Examination of Witnesses (Questions 280-299)
RT HON
LORD FALCONER
OF THOROTON
QC, ALEX ALLAN
AND JUDITH
SIMPSON
16 NOVEMBER 2004
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 of 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 head 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
an involvement, will be more inclined to attack the judiciary—involvement
through your discretion in making an 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.
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