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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 48-v House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
Judicial Appointments and a Supreme Court (Court of Final Appeal)
Tuesday 6 January 2004 RT HON LORD FALCONER OF THOROTON QC and SIR HAYDEN PHILLIPS GCB Evidence heard in Public Questions 496 - 573
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 6 January 2004 Members present Mr A J Beith, in the Chair Ross Cranston Mrs Ann Cryer Mr Jim Cunningham Mr Clive Soley Keith Vaz Dr Alan Whitehead ________________ Examination of Witnesses Witnesses: Rt Hon Lord Falconer of Thoroton QC, a Member of the House of Lords, Secretary of State and Lord Chancellor, and Sir Hayden Phillips GCB, Permanent Secretary, Department for Constitutional Affairs, examined. 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. 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. Q520 Keith Vaz: Do you agree with the European Charter on the Statute for Judges that at least 50% of the Appointments Commission should be judges? Lord Falconer of Thoroton: I think there should be a significant judicial element. I do not think it is necessary for judges to make up 50% or more of the appointing panel, that is, the Judicial Appointments Commission rather than the one appointing the Judicial Appointments Commission. Q521 Keith Vaz: First of all, my congratulations on your appointing the first woman member of the Law Lords. Do you think a Judicial Appointments Commission would have done the same thing as you? Lord Falconer of Thoroton: I am sure they would have done. Q522 Keith Vaz: So what is the point of having them? Lord Falconer of Thoroton: Because I think you need a process that is much more open and is seen to be much more open. Many, many people will apply to be judges if they think the process has got a much more open, un-inward-looking, un-opaque feel from the current arrangements. I also think that setting up the Judicial Appointments Commission can allow much greater introduction of human resources processes than currently exist. Ross Cranston: I should make the declaration that I am a recorder and barrister. Chairman: Yes, it is something I omitted to do at the beginning. Does anyone else want to declare an interest? Keith Vaz: I am a non-practising barrister and my wife holds a judicial appointment. Mrs Cryer: I am on the supplemental list of Bradford magistrates. Q523 Ross Cranston: Sorry to set that hare running! Could I just follow up Mr Vaz's point, and it is an argument put to us that you could have a Commission that appoints bland appointees, which sort of has an antiseptic approach, that there is that danger of committees not making the innovative and exciting appointment, so what sort of mechanisms do we use to make sure that does not happen? Lord Falconer of Thoroton: You do not want the Judicial Appointments Commission to be simply making bland appointments. I think there are three mechanisms by which that can be avoided: first of all, who is appointed and if there is a clear will not to have bland appointments, then that should be reflected in the appointment; secondly, I think there is a significant role for the Executive in relation to this not in the sense of making individual appointments, but making it clear both in relation to what they say and, in relation to how they deal with the names put to them, the sort of judiciary that they expect to be appointed, not in terms of individuals, but in terms of type and; thirdly, obviously the Judicial Appointments Commission itself will have a vision, one would hope, of the sorts of appointments they wish to make. So there is a risk there, but there is absolutely no reason why that risk should mature and I believe there is much, much greater chance of there being a change in the way that appointments are made in terms of type with the Judicial Appointments Commission than under the existing system. Q524 Ross Cranston: But do you try to do that in the legislation or do you do that by some sort of statement from the Executive that this is what it is expecting the Commission to do? Lord Falconer of Thoroton: Well, the primary legislation should embody the principle that appointments must be on merit, but I think we need to look to see whether or not, as it were, criteria can either be agreed maybe in secondary legislation which encourage a non-bland approach to the appointment of judges. Q525 Ross Cranston: I take the point that in terms of your act subsequently or the Secretary of State's act subsequently, that could send a message to the Commission of the sort of people he wants to be appointed. We had evidence of course from Peter Herbert from the Society for Black Lawyers and we also heard from various women lawyers as well about increasing diversity and perhaps I could just ask you about how that is going to be done. Again are there mechanisms whereby we can ensure that, first of all, there are applications from, for example, ethnic minority candidates? Lord Falconer of Thoroton: Sorry, are you talking about the new system or the old one? Q526 Ross Cranston: Under the new system, yes. How do we ensure this greater diversity while still retaining the merit principle? Lord Falconer of Thoroton: As a principle, subject to the merit principle, we would wish there to be the encouragement of greater diversity. The Executive has got a role in terms of leadership to play in that respect. The precise detail of the mechanisms by how it is done should primarily be a matter for the Judicial Appointments Commission. To take an example that has been in play throughout the course of your inquiry, and indeed I think it was referred to in the initial evidence session I came to, the idea of there being one route into the judiciary through starting at a younger age, starting perhaps in a more junior role in the judiciary and then being promoted upwards, the Executive could make it clear that they would expect that route to be followed and the Judicial Appointments Commission can then develop methods by which they can then attract people into that route. It is a combination of the Judicial Appointments Commission and the Executive. I also think it is incredibly important that the professions themselves have got a very considerable role to play in relation to it because the more women, the more black and minority ethnic candidates that, as it were, last the course in relation to professional career, the more there is a wider pool from which to draw, whatever the arrangements for judicial appointments. Q527 Ross Cranston: And one aspect of that or one corollary of that would be appointment at a younger age? Lord Falconer of Thoroton: Yes, indeed. Q528 Ross Cranston: One idea which was put to us by Lord Justice Thomas was that you had permanent, part-time appointments and I think he was thinking in particular of the solicitor, say, in commercial practice to whom that might be attractive. Is that a possibility? Lord Falconer of Thoroton: Yes, that sounds an extremely good idea to me. One needs to work out the detail both in relation to which judicial level it starts and what sorts of judicial level. I could see that working, for example, in relation to deputy district judges sitting in crime, deputy district judges sitting in matrimonial proceedings, deputy district judges dealing with civil cases, and it could really provide a significant diversification in relation to the sorts of people sitting without in any way diluting the merit principle. Q529 Ross Cranston: Again can I just ask you about the mechanisms. How do you ensure the Commission will be doing that? Lord Falconer of Thoroton: Well, resources will be for the Executive and individual appointments will be for the Judicial Appointments Commission, so does one do it by the Executive saying, "We'll make resources available for X number of part-timers", or does one do it by the Executive saying in the criteria, "We would expect there to be a significant number of part-time appointments in this particular level of judiciary", or does one do it by agreeing informally with the Judicial Appointments Commission that that is what one expects? I do not know which is the best of those three mechanisms, but I can see no difficulty in one or other or a combination of the three being used to produce the particular result in that example that we are after. Q530 Ross Cranston: They would have to get the message. That is the key point. Lord Falconer of Thoroton: They would have to get the message in one way or another. That message could be transmitted. Q531 Ross Cranston: I know one of our colleagues, who is not here this morning, would have wanted to ask a question about the incremental approach and I think, in a way, you addressed that before. Lord Hope, for example, gave us evidence that all we needed was a standing order to make sure that the Law Lords did not speak or vote on matters in the House of Lords and that you yourself would not sit. I think, in a way, that has been addressed, but we did have some interesting evidence which I have only had a look at this morning from Professor John Griffith, a former colleague at the University of London, and he, in a way, takes the same view from a radical perspective. In fact he starts by quoting Yeats: "Things fall apart; the centre cannot hold; mere anarchy is loosed upon the world". I think the argument is that somehow by putting the judges off in a separate Supreme Court, you are pushing them towards some sort of isolation and that you would not get the mutuality of understanding that you get at the present time because the Lords are across there in the House of Lords. I think this did come across to some extent from the evidence, say, of Lord Hope and other Law Lords who are not taking Lord Bingham's approach that the Supreme Court is the way forward. In the way you announced the issue, I am just wondering if there is anything supplementary you would like to say about that? Lord Falconer of Thoroton: No, I read Professor Griffith's evidence and Lord Hope's evidence and he describes a walk in the corridor in the House of Lords and the House of Commons and meeting Scottish MPs and he found it useful to keep in touch with things. I do not think that that of itself is a justification for keeping, as it were, the court of final appeal in the Parliament building. I do think there is a broader point beyond that made by Lord Hope about you do not want the judges and the Executive to get so separate, and I cannot remember which one of your witnesses, but one of your witnesses referred to the possibility of 15 years down the line and there being some great conflict between the Executive and the judiciary. Q532 Ross Cranston: It was Robert Stevens. Lord Falconer of Thoroton: That is right, and that is why I think a recommending commission and ensuring a continuing partnership between Executive and judiciary is important to avoid that sort of situation developing. Q533 Ross Cranston: But again you do not think about the mechanisms to achieve that particular result. Lord Falconer of Thoroton: One of the mechanisms will be plainly the relationship in relation to appointments. Another mechanism should be, I think, getting judges involved in a non-executive capacity in, for example, strategic planning for the court service so that they get some stake in the administration of the buildings in which they operate and get a greater understanding than they have got at the moment perhaps of the resource issues. Q534 Keith Vaz: You will be able to set out a vision statement on diversity as Secretary of State. Lord Falconer of Thoroton: Yes. Q535 Keith Vaz: But it will be up to the Judicial Appointments Commission to decide how that is implemented. Lord Falconer of Thoroton: That is correct. Q536 Keith Vaz: Have you ruled out the possibility of targets being set? Bearing in mind the merit principle, which of course underpins all of this, and the targets being set for black and Asian people being appointed as judges and more women being appointed, targets of course do not prevent the Commission not appointing, but it does set out in a very clear way what you, as the Secretary of State, intend to do. Lord Falconer of Thoroton: I think it would be wrong for the Secretary of State to set out specific targets. I would not rule out the idea of the Secretary of State setting out aspirations in relation to that. As to whether or not the Judicial Appointments Commission thought that targets were a good idea, I think that should be a matter for it. Q537 Dr Whitehead: A number of people have put to us, and we have indeed discussed in this Committee, the difference between what you might call the illusion of the separation of powers and the reality in the Constitution where the reality of the separation of powers is not as it might appear, and yet you believe that the removal of the judges from the House of Lords will have a particularly beneficial effect on perception of judicial independence. Do you think that perception is more an illusion than a reality? Lord Falconer of Thoroton: No, I think it is wrong that you appoint somebody to the court of final appeal by appointing them to the Legislature because I think, as a matter of simple principle, you are appointing them to rule on the laws, not to make the laws, so, in principle, they should be separate. I think it is more than just perception because I think you can see in the things that have been happening recently, say, over the last 10 or 15 years, that there are problems in the Law Lords being in the Lords. Lord Bingham gave evidence, and these are not his words, but he said he made a speech in the Lords about a particular Criminal Justice Bill and I think he said, "I broadly supported the Bill and I made six quite anodyne reservations about the Bill", at which point counsel in the particular case subsequently objected to him sitting in the particular case. A distinguished advocate, who is referred to in a paper by Roger Smith and Professor Stevens, refers to addressing the House of Lords' judicial committee and she says quite legitimately that they excluded some Pepper v Hart material which was slightly odd because one of the Law Lords sitting on the panel had actually been present at the debate at the time the material had been given, so he had to forget what he had heard. She also refers at lunchtime in the same case to the members of the judicial committee being lobbied, quite legitimately, on an issue that was live in relation to the case in the middle of the case, so it is not just, I think, about, "It's an illusion". I think there is a reality that is getting increasingly problematic in relation to it and I think that is why, and Lord Hutton spoke to me about this, or I assume that is why the senior Law Lord thought it appropriate to make the statement he did about the circumstances in which the Law Lords would operate. You can see signs of strain already. It is not affecting at all the quality of judgments coming out of the Law Lords because they are second to none and I think everyone would agree that they are of first-class quality, but I think we should move now before the problems get worse. Q538 Dr Whitehead: The Lord Chief Justice, on the other hand, has indicated that he feels in many ways that there is a value in him remaining in the Chamber in fact to safeguard judicial independence in order to speak up for the independence of the judiciary in the House of Lords. Do you think if you set one argument against the other that that argument has some merit? Lord Falconer of Thoroton: I am aware that that is the Lord Chief Justice's view. I take a different view in relation to that. I think that if you are appointed as a judge, you should be, as it were, ruling on the laws, not making the laws, and I think that the distinction between the two gets blurred if you habitually appoint the Lord Chief Justice or the Master of the Rolls to sit with the Lords because the areas in which remarks, within the Legislature, are made will be about particular provisions to change the law. There is absolutely nothing wrong with the Lord Chief Justice or the senior judiciary making statements publicly about areas where there is, for example, a concern about the independence of the judiciary, but let that be done from a place separate from the Legislature. Q539 Chairman: Actually one of the places it might be done is here in this Committee which is not a place separate from the Legislature, but there are ways it can be done. Lord Falconer of Thoroton: There is a world of difference, I believe, between being a witness before this Committee, on the one hand, and being a participator and a potential voter in the second legislative Chamber. Ross Cranston: You get much more publicity saying it outside than in, I am sure! 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. 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 one 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. |