Examination of Witnesses (Questions 20-39)
RT HON
LORD FALCONER
OF THOROTON
QC, AND ALEX
ALLAN
17 APRIL 2007
Q20 Mr Tyrie: In what respect, if
any, is the role of the Attorney General changing?
Lord Falconer of Thoroton: It
is not affected at all.
Q21 Chairman: Is that realistic or
does not so fundamental a change begin to call into question,
leaving to one side this superintendence of the Crown Prosecution
Service and those other functions for which the Attorney General
is an accountable minister, as opposed to those for which he has
a responsibility for advising government, the responsibility for
stopping or starting prosecutions, which is not a politically
accountable role.
Lord Falconer of Thoroton: There
is nothing in the machinery of government changes which come into
effect on 9 May which affect the responsibilities of the Attorney
General in the sense of either removing any responsibilities from
the Attorney General or giving him any extra responsibilities.
The practical effect will remain to be seen.
Q22 Jeremy Wright: Could we move
on to the judiciary. You will appreciate that the judiciary have
some concerns—and I will not put it any higher than that—about
the way in which this new department may operate with regard to
the judiciary. You have always been perfectly clear with us at
previous hearings that one of the roles you consider yourself
to have is the protection of the independence of the judiciary.
In relation to the creation of the Ministry of Justice, one of
the issues which has been raised in communications with us from
the judiciary is a concern that, if one department is to have
superintendence of the judiciary but also control of prisons policy,
there is the danger that one day there may come a conflict between
the interests of the department in keeping the prisons budget
as low as possible and the independence of the judiciary who may
wish to pass custodial sentences when they think it is appropriate.
In order to reassure the judiciary on that and ensure there is
no danger that that could ever happen, what do you think could
or should be done to ensure those conflicts never arise?
Lord Falconer of Thoroton: I would
not regard myself as having "superintendence of the judiciary".
They are independent. They make their own decisions.
Q23 Jeremy Wright: You protect their
independence.
Lord Falconer of Thoroton: I protect
their independence and I have a relationship with them on behalf
of the Government but certainly not superintendence. They have
said they do not object in principle to the Ministry of Justice.
They have two concerns: one, the Minister of Justice might start
to say: "Send less people to prison" to save money.
Separately, they are worried that a situation could arise where
the minister takes money from the courts to fund the prisons.
I am obliged by statute to ensure there is a reasonably resourced
Court Service. That is a statutory obligation on me. Separately
from that, I would regard protecting the independence of the judiciary
as requiring me to ensure that happens. There need to be processes
in which the judiciary have confidence, which means no Minister
of Justice will either put the sort of pressure to which I have
referred or denude their funds in practice. That means they have
to have confidence about what happens, in particular in relation
to the money. There is a working group in existence, chaired by
Alex Allan. Perhaps he could tell you a little about that, where
it has got to and how it is going.
Mr Allan: Certainly. We have had
a number of meetings involving senior DCA officials, including
the Chief Executive of the Court Service, plus a number of the
senior judiciary. Would have been working through what arrangements
will be in place for how the budget for the Court Service is set,
the negotiations which will inevitably take place between the
Court Service and the Ministry of Justice over budgetary matters,
what arrangements will be in place for determining the final budget,
what arrangements will be in place for he monitoring, spending
during a year what arrangements will be in place for altering
their budget if it is proposed that it should be, making sure
appropriate involvement of the judiciary is provided for at each
of these stages. We have been going through quite extensive discussions
and then looking at the accountabilities of the Court Service
of the Ministry of the Lord Chancellor and trying to make sure
we produce within the existing framework of the Court Service,
as a "next steps" type agency of the Ministry of Justice,
that we produce a way of working that will satisfy the judiciary
that they will have full involvement and that the transparency
is there so that they can be satisfied with the way in which the
Court Service budget is set.
Q24 Chairman: Only 13 days ago the
Lord Chief Justice sent us a position paper, which you will have
seen, in which these words appear: "We have attempted to
engage with the DCA in a constructive manner in order to ensure
that proper safeguards are in place upon the creation of a Ministry
of Justice. Our concerns have not yet been met." The position
paper went on to say: "We have not been provided with an
adequate structure for dealing with disagreement in relation to
the setting and revision of the budget, or for financial accommodation
of new policies." We have had the Easter weekend since then.
Is that still the position?
Lord Falconer of Thoroton: The
purpose of setting up the review group is to try to meet precisely
those concerns. Alex can tell you where we have got to.
Mr Allan: I believe the paper
from which you are quoting was written at the time of the announcement,
so it is rather further ago, and since then we have had three
or four meetings of the group itself. There have been a couple
of sub groups. I had a meeting yesterday and I have another meeting
tomorrow. We are making good progress in trying to meet the points
that the Lord Chief Justice has raised.
Lord Falconer of Thoroton: These
are points we take very seriously and we need to reach an accommodation
so that both sides feel comfortable about it.
Q25 Dr Whitehead: It is the experience
of the Scottish Justice Department that they have had responsibility
for police, prisons and the courts since 1999. Have you looked
at that in terms of what their experience has been, and particularly,
their responsibility for policing the prisons and the administration
and funding of the courts?
Lord Falconer of Thoroton: There
is a whole variety of models across Europe and within the United
Kingdom, Scotland being one of them. We debated what the right
model was. There are arguments for and against a whole variety
of models. We think, for us, this is the best one. The one in
Scotland has worked perfectly well but we think this is the right
one for England and Wales.
Q26 Dr Whitehead: Are you aware whether
there have been discussions between the Lord President of the
Court of Session as the Head of the Scottish Judiciary and then
the Scottish Ministry of Justice on the other hand on those sort
of potential conflicts of interest and their solutions that we
have been discussing today. If there have been discussions, are
you aware of any results that have been forthcoming from those
discussions?
Lord Falconer of Thoroton: The
Scottish Executive in February 2007 produced a consultation paper
about—and this is the wrong phrase—reforming the courts
in Scotland and they have made a proposal about how the financing
of the courts should be done. I think, in effect, that involves
handing over a budget to the court which is then administered
by a non executive board, chaired by the Lord President (effectively
the Lord Chief Justice in Scotland), the non executive board being
responsible to the Minister for Justice for the expenditure of
the money. That is one possible model. We think the current model
we have is fine. That involves a statutory duty properly to fund
the courts, HMCS being responsible to the Secretary of State for
Justice, but there being in place mechanisms whereby the views
of the judges are properly given taken into account. The work
Alex and his team are doing is trying to work out the detail of
how that would work.
Mr Allan: Quite a few of the proposals
in the consultation paper to which the Lord Chancellor referred
implement some of the sorts of changes that were already implemented
under the Constitutional Reform Act in England and Wales. The
systems are at different stages in the two countries.
Q27 Dr Whitehead: The theory is backwashing
on devolution, is it not?
Lord Falconer of Thoroton: Do
you mean they are now looking to us?
Q28 Dr Whitehead: Yes.
Lord Falconer of Thoroton: I am
not sure the Scottish court system is a product of devolution.
The Scottish court system has been there since before 1707.
Q29 Dr Whitehead: Yes. It is different.
Mr Allan: For example, one of
the changes proposed in the paper is the setting up on a statutory
basis of a Judicial Appointments Commission in Scotland which
of course we have had on a statutory basis—
Q30 Chairman: On the other hand,
they had one before we did.
Mr Allan: They had one but it
was not statutory.
Q31 Dr Whitehead: Turning to other
institutions which have been here for a very long time, is it
your view that the Secretary of State for Justice on May 9 should
be a Member of the House of Lords or a Member of the House of
Commons as a matter of principle?
Lord Falconer of Thoroton: Since
I anticipate that I shall be the Secretary of State for Justice
on May 9 and I am in the House of Lords, that seems on May 9 a
perfectly okay arrangement. It may well be that in the long term
this is a ministry or a secretary of state that has to be in the
Commons but that is for others to judge, it seems to me. From
where we are at the moment, it seems to me entirely appropriate.
When we are going through the phase that we are going through
of creating a new Ministry of Justice, it is not at all inappropriate
that I should do that—or somebody in the Lords should do
it.
Q32 Dr Whitehead: Of course, I note
the position on May 9, but there is a distinction, is there not,
between the phrase "in the long term" and the phrase
"transitional"?
Lord Falconer of Thoroton: Yes.
Q33 Dr Whitehead: Which one would
you go for, do you think?
Lord Falconer of Thoroton: "In
the long term."
Q34 Dr Whitehead: Why would you do
that?
Lord Falconer of Thoroton: I think
you need some period of time to settle it down. How long that
period is, I do not know.
Q35 Dr Whitehead: In terms of things
settling, do you think there is a number of what Peter Riddell
of the Times described as "loose ends" in the
department? For example, the situation of electoral reform and
electoral matters within a Ministry of Justice looks at first
sight a little oddly placed. Is it your view that there is further
work to be undertaken, as it were, to ensure those "loose
ends" are properly within the right area of administration?
Lord Falconer of Thoroton: The
Department for Constitutional Affairs has human rights, freedom
of information, electoral matters and constitutional affairs.
I think it is much better that those issues are in a ministry
such as the Ministry for Justice, where there is not a complete
fit but there is a comfortable enough fit. It is hard to see any
other place for them to go which is not a ministry of loose ends.
Q36 Dr Whitehead: They came from
a different ministry.
Lord Falconer of Thoroton: They
came from a ministry called the Home Department, by and large.
The Home Department may have started as a ministry in which a
whole range of things had been put together; the effect of what
has happened now is that the Home Department is pretty focused.
So are we. Where should these other matters go? I think they are
much closer in their fit to Justice than they are to security,
policing and immigration.
Q37 Chairman: There is a major political
issue around, let us say, electoral reform on which the department
is still supposed to be doing a significant amount of work—out
of which we await. That is quite a difficult one, is it not, for
a Ministry of Justice to pronounce upon, whether we should have
a fundamental change in our electoral system?
Lord Falconer of Thoroton: We
have done justice, rights and democracy as being the unifying
feature of the DCA. Justice is now much more at the centre of
it, but rights and democracy go very closely with justice.
Q38 Chairman: You have not recognised
that in the name of the department.
Lord Falconer of Thoroton: No.
Q39 Chairman: You have lost "Constitutional
Affairs" from your name and replaced it entirely with "Justice".
Lord Falconer of Thoroton: I have.
It seemed, in a sense, to be a much clearer, more straightforward
title.
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