Examination of Witnesses (Questions 340-359)
RT HON
LORD FALCONER
OF THOROTON
QC, ALEX ALLAN
AND JUDITH
SIMPSON
16 NOVEMBER 2004
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.
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