Key policies and priorities - Constitutional Affairs Contents


Examination of Witnesses (Questions 20-39)

RT HON LORD FALCONER OF THOROTON QC AND ALEX ALLAN

18 OCTOBER 2005

  Q20  Mr Tyrie: Are applicants told at the time of their application that they can obtain feedback if they want it?

  Alex Allan: Yes.

  Q21  Mr Tyrie: So when you said those who do not want it will not be bothered by it, it is quite reasonable to assume that those who do not come back to you demanding feedback do not want any feedback. It is made perfectly clear that they can get it, is it?

  Alex Allan: Yes.

  Q22  Chairman: One of the other major changes which has taken place and is still working through has been the move over to the Lord Chief Justice of the function of representing the judiciary collectively. How well do you think that is working so far? I am not asking for comments on either the past or the recently begun Lord Chief Justice, but have you got the arrangements in place?

  Lord Falconer of Thoroton: We have got the arrangements in place in the sense that the Lord Chief Justice is now well supported in relation to officials to help him with performing that representative role, with a press office to help him and the other judges in relation to particular press enquiries or press pressures that they may have. I think it is wrong to look at it as a fundamental change that occurred in practice. I recognise it is a very important constitutional change that occurred in the Constitutional Reform Act, but when Lord Mackay was Lord Chancellor he said, rightly in my view, that the Kilmuir Rules no longer apply, which meant that judges were no longer restricted from making, as they would see it, appropriate comments to the press. Subsequent to that there were a number of occasions when the judges and the Government, on issues that were legitimate for the Government to raise, ended up having disputes. I do not know if you remember Lord Lane making representations about who had rights of audience in court and Lord Taylor who made various points about the content of criminal justice Bills. A long time before the Constitutional Reform Act changes the Lord Chief Justice was already a figure, in my view rightly, who was expressing the views of the judges. I do not see it as a `big bang' change; I see it as a change that has been coming over a long period of time. Although inevitably there will be times when the judges differ from what the Executive is saying, I do not see any difficulties at the moment in the way that the process is actually operating. For example, the new Lord Chief Justice, Lord Phillips, gave a press conference at the beginning of last week. It was an event that was not regarded, in my view again correctly, as a great constitutional innovation. It was a very sensible opportunity for the press and thereby the public to meet the new Lord Chief Justice.

  Q23  Chairman: One thing Parliament was insistent should not change was that you and your successors do have a responsibility for representing within Government the position of the judiciary and asserting its proper independence.

  Lord Falconer of Thoroton: Correct.

  Q24  Chairman: There has continued to be a fair amount of noise and smoke emanating from parts of the Government about the merits or otherwise of the court process and the judiciary, not least from the Prime Minister who talks about "half of them end up getting off at the end of it" in relation to criminal trials.

  Lord Falconer of Thoroton: That quote is not half of them in every criminal case, that is half of them in 18-month long complex cases. I am happy to say that both the Prime Minister and the judges are all as keen as each other to ensure that those long cases get dealt with. I say that by reference to the criminal procedure rules that Lord Woolf, as the Chair of the Criminal Procedure Committee, produced in March of this year when he said he wanted to say goodbye to the long case. I think he said three months should be regarded as top whack and it should be an extremely exceptional case that lasted six months.

  Q25  Chairman: I thought the quote was as much about how many got off as it was about how long the trials took. I think the Prime Minister's other phase which he now likes is, "summary justice—it's tough, it's hard, but it's the only way to deal with it". Have you talked that through with the Lord Chief Justice?

  Lord Falconer of Thoroton: I think one should be careful not to create differences where there are in fact no differences. For example, the idea of summary justice could mean, and does mean in many cases, fixed penalty notices for relatively minor examples of anti-social behaviour and I do not think there is anybody here who thinks that is a bad idea, or it could mean conditional cautioning, which means saying we believe that you have committed this offence, you have admitted this offence, but instead of going through the whole criminal justice process, if you agree to accept a caution conditional on you being of good behaviour for a period of time that will be the end of it. That is the sort of summary justice which leads to sensible results and does not engage the whole criminal justice process. The idea that there is a row between the judges and the Executive about that is wrong. There may be a bigger question which you are putting to me which is that governments are always making noises about how unsatisfactory the results in particular court cases are. I would certainly regard my role as making sure that at no stage does the Executive, by what it says publicly, put undue pressure on the judges to reach or procure results in particular cases because that would plainly be undermining the independence of the judiciary. You have got to be careful to ensure that anything which says the process should change equals undermining the independence of the judiciary because I do not believe that is right and I believe very strongly that the judges in some areas are just as keen as the Executive to see changes in the way the process operates because they do not want 18-month trials, nor do they want long delays between a charge and the disposal of the case.

  Q26  Barbara Keeley: Lord Chancellor, in the DCA document Making a difference you talked about further steps to reform the House of Lords and how that there are matters there such as reform and the composition and role and powers of the House and that is of great interest not just to this Committee. Could you tell us what plans you have for pushing forward on that reform and also what timetable you have in mind both for consultation and action?

  Lord Falconer of Thoroton: In terms of reform of the House of Lords, it is plain that reform of the House of Lords depends upon building some degree of consensus on a constitutional change of that importance. The broad proposals that we make in relation to the process by which we seek consensus is that there should be a joint committee set up of both Houses of Parliament to look at the conventions as between the Commons and the Lords and by that I mean what are the circumstances—this is the main convention although not the only one—in which it is appropriate for the Lords to knock back legislation or bits of legislation that have come from the Commons. I think there is some uncertainty about what that is, particularly in relation to the Salisbury Convention, ie the idea that the House of Lords should not defeat manifesto legislation. Both the Leader of the Conservatives in the Lords and the Leader of the Liberal Democrats in the Lords, Lord McNally, have said they do not think the Salisbury Convention applies anymore. We need to have a joint committee to see what all the conventions are and to make any representations in relation to that. The usual channels are discussing the setting up of such a joint committee. I am not allowed to say how far they have got because that is one of the most secret bits of the State. That will take a few months to report, but it will provide the basis for a debate about the relationship between the Commons and the Lords. Separately from that there needs to be a debate about composition. It is well known that there were a series of votes which produced no majority for any particular compositional change. We will come back to the issue of composition and allow both the Lords and the Commons to vote in such a way that the Commons and the Lords are answering the questions they want to answer in relation to it. In the light of whatever comes out of that we will then move to legislation. It is plain that we will not be able to legislate during the first session, namely the session that ends some time in the course of the summer or the autumn of next year. In terms of powers, in the manifesto we said that there should be a time limit for the time that a Bill spends in the Upper House as opposed to the Lower House. The reason we did that was not to curtail debate. The proposed time limit we suggested, which was 60 days, was way beyond the time that even the longest Bill takes.[1] We did it to deal with a situation where from time to time when there have been very controversial issues, eg hunting or constitutional reform, spokesmen for the Opposition in the Lords have said things like, "If you continue with your Hunting Bill or your Constitutional Reform Bill you will find the rest of your legislative programme disrupted." The victim of great issues on hunting could potentially be the Pensions Bill or the Health Bill or the Education Bill. That is why we propose a time limit, so that the one thing that cannot happen is that Bills get bogged down procedurally in the Lords. In a sense we have got no problem with Bills being debated on their merits and proposals being made for change, which means in essence disagreeing with the Government and making the Government think again, but what would be difficult and unacceptable would be a situation where the Bill did not even get considered for procedural reasons. That is the process; that is what we aim to try to get to. I cannot say what compositional change would come.

  Chairman: I do not think we are asking you to. At the moment we are trying to explore what the process is.

  Q27  Barbara Keeley: Could you say something about the timetable for looking at the powers? You were saying earlier about how we are unlikely to come to a vote in the first session.

  Lord Falconer of Thoroton: I think we would want to be discussing and debating the powers in the context of what the joint committee said and that means during the course of this session. I cannot tell you precisely when the joint committee will be set up, but it will be sooner rather than later. I cannot tell you when it will report, but again that will be sooner rather than later, short of the spring or summer of next year. If one wants to proceed with a real Bill then my own view is you need to do it earlier rather than later in a Parliament, which means not this session but maybe next.

  Q28  Mr Tyrie: When are you confident that we are going to get an opportunity to vote on the composition of the House of Lords?

  Lord Falconer of Thoroton: I think it will be some time during the course of this session and before the second session. I cannot tell you when exactly.

  Q29  Mr Tyrie: You will be aware, of course, that it is now eight and a half years since Labour came to power committing to provide a democratically elected House of Lords and we still are not very far down the road, are we?

  Lord Falconer of Thoroton: You will also be aware that it is 100 years since the 1911 Act was passed with a preamble which said "This is stage one of Lords reform".

  Q30  Mr Tyrie: You are making my point.

  Lord Falconer of Thoroton: I am. Is not the reality about Lords reform, which we are keen to see, that it is an area where it is difficult to build a consensus? If you fail to build a consensus you end up as a Government spending a lot of parliamentary time on a constitutional issue about which there is considerable disagreement and it may not be at the forefront in terms of what are the critical priorities of a Government.

  Q31  Mr Tyrie: Is it not at the forefront of the Government's priorities?

  Lord Falconer of Thoroton: We are keen to reform it, but we are not keen to spend two or three parliamentary sessions dominated by the issue of Lords reform. We genuinely want to make progress on it. I am sure you were not in Parliament at the time, I certainly was not, but in 1968 the Labour Government spent a lot of time trying to propose significant Lords reform which ended up by being opposed by both the Right and the Left. Mr Michael Foot and Mr Enoch Powell came together and in effect made it fail in the Lords. If you do not build a proper consensus then you end up spending a lot of time doing something that may not necessarily achieve that measure.

  Q32  Mr Tyrie: We have asked you about the timetable and, quite frankly, all we have heard so far is the sound of foot dragging. We have just heard references to 1968 and how you do not want to go down that road and take the risk of it. You have referred to the fact this all began 100 years ago, even though you have had a very firm commitment in manifestos solidly for over a decade and in policy documents. What we need to know is whether there is a firmness of commitment to putting together a sensible measure. Everybody knows there is consensus in the House of Commons for a measure of election and everybody knows that out in the country there is overwhelming opposition to the retention of the hereditary element making laws. The Government has been mandated to do something about this by the electorate and it is being pressed to do something about it by elected MPs. If the Government really wants to do something about it then they can introduce a measure in the next session for a largely elected Lords and if they give it a fair wind you and I both know it will almost certainly get through. Whether it gets through the Lords or not is another matter, but it will get through the Commons. Will you make that effort? Is that drive there in the Government to push that through?

  Lord Falconer of Thoroton: If you are right in your analysis, Mr Tyrie, the point will be reached this session rather than next session when the consensus that you enthusiastically describe in the Commons will be revealed and if there is such a consensus then there will be the basis upon which we can proceed. Whatever the position in relation to composition, there are those two areas where we have committed ourselves, the hereditary peers, which you have indicated has the widespread support of the country, and the procedural changes. The critical issue is whether or not, and I think it is over to you, the Commons demonstrate there is that consensus. If they do then the difficulties that I have identified would not exist.

  David Howarth: Thank you for mentioning the preamble to the 1911 Act which is very dear to the hearts of the successors of those who passed that Act.

  Keith Vaz: The Liberals!

  Q33  David Howarth: We are still waiting for that promise to be fulfilled.

  Lord Falconer of Thoroton: I hope that the heirs to Lloyd George took the opportunity of reading the Act that had been passed and the way it was construed in the Court of Appeal.

  Q34  David Howarth: Can I just clarify the relationship as you see it between function and composition because at the start I understood you to say that function and composition had to be considered separately and come together later. Does not the 60-day question take a functional matter before the compositional matter?

  Lord Falconer of Thoroton: I have indicated why we think the 60-day matter should be dealt with. We are seeking to deal with one particular thing which is threatening the possibility of procedural stagnation if the Commons persists in a particular Bill like hunting, for example, which the Lords find completely objectionable. That is why we want to do that particular provision and I think there is a perfectly good justification for it. I think in principle, apart from that point, we are right to have a debate about function because only once you reach a consensus about what the Lords should be doing can you decide, for example, what size the independent element should be in the Lords. If, as I believe the position to be, the Lords should be a revising chamber but not one that decides major points of principle then that could well have a significant impact on whether you think it should be 60% elected, 40% independent or whether, as some people think, it should be all appointed.

  Q35  David Howarth: The 60-day Bill seems to take a position on the functional matter.

  Lord Falconer of Thoroton: Does anybody think the Lords should be able to bog down Bills in procedural maelstroms?

  Q36  David Howarth: For most legislatures throughout the world that is a possibility. You are still taking a position on it before you are deciding the composition.

  Lord Falconer of Thoroton: Does anybody think that should be possible?

  Q37  David Howarth: It is possible in the United States and in Italy. You do not need to make a case as part of the functional view that you are taking the House of Lords forward.

  Lord Falconer of Thoroton: It is not a very popular view that if you disagree with hunting, for example, you should be allowed to bog the Pensions Bill down in procedural stratagem.

  Chairman: I think we have made the point.

  Q38  Barbara Keeley: You have talked about the importance of building a consensus. I am not very clear on what the process will be to drive that and test that.

  Lord Falconer of Thoroton: We have said a free vote in both Houses of Parliament. A free vote implies, in my view correctly, that the Government will not be whipping, either directly or indirectly, a particular position. Members of the Government will have particular positions and they will express those positions and seek to persuade people of those particular positions, but ultimately we have committed ourselves in our manifesto to a free vote on the basis we believe this is something that has got to be a cross-party consensus about some way forward. If Mr Tyrie is right then that has been done already.

  Q39  Jessica Morden: What advice is the DCA giving government departments for dealing with Freedom of Information requests?

  Lord Falconer of Thoroton: We are keen that there should be a change of culture. We are providing them with assistance in the working out of the Act. We believe that the Freedom of Information Act provides a change of culture but it also contains exemptions because there are certain things that everybody believes should be withheld in order to promote good government. It does mean that you have got to look at quite a lot of individual requests on a case-by-case basis. It gives rise to quite difficult questions. The advice we are giving the rest of government is helping them on dealing with those cases on a case-by-case basis.



1   Note by witness: I was not referring to Bills which are carried over into a different session. Historically only a few Bills per session would have been caught by a 60 day rule. Back


 
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