Examination of Witnesses (Questions 560
- 573)
TUESDAY 6 JANUARY 2004
RT HON
LORD FALCONER
OF THOROTON
QC AND SIR
HAYDEN PHILLIPS
GCB
Q560 Chairman: Let us look at another
example of an area where there is still quite a lot of work to
be done, and that is the area of Scotland and Scotland's involvement
in the Court. Do you recognise the force of the arguments which
Lord Hope and Lord Cullen have dealt with in their evidence to
us about the significantly different relationship of the Court
to Scottish law, and certainly of the present Appellate Committee
to Scots law?
Lord Falconer of Thoroton: Yes,
of course, I recognise there is no appeal on criminal matters
to the House of Lords; there is no leave required in relation
to civil matters; and the historical start of Scottish appeals
to the House of Lords was the claim of right whereby you could
go to the King in Parliament before the Act of Union to seek redress
about what the courts had done.
Q561 Chairman: There is this anxiety
that in some way an attempt may be made to convert Scots law into
United Kingdom law, rather than to do what the present system
does which is to adjudicate upon Scots law issues, with the Law
Lords making that adjudication?
Lord Falconer of Thoroton: That
is most certainly not the intention. It is not the intention to
create some body of a new law called "UK law". It is
still intended for there to be a Court of Final Appeal that deals
with legal issues from all parts of the United Kingdom, including
Scotland. That means, for example, a decision of the Supreme Court
in relation to an English case will not be binding in Scotland,
it will only be persuasive authority, which is the current position.
Q562 Chairman: Are you satisfied also
about the ability of those matters, which are to be decided by
the Scottish Parliament or the Scottish Executive, to be dealt
with in the timetable you are working to?
Lord Falconer of Thoroton: Yes,
I think I am. There are issues about whether or not, for example,
there should be a debate in the Scottish Parliament about these
proposals. I think that is very much a matter for the Scottish
Parliament. My officials have stayed closely in touch with officials
of the Scottish Executive. I have had detailed discussions with
both the First Minister and the Lord Advocate about the provisions
in relation to the Supreme Court, and have also spoken to the
Minister of Justice. I have spoken in detail to Lord Cullen and
Lord Gill about the issues. I have also spoken to Lord Hope and
Lord Rodger, who are the two Scottish members of the Judicial
Committee of the House of Lords currently. We have sought to accommodate
all of the issues peculiarly Scottish.
Q563 Mr Cunningham: Following on from
what the Chairman has said, should the new Supreme Court sit in
Scotland from time to time, for example?
Lord Falconer of Thoroton: I think
its home should be in London. I think it is a matter for the Supreme
Court to decide where it sits. I think the norm will inevitably
be that it should be in London, but if it wishes to sit elsewhere
then it is a matter for it, I think.
Q564 Mr Cunningham: Following on from
a question the Chairman asked you earlier about the participation
of the Scottish Parliament, obviously the Scottish Executive will
certainly be involved in discussions with your Department and
these new arrangements. Do you not think it would be logical for
some sort of debate in the Scottish Parliament surrounding these
new arrangements that have been discussed and probably finalised?
Lord Falconer of Thoroton: I can
see the force of what you are saying, but I do think it is very
much a matter for the Scottish Parliament to determine whether
they think they want to have a debate. I welcome as wide a possible
debate about all of these issues. I would very much welcome a
debate in the Scottish Parliament in relation to it. I think it
is for them to decide whether they have it.
Q565 Chairman: You cannot wholly implement
the proposals in relation to Scotland, can you, unless there is
either a Sewell Motion enabling you to do so, or primary legislation
is undertaken in Scotland?
Lord Falconer of Thoroton: Correct.
From the discussions I have had, it is obviously a matter for
what the Scottish Parliament decided to do but, in principle,
the idea of there being a Sewell Motion does not look at all problematic.
It is a matter for the Scottish Parliament to decide in relation
to it, but there are detailed issues that need to be discussed;
we have discussed them. There have been real concerns, and I think
Lord Hope gave evidence to the effect that there were points raised
(and I do not want to put words into his mouth) which broadly
have now been adequately dealt with.
Q566 Chairman: When you say "adequately
dealt with", as a Committee we do not know that they have
been adequately dealt with.
Lord Falconer of Thoroton: As
I understand Lord Hope's evidence, and I may be slightly mistaken,
he was saying there were concerns at the beginning, they have
been discussed and there now appears to be an understanding—
Q567 Chairman: I do not remember Lord
Hope saying anything like that. I remember putting to him a question
(and I am doing this without looking at the transcript) as to
whether he felt he had now been able to inform you of the extent
of the difficulty and complication about some of the Scottish
issues; and he said, yes, he thought he had now had the opportunity
to make you aware of them. We are waiting for the outcome!
Lord Falconer of Thoroton: Having
heard in detail the particular Scottish issues, I hope we will
be able to get to a point where the Scots feel satisfied.
Q568 Keith Vaz: Could I take you back
to the timetable again. There is obviously a lot of enthusiasm
for these reforms and you are a powerful advocate of them. If
the Law Lords came to you and said, "Let us have a future
delay. Let us look at the proposals in much more detail, because
once we set them in place we are not going to change them again
for 200 years, or whatever", will you accede to that request
or will you reject such an approach?
Lord Falconer of Thoroton: Obviously
we would have to bear in mind what was said by all the people
who make representations and, in particular, the Law Lords are
obviously a very significant stakeholder in relation to the setting
up of a Supreme Court; but our judgment is that the balance between
allowing sufficient period for consultation and not allowing the
matter to drift for too long involves promoting the Bill in this
session. We believe there is enough time for consultation. We
believe in relation to the Supreme Court, for example, that the
legislative issues can be dealt with adequately, appropriately,
and with sufficient scrutiny in that period. It will be a period
of 18 months from the time that the announcement was made in June
of last year to about November when the current session ends.
Q569 Keith Vaz: I do not know if you
have had a chance to look at the lecture Lord Woolf gave in Jerusalem?
Lord Falconer of Thoroton: I have.
Q570 Keith Vaz: He specifically raises
in that the possibility (as the Chairman did in his first question)
of a written constitution. Is this not the time to look at all
those factors now, when we are making such fundamental changes?
Lord Falconer of Thoroton: As
I said in answer to somebody's question, I am not in favour of
a written constitution. Bits of what is the constitution should
be put into statute, but we operate on two bases: one parliamentary
sovereignty and, connected with that, the judges cannot in effect
overturn legislation, say, in relation to European Union matters.
That is how it should continue. If that is how it is going to
continue then ultimately we do not have a written constitution,
in the sense of a constitution that can overtop legislation.
Q571 Chairman: When you say you are both
happy that the matter should proceed with legislation in this
session and convinced that it needs to, are we to assume that
will mean rather broadly drawn legislation with a great deal of
significant detail (possibly detail with serious implications)
being dealt with by secondary legislation which cannot be amended?
Lord Falconer of Thoroton: No,
I do not think it will. There will be bits and pieces of secondary
legislation. For example, in relation to judicial appointments
I would envisage the Bill saying the principle is merit but criteria
can be set out by secondary legislation, because they are the
things that might change. There will be sufficient detail in the
Bill for it not to be open to criticism, that it is so broad brush
that the critical details will come later. We do not envisage
that. I recognise that these are very, very significant constitutional
matters where Parliament, in the course of primary legislation,
has got to make decisions.
Q572 Chairman: We can only hope you will
bear in mind that a number of witnesses who are strong supporters
of the reforms you are putting forward, and the general principle
of them, and a number of commentators of a similar view, still
believe that more time may be needed to get this right?
Lord Falconer of Thoroton: I am
very, very conscious of that. A judgment has to be made about
the delivery of the reforms practically, without there being a
long period of uncertainty with doubt as to what the end result
may be (and this is the judgment we have made) against a reasonable
period of consultation with a high degree of certainty about what
the result at the end will be; i.e. were it sufficiently engaged
in the process for there to be a sense of certainty that it will
happen, and happen within a reasonable time.
Q573 Chairman: Why is there any doubt
about what the end result will be? I do not recall any witnesses
before us who are under the impression that at the end of the
day there would not be a Supreme Court, a Judicial Appointments
Commission and no Lord Chancellor?
Lord Falconer of Thoroton: There
is a difference between people believing that will happen and
happen within a reasonable time, and a belief that that will happen
some time. It is the first that I think is the critical. That
is the approach. It is by being clear that you want it to happen
within a reasonable time that makes it much, much more likely
it will happen.
Chairman: Lord Chancellor, Sir Hayden,
thank you very much indeed.
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