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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 628-iv House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
CONSTITUTIONAL REFORM BILL: THE GOVERNMENT'S PROPOSALS
Tuesday 16 November 2004 RT HON LORD FALCONER OF THOROTON QC, ALEX ALLAN and JUDITH SIMPSON Evidence heard in Public Questions 247 - 362
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 16 November 2004 Members present Mr A J Beith, in the Chair Peter Bottomley Mr James Clappison Ross Cranston Mr Hilton Dawson Andrew Rosindell Keith Vaz Dr Alan Whitehead ________________
Examination of Witnesses
Witnesses: Rt Hon Lord Falconer of Thoroton QC, Secretary of State for Constitutional Affairs and Lord Chancellor, Alex Allan, Permanent Secretary, and Judith Simpson, Head of Constitutional Policy Division, Department for Constitutional Affairs, examined.
Chairman: Good morning, Lord Chancellor, Mr Allan, Judith Simpson. We will do our usual thing by declaring interests first. Mr Clappison: I am a non‑practising Member of the Bar. Ross Cranston: I am a barrister and Recorder. Keith Vaz: I am a non‑practising barrister. My wife holds a part‑time judicial appointment. Q247 Chairman: In that case can we welcome you. We are anxious to get up‑to‑date on various things. Is there anything you want to say to us before we start? Lord Falconer of Thoroton: No, I think not. Would you like me to formally introduce the rest of my team? Q248 Chairman: Yes, by all means. Lord Falconer of Thoroton: Judith Simpson, who is in charge of the policy team on the Supreme Court and Alex Allan, the Permanent Secretary of the Department for Constitutional Affairs. Q249 Chairman: You are formally before us for the first time, I believe? Mr Allan: Indeed, yes. Q250 Dr Whitehead: When you gave evidence to us in June you mentioned the difficulty of squaring the two principles of the Supreme Court's independence of operation and the issue of ministerial accountability for what the court does. I think you also said that there needs to be some arrangement for ministerial accountability in relation to what the Supreme Court does? Lord Falconer of Thoroton: Yes. Q251 Dr Whitehead: What progress have you made in reconciling those what appear to be opposing principles? Lord Falconer of Thoroton: In the Bill itself at the moment there are arrangements that reflect, I would say, normal ministerial accountability for a statutory body, which means, in effect, the Minister, subject to whatever representations are made by the people in the body, determines what he should bid for and then negotiates with the Treasury. I do not think anyone thinks that is an appropriate governance arrangement for the Supreme Court. I think there are three alternative models in play. One is that proposed by Lord Howe, which says the money comes, in effect, through the House of Lords to the Supreme Court. I am against that, on the basis that that is simply preserving the link with Parliament, which is one of the things that one would like to break in relation to the arrangements with the Supreme Court. The second proposal is that something called a "non‑ministerial department" is set up. A non‑ministerial department, as you would expect, involves the Minister in the sense that the administration of the Supreme Court would be in the hands of a chief executive reporting to the Supreme Court justices. He would determine how the money was spent. At the spending round moment, he would put the budget that he and the rest of the Supreme Court thought was appropriate to the Minister, who would then, in effect, pass it on to the Treasury. It would be identified separately in the relevant department's budget, which would be the Department of Constitutional Affairs. The fourth model is exactly the same as the third except that, instead of passing the bid to the DCA minister, you pass it direct to the Treasury. The choice is, in effect, between those last two. The Select Committee in the Lords indicated they would favour the non‑ministerial department approach. No conclusion has yet been reached. It may well be that the best model is the non‑ministerial department. You have still got the Minister passing it on, you have got a minister, therefore, who is accountable in Parliament for budgetary issues, but you have got a very high degree of independence in the way that the court is run and you have got clarity about what the Supreme Court says it needs in monetary terms. Q252 Dr Whitehead: So this is a sort of agency model without the key performance indicators and the contract between the department and the agency? Lord Falconer of Thoroton: It would be a body which entirely set its own administrative arrangements. There would plainly be no key performance indicators, or targets, or anything like that, set by any ministerial department; it would be entirely separate. For example, in relation to the appointment of the chief executive, rather than being appointed in accordance with ordinary patterns and then accountable to the permanent secretary in my department, the chief executive would be entirely separate from any departmental responsibility of that sort. Q253 Dr Whitehead: So far as the issue of the budget is concerned, you emphasised the need for the chief executive to draw up the budget and present it? Lord Falconer of Thoroton: Yes. Q254 Dr Whitehead: Would you envisage that the budget would effectively be a one line agreement? When we were in Australia as a committee we did discuss the issue of the one‑line budget and its merits. Is that what would be envisaged by the process? Lord Falconer of Thoroton: Yes. What you would envisage is that the Supreme Court body would set what it thought its budget was, it would then pass it ‑ this is on the non‑ministerial department model ‑ to the Minister, who would then pass it straight on to the Treasury. The negotiations would then take place between the Minister in the DCA and the Treasury, but it would be absolutely clear, because it would be transparent, as to what the Supreme Court said its budget or its bid was for that particular period. Q255 Dr Whitehead: Some of the evidence we have received, and, indeed, as we discussed with some judges in Australia and New Zealand, suggested that there is a substantial antipathy towards the idea of the new Supreme Court being, as it were, substantial administrators in their own right. Have you considered the possibility of perhaps the DCA remaining responsible for ancillary staff whilst the key staff are appointed separately through that and by the agency of that one‑line budget? Lord Falconer of Thoroton: Yes, but the balance in considerations seems to me to be that the Supreme Court and those who talk about it are very keen that there should be genuine administrative independence. If you set up an arrangement where the chief executive reporting to the Supreme Court justices determines how it is run, I think it is for him to decide what relationship he wants with government departments. There will be plain benefits from his or her point of view in having relationships whereby you can get certain economies of scale, etc, but let the chief executive and the Supreme Court decide what they want in relation to that. There is one caveat to that, which is the relationship between employees in terms of their career prospects and the Civil Service. From the point of view of providing a proper career path, it is sensible, as I said the last time I was here, that people who go into the Supreme Court should continue to have some sort of relationship with the Civil Service if they want to. The Supreme Court will be a very small organisation without traditional promotion prospects, except in a quite limited way. As long as the people who go in feel they can come back to the Civil Service afterwards if they want to, I think that provides enough career progression to encourage them to go in there. Q256 Dr Whitehead: Would that not create a difference so far as the question whether they are civil servants or not is concerned? Lord Falconer of Thoroton: Would you say that again? Q257 Dr Whitehead: Would that create a difference that is not a difference as far as the question of whether they are civil servants is concerned? Lord Falconer of Thoroton: I think they would still remain civil servants; whether they would be seconded from their department or not, I am not sure. They would still presumably retain benefits like group pension rights, accrued promotion rights, etcetera. Again, I think it is for the chief executive to work out what the correct relationship is, but in terms of administrative viability, are you going to be able to attract good staff if it is such a small organisation? The chief executive would obviously be a fabulous job, but if you want to get good people to come I think career prospects and protection of rights is quite important. Again, I think it is for the chief executive to decide in relation to that. Q258 Chairman: How are you getting on with finding somewhere for the Supreme Court to sit? Lord Falconer of Thoroton: There are two buildings, as you know, Middlesex Guildhall and Somerset House. Both of them raise different sorts of issues. Both of them raise planning issues, both of them raise financial issues, because, as you seek to solve the planning issues, so greater expenditure may be required in order to achieve that. We are in the process of working through development plans for both models to see which one can be delivered. I cannot tell you what the result would be at the moment and I cannot give you detailed financial figures at the moment, because we are in the process of working them through. Q259 Chairman: So neither Somerset House nor Middlesex Guildhall have been eliminated, but no‑where else is currently in the frame? Lord Falconer of Thoroton: Exactly. Those two are the shortlist we are considering. Q260 Chairman: In the case of Somerset House, we were relieved to discover, although only in the last couple of days, that it was not one of the buildings which the Inland Revenue sold off in their great clearance sale? Lord Falconer of Thoroton: Yes, I noticed that, but they still have their maintenance done by them. You noticed that. Q261 Chairman: I did. There is a maintenance contract? Lord Falconer of Thoroton: Exactly. Q262 Chairman: Is that going to be a difficult thing to disentangle? Lord Falconer of Thoroton: I do not think so, but again, all of those things need to be bottomed out. Q263 Chairman: What is the likelihood that the Supreme Court will in fact be sitting in the House of Lords? Lord Falconer of Thoroton: I think once one has got both of those options bottomed out, we then choose one. Having chosen one, we would then identify the likely date at which the Supreme Court could start. As I said to you the last time I was here, the best arrangement is that we get an end date (i.e. when the court building is ready) and we start the Supreme Court then: because one of the aims of the Supreme Court proposal is that you have clarity about the arrangements for the final Court of Appeal, and I strongly feel, like I think this Committee feels, that to have that as an aim but then muddle it in the start by not having clarity of start, namely a separate building, etcetera, would prejudice the policy to start with. Q264 Chairman: This change is significantly about perception, is it not? Lord Falconer of Thoroton: Yes. Q265 Chairman: About how people see the Supreme Court in relation to the legislature? Lord Falconer of Thoroton: Yes. Q266 Chairman: And that would not be achieved if it still looked much like‑‑‑ Lord Falconer of Thoroton: The cleaner and clearer the start the better, so that, if possible, you should bring the proposals into force at the same moment as there is a separate building for the court to go into. Q267 Chairman: Are you still in discussion with English Heritage about either of these buildings? Lord Falconer of Thoroton: Yes. Q268 Chairman: Those discussions are not concluded? Lord Falconer of Thoroton: They are not. Q269 Chairman: What about the judges? Has there been a fresh round of consultation with the Law Lords about what the court has to be like and what scope there is for compromise between what I call the two extreme positions, represented on the one hand by the existing two courts in Middlesex Guildhall and on the other the feeling that it should be like a seminar room or a committee room in the House of Lords? Lord Falconer of Thoroton: There has been no further discussion in terms of them changing their requirements which have been set out previously, nor would we wish them to. The nature of the discussion at the moment is talking to the planners and English Heritage about the two proposals and then, from time to time, informing the Law Lords as to what progress has been made with them. It is not a question of them changing their requirements; it is keeping them up-to-date with the progress that has been made. Q270 Chairman: Have you got a clear plan of how much is needed by way of support and library facilities, and things of this kind, in each of these buildings? The Committee has seen the two extremes of these possibilities. On the one hand, the Australian High Court, which is on a vast scale and the nature of the court is relatively little used as a building, and the New Zealand Supreme Court, which is still based in temporary accommodation, still considering whether to move into an historic building. They are two wide extremes. Where do you think the proposed Supreme Court sits? Lord Falconer of Thoroton: I think both proposals we are discussing at the moment, Somerset House and Middlesex Guildhall, strike about the appropriate balance. There needs to be a suitable hearing room, but there also need to be good discussion rooms for the Supreme Court justices, library facilities and suitable individual accommodation. I think both are capable of providing that. Q271 Peter Bottomley: Can I leave a thought for you to consider? Lord Falconer of Thoroton: Sure. Q272 Peter Bottomley: Assuming that you or your successor does not need to go on living in the Lord Chancellor's house, that house is declared as being outside the House of Lords and that is used, which would allow the top judges to go on benefiting from security screening and from the canteen and we would have none of the extra cost involved in the alternative arrangements. I leave the thought for you. Lord Falconer of Thoroton: That is a very helpful thought. Can I make two points about it? Firstly, as I was saying to Alan when he was asking the questions, one of the purposes of the change is that there be an identifiable separate Supreme Court. So I do not think, with great respect, following that suggestion would necessarily meet that. Secondly and separately, whatever views I would take about that, I should tell you that there are those in the House of Lords who are eyeing those apartments very avidly for, as it were, non Law Lord or non Lord Chancellor accommodation. Peter Bottomley: I leave the thought because it might save an awful lot of money and an awful lot of bother. Q273 Mr Clappison: On the subject of money, are you any closer to telling us how much this is all going to cost? Lord Falconer of Thoroton: I am closer but not so close that I could tell you now. As we work through the detail of the plans the costings have obviously become more detailed and more fine tuned. In other experiences in other emanations I have had I have always thought it a mistake to give running commentaries on where you have got to in relation to the costs. From my point of view, my appropriate course is to wait until the work has been done. Q274 Mr Clappison: So you cannot give us an estimate? Lord Falconer of Thoroton: No, I think it would be a mistake to do so. Q275 Mr Clappison: This morning at about 7.30 I was sitting on a bus travelling to St Albans Railway Station. It was the number 84 from Potters Bar. How would you justify all of this to the man sitting on the number 84 bus from Potters Bar? Lord Falconer of Thoroton: I think it is extremely important that there clarity about the arrangement for the final Court of Appeal. For example, in the last few months a very important appeal, namely the appeal of those being held in Belmarsh under the anti‑terrorist legislation, has been going on in the House of Lords. We all understand that it is the court of final appeal that is hearing it, we all understand that it is not the politicians or the legislators who are deciding it, but I am not sure throughout the whole of the nation and throughout the whole of the world that that is clear, and I think it is incredibly important, particularly when rights are so important, that there be total clarity about where a court is deciding something and where the legislature is deciding something. I am not sure that that would have been adequate for the people on the bus with you, but that is our reason for doing it. Q276 Mr Clappison: Can I finally suggest to you that we may be thinking that that is what they are thinking about, but I have not had any constituents, and I am not sure any other member of Parliament has had a constituent or is aware of anybody else at all having complained about this in the past and that they would be conscious of the cost as far as this is concerned. I would rather you than me to explain it to them? Lord Falconer of Thoroton: I am sure you are right. Certainly I have never been approached by people on the street saying, "Please let us have a Supreme Court", and I am quite sure it is not an issue that is on the doorstep, but I think it is the right thing to do. I fully appreciate what you are saying about the difficulty of explaining it to the audience generally, but I think it is a very important thing to do and I think it is the right thing to do. Q277 Keith Vaz: On 11 October, after a defeat in the House of Lords, you said this: "We will ensure that the Bill is amended as follows. The Lord Chancellor will perform those functions that the Bill in its present form currently allocates to the Secretary of State for Constitutional Affairs." You go on to say, "But, of course, that does not preclude the Government from seeking to restore the position of the Secretary of State for Constitutional Affairs in another place." Will the Government seek to reverse the changes to the Bill made in the House of Lords to preserve the title of "Lord Chancellor"? Lord Falconer of Thoroton: The comments I made on 11 October were in the context of having been defeated at the committee stage. It is necessary, in parliamentary terms, to respect the effect of what has been decided. The clear intention of the House of Lords in that vote was to say that the office of the Lord Chancellor should not be abolished. We must respect that in an amendment we are bringing forward for the purposes of the House of Lords. Will we seek to reverse it in the Commons? Plainly, that is a matter for the Commons. The aim is to seek to deliver the reforms that were outlined in June 2003. Those reforms are about the Lord Chancellor no longer sitting as a judge, the Lord Chancellor no longer being the head of the judiciary, the concordat with the judges, the Judicial Appointments Commission and the Supreme Court. We believed that the best way to deal with that was by the abolition of the role of Lord Chancellor. That may remain the best way to do it, but if there are alternatives which can deliver the reforms sought, which I have just outlined, obviously we would consider them. Q278 Mr Clappison: You seem to have gone a long way to meet your critics on the reform proposals. You seem to have won the argument, certainly in the speeches that Lord Kingsland made, that they had to be changed. Everyone agrees now, whereas they did not agree a year ago after the reshuffle, that there has to be change. They seem to have conceded the fact that the Lord Chancellor should not be Speaker of the Lords or sit in a judicial capacity, but they seem to want to keep this title. There seems to be a great affection for the title rather than the role. Do you think that is the way it has moved? Lord Falconer of Thoroton: It is the point this Committee made a year ago, which is that there are certain values associated with office of Lord Chancellor. Those values are the rule of law, the independence of the judiciary and the embodiment of a state that stands by the rules. If that can be achieved in other means, the embodiment of those values, then we should do it, but strong arguments have been put from all sides that the office of the Lord Chancellor, if you could make the reforms that we have made, might still be a force for embodying those values. So we have a choice to make about how you embody those values, because, like everybody, we must not lose those values; I think we must not lose those values. Q279 Mr Clappison: At the time of the changes there was a lot of criticism, and you have spent the last year, presumably, convincing people that those criticisms were not well-founded. Do you think you have won the argument in the Lords, in Parliament, in the country, that there ought to be that change, that the change has to happen if we are going to have a modern system, and that all we are now concerned about is a title, not an office? Lord Falconer of Thoroton: I do not know whether I have won the argument. I think there is very widespread acceptance that the reforms that you went through need to be effected. I think the reform agenda laid out in June 2003 has been accepted as sensible and necessary. As far as the Lord Chancellor's office is concerned, I think the issue is not what is the outcome you seek to achieve, because we all want to achieve the same outcome, namely, the preservation of the values is identified. The question is how you achieve it. Q280 Chairman: Was there not also an issue around the title of Lord Chancellor that there was a general desire ‑ and this was one expressed by the Committee as well as many in the Lords ‑ that the person responsible for the relationship with the judiciary in government should not be a junior minister with a hope of subsequent promotion, but should be someone who is, without making any personal reference, at a point in his career where he is not worried about what his next job is going to be and can therefore take on other ministers if he feels that they are in some way imperilling the independence of the judiciary or the way it is perceived? Lord Falconer of Thoroton: Yes, I agree with that. The office, whatever you call it, has to have sufficient clout both from, as it were, what surrounds it and the holder of it to be able to take a stand on issues that transcend politics. Q281 Keith Vaz: The issue of clout is important as to whether or not the Lord Chancellor or the holder of the office of Secretary of State should be a lawyer? Lord Falconer of Thoroton: Yes. Q282 Keith Vaz: Do you not agree now that it should always be a lawyer who holds this position? Lord Falconer of Thoroton: We have had this discussion. Did we have this discussion before? It should be the person most able to defend the values I have identified. There will be occasions when, I believe, somebody who is not a lawyer would be much better at defending those values than any lawyers that might be in the frame. If you go back in time, do you think that Roy Jenkins, as a Member of Parliament who was not a lawyer, would have been a good defender of those values? Do you think he would have been a better defender of those values than some lawyers that might have been available at the time? It is difficult to say, but should not the Prime Minister of the day be able to judge who is best to do the ministerial job, relate to the judges and defend the values that the office embodies? Q283 Keith Vaz: Sure, but from the point of view of your biggest stakeholders - the judiciary - they were keen to have this big figure in the Cabinet who was able to stand up for them. Irrespective of whether the Lord Chancellor sits as the Speaker of the Lords or sit as a judge, they wanted that big figure. When the Home Secretary gets too big for his boots ‑ I am not suggesting that David Blunkett has done so ‑ they want someone who is going to be able to stand up to the Home Secretary to be able to discuss in Cabinet and say, "Who is going stand up for the judges if it is not the Lord Chancellor"? Lord Falconer of Thoroton: You put it extremely well, but the question is: would they feel comfortable only with a lawyer? Is not the question: who is going to be most effective at doing that particular job? There are some lawyers who would be good at it and some who would not. There would be some non‑lawyer politicians who would be excellent at it. Q284 Keith Vaz: But the most senior judges like the idea of having that big figure in the Cabinet, someone whom they can trust? Lord Falconer of Thoroton: Yes. Q285 Keith Vaz: They must have said this to you in the meetings that they have had with you? Lord Falconer of Thoroton: Yes. Q286 Keith Vaz: They like that idea? Lord Falconer of Thoroton: They do. Q287 Keith Vaz: How can we ensure that that trust remains with someone else who holds that office who does not happen to be that senior figure? Lord Falconer of Thoroton: You have come straight back to the question: could that trust only be created between a lawyer and the judges? I do not think it does require a lawyer to do it. Q288 Keith Vaz: Can I ask you one question about the judiciary at the moment? In giving evidence to us last week, the President of the Family Division, when I put a question to her about meeting various campaign groups certainly in family law, said she was reluctant to meet one particular group. What is your policy on senior judges meeting groups and individuals outside the judicial system? Lord Falconer of Thoroton: It is entirely a matter for them whom they meet, and I would entirely respect the President's judgment in relation to determining whom she should meet or not. Plainly, I neither could, nor would, seek to impose any restrictions in relation to whom she met, and I would trust her good judgment in relation to that. Q289 Mr Clappison: What plans have you to introduce an amendment relating to the rule of law? Lord Falconer of Thoroton: We had discussions in relation to that at the Select Committee. An amendment was discussed there as to the form of a rule of law amendment. I am keen that there should be such a rule of law amendment. Plainly, the issue of the rule of law amendment and the office of the Lord Chancellor are quite inextricably linked, because if ultimately the best way to preserve the values of the rule of law is by preserving the office of the Lord Chancellor, then the need for a rule of law amendment dramatically decreases. Q290 Andrew Rosindell: Lord Chancellor, when you gave evidence to the Committee in June you referred to the relationship between judges and Parliament, and you said at the time you were agnostic as to how this should be done. Have you had any further thoughts about the best way this could be managed in the future? Lord Falconer of Thoroton: My own view is the best way it could be managed in principle is that senior judges should readily come to select committees in both Houses and give evidence on appropriate issues to select committees. I think if a relationship was built up whereby, if a senior judge wanted to come and express views about a particular thing, he or she could be moderately certain that the select committee would provide an opportunity for that to be done within a reasonable time. That would seem to me to be the best way to do it, because I think that is more appropriate than a senior judge being a member of the legislature. Q291 Andrew Rosindell: Would that be a joint committee of both Houses, or would you envisage a new committee being established? Lord Falconer of Thoroton: I am afraid I remain agnostic. I think that is a matter for both Houses to decide what the best way to do it would be. I think there is something to be said for having a committee in each House that does it. I am not sure that you need necessarily to change the arrangements. This Committee has regularly, on a whole range of issues, had senior judges before it, and it seems to me to have worked pretty well. I do not know that it has ever been raised, but if a senior judge indicated that they wanted to come before this Committee, I cannot believe this Committee would not facilitate it. If that works well, that might be a template for the future. Whether the Lords have a committee as well, I do not know, but I suspect it is probably more important that the senior judges have an opportunity to address a committee of this House rather than the Lords. Q292 Chairman: You refer to the fact that judges come before this Committee. I had a discussion with the Lord Chief Justice before we started this process and, therefore, we had a clear understanding of the basis on which it is done. You agree with my view that we have to have a degree of self‑discipline about how Parliament deals with the judges if we are not to put them in a false position of having to account for individual decisions or, indeed, be trapped into defending some kind of policy in relation to the handling of cases rather than giving evidence to us about their experience or, indeed, indicating where the problems are in managing the system? Lord Falconer of Thoroton: I agree with all of that. They have confidence that when they come here they are not asked inappropriate questions about individual cases, nor are they asked, as you rightly say, to defend what is effectively executive policy rather than administrative matters so they have the confidence to come here. Q293 Keith Vaz: Your ambition was to modernise the position of Lord Chancellor to be an active Secretary of State. Hardly a week goes by without some new initiative coming from your department. In the past the judges were coming to you and they would say to you, "We are concerned about a particular piece of legislation that is coming forward." If they are not in the House of Lords how would they make their views known to government, to the Executive, about proposed legislation? Would they have to make controversial speeches? Would they have to make statements? Would they have to give press conferences? Lord Falconer of Thoroton: The concordat envisages a close relationship between the Executive and the judges without transgressing the independence of the judges. One of the things that it involves is much closer daily relations between officials and the Minister and the judges. So they have got every opportunity, and I see them regularly. I do not think they would feel for one second any inhibition about saying, "We think this is a sensible proposal." You can see that, for example, in relation to criminal procedure and substantive criminal law proposals over the last few years; you can see it in relation to immigration and asylum. Their views have carried very considerable weight both internally and externally in determining what policy is. There is no difficulty about the informal channels. Q294 Keith Vaz: You have lifted the veil. People know what the Lord Chancellor does now. They know what kind of budget a holder of that office has? Lord Falconer of Thoroton: People knew that before, I think. Q295 Keith Vaz: Not in quite such a public way. You appear on Question Time, for example. No Lord Chancellor in the past has ever appeared on Question Time. Do you think that the veil has been lifted too far? Are the judges a little too worried about the fact it is all out there and the mystery has gone? Lord Falconer of Thoroton: The big change that has happened, I think, is that the ministerial, political function of the Lord Chancellor, which has always existed to a greater or lesser degree, has become much more apparent. There are obviously risks in relation to that, but I think it is extremely important that it becomes more apparent because I think things like the administration of the criminal courts or the family courts, decisions about legal aid, are issues that ultimately are political (with a small "p") decisions rather than decisions that are off‑shore the politicians. Because I do that as a minister, I think it is right that it is apparent and public that I do that, but I consciously have to do it without in any way prejudicing or compromising my objective independent role in appointing judges, in preserving the rule of law, in protecting the independence of the judiciary; but I think it is much better that it is apparent, and I think it is much better that I am a figure who is not kept in the dark. Keith Vaz: When you open your birthday presents on Friday morning, what is the one birthday present you would like from the combined opposition in order to get your proposals through Parliament? Is there one particular issue that you would like them to understand that you are prepared to compromise on in order to get this through? Q296 Chairman: That sounds like the last question on Question Time! Lord Falconer of Thoroton: The critical thing from my point of view is that we get the four elements of the reforms, which is the Lord Chancellor doing a different job, not a judge, not a member of the judiciary; we get the concordat, a new relationship with the judges, we get a Judicial Appointments Commission and we get a Supreme Court. That is the present I would like. Q297 Keith Vaz: That is four presents? Lord Falconer of Thoroton: Four presents, but I think two of them, the Judicial Appointments Commission and the concordat, are broadly not an issue. I think the Supreme Court is not an issue, but increasingly I sense people accept the principle of a Supreme Court; their concerns are around the sorts of issues we have been discussing this morning, which is governance, the building, etcetera. I think the Supreme Court is there and I think there is widespread acceptance of what we want the office‑holder to do, but the issue is not about what he or she should be doing, it is about what office he or she should hold and whether he should be a lawyer and a Lord. Q298 Ross Cranston: Could I take you to judicial appointments? We had this discussion last time in relation to the Supreme Court. You may recall that Professor Hazell gave evidence to the Lords' Select Committee and said that he thought there ought to be more than one on the list, and he said that that was important in terms of retaining the confidence of the judiciary. Have you moved at all on that particular point? Lord Falconer of Thoroton: I have not, no. I think it should still be one person on the list. I think the balance you have to strike is between the power the Executive has on the one hand and on the other the fact that the Executive has got to have some responsibility for the appointment of judges. If you go above one, you significantly increase the ability of the Executive to actively make a choice rather than simply to approve the choice of somebody else; and I think the right role is to approve the choice of somebody else rather than to make the choice ourselves? Q299 Ross Cranston: What about the argument that we as a political class, because we do not have as great involvement, will be more inclined to attack the judiciary - involvement through you making the appointment? Lord Falconer of Thoroton: I hope the answer is our involvement is enough. You can send the name back, and, if you do not send the name back, then you are, in effect, accepting that an acceptable choice has been made. Q300 Ross Cranston: What other mechanisms are you going to put in place so that we as a political class would not attack the Supreme Court? Lord Falconer of Thoroton: You mean the decisions of the Supreme Court? Q301 Ross Cranston: Yes. Lord Falconer of Thoroton: First of all, the office‑holder's role‑‑‑ Q302 Ross Cranston: So you feel some sort of involvement there? Lord Falconer of Thoroton: I think it is the appointment process, which involves the Executive; it is the links between Parliament and the judges, not in individual cases but in terms of being able to give evidence; it is the role of the office‑holder to protect the independence of the judiciary. Those are the three things, I think, which will continue with the political classes being involved enough not to attack individual decisions. Q303 Chairman: Before you move forward, could I clarify the details of the process you have been describing? We have moved from a position where a slate of names from the Supreme Court would go to the Lord Chancellor and he would choose from that slate to a position where‑‑‑ Lord Falconer of Thoroton: There is one name. Q304 Chairman: ‑‑‑there is one name. The commission recommends one name to the Minister but sends the detail of the others considered. I have some difficulty in working out what that process means: because if you look at the first name and say, "I am not sure about that", you look at the details of the others, which presumably have a name attached to them, and you go back and say, "I do not like the recommendation. I see that there are other good names on the list." What is the difference between that and choosing between‑‑‑ Lord Falconer of Thoroton: Because you have a limited ability, you could only say, "I reject the name" once. If they come back with the same name, you have to accept. It seems to me it must be possible for a minister to say, "Here are five names. We select name A." You look at the other four names. On the face of it, if every single one of the other four look immeasurably better than the one that was appointed. "You have appointed somebody who has been at the Bar for five years. Everybody speaks badly of this person. He appears to have an appalling disciplinary record and here are four of the finest legal brains in the history of legal brains and you have selected A. Might you reconsider?" That would be a perfectly legitimate thing to do. Q305 Chairman: It is a pretty hair‑brained scenario though, is it not? Lord Falconer of Thoroton: Unless you have some idea of the basis upon which the choice has been made, it is difficult to be informed about whether you accept it or not. It picks up Ross's point though. The more you know the more your endorsement to the appointment is a real endorsement. What you cannot do is say, "I like the look of name C. If you come back with C I will accept it." Q306 Chairman: Can you not? Lord Falconer of Thoroton: No, because if the selection panel come back and say, "No, it is A. We want A", then you can reject it, but then they chose and you have to accept that name. Q307 Ross Cranston: You remember last time there was some disagreement between the Chairman and myself about this? Lord Falconer of Thoroton: I do. Q308 Ross Cranston: I think he had some disagreement with his party as well, but we will not go into that! Could I take you to judicial appointments generally? Lord Falconer of Thoroton: Yes. Q309 Ross Cranston: Since we met I think you have appointed Mrs Justice Gloucester and also Mrs Justice Dobbs, who, in fact, was widely welcomed as a commitment on your part to diversity; and we also welcomed, I think, the very detailed paper you put out on diversity in the judiciary; but how do you get the Judicial Appointment Commission to implement those policies on diversity? How is it going to be done as a matter of mechanics? Lord Falconer of Thoroton: It is for the Judicial Appointments Commission to determine precisely how they do it, and it will be things like much greater information about what judicial appointments are available, discussions with the professions about how they encourage a particular thought of training, and entry, and encouragement of judicial appointments so that the profession is encouraging people, discussions with the government about sitting hours and other arrangements making it as easy as possible to do it. It is a whole range of things, as the judicial diversity paper says, but, perhaps more significantly, there must be a will on the part of, first of all, the Government before the JAC comes in and then the JAC to make a difference in terms of the diversity of the Bench without diluting merit. I think it was you who drew my attention to the Canadian example. Did you have the Chief Justice of Canada giving evidence some time ago? Q310 Chairman: Yes. Lord Falconer of Thoroton: I went to Canada a few months ago, or a month or two ago, and everybody there said to me that the Government for the last 15 or 20 years has had a real will to diversify the Bench without diluting merit. I was there when they swore in two new women Supreme Court justices, making the number of Supreme Court justices four women and five men, and that was a product over a long period of time, but they would all say it was transforming. So it is about specific measures, but it is also about political will, and we need to exercise that more to show we have got that will before the Judicial Appointments Commission comes in. Q311 Ross Cranston: I think the Canadian experience demonstrates that, and that is the point that Beverley Blanc has made on a number of occasions. It is political will, which goes back to the question about appointments, but let us leave that to one side. How do you actually ensure that the Commission does take that political will and then implement it? How do you do it mechanically? Do you set down guidelines for them? Lord Falconer of Thoroton: I think we should set down guidelines. Q312 Ross Cranston: Do you provide them in some way with guidance? Lord Falconer of Thoroton: There was widespread agreement for this in the Select Committee in the Lords. We need to give the Executive power to give guidelines on diversity which the Judicial Appointments Commission is obliged at least to have in mind. We cannot interfere with their independence and selection, but we need to give them, without diluting the merit principle, the ability or hopefully the obligation to consider diversity issues as well; but if the state is keen that this should happen, if there is that political will there in the state, one hopes it would be reflected in the Judicial Appointments Commission as well. Q313 Ross Cranston: One would hope that, but I think the Scottish example is used, is it not? They have a judicial appointment body but I am not sure any more women have been appointed, or any women have been appointed? Lord Falconer of Thoroton: It has not been going that long. If you go to Canada there are provincial appointments bodies and national appointments bodies that operate in a slightly different way. Both of them have produced more diverse Benches. Q314 Ross Cranston: I am underlining your point that the political will is crucial. Lord Falconer of Thoroton: Yes. Q315 Keith Vaz: This is to Mr Allan. Obviously the Lord Chancellor has appointed the first black woman to the High Court Bench, which is something that is very welcomed on the basis of merit, but there are criticisms about the way in which the process of the Department works as far as feedback is concerned for those who have not managed to get a judicial appointment. Are you satisfied that that process is working, because I have anecdotal evidence from black and Asian people who have applied for judicial appointment, who have been turned down, who have then tried to use the feedback process; they get to people in your department, who seem to be invariably on voice‑mail, and they do not get the feedback that they need to make them ready to take up the appointments that the Lord Chancellor has just talked about? Mr Allan: We have certainly put a big effort into making our whole appointments process more professional, more open, more transparent, and, indeed, to provide the sort of feedback that you have been describing as necessary. I am sorry if in individual cases it has been hard to get the feedback, and I am certainly happy to investigate any of those, but we do attach great importance to making sure that we have genuinely improved and made more professional the way in which judges have been recommended for appointment. Q316 Keith Vaz: You have just advertised in The Times and The Guardian for a number of part‑time district judges. Have you looked at that form? Have you seen that form yourself? Mr Allan: I am not sure I have seen it myself, no. Q317 Keith Vaz: Because the form requires people to know very senior people in the profession. If you operate on a different level, if you are a young, black or Asian barrister of ten years standing who wishes to get one of these appointments, your ability to get to know the people who count to act as referees is not very great, and that is where the disadvantage starts, the fact that you are asked for referees who have knowledge of people's work. The people who are applying, especially from the ethnic minority community, simply do not have that access? Mr Allan: That was one of the issues covered in the consultation paper on diversity in the judiciary which the Lord Chancellor launched a few weeks ago, very much inviting feedback on those sorts of issues where people from black and minority ethnic communities may feel disadvantaged. That is very much the sort of issue we want to take on board. Q318 Keith Vaz: Have you as the Permanent Secretary ever attended one of these feedback sessions? Mr Allan: A feedback session from a‑‑‑ Q319 Keith Vaz: From an applicant who has been refused? Mr Allan: No. Q320 Keith Vaz: If someone who has applied to be a QC or a judge has been turned down they have the option of ringing someone like your Department and asking for the reasons why they have not been appointed. Have you attended one of those sessions yourself? Mr Allan: No, because the feedback is given by the people who have been involved in doing the interviews, involved in the process. Q321 Keith Vaz: As Permanent Secretary, since you have overall responsibility for the processes in the Department, not the policy but implementing the process, do not you feel you should know what people are told at such an interview? Mr Allan: I certainly feel I should be satisfied that people have had appropriate feedback based on what they have been told. Q322 Keith Vaz: How can you be satisfied, Mr Allan, if you have never attended one of those sessions? Mr Allan: As I say, the sessions themselves are feedback from the people who have sat in, who have actually been on the panels and, where necessary, if complaints are made, they are investigated and they may come to me. I have not, as it happens, had any in the time since I have been Permanent Secretary? Q323 Ross Cranston: When you last came we discussed fees, the full cost of recovery and the implications for the Supreme Court, and I think at that stage you said that you had not finally worked out the implications of that. I am wondering if you have made any progress? Lord Falconer of Thoroton: Yes, I think we have now, as it were, worked those issues through. This only applies to the civil business of the Supreme Court. The funding of the Supreme Court's civil business should partly be from its own fees, its charges, but that produces, I think, only about £500,000, £600,000, and partly from fees that the Civil Justice System of England and Wales also charges. In order to finance it, because the Supreme Court will be more expensive on a yearly basis than the House of Lords Judicial Committee, that will mean we will need to increase civil fees in England and Wales, and it might be by something like 50 or 60p in an individual case. Q324 Chairman: Right down to the County Court? Lord Falconer of Thoroton: The County Court would have to pay as well. The County Court case will have to pay as well in relation to it. It would be an average, so it would not be 50 or 60p in relation to a county court. That is fair, we believe, because you are providing a court system and the court system includes making available a first instance judge, which very, very frequently is not used because so many cases settle, but it also means a Court of Appeal or a final Court of Appeal or a Supreme Court once the Supreme Court is set up. So I do not regard that as either unfair or unnecessarily onerous. You will know that there are provisions that excuse people quite legitimately from paying fees if they cannot afford the fees. So it does not deny access to justice and it is a fair way of doing it. Judith is correcting me; it is 20 to 50. I was grotesquely weakening my case by saying 50 to 60p. It is 20 to 50p. Q325 Chairman: Say for a small claim it is £80 or something, £80 plus either £22, £15? Lord Falconer of Thoroton: Judith, you are the expert on fees. Perhaps you would help me with that? Ms Simpson: On the basis of calculations which we did in the summer, so obviously on various assumptions about overall costs which may or may not change, we thought it worked out at about 20 to 50p per fee across the whole of the civil business. The costs for a case, of course, work out at rather more than that, but we are talking about low numbers in single figures of pounds per case. Q326 Chairman: You were about to say what would happen in Scotland and Northern Ireland. Lord Falconer of Thoroton: Northern Ireland is yet to be resolved. Scotland do not want to charge additional fees, so that is going to be dealt with by a public expenditure transfer. Q327 Chairman: A bit of the Barnett Formula will go pay for the Supreme Court? Lord Falconer of Thoroton: It is quite small amounts of money, well under a million pounds. It is hundreds of thousands rather than anything else. That is the way they wish to do it and they are plainly entitled to determine what is the way that they do it ‑ we have no difficulty about that ‑ but it is a sensible way of dealing with the issues, in my view. Q328 Ross Cranston: It is not designed to cover the capital costs? Lord Falconer of Thoroton: It is not designed to cover the capital costs, no. It is designed to deal with the running costs. Q329 Ross Cranston: Have we had a consultation paper on this? Lord Falconer of Thoroton: I was not envisaging one. Q330 Ross Cranston: Or did you not do it because it was such a low amount? Lord Falconer of Thoroton: I do not think that a consultation paper would be appropriate. I think it needs to be dealt with in the course of the Bill being approved. I think the parliamentary scrutiny process has got to be the way that is dealt with. Q331 Chairman: What happens to the existing budget of the Judicial Committee of the Privy Council whose work is a component of the new Supreme Court? Lord Falconer of Thoroton: The cost of the Privy Council will plainly not be borne by civil fees. The amount of civil fees only relates to civil cases from the United Kingdom. Q332 Chairman: I was thinking of devolution cases. Lord Falconer of Thoroton: They will not be covered by these. Civil means only civil litigation. Devolution cases and criminal cases are paid for by the state. There will be no impost of any sort in relation to them whether by fees for the Supreme Court directly or by impost of any part of the justice system. Q333 Peter Bottomley: My recollection, I may be wrong, is that the cost of the top court at the moment, other than the judge's salaries, is about £600,000 a year. Lord Falconer of Thoroton: Slightly more, I think, but something like that. Q334 Peter Bottomley: How many more millions are we going to be spending with the new arrangements, do you think? Lord Falconer of Thoroton: We estimate the cost will be about £7 million per year, but is significantly higher. Q335 Peter Bottomley: About seven times higher? Lord Falconer of Thoroton: Yes. Q336 Peter Bottomley: Or more? Lord Falconer of Thoroton: That is the inevitable consequence of setting up a separate building, a separate body, rather than it being, in effect, financed from another building of which the Law Lords bit is a tiny part. Q337 Peter Bottomley: You so moved from the use of two or three rooms in somebody else's building to having a building with its own security, its own catering, its own back‑up staff, its own library, everything? Lord Falconer of Thoroton: Exactly. Yes. It is, in terms of percentage, significantly higher, but in terms of overall costs, I do not believe it is a great price to pay for something like an independent Supreme Court, which, to use Lord Bingham's words, is a necessary part of any liberal democracy. Q338 Peter Bottomley: Lord Bingham said that the present arrangements passed Bingham; the pudding test did not pass Bingham. So I think he argues both ways, or could be held to? Lord Falconer of Thoroton: He unquestionably supports the setting up of a Supreme Court. He, like any person, is very keen that proper arrangements be set up to deliver it, but he is a strong supporter of a Supreme Court being set up. Q339 Peter Bottomley: We are aware of that, because he told us that he did not say that any part did not work at the moment; it just did not look right. You are putting this effort into break the link with Parliament. Are you putting the same effort into breaking the link between this top court and the Executive? Lord Falconer of Thoroton: I am sorry, that is too clever a question. Q340 Peter Bottomley: You put a lot of effort into breaking the link between the top court and Parliament? Lord Falconer of Thoroton: Yes. Q341 Peter Bottomley: Are you putting the same effort into breaking the link between the top court and the Executive? Lord Falconer of Thoroton: Is that a question about the governance questions? I am sorry, there would not be a link save in the governance and the funding arrangements of the sort that we discussed at the beginning. Q342 Peter Bottomley: Yes, but part of our discussion earlier on was whether the funding arrangement should, in effect, be through Parliament or should it be through ministers? Lord Falconer of Thoroton: Yes. Q343 Peter Bottomley: You have explained that the purpose of multiplying the cost of this top court by ten times is to avoid the perception of the link between this top court and Parliament. I am asking for confirmation, but contradict me if I am wrong, that you are not putting the same effort into breaking the perceived link between this top court and the Executive of ministers? Lord Falconer of Thoroton: The one thing that we have already done is to make it clear that the Chairman of the final Court of Appeal is not a member of the Cabinet, which is the current arrangement. That is a pretty strong link between the Executive and the final Court of Appeal. Money has to come from somewhere for this court, and money for Parliament comes from the Executive, so money for the court has to come ultimately from the Executive. I cannot think of a way that you could ever break that link. Q344 Peter Bottomley: How at some stage do you manage to insert into the Bill the power for ministers to define or redefine merit in terms of judicial appointments? Lord Falconer of Thoroton: It is not there now. Q345 Peter Bottomley: How did you come to have it in the Bill in the first place? Lord Falconer of Thoroton: I do not know is the answer, but it should not be there and it has gone. Chairman: One of the many useful jobs in the House of Lords is following the method of consideration in the first place! Q346 Peter Bottomley: Can I put to you, Lord Chancellor and Secretary of State, a question which has, I think, been worrying a lot of people, and it has come up at this Committee before and with you. In the absence of an emergency, how did it come about that abolition of the position and the role of the Lord Chancellor should become settled government policy without consultation, proper public debate or carefully planned legislation? Lord Falconer of Thoroton: The aim of the reform was as set out by the Prime Minister on 12 June. As he recognised, they required legislation. The process of Parliamentary scrutiny has led to a huge number of changes being made to the initial proposal, and it has also led, I believe, to there being widespread support for significant elements in the proposal. Q347 Peter Bottomley: That is not an answer to the question I think I was putting. How did it come about the proposals came about 17 months ago without consultation, proper public debate or carefully prepared legislation? Lord Falconer of Thoroton: That occurred before I became Lord Chancellor; not very long before I became Lord Chancellor, but before I became Lord Chancellor. Ross Cranston: Which is the point you made last time. Q348 Peter Bottomley: Are you aware of anyone having explained it? Lord Falconer of Thoroton: The Prime Minister gave evidence to the Liaison Committee in June or July of this year and was asked questions, among others, by the Chairman of this Committee about that very point and by, I think, Chairmen of various other committees about this very point. Q349 Peter Bottomley: I will try another tack then, if I may. About 17 months before your post was abolished and then resurrected, the Government in a White Paper said that they were defending the judicial appointment of the House of Lords, that they were committed to that. They then became uncommitted to it without giving any prior indication that this was being reviewed within government. What does that make of a government commitment? Lord Falconer of Thoroton: Neither myself nor the Prime Minister has sought subsequently to defend the way that the announcement was made, and nor do I do so today, but during those 17 months there has been very detailed consideration in a whole range of ways at these proposals. In particular, in the House of Lords they inserted an additional stage in the parliamentary process, which is only to the good. These proposals should, I think, now be judged on their merits, and I think quite a lot of people think there should be a Supreme Court, there should be the concordat that was negotiated with the judges, there should be a Judicial Appointments Commission and there should be fundamental reform, at the very least, in the role of the Lord Chancellor. It is absolutely legitimate for you to raise these points, but it seems to me the important issue is the merit or otherwise of the proposals. Q350 Peter Bottomley: Part of the sense of constitutional government in the role of Secretary of State for Constitutional Affairs is that people might be expected to believe that the Government believed three years ago when they wrote in their Green Paper that the judicial element of the House of Lords was important and they were committed to it. Seventeen months ago they were uncommitted to it. You have described the changes that have taken place in the last 17 months, which are interesting and important, but the question is about how we moved from 2001, where there was a commitment, to 2003, when there is not? Lord Falconer of Thoroton: Does the process not in a sense illustrate the strength of our constitutional arrangements in that an announcement is made without prior warning. It was done much too abruptly. The consequence is that subsequently there has been very detailed consideration of the respective proposals that have been made and people, both in Parliament and outside, have been able to judge the merit or otherwise of these proposals, and some of them have been amended and some of them have stayed as they were. I entirely agree with you about the method of announcement, but I think a consensus is emerging as to what the right changes are. Q351 Peter Bottomley: Is the rule of law, which has had some attention in the House of Lords, capable of judicial review and enforcement? Lord Falconer of Thoroton: No, it is not intended to. Q352 Peter Bottomley: Is it capable? There are two questions, one as to whether it is capable and the second as to whether it is desirable? Lord Falconer of Thoroton: What are you asking about: the proposed amendment? Q353 Peter Bottomley: Would the provision of the rule of law be capable of review and enforcement? Lord Falconer of Thoroton: It is not intended--- Every time I say "it is not intended" you instantly put your hands up in the air! If there is a provision in the Bill and the legal intention is that it should not be judicially reviewable, is it capable of being judicially reviewable subject to the court's decision on that, but the intention of the drafter is that it should not be. Q354 Peter Bottomley: It is possible to declare that this declaration of the rule of the law is not intended to be enforced by the courts. It is not intended that it should be reviewed by the courts. That is the decision. That is the intention? Lord Falconer of Thoroton: Yes. Q355 Peter Bottomley: The previous question I was asking was would it be capable to write it in such a way that the courts could review it and could enforce it? Lord Falconer of Thoroton: I understand your question. Yes, of course, you could write it in a way that the courts could review it. Q356 Peter Bottomley: In terms of separation of powers, what is the summary reason for not? Lord Falconer of Thoroton: I think it is wholly inappropriate for the court to be determining how a minister should conduct what is in a sense his relationship with his colleagues. When a minister is performing a particular function, like determining planning permission or making decisions of a quasi judicial nature, plainly it is appropriate that that minister or his department be subject to judicial review. Where an issue arises as to whether a minister has broken the law, again it should be subject to the courts, but what view he takes about particular changes in the law, in particular, whether they offend against the rule of law in a sense beyond simply whether they break the law, that is a matter for his judgment and it should not be the courts determining what role he should take in Cabinet. It does not feel appropriate and people would think it was wrong. It is a political, with a small "p", job rather than one where the courts could determine legal standards. Q357 Peter Bottomley: Why not abolish this idea of a top court and go back to the Judiciary Acts of 1873 and 1875 and just combine the Court of Appeal and the High Court as the Supreme Court? Lord Falconer of Thoroton: Because I think there is real benefit from having a court above the Court of Appeal. The Court of Appeal deals with a very high volume number of cases. It is dealing with, as it were, specific error right across the judicial system. What the final Court of Appeal is doing, whether it is in the House of Lords or whether it is in the Supreme Court, is dealing with a comparatively small number of cases, no more than 80 in a year, as opposed to the thousands that the Court of Appeal does, setting legal norms, moving the law on and making decisions of principle rather than simply, as it were, stopping errors of the lower courts, which is the main role of the Court of Appeal. Q358 James Clappison: Lord Chancellor, you have mentioned what you see as agreements on the Government's proposals, and you used the word "consensus" a moment ago, and I do not doubt the personal care and attention which you have given to all this, but you would accept, would you, that there is a distinction between agreeing with the wisdom of the Government's proposals in the first place or disagreeing with them and then, in either case, trying to make the best of them once the Government has made clear the determination to press ahead, come what may? One should not be mistaken for the former. Lord Falconer of Thoroton: I do not think that is the position though. I think, for example, and it has been referred to already, that in the House of Lords the Conservatives have broadly supported, not faute de mieux, but because it is the right thing to do, the proposition that the Lord Chancellor should no longer sit as a judge, the proposition that the Lord Chancellor should not be in the judiciary, the proposition that relations with the judges should now be governed by a concordat and the proposition that there should be a Judicial Appointments Commission, and all of these things, not faute de mieux, but because they are sensible things whose time has come. Q359 James Clappison: Well, given that is where we are starting from, they are trying to make the best of ---- Lord Falconer of Thoroton: No, that is not their position. Their position is that these are the right things to do. I assume you disagree with them. Q360 James Clappison: Well, you will accept there is a difference between accepting in the first place the wisdom of them and then trying to make the best of what is being presented to us. Lord Falconer of Thoroton: Of course I accept that there is. Q361 Chairman: I think the point is made and I am not sure we are here to debate quite how the Conservative Party got to its position. Can I just invite you to tell us what you are hoping to achieve by the pilot of tele-recording proceedings in the Royal Courts of Justice. Lord Falconer of Thoroton: The pilot is only in the Court of Appeal and it is not to be broadcast. It is for the judges, the lawyers involved and the broadcasters to see how it would look, so the way it would work is that you would do, as it were, a mock news broadcast without what went on in the Court of Appeal being available and then do it with Court of Appeal material and you would then be able to see what it looked like and make judgments about whether or not that should be broadcast. If, informed by that and by the rest of the consultation process, people thought and there was a widespread view that they should be broadcast, then we would proceed to change the law, as appropriate, to allow filming and broadcasting of certain limited parts of the court process. Q362 Chairman: And do you have a view about whether this should be done in the end or are you waiting for the outcome of the pilot to make up your own mind? Lord Falconer of Thoroton: I am waiting for the pilot to inform us and I wait to hear what other people say, so I am going to be guided by the consultation, but I think if the consultation shows that there are problems in the Court of Appeal end, which is the no witnesses bit, my inclination would be that we should do it. I think the more that people can see of what goes on in the courts, but without prejudicing the interests of victims and witnesses, the better. Chairman: Thank you, all three, and we look forward to seeing you again before very long. |