Examination of Witnesses (Questions 107-119)
RT HON
LORD FALCONER
OF THOROTON
QC AND MR
ALEX ALLAN
22 MAY 2007
Q107 Chairman: Lord Chancellor, Mr Allan,
we are glad to have you immediately following the session with
the Lord Chief Justice. I do not know whether you had an opportunity
to follow that.
Lord Falconer of Thoroton: I did.
I have got a copy of the Lord Chief Justice's statement and I
have seen a bit of that was being broadcast.
Q108 Chairman: I have been in Parliament
for 34 years and I do not think I have ever seen such clear anger
and concern on the part of the senior judiciary, even in the last
round of constitutional changes.
Lord Falconer of Thoroton: I did
watch the bit, Chairman, when you asked the Lord Chief Justice
was he angry and he said "No."
Q109 Chairman: I will interpret it,
as I think many other will, as a situation in which the senior
judiciary are very concerned indeed that you and your department
have not been able to meet their concerns either for an interim
arrangement following the creation of the Ministry of Justice
or for the resolution of these problems in the longer term. Have
you got a constitutional crisis?
Lord Falconer of Thoroton: No,
we have not. Can I explain it from my perspective? Discussions
have been going on since 19 March. Alex has been leading on behalf
of my department and Lord Justice Thomas, who you heard evidence
from, leading on behalf of the judiciary. The point that has been
reached is the parties are extremely close to an agreement.
Q110 Chairman: On the interim measures.
Lord Falconer of Thoroton: Yesterday
the judges said, "We will only reach the agreement that has
been discussed since 19 March on the basis that there is an `inquiry'
starting straight away in relation to the constitutional position."
The constitutional position issue is as follows. Her Majesty's
Courts Service is an executive agency set up by statute. The arrangements
that we have agreed involve the judiciary very substantially in
the management both of the budget and of what happens in relation
to the administration of the courts but, as the Lord Chief Justice
said, leave the last word in relation to significant issues to
the Lord Chancellor. Before there is any disagreement, there is
a process by which disagreement can seek to be resolved. If it
is not resolved they have got to be reported to Parliament, which
we think is a sensible way of dealing with it. We were very close
to agreement on that. What the judges are saying—I perfectly
respect their position—is that you need an inquiry into
the issue of whether or not Her Majesty's Courts Service should
cease to be an executive agency and should, in effect, become
an agency broadly responsible to the judges and not to a minister
and thereby accountable to Parliament. My position has been: I
do not think we need that; I think we need the new arrangements
that we have got through; let us see how they work. The discussions,
as I understand it, still continue. So, what they are saying is
an interim agreement subject to the inquiry being agreed on the
constitutional position. I am perfectly happy to talk about that.
Q111 Chairman: Have not the Government
really just done it again? The last round of constitutional changes,
a set of reforms which many people thought desirable, were introduced
in such haste that only the process of legislation made it possible
for sensible agreements to be reached, the Concordat to be reached
and modifications to be made? The Ministry of Justice has been
created overnight and we learn today that none of the kind of
discussion that could and should have preceded that with the judiciary
has actually taken place.
Lord Falconer of Thoroton: Again,
I do not think that is fair and I do not think that is what the
Lord Chief Justice is saying either. There were discussions that
started in February between myself and the Lord Chief Justice
and a working party was set up on 19 March to discuss the detailed
issues. When the Ministry of Justice came into existence, the
Lord Chief Justice said there was no objection in principle to
the Ministry of Justice subject to safeguards being negotiated.
That is what is going on at the moment.
Q112 Chairman: But we have a Ministry
of Justice with no safeguards?
Lord Falconer of Thoroton: We
have a Ministry of Justice where the parties are extraordinarily
close to a modus vivendi and the issue is: do we need a
discussion on the wider constitutional issues?
Q113 Bob Neill: "Extraordinarily
close", you say. The written evidence of the Lord Chief Justice
says, "We are now in a position where there is no agreement
on the proper constitutional position", and his oral evidence
is, "There is a fundamental difference between us."
That is not extraordinarily close, Lord Chancellor, at all?
Lord Falconer of Thoroton: As
far as the position between the Lord Chief Justice and myself
is concerned, the detail of the interim position is pretty well
agreed, and he would not dispute that. The difference between
us is not the detail of the interim position, it is whether or
not the interim position can only be agreed if I agree to an inquiry
now in relation to the constitutional position. That is the disagreement
between us, not the terms. There may be bits and pieces, but I
do not think the Lord Chief Justice would suggest there is not
pretty well agreement on the detail of the interim position.
Q114 Bob Neill: But that in the future
is fundamental to the issues.
Lord Falconer of Thoroton: Alex
is drawing my attention to the second last paragraph the Lord
Chief Justice's statement, where he says, "The working party
has come close to settling an interim working arrangement."
So, the problem is not the detail of a working arrangement, the
issue is should it be interim pending a wider inquiry?
Q115 Bob Neill: That is the only
the result if you give way on that, Lord Chancellor?
Lord Falconer of Thoroton: That
is right. I think both the judges, my department and myself can
agree on the basis of how we work in the interim. I do not think
there is much difficulty in relation to that. The issue is: should
we have, as was suggested yesterday, an "inquiry" or
shall we put these things into place and see how they work and
perhaps review them after a year or two?
Q116 Chairman: Going back to my earlier
point about the way in which the reform was brought forward, why
on earth are we discussing an interim arrangement between the
judiciary and the Executive? That is one of the most fundamental
parts of the constitution of any country, and we are having to
scrabble around to try and find an interim arrangement because
the long-term relationship has not even been thought through before
the Ministry of Justice was created.
Lord Falconer of Thoroton: We
made it clear what our position was before 9 May. We said there
should be a working party to discuss the detail of, it. We said
what the parameters were in relation to it, it was agreed that
that was the basis of the working party and that is the basis
on which the discussions have gone ahead; and, what is more, in
the course of that working party we have been broadly able to
reach agreement on the interim arrangements. The critical issue
is the question: should Her Majesty's Courts Service be an agency
responsible to the judges or should it have some Parliamentary
accountability?
Q117 Chairman: The critical question
is: should the Government create a ministry of justice without
having thought through the basis on which it is to relate to the
judiciary?
Lord Falconer of Thoroton: I think
we did.
Chairman: Manifestly, surely, you did
not?
Q118 Jeremy Wright: Can I be clear
about what has happened here based on the evidence we have received
from the Lord Chief Justice and Lord Justice Thomas. You say the
parameters of the discussion were agreed. The judiciary did not
have much choice. You told them what you would and would not discuss.
Most of their major concerns you, the Government, are not prepared
to discuss with them in the course of these discussions. What
they then told us is that, regardless of the difficulties there
may or may not be in reaching an interim agreement—what
Lord Justice Thomas said is that is the easy bit, that the long-term
position is much, much harder and on that his words were that
you and the judiciary are poles apart. How on earth is the Government
going to resolve this dispute and, if it cannot, how are we to
get along if the judiciary and the Government cannot reach agreement?
Lord Falconer of Thoroton: I do
not think that there is a real dispute about how we get along
in the interim. The first time that there was suggestion that
we needed a long-term--
Q119 Jeremy Wright: But there is
no agreement?
Lord Falconer of Thoroton: The
detail is broadly agreed. I do not claim that it is an agreement,
because it is subject to the inquiry in the longer term, but I
do not think there is much difficulty about us having a modus
vivendi going forward. The broader issues we are still discussing.
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