Examination of Witnesses (Questions 140-159)
LORD FALCONER
OF THOROTON
QC AND ALEX
ALLAN
1 MARCH 2005
Q140 Ross Cranston: You do not have to
lay the rules before Parliament. I am just wondering—given
this is a very sensitive area and, by contrast, with the SIAC
rules—if that ought not to be the case. Just to supplement
that, subclause 5 says that in the case of the Northern Ireland
rules they do have to be laid before Parliament?
Lord Falconer of Thoroton: Yes.
Q141 Ross Cranston: So it is a bit of
a muddle?
Lord Falconer of Thoroton: It
reflects the current rule-making powers, which mean the Northern
Ireland ones do and the English ones do not. If you regard that
as a muddle then you are right—there is a muddle in relation
to it. These rules are incredibly important, for obvious reasons.
One would expect there to be as wide-ranging a look at these rules
as possible; but by the nature of what we are doing, at least
on the first occasion, the rules are required quite quickly.
Q142 Ross Cranston: Why not lay them
before Parliament?
Lord Falconer of Thoroton: We
are simply reflecting the way that the rules are currently made.
We have placed in the Bill an obligation to consult with the relevant
Lord Chief Justices. There needs to be a proper debate about these
rules, and I hope we do achieve that.[2]
Q143 Chairman: The Bill expressly says
that you do not have to consult the Lord Chief Justice any more
once the Bill is passed? Looking at subsection 4: "The requirements
of subparagraph 3 may be satisfied by consultation that took place
wholly or partly before the passing of this Act".
Lord Falconer of Thoroton: All
that that is saying is I must consult the Lord Chief Justices,
but I can satisfy my obligation under this Bill by starting to
consult them before the Bill becomes an Act. All that is saying
is that it would not be unlawful for me, to comply with this obligation,
if I started consulting with the Lord Chief Justices now. It is
not saying I can rely on some consultation about something else.
Q144 Chairman: Does it not also protect
you if you now say, "I"ve spoken to the Lord Chief Justice,
that's enough, and I"m going ahead now"?
Lord Falconer of Thoroton: It
would certainly do that.
Q145 Chairman: Are you going to do that?
Lord Falconer of Thoroton: No,
I want to make sure that there is a proper debate about this.
What I want to try and avoid in these particular bits of the rules
is that nobody should say, "We can strike these rules down
because you didn"t consult this person or that person",
that is all. I am not at all at odds with the proposition that
these are very important rules; they need a proper debate.
Q146 Ross Cranston: Could I take you
to the burden of proof in clause 4(1)(a). I think it would be
a retrograde step if the rules could somehow subtract from the
position that is already there in the earlier part of the Bill—clauses
1 and 7 about the burden of proof. That would not be the intention,
would it, to undermine?
Lord Falconer of Thoroton: A)
it would not; and b) I do not think it could. You have got provisions
in a statute, for example, saying that we have to be satisfied
on the bounds of probability of a particular thing, which is 2(1)(a).
It is absolutely plain, as a matter of drafting, that the rule-making
power is not intended to supplant that. You say clause 7 in relation
to a burden of proof Order—
Q147 Ross Cranston: I cannot find it
either.
Lord Falconer of Thoroton: There
is a burden of proof issue in relation to clause 1.
Q148 Ross Cranston: The principle is
that this is not going to undermine/weaken the burden of proof?
Lord Falconer of Thoroton: No.
Q149 Ross Cranston: There is already
criticism that the burden is not high enough.
Lord Falconer of Thoroton: Absolutely
right.
Q150 Ross Cranston: If I could just take
you to (b): (b) would not enable you to completely do away with
a hearing. You really mean there an open hearing, do you?
Lord Falconer of Thoroton: I mean
an oral hearing. No, it would not.
Q151 Ross Cranston: You earlier raised
the issue about disclosure, and this is 4(3)(c). Again, I think
the concern might be that, as you quite rightly said, there are
already established practices approved by SIAC as to disclosure.
I think the concern would be that the rules might somehow again
weaken the existing provisions about disclosure; because even
though there are no provisions at present, a practice has grown
up approved by SIAC as to disclosure. Again, a Pepper v Hart-type
statement. You can give that assurance?
Lord Falconer of Thoroton: I can
give that assurance. Just to be clear what the assurance I am
giving is: I can give you an assurance that the rules will be
able to prescribe that the State has got no exculpatory material
that it is withholding—that is really what you are on about
there.
Q152 Ross Cranston: Yes, and would disclose
in accordance with the current practice?
Lord Falconer of Thoroton: Exactly.
Q153 Ross Cranston: Are you happy that
the existing practice (which you have just said is going to be
continued) is sufficient to meet human rights standards?
Lord Falconer of Thoroton: All
the indications I have got from the questions I have asked and
the research that I have done is that it is working; but I take
that on trust. I am not aware of anybody proposing a whole new
method of doing it. I think the critical aspect of it is that
it is clear that the State, when presenting these cases, has got
an obligation to present any relevant exculpatory material. If
it is not prepared to do so then it cannot proceed with the case.
Q154 Chairman: Special Advocates will
only appear through the normal courts, if I can call them that,
in circumstances in which their role is exclusively to assist
the defendant, I am not sure if they are ever involved in civil
cases—but in very, very limited circumstances. You are about
to make some rules which you will require the High Court to carry
out. In the High Court of England somebody will be subject to
rules under which the person representing him cannot communicate
with him or with his solicitor. Do you think the judge is going
to buy that?
Lord Falconer of Thoroton: I think
they recognise the difficulties in relation to it. I think the
High Court judges who have conducted the SIAC proceedings have
done it impeccably. I think they recognise the great difficulties
in it. Lord Carlile and Lord Newton have recognised the great
dilemma is that national security requires you should not disclose
everything to the subject of the proceedings, but national security
also requires that Orders be made. It is trying to balance that
very difficult balance. If Parliament determines that this should
happen, as indeed in relation to the setting up of SIAC, then
I think the High Court judges will loyally do that which Parliament
prescribes for them.
Q155 Chairman: As Mr Cranston has pointed
out, Parliament will not (in the case of England) have any jurisdiction
over whether the rules you devise are satisfactory or strike as
good a balance as possible between those conflicting interests?
Lord Falconer of Thoroton: That
is why the judges are so important in relation to this, because
the judges do have to be consulted in relation to it. One of the
reasons for making it the High Court and not SIAC is to make it
absolutely clear that it is not some special tribunal—this
is a tribunal right in the heart of the High Court, as it were
the main court in England and Wales, and Northern Ireland and
the Court of Session in Scotland—and it has got to be, as
much as possible, in accordance with the procedures of the High
Court.
Q156 Chairman: The Court of Session has
got discretion, we have established. The Court of Session can
decide this for itself, quite unlike the situation in England.
In England how much power do the judges get to say to you, "We"re
not going to run our High Court in the way you"re currently
suggesting unless you change your proposals"?
Lord Falconer of Thoroton: If
they said that then a) that would be a matter of huge importance;
and b) of course I would take it hugely into account. I do not
believe that they will do that. Indeed, if you look at SIAC, they
took the view that the right course was to help in making that
court work.
Q157 Ross Cranston: As I understand it,
once these are launched they are then amendable in the ordinary
way?
Lord Falconer of Thoroton: Exactly.
Q158 Ross Cranston: That of course, in
terms of the CPR, is by the judges and so on?
Lord Falconer of Thoroton: Exactly.
Q159 Ross Cranston: That was not exactly
my question. I just wanted to say in terms of this human rights
aspect, should there be a specific provision, for example, to
allow cross-examination to meet your Article 6 obligations? Should
that be specifically there so that counsel can cross-examine either
in open or closed session?
Lord Falconer of Thoroton: Whether
or not you need a specific rule to say that I am not sure. I envisage
the position being that like in practically all High Court procedures
(and you will know this as well as anybody) the courts have got
great discretion to determine how the case is actually conducted.
I cannot envisage it arising, if the judge in a particular Control
Order case thought somebody needed to be cross-examined, that
that would not happen. Indeed, that is how I envisage the rules
working.
2 Note by witness: When making the first set
of rules, the Lord Chancellor will be exercising the powers of
the Rule Committees in England and Wales and Northern Ireland,
as extended by paragraph 4 of the Schedule to the Bill. Rules
made by the Lord Chancellor will therefore be required to be laid
before Parliament and will be subject to the making of Civil Procedure
Rules. Paragraph 3(5) of the Schedule allows the same procedure
to apply to the making of the first rules of court for Northern
Ireland (instead of the Northern Ireland statutory rules procedure) Back
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