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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