it, where there is a Supreme Court that is sitting in the same
place, I think there would be a very, very significant change
because the people who would be sitting, although they would be
the same people, would no longer be active members of the second
legislative Chamber and that is the critical change.
Q550 Mrs Cryer: Well, I think you have
more or less said you are not going to answer this because my
next question is what plans have you to house the new Court?
Lord Falconer of Thoroton: We
have got a number of proposals under active consideration. I think
because we are all aware of other great building schemes that
have not gone perhaps as well as they might have done, I feel
that we need some arrangement with the Committee about how we
report to you about what we are doing. For me to come to you regularly
and say publicly, "This is how we are getting on with this
scheme and that is how we are getting on with that scheme"
is difficult commercially, but I think we need to work out some
process by which we do report to you, perhaps on a confidential
basis, about how it is going and you make judgments about what
you make public and what you do not make public in relation to
it because I think it is a very, very important issue. It may
be sensible for the Chairman and the Department to have an exchange
of correspondence about how that may be achieved because I think
for a whole variety of points of view, engaging with the Committee
on what is an incredibly important issue is very important.
Q551 Mrs Cryer: So I take it that you
do not feel that it would be possible to decide on an appropriate
building to house the Court before the reforms are implemented?
Lord Falconer of Thoroton: No,
I am not saying that. I think it might well be possible to do
that, but there are many a slip between cup and lip. I do not
rule out the possibility either of there not being a building
or there being a building upon the Bill becoming law.
Q552 Mrs Cryer: Therefore, what should
the guiding principles be in respect of the accommodation of the
new Court?
Lord Falconer of Thoroton: It
should be an appropriate building in the sense that it is suitably
prestigious, it should provide suitable hearing rooms in which
the cases can be heard, it should have first-class library and
research facilities, and it should have appropriate accommodation,
including human support accommodation, for the individual justices.
It should provide value for money for the State in relation to
either its building or its refurbishment and it should be ready
within a reasonable time.
Q553 Ross Cranston: There is a building
in North Greenwich that would do all that!
Lord Falconer of Thoroton: Happily,
there is a buyer for that.
Q554 Dr Whitehead: Can I just take you
back to something you mentioned a little earlier concerning what
you perceive to be the existing strains in the relationship of
the Law Lords to the Lords and one of those effectively was, as
you suggested, the sort of process of bumping into each other
in the corridors.
Lord Falconer of Thoroton: No.
Lord Hope was saying, as I understand his evidence, that bumping
into people in the corridors is a good thing and it kept him in
touch with the process. The other bit I was approaching, and I
think it is in Roger Smith's article, but I am not sure, was where
he refers to evidence given to Justice or Liberty, I think it
was Justice, about an advocate in the House of Lords seeing the
Lords at lunchtime being lobbied by a group in their legislative
capacity on an issue that was live in a case that she was hearing.
Keith Vaz: It is like the Strangers'
cafeteria!
Q555 Dr Whitehead: What concerns me in
that context is that if that is the case, whether or not the members
of the new Supreme Court are members of the House, would it not
be the case that their mere presence in the House might give rise
to that strain and that, therefore, the perception, which we have
agreed is important, would continue to be strained?
Lord Falconer of Thoroton: Yes,
but the advocate's account of what happened at lunchtime is one
aspect of it. It is not an overweening aspect. In the long run,
I think it would be better if they were in a different building
for obvious reasons, but how long you take to get there is an
issue that needs to be resolved by reference to the sorts of issues
Mrs Cryer was asking about.
Q556 Chairman: I think we are really
left with the impression that an important reform, motivated primarily
by the perception that there is something unsatisfactory about
the judiciary and the Executive being intermingled in this way,
might be undertaken on the basis that you rush all the long-term
bit of it, namely the legislation through fairly quickly, but
you do not actually carry out those things which would change
the perception because you cannot do that for some time and it
is putting the cart before the horse.
Lord Falconer of Thoroton: I think
you very much need the Bill in order to provide both the drive
and the authority in financial terms to actually get the new building,
whether it is a new build or a refurbishment, going. You are always
going to have the issue about the relationship between the passage
of the Bill and the timing of moving in. If it took a significant
period of time, whether it be a refurbishment or a new build,
you can only start to expend the money once the Second Reading
has taken place and been passed in the House of Commons. You are
always going to have this difficulty, are you not? Both in financial
planning terms and, I believe, in drive in leadership terms you
need the Bill being either imminent or halfway through to actually
get the thing going.
Q557 Chairman: You are not suggesting
that somehow your commitment to this reform might be questioned,
and the feeling might grow that it was never going to happen if
you did not adhere to the timetable you are currently working
to?
Lord Falconer of Thoroton: If
the position were that the timetable drifted off to an indefinite
future most certainly you would have great difficulties both in
process terms and in drive terms in getting it going. You do need,
I believe, a Bill imminent or going through to really get the
thing moving.
Q558 Chairman: But two sessions rather
than one. It is not an indefinite period, is it?
Lord Falconer of Thoroton: No.
I will not speculate about what the next session might contain
or not contain.
Q559 Chairman: Are you implying that
the next session might be a very short one?
Lord Falconer of Thoroton: No,
I am not implying that at all. I understand in the past that governments
have sometimes gone to the country before five years are up.
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