Examination of Witnesses (Questions 200-219)
RT HON
LORD FALCONER
OF THOROTON
QC AND SIR
HAYDEN PHILLIPS
GCB
8 JUNE 2004
Q200 Mr Clappison: Can I finally suggest
to you, that Lord Bingham—I have asked for the transcript—from
my recollection was most unenthusiastic, to put it mildly, about
this prospect, and it seemed to me that whatever division there
may be amongst the Law Lords about the creation of the new Supreme
Court, roughly half in favour and half against, it seems that
you will be creating unanimity, from what he said, if you want
to suggest that they go into a temporary home?
Lord Falconer of Thoroton: I think
that may well be right. Lord Bingham may well take the view that
you should not start it until the home is ready. I think you are
right about that. I think he said that in evidence to both this
Committee and the Select Committee.
Chairman: Does Mr Clappison want to take
further the question about the position of the Lord Chancellor?
Q201 Mr Clappison: Yes, coming to the
Lord Chancellor, the same thing applies there. You referred in
your initial statement to the questions which you were asked in
the Select Committee of the House of Lords. Can I take you back
to the line of questioning, which you may remember, which came
from Lord Howe which echoed what many other people have said,
but he said it as a particularly distinguished person, putting
to you the gap that there was between the politician in the Government
and the Secretary of State for Constitutional Affairs would be
perceived as and the standing of the Lord Chancellor's venerated
figure occupied by distinguished persons, yourself included, and
also by other distinguished persons going over a long period who
built up a standing and had an ability to speak on behalf of the
judiciary, carrying a certain amount of authority. Is there any
way that you can still bridge that gap and save what were the
very good things from the old system?
Lord Falconer of Thoroton: The
reason for the change is not constitutional theory, though we
think it matches constitutional theory. It is because the role
of the Lord Chancellor, as I think most people who have been involved
the actual operation of the job have recognised, has dramatically
changed over the last 50 years, over the last 30 years. The Lord
Chancellor has become a minister responsible for a budget of around
£3 billion. That is not because of particular accretions
coming from getting responsibility for human rights or electoral
law, it comes from his two mainstream functions: namely, legal
aid and running the Court Service. It is not appropriate, as time
goes on, for a minister with that budget to be not potentially,
if that is what the Prime Minister wishes of the day, to be in
the commons and accountable like other ministers for that degree
of expenditure. Equally, I do not think that it is appropriate
that the Prime Minister, in determining who should be that minister,
is constrained to appointment a senior lawyer in the Lords, which
is the current position; but there are things that the Lord Chancellor
does that we would be very, very keen to preserve. In particular
there are two things: (1) his responsibility in relation to the
independence of the judiciary and (2) his responsibility to ensure
the rule of law is complied with. I think the way to deal with
that is to try to see in the statute how one incorporates that
particular function in the role that the Secretary of State for
Constitutional Affairs plays, because I think those are very,
very important things and they are picked up specifically by this
Committee in relation to what it said in its report. You have
to strike a balance between the increasing ministerial role of
the Lord Chancellor which leads to the conclusion that it is probably
no longer appropriate for that job to be done by, in effect, somebody
who is a judge as well and instead should be done by somebody
who is a more mainstream minister but a more mainstream minister
who has particular responsibilities both independent of the judiciary
and the rule of law.
Q202 Mr Clappison: I would suggest to
you that there have been examples of the way in which the role
of the Lord Chancellor has evolved, as it certainly has, over
the years whilst the title and the standing of the Lord Chancellor
has been preserved. You are saying to us that now, after June
12th last year, there is no way that the Lord Chancellor's title
can be preserved.
Lord Falconer of Thoroton: I think
at the heart of the change is the recognition that the role that
the Lord Chancellor plays is one that may now need to be done
by a more mainstream minister; that the Prime Minister of the
day should have unconstrained choice in relation to who he makes
that minister; that you cannot get to that point if you keep the
office of Lord Chancellor: because although the Prime Minister
might want the Secretary of State for Constitutional Affairs to
be in the Lords, he should be able to choose to have that person
in the Commons if he so chooses; but, as I say, and I recognise
your point, there are things that need to be preserved—the
rule of law and the independence of the judiciary—and we
need to put that into the statute to try to get to that same position.
Q203 Mr Clappison: It has not proved
to have been an insuperable problem for previous Prime Ministers
in the century that has just gone and so far in this century of
finding suitably distinguished people to occupy the post in the
House of Lords?
Lord Falconer of Thoroton: No,
and indeed there have been extraordinarily distinguished Lord
Chancellors in the past, but they are a different sort of member
of the Government from that which is envisaged in the future.
What prior to about 1970 Lord Chancellors were doing was two things:
(1) they were chairing, as Speaker, the House of Lords, and (2)
they were presiding over the judicial House of Lords and appointing
judges, and they had a very, very limited role in relation to
the management of the courts and the running of the courts. After
the Courts Act 1971 they got, in effect, responsibility for all
of the courts above the Magistrates' Court, not the House of Lords,
and, as Lord Hailsham has written pretty eloquently, their role
changed dramatically. What the constitutional proposals are seeking
to deal with is how that change in what the Lord Chancellor does
now needs to be reflected in new constitutional arrangements.
Q204 Chairman: Do you think you under-estimated
the extent to which, particularly in the judiciary and in the
legal profession generally, importance was attached to the Lord
Chancellor as a minister who (a) had that title, (b) was senior
without expectation of subsequent political promotion? These factors
seem to have loomed much larger in the discussion since the decision
was announced than you might have expected them to do?
Lord Falconer of Thoroton: I think
that the way the announcement was made on 12th June, as Peter
has identified in his first questions to me, without any warning
meant that the process of the announcement lead to very grave
scepticism, concern, about the way that it happened. In relation
to what has happened subsequently with the judiciary, I think
two things have emerged: (1) they, with myself, have in effect
negotiated what they think are sensible detailed arrangements
for the future, but (2), and Lord Woolf made this clear in the
evidence he gave to the Select Committee in the other place, it
is probably right as a matter of principle that we do move on
from a situation where the minister is the head of the judiciary
and that instead the head of the judiciary should be the senior
professional judge in England and Wales rather than a minister.
So, yes, they saw and discussed in full and raised all those points.
Now I think it would be not unfair to say that they would probably
favour a situation where there is now a very clear distinction
between the head of the judiciary, namely the professional judge,
and the member of the Executive, the Secretary of State for Constitutional
Affairs, who performs the interface role with the head of the
judiciary. So they are accepting, I think, and indeed would now
be supportive of, the proposition that you do not want two senior
judges because it leads to confusion.
Sir Hayden Phillips: Could I add
a word in relation to those two things from my own perspective.
Both the Lord Chief Justice and I gave evidence to the Select
Committee in the other place from quite different perspectives,
describing how literally over the last six years the role of the
Department had changed enormously, hence the creation of your
own Committee, and how once it was no longer possible—and
Lord Irvine had not sat as a judge since 2001—no longer
sensible or possible for the Lord Chancellor to sit as a judge,
and once it had been announced, which predated 12 June, that there
was to be a Judicial Appointments Commission seriously considered,
the two central strands of the historic nature of the office of
Lord Chancellor, namely head of the judiciary and the appointer
of judges, had already gone, and both the argument from the point
of administration and the argument from the perspective of the
judiciary, as it were, come together and now are reflected in
the concordat which you have settled with the Lord Chief Justice.
I think one has to try and look at that as a real fact but then
try to do what the Secretary of State has indicated, namely to
make sure that certain key roles that are not infected by either
of those points about being the head of the judiciary or being
the sole appointer of judges, like independence of the judiciary
and the rule of law, are secured under our new arrangements, and
that is now what we are trying now to craft; and that seems to
me to fit with the history rather than go against it.
Lord Falconer of Thoroton: One
other point. The Chairman's points about did you reckon with the
concern that we expressed about the fact that the judges would
value the fact that it was an end of career job, all ambitions
spent. It is worth pointing out that the judiciary accept the
proposition that the nature of the relationship in the concordat
is between, on the one hand, the judges as represented by the
Lord Chief Justice and, on the other, a member of the Executive,
rather than somebody who is in the anomalous and unusual position
of the Lord Chancellor, who is both a judge and a member of the
Executive. So in a sense they have come to terms with, I think,
the change that has occurred.
Q205 Chairman: The goal post moved so
they aimed for the new goal?
Lord Falconer of Thoroton: If
you look at the evidence that Lord Woolf gave, and I do not want
to be accused of misquoting him, to the Select Committee in the
Lords, he said in effect that 12th June turned out to be a catalyst
for revealing a whole range of changes that were already occurring.
Without wishing to quote somebody else, the plates had already
moved in a number of respects.
Q206 Peter Bottomley: Picking up the
situation as it is now and recognising that although there are
many things which now appear to be clear to a number of people
they will not be clear enough to be discussed with your predecessor
as Lord Chancellor, and skipping gently and diplomatically, if
I may, over what you might call the ambiguity of the response
as to whether the Permanent Secretary was involved before the
Lord Chancellors were or, more gently, the clarity of the non-respondent
for that question some time back, can we move forward? The answers
to James Clappison's questions would be on the basis that the
ministerial role has changed. Is there any particular reason why
it would not be feasible to give the title of Lord Chancellor
to those roles which ministers will not have, which is heading
the judiciary and defending the independence of the judiciary,
in effect Lord Bingham and successors being those who carried
the title of Lord Chancellor without being a minister and without
presiding over the debates in the House of Lords?
Lord Falconer of Thoroton: In
relation to the defending of the independence of the judiciary
within the Executive, that role will be performed by the Secretary
of State for Constitutional Affairs.
Q207 Peter Bottomley: Forgive me. I did
not use the word defending in the Executive, but being the defender
of role. The person who when they speak the plates start saying,
is it time to move; the person who might, for example, be granted
access, at request, to the Prime Minister if they perceive a threat
to the independence of the judiciary?
Lord Falconer of Thoroton: It
would be the Lord Chief Justice, not the senior Law Lord. But
the Lord Chief Justice is plainly the appropriate title in relation
to that. What you are trying to convey there is the chief professional
judge, and I think it would be—I would strongly resist the
idea of the Lord Chief Justice changing his title to become the
Lord Chancellor. I have not asked him actually, but I do not think
he would welcome being called the Lord Chancellor. I think he
would much prefer the clarity of him being the senior judge. So
I would not favour the Lord Chief Justice's title being changed
from Lord Chief Justice to Lord Chancellor.
Q208 Peter Bottomley: The question was
not whether you favoured it; it was whether or not it is possible?
Lord Falconer of Thoroton: Possible
in what sense?
Q209 Peter Bottomley: Could Parliament
bring in legislation or could it become the practice that the
title of Lord Chancellor is not put in the dustbin as a result
of the changes of responsibility and the Secretary of State for
Constitutional Affairs but is actually preserved? The role of
Lord Chancellor has changed over the years, as we know. It picked
up judicial independence points about 140 years ago. That has
not been an historic role of the Lord Chancellor; it has been
a modern role of the Lord Chancellor?
Lord Falconer of Thoroton: Indeed,
one of their old roles before that was to ensure a lack of judicial
independence.
Q210 Peter Bottomley: So the question
remains: is there any reason why it is not possible for Lord Bingham's
successors to carry the name "Lord Chancellor"?
Lord Falconer of Thoroton: I assume
you are in fact referring to the Lord Chief Justice.
Q211 Peter Bottomley: No, I am not.
Lord Falconer of Thoroton: You
are referring to the senior Law Lord.
Q212 Peter Bottomley: At the moment we
have Lord Woolf and Lord Bingham, and they have different titles
and different roles. Lord Bingham has not really got a big title:
he is Lord Bingham and he is the senior Lord.
Lord Falconer of Thoroton: Yes,
he has the title of the senior Law Lord.
Q213 Peter Bottomley: So if we have the
Lord Chief Justice and we have the person who is going to be the
senior member of the highest court, other than criminal cases
in Scotland, is there any reason why that person cannot be carrying
the title Lord Chancellor?
Lord Falconer of Thoroton: I am
sure that there is no legislative reason why such a provision
should not be put in a Bill. Although you are not asking me this
question, could I say I would not favour it for (a) the reason
I have indicated, but (b) there is a separate reason, which is
the Lord Chancellor's role in relation to the independence of
the judiciary, as has become apparent throughout the debate, and
in fact was known before, is in relation to England and Wales.
He appoints judges in England and Wales. He does not have a role
in relation to the professional judiciary in relation to Scotland.
I query what Scotland's view would be about the senior UK judge,
because Lord Bingham is the senior Law Lord, in effect, for the
final Court of Appeal for the whole of the United Kingdom, taking
on—
Q214 Peter Bottomley: Except for Scottish
criminal cases.
Lord Falconer of Thoroton: I apologise,
you are quite right. I query what they would think about their
final Court of Appeal for everything except for criminal cases
having what, in effect, is a title most relevant to the English
judiciary.
Q215 Mr Soley: Is not a lot of your problem
in bringing this institutional change about that the vast majority
of people, including those involved in these discussions, recognise
that the role has to change and the whole thing has to change
but, in Walter Bagehot's phrase, the decorative parts of the British
constitution cling on and we hear words like "Lord Chancellor"
and our eyes cloud over in mists and bands of angels sing when
actually we just need to get rid of that, do we not?
Lord Falconer of Thoroton: I think
that if one of the purposes of the change is clarity in arrangements
then I am quite sure that we do need to get rid of the name because
we need to identify what people's roles are. That is important
because, as I said briefly, the courts are very, very important.
As time has gone on the increase of judicial review and the importance
of the Human Rights Act means that their role in vindicating individual's
rights, particularly against the state, is ever more important
and there needs to be clarity about who is doing what. I also
think it is not right, as I said before, that expenditure of that
sort should not be dealt with a mainstream member of the Government.
Q216 Mr Soley: Much as I like a bit of
criticism, I have to tell you it is not just the man on the Clapham
omnibus but the man or woman in Acton or Shepherd's Bush who actually
thinks we have got a Supreme Court, who thinks it is in Strasbourg,
who thinks it is called human rights, so the more pragmatic and
straightforward and down to earth it is, from my point of view,
the better.
Lord Falconer of Thoroton: You
have no doubt heard the same anecdotes that we have heard about
how it leads to confusion. Lord Bingham himself always refers
to what happened in relation to the Pinochet case, the sense around
the world that the British politicians in the Lords had dealt
with the issue about what happened to General Pinochet in relation
to the ability to try him here or in Spain. There is quite a lot
of lack of clarity.
Q217 Ross Cranston: I agree with Mr Soley
that with people like Lord Hailsham, who was a very eminent politician
who then became Lord Chancellor, the eyes mist over. Frankly people
forget a lot of history. Lord Mackay and Lord Irvine were both
in political hot water in lots of cases but that is also forgotten.
Anyhow, I want to ask you about something on which I have some
passion and that relates to the number of names being put forward.
In the Bill the proposal was two to five. We considered that as
a Committee and, although like all the select committees in the
House of Commons we try to reach a consensus, on this particular
issue we voted and we rejected the Chairman's draft. The Chairman
had said put forward one name and the majority of us said "No,
we support Lord Falconer's proposals in the Bill".
Lord Falconer of Thoroton: Oh
no!
Chairman: This does not happen very often
but I cannot deny that it did on this occasion.
Q218 Ross Cranston: Like all votes one
does not know the motivations of colleagues but I voted for your
original proposal on the basis of a notion of democratic accountability,
ministerial accountability. I can see the problem that with a
small jurisdiction like Northern Ireland you will never get five
names put forward, possibly two but in most cases you would be
putting forward one name. I do not want an answer now. I know
you have only said you are minded to go towards the one name and
you have not come up with a conclusive view in your evidence to
the Committee, but you have heard the arguments because you sit
on the Lords' Select Committee. You have heard Professor Hazell
and others, like our advisor, you have heard Dr Kate Malleson
and so on, saying that in terms of democratic accountability,
once you get down to one name and effectively you as Secretary
of State have only got a veto, you do not have that accountability.
I am asking you to reflect on that. Personally I am much more
attracted to what you were originally putting forward.
Lord Falconer of Thoroton: I am
sorry to hear that having, as it were, voted on my original proposal
I have now joined with the Chairman who is in the minority. I
made it pretty clear in the Second Reading in the Lords that I
was minded to change it and various proposals are now going forward
in relation to whether it should be one name. The argument that
is the one that I find the most persuasive against my original
proposal is that the Supreme Court is obviously going to be a
hugely important court and although it will be for the committee
to decide whether five names come forward, if one of the things
that one is seeking to do is to reduce the ability of the Executive
to choose the judges, whilst they need to be involved in a meaningful
sense so they can reject or ask for reconsideration, to be able
to choose from one of five names would give the Executive—it
is a question of balance—too great a choice in the sort
of person who would go into the Supreme Court.
Q219 Ross Cranston: As I was suggesting,
I would not go to the barricades on five names but I think there
needs to be an element of choice. What other common law country
does not have that sort of choice? I do not think there is any
country that is faced with the proposition of one name coming
up and then the Minister simply having a veto.
Lord Falconer of Thoroton: I am
quite sure that the name has got to come through the Appointments
Commission and I think the choice has got to be constrained to
some extent because that is the only way that is consistent with
the approach of the Judicial Appointments Commission generally.
We have got to have some real input in the Executive so that we
have a stake in the person who is appointed, so if the Secretary
of State does not object to being asked that he or she be reconsidered
then you are, as it were, committed to that particular choice.
I understand the arguments.
|
