Examination of Witnesses (Questions 220-239)
RT HON
LORD FALCONER
OF THOROTON
QC AND SIR
HAYDEN PHILLIPS
GCB
8 JUNE 2004
Q220 Ross Cranston: I am not saying that
you are not conscious of democratic accountability at the other
end of the building, but possibly at this end we are more attuned
to these notions of accountability for decisions. With one name
you are basically putting this decision in the hands of a quango.
Lord Falconer of Thoroton: Yes.
Q221 Ross Cranston: There is no political
accountability for the decision being made. That is what concerns
me and, as I say, my colleagues supported me when I moved that
particular amendment to the Chairman's draft, but I do not know
what motivated them. They can speak for themselves. There is that
sort of theoretical argument but there is also the argument about
how committees put forward names. If they are putting forward
one name, the concern that I have generally with putting forward
one name is committees a priori might go for the safest
choice, the unimaginative choice, and that is another concern,
a no-risk appointment.
Lord Falconer of Thoroton: There
would be individual appointers, individual Lord Chancellors, in
the past who no doubt were much more cautious about who they proposed
than the Judicial Appointments Commission will be. I suspect you
would find that the Judicial Appointments Commission from time
to time would be much more—
Q222 Peter Bottomley: Bold.
Lord Falconer of Thoroton: Bold,
thank you. People have made the point that Lord Chancellors will
always be more bold than the Judicial Appointment Commissioners
but I think that depends upon the character of both, does it not?
Q223 Ross Cranston: It certainly does,
yes. I was possibly overstating it by saying a priori but,
to make it non-political, we had a very imaginative Lord Chancellor
in Lord Mackay in terms of some of the appointments that he made.
Lord Falconer of Thoroton: Yes.
Q224 Ross Cranston: I guess my fear is
that a committee could make the unimaginative appointment. It
depends, of course, on composition but you are going to have the
senior judges there.
Lord Falconer of Thoroton: The
Appointments Commission for each appointment to the Supreme Court
is the President and Deputy President of the Supreme Court and
one member of each of the three territorial Appointments Commissions,
so it will have elements on it that would not be represented before
and there would be bound to be some lay element in relation to
it.
Q225 Chairman: There is not bound to
be a lay element unless one of the territorial jurisdictions submits
a lay member.
Lord Falconer of Thoroton: I am
minded to introduce an amendment that there has got to be some
lay element in it because I think that would be appropriate.
Q226 Chairman: In the interests of balance,
perhaps I should put to you that the initial reaction to your
proposal demonstrated the danger that a list of names submitted
to you would be seen by a lot of people as allowing you to make
choices between judges in a way that was damaging to the perception
of the independence of the judiciary. Although that was not the
basis on which the proposal was put forward, there is no doubt
that perception arose in a lot of the comment following the
initial announcement.
Lord Falconer of Thoroton: Yes.
There was support for the proposal from some places but there
was also very vigorous dissent from it because it appeared to
be contrary to the flavour of the Judicial Appointments Commission
which applied to England and Wales but we had to be consistent
with it because it would lead to the Secretary of State having
much too strong an ability to intervene in who individually was
appointed.
Ross Cranston: As I say, there was support
down this end for the original proposal.
Chairman: I think we have established
the view which prevailed among the Committee on that particular
day.
Ross Cranston: I am not trying to rub
the Chairman's nose in it!
Q227 Mr Dawson: Can we look at the relationship
between the Supreme Court and Parliament. Once we have quite properly
achieved this separation between the legislature and the judiciary,
how would you conceive of ways of building a good working relationship,
a good constructive dialogue, between judges and Members of Parliament?
Lord Falconer of Thoroton: I think
it is very important that there should be such a relationship.
I think there should be arrangements whereby the judges do, as
it were, discuss matters of mutual interest with Parliament. It
has obviously got to be clear that that is not talking about individual
cases. It has obviously got to be clear that that is not on the
basis that you want to try to find out how particular judges might
decide particular types of cases in the future. I would not support
at all any sort of confirmation or post-appointment hearings where
you seek to delve into the processes by which particular sorts
of decisions are taken. Judges have quite regularly given evidence
to this Committee with, as far as I can see, absolutely no difficulty
at all about where the line is drawn between policy issues on
the one hand and judicial decision making on the other. I would
encourage some sort of link like that being established. I think
it is for Parliament to determine what the best way to do it is:
should it be dealt with through an existing committee like this;
should there be a joint committee of both Houses; should there
be a new committee? I am agnostic as to how it should be done
but I would strongly welcome it happening because I think it would
greatly reduce mutual misunderstanding.
Q228 Mr Dawson: Indeed. Do you think
there is a role in relation to particular policy areas? I know
there was a very good example of the way the President of the
Family Commission, for instance, gave evidence before the Adoption
of Children Bill.
Lord Falconer of Thoroton: That
is an extremely good example of where evidence by the judiciary
could help in relation to particular policy issues.
Q229 Chairman: She also gave evidence
to this Committee when we did our report on CAFCASS.
Lord Falconer of Thoroton: Another
good example. One could think of hundreds of areas where it would
be of use to hear from the judiciary which would not trespass
at all on either the confirmation type hearing or interfere with
judicial decisions.
Q230 Mr Dawson: In your response to our
previous report you said you would carefully consider our recommendation
that the general work of the Supreme Court Appointments Commission
could be scrutinised by this Select Committee. Have you given
any further thought to that?
Lord Falconer of Thoroton: Yes,
I have. I am wary of saying on behalf of the Executive what the
most appropriate way for Parliament to scrutinise that is, I think
it is much more appropriate for Parliament itself to determine
how that should be done. In effect, for us to give a strong steer
at this stage rather than simply giving an option seems to me
inappropriate.
Q231 Mr Dawson: Moving on to the relationship
with the Executive, can you tell me what you think might be the
most appropriate platform for the senior judiciary to make its
views on legislation known to the Executive?
Lord Falconer of Thoroton: We
make it clear in the material that we have given that we want
there to be close links in terms of policy formulation between
the judges and the Executive. That does not mean they get involved
at an early stage, but that they be consulted on those that might
affect them. We have also, as we have said, sought to have the
judges more involved in the administration of the court service
and the administration of the Department for Constitutional Affairs.
Lord Justice Judge, the Deputy Lord Chief Justice, is now a non-executive
director of the DCA. It is intended that there are to be non-executive
members of the judiciary who sit on the chief board of the unified
court administration. There are channels whereby they get involved
in expenditure issues and policy issues. What happens where they
disagree with the Executive and they want to make that disagreement
public? I think that is why having some sort of formal relationship
with Parliament is quite a useful and important way of achieving
that.
Q232 Peter Bottomley: Just going backwards,
which is not my usual habit, if a Lord Chancellor has not had
responsibility for the immigration and asylum system, would a
Lord Chancellor object to the Government's Ulster clause?
Lord Falconer of Thoroton: Could
you say that again?
Q233 Peter Bottomley: We have had a discussion
in both Houses about the Ouster clause over immigration and asylum
and the Secretary of State for Constitutional Affairs and Lord
Chancellor, as you are, has responsibility in effect both for
the system and for the judicial—
Lord Falconer of Thoroton: The
judicial bit of it, the appeals system.
Q234 Peter Bottomley: Do you think if
the Lord Chancellor had not accumulated these immigration and
asylum responsibilities that Lord Chancellor would have objected
to an Ulster clause being put forward in legislation?
Lord Falconer of Thoroton: I understand
the question.
Q235 Peter Bottomley: I also want to
ask whether a role which the Lord Chancellor has had is in effect
disappearing with the present arrangements and the future ones.
Lord Falconer of Thoroton: It
is quite a difficult question. It really raises the question of
issues that judges think raise rule of law issues which are not
in the Lord Chancellor's policy area, does the Lord Chancellor
object to them? Apart from that one which I was involved in, there
have not been significant rule of law issues that I can recall
since I became Lord Chancellor. Hayden has been in the department
for the last six years, so it may be he can say what the practice
has been.
Q236 Chairman: I am not sure it is a
fair question for a civil servant.
Sir Hayden Phillips: I take rather
dangerous views on this subject in the sense that I think so much
depends not so much on the nature of the office somebody holds
but on their personality, attitude, experience and strength. You
can look back over the last 30 years and you can see some profound
defenders of the rule of law who were not Lord Chancellors and
they might have been stronger defenders of the rule of law than
some Lord Chancellors. Having said that, which I am sure I am
not supposed to say, if you put the question the other way round,
in 1985 when I was the head of the Immigration and Nationality
Department, I found I was responsible for not just running the
system but also appointing the judges who sat in judgment on the
decisions my staff made and the whole appellate mechanism and
funding them and it struck me even then in relative youth that
there was something wrong about the issue of independence here
and, indeed, was instrumental in selling the immigration appellate
authorities to the Lord Chancellor's Department, which I am sure
was the right decision and that is being logically followed through
in our new proposals for a unified tribunal service so departments
should not find themselves conflicted by, as it were, appointing
and funding the appellate bodies who are sitting in judgment on
their cases. Once you have accepted that and you have accepted
that the Department for Constitutional Affairs, the Lord Chancellor's
Department, is a proper home for that leadership, then the minister
concerned is stuck with those issues. I think the alternative
would be far worse, so I shall avoid answering the question in
that way.
Lord Falconer of Thoroton: Immediately
I can think of a whole range of issues that are not issues at
the moment which are not within my policy area where plainly the
Lord Chancellor would intervene and make his views known on rule
of law issues. Yes, you would definitely in relation to rule of
law issues in other areas if it was appropriate. The only slight
caveat, however, is quite a lot of issues are described as rule
of law issues when they are not. The best example is the one about
the rights of solicitors to appear in High Court. I do not know
if you remember, but Lord Mackay proposed that greater elasticity
be given to solicitors to appear in the Crown Court and the High
Court and large numbers of people said that was contrary to the
rule of law, that he was acting in breach of it. That is an example
where quite a lot of things are described as rule of law issues
when they are not, but there are a lot of issues that are genuinely
rule of law which do not necessarily fall within the Lord Chancellor's
bailiwick which he would intervene in.
Q237 Chairman: Perhaps I should remind
Sir Hayden there is a piece of unfinished business on the work
to which you referred. It is still the case, as this Committee
has reported in a different report, that when somebody applying
for immigration to this country is turned down and they appeal,
it is to the Home Office, not the appellate body, that they have
to submit their appeal and it is when the Home Office passes on
the appeal to the appellate body that the process is activated,
something this Committee found very unsatisfactory. We started
this process and we hope that it may be continued.
Lord Falconer of Thoroton: Yes,
it picks up Mr Clappison's point which is that there are certain
things which are certainly worth preserving and in the role of
the Lord Chancellor in relation to the rule-of-law issues of the
sort which I have described, though I have not indicated what
they are, but which are non-DCA policy areas where genuine, which
means serious, rule-of-law issues arise, then he or she most certainly
should intervene, not necessarily successfully, I have to say,
but he or she should intervene.
Q238 Peter Bottomley: We had a question
about the fees issue. Was that something we are going to get a
note on or is that information we might have now?
Sir Hayden Phillips: Sorry, but
I did not want to interrupt the flow by presenting it. The current
fees in the appellate committee raise about £560,000 a year
and that would continue. The costs we will have to cover will
of course be greater for the new Supreme Court. Perhaps rather
than go into the detail now, Secretary of State, if you are content,
we can send a note which sets out the figures, but puts them in
the context so that we are genuinely comparing like with like
because actually it is rather confusing if you just try and do
it too quickly.
Q239 Peter Bottomley: Will there be a
view on how much of the extra cost is likely to be recovered by
fees or whether the fee recovery is going to be based on present
levels of fees rather than on future costs?
Sir Hayden Phillips: Yes.
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