Examination of Witnesses (Questions 1-19)
RT HON
LORD FALCONER
OF THOROTON
QC, AND ALEX
ALLAN
17 APRIL 2007
Q1 Chairman: Now we want to turn to the
Government changes which were announced just recently. Having
read the documents several times over, I am afraid I am still
a little unclear as to where the boundary line in the responsibility
for criminal law and criminal justice will fall. Can you enlighten
us on this?
Lord Falconer of Thoroton: Criminal
justice issues—meaning, generally, from the point of view
of arrest—in so far as they involve what goes on in court,
will be for the Justice Department. The activities of the police
prior to arrest will be a matter for the Home Department. That
will mean issues about, for example, evidence; for example, the
creation of criminal offences; and, for example, sentencing will
be matters for the Ministry of Justice. A particularly important
area to refer to is the Police and Criminal evidence Act, which,
although it is an Act about evidence, in fact contains, as the
Committee will know, substantial numbers of codes of practice
determining policy behaviour in relation to, for example stop
and search; in relation to, for example, how you question suspects.
Although that has an impact on what is admissible in court, that,
we believe, essentially deals with police behaviour, as it were,
on the street. In those circumstances PACE stays with the Home
Office.
Q2 Chairman: Who will bring to Parliament
legislation which changes, let us say, the law on homicide?
Lord Falconer of Thoroton: The
Justice Department.
Q3 Chairman: And the law on matters
which in other ways fall within the RESPECT agenda, such as low
level offences in this field.
Lord Falconer of Thoroton: If,
for example, you are changing the terms on which you can get an
ASBO, that would be the Justice Department. If you are introducing
new measures, like, for example, a curfew order—which has
already been introduced—that would be something that would
come from the Home Department.
Q4 David Howarth: I am not too sure
how that distinction works. If the new order creates a criminal
offence, surely that should come from Justice rather than Home.
Lord Falconer of Thoroton: The
way that government operates is that where a new offence is created—and
normally it is, for example, as part of a health and safety drive
or you want to fight terrorism—the relevant department responsible
for health and safety or fighting terrorism will produce the criminal
offence. Formerly, they would have produced it to the Home Office
for approval because they have responsibility for the criminal
law. Now they will produce it to the Justice Department who have
to agree it as well. But the lead will come from that department
responsible for the particular policy. Where you are dealing with
something like improving the criminal law on homicide, that is
a matter of criminal law, where you are looking at the criminal
law "as to criminal law", and that will come from the
Justice Department.
Q5 David Howarth: Perhaps I misheard
you on antisocial behaviour orders. If a change was proposed to
the definition of antisocial behaviour or to the penalty for breaching
an order, did I hear you correctly that that would come from Justice
rather than Home?
Lord Falconer of Thoroton: That
would normally come from Justice. I say normally, because, suppose
in relation to antisocial behaviour the Home Office thought you
wanted a range of measures to improve bearing down on acts of
antisocial behaviour, which included things like giving the police
new powers and also increasing the penalty for antisocial behaviour,
they could propose it but it would have to come through the Ministry
of Justice.
Q6 David Howarth: The only reason
I am confused about this is that I think the Home Secretary did
say in the Commons when this was first discussed that responsibility
for antisocial behaviour would stay with the Home Office.
Lord Falconer of Thoroton: There
is a distinction here. What do you do on the street to reduce
antisocial behaviour? If part of that involves changes to the
criminal law, then you might have to propose those, if you are
the Home Office, to the Ministry of Justice. But the Ministry
of Justice has responsibility for criminal law. If you want to
fight inefficient or dangerous practices at work, the DTI is basically
responsible for that, but it might, as part of its policy for
dealing with it, propose criminal offences and they would have
to get the agreement of the Ministry of Justice for that.
Q7 Chairman: Could we explore a situation
in which there is a constructive tension between the Home Office
and the Ministry of Justice, in which the Ministry of Justice
says, "You don't need new criminal offences here. Get on
with doing your job properly?"
Lord Falconer of Thoroton: If
that was the position, yes. You would want cooperation in relation
to it and within any government there will be agreements and disagreements
about what particular steps should be taken but there will be
discussions of it obviously between the two departments.
Q8 Jeremy Wright: Further on that,
you have very helpfully sent us a paper by letter of 1 April which
gave further details on the responsibilities of the new Ministry
in its relationship with the Home Office. There is one paragraph
of that which I wonder if you could elucidate for us.
Lord Falconer of Thoroton: A letter
to Mr Alan Beith, dated 1 April, I am writing following the Prime
Minister's announcement last Thursday ... "
Q9 Jeremy Wright: Yes. I am looking
at page 13, the third paragraph on that page: "Criminal law
and sentencing policy will move to the new Ministry of Justice."
That is clear. "In order to maintain the Government's clear
focus on crime reduction, the Home Secretary will continue to
have a core role in decision making in this area, reflecting his
responsibilities for policing, crime reduction, and public protection.
Where the Home Secretary makes a proposal reflecting these responsibilities,
the expectation will be that the Ministry of Justice will work
with the Home Office to deliver such changes as are necessary,
taking account of the wider resource implications for the CJS
and the need for sentencing policy to tackle re-offending. Government
policy in this area will in future be decided by a new Cabinet
Committee on Crime and the Criminal Justice System, chaired by
the Prime Minister." Am I right in thinking, as a result
of reading that paragraph, that there are circumstances in which,
within the field of criminal law and sentencing policy, the Home
Secretary will still be in a position to say, "This is what
I want to happen" and in those circumstances the new Ministry
for Justice would be expected to carry out those proposals?
Lord Falconer of Thoroton: It
does not mean that. It means precisely what I said in answer to
Mr Howarth's question: if, for example, as part of a suite of
measures to deal with a particular problem of, say, antisocial
behaviour or some other social problem, the Home Secretary proposed
the creation of a new criminal offence or an increase in sentencing
for an existing criminal offence or for breach of an ASBO, then
he would make those proposals to the Ministry of Justice. This
is saying, inevitably, if one of the things the Home Secretary
is responsible for is crime reduction—which he is—that
is something he would from time to time propose, and the Prime
Minister is saying that he would expect the Justice Department
and the Home Department to work closely together. One of the things
we have learned very strongly since 1997 is that all of the bits
of the Criminal Justice System—the police, the prosecutors,
the courts and the prison and probation—have to work as
closely together as possible.
Q10 Jeremy Wright: Where there is
a dispute it will be resolved within this new Cabinet Committee.
Lord Falconer of Thoroton: Where
there is a dispute, if it cannot be resolved between the two and
it cannot be resolved within the Cabinet Committee, as our system
of government requires it will ultimately be resolved by the Cabinet.
Q11 Bob Neill: Therefore, if one
were to find oneself a suspect in a criminal case, for example,
the definition of the law under which you might be arrested or
charged is going to be the responsibility of the Department of
Justice as the lead department. The procedures by which the police
charge and investigate you, et cetera, remains the lead of the
Home Office.
Lord Falconer of Thoroton: Yes.
Q12 Bob Neill: And then the court
system, which decides guilt or innocence and sentence and subsequent
matters, is back to the Ministry of Justice.
Lord Falconer of Thoroton: Yes,
broadly that is right. I think you are including in what you are
saying and then the action after sentence, assuming conviction,
is a matter for the Department of Justice as well.
Q13 Bob Neill: That is right.
Lord Falconer of Thoroton: Because
they will be responsible for the Youth Justice Board, the Probation
Service, the National Offender Management Service and the Prison
Service.
Q14 Bob Neill: Is the bit at which
the Home Office responsibility for the investigative procedure
ends at the moment of charge or at the moment of first court appearance?
Lord Falconer of Thoroton: At
the moment of charge.
Q15 Bob Neill: Given what you have
told us about how there has to be that feed by other departments
into the Ministry of Justice in securing agreement, what is the
point of keeping the Office of Criminal Justice Reform in its
current tripartite arrangement?
Lord Falconer of Thoroton: In
simple terms, the Office of Criminal Justice Reform has connected
police, prosecutors, courts, prison and probation. Prosecutors
and police remain in two separate departments: prosecutors because,
as a result of the 1984 Act setting up the Crown Prosecution Service
the Attorney General superintends the prosecutors, who have to
be separate. The police remain in the Home Office because of crime
reduction. It is right they should. The rest is in the Department
of Justice. You need an organisation, the Office of Criminal Justice
Reform, that brings the three together.
Mr Allan: It is also responsible
for the network of local Criminal Justice Boards, where there
is one in each of the 42 police authority areas, which brings
together again, as the Lord Chancellor said, the various agencies
on the ground and looks at whether the particular objectives for
the Criminal Justice System are being delivered in the particular
area. So it has a very extensive network right around the country
through those local Criminal Justice Boards.
Q16 Bob Neill: And they tend to link
in to things like the Crime and Disorder Reduction Partnerships.
Will any of that be affected by these changes? Is it simply that
the Home Office continues to have a lead in that or not?
Lord Falconer of Thoroton: The
local Criminal Justice Boards are intended to have on them the
leading members of the each of the criminal justice agencies.
The Crime and Disorder Partnerships will involve the local authority
but also, hopefully, some of those agencies as well. That will
continue completely unaffected.
Q17 Bob Neill: That is helpful. You
have clarified to some degree now the position of the new department
and the Home Office. You referred to the Attorney General's role
as, in effect, superintending the prosecutors. Is that the limit
of the Attorney General's role in this now?
Lord Falconer of Thoroton: He
remains not just responsible for superintending but he also has
ministerial responsibility for the prosecutors; by which I mean
it is not just a question of making, as it were, non political
judgments, if I may say so, but also he is responsible for making
sure the Crown Prosecution Service and indeed a number of other
prosecuting agencies operate in accordance with—
Q18 Bob Neill: Pay and rations of
CPS and that sort of thing.
Lord Falconer of Thoroton: There
is a policy element as well.
Q19 Mr Tyrie: The pay and rations
element will stay with the Attorney General with respect to the
administration of the criminal law.
Lord Falconer of Thoroton: No.
I was saying to Mr Neill that the responsibility for the Crown
Prosecution Service and, indeed, other prosecuting agencies—not
quite all but almost all of the prosecuting agencies—remains
with the Attorney General. That is a policy responsibility (for
example, if we create antisocial behaviour or domestic violence
prosecutors, that is a matter for the Attorney General) but also
issues about whether a prosecution should start or stop are matters
for the superintendence of the Attorney General, which are matters
of, as it were, non policy, non political type decisions.
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