Examination of Witnesses (Questions 120-139)
RT HON
LORD FALCONER
OF THOROTON
QC AND MR
ALEX ALLAN
22 MAY 2007
Q120 Keith Vaz: Lord Chancellor,
the Lord Chief Justice told us that the first time you and he
discovered the proposal to create a Ministry of justice was when
you read the Sunday Telegraph on 19 January. Is that really
correct?
Lord Falconer of Thoroton: If
the Lord Chief Justice says it was 19 January, it was 19 January.
I may have known the day before that something was going to be
suggested. It was not Government policy at the point that it appeared
in the Sunday Telegraph, but having seen it in the Sunday
Telegraph, the right thing to do was to discuss the possibility
with the Lord Chief Justice. The discussions then became more
detailed as it became more and more of a reality.
Q121 Keith Vaz: The idea of a Ministry
of Justice has been mooted for some time, has it not?
Lord Falconer of Thoroton: A long
time, yes.
Q122 Keith Vaz: Is it not correct
that in the major reshuffle in 2003 it was almost on the cards
except that the then Home Secretary, David Blunkett, vetoed the
proposal? It is not something new, is it?
Lord Falconer of Thoroton: I read
that in Mr Blunkett's diaries as well, but I was not privy to
the discussions that went on before 12 June.
Q123 Keith Vaz: So he just thinks
he vetoed it?
Lord Falconer of Thoroton: No,
I am not disputing that he did veto it, I am just saying I was
not privy to any discussion that led to that.
Q124 Keith Vaz: Why is it, and it
is true, these judges are pretty upset with? Do you understand
that, or do you think they are making it up?
Lord Falconer of Thoroton: Of
course they are not making it up. What we need to do is to sit
down and reach an agreement, and that is what we are in the process
of doing.
Q125 Keith Vaz: Their problem with
your negotiating stance is, first of all, the fact that you have
not bothered to sit down at the negotiating meeting and you have
not had negotiations with them, it has all been done with your
civil servants?
Lord Falconer of Thoroton: I did
not realise there was a matter of complaint about that. I would
be more than happy sit down with them, but both the Lord Chief
Justice and I thought the best way for the negotiations to be
conducted was with teams led by Alex Allan and John Thomas respectively.
Q126 Keith Vaz: In the end the decision
rests with you.
Lord Falconer of Thoroton: It
does.
Q127 Keith Vaz: These are the proposals
of the Government and every judge that has appeared before this
Committee, certainly since it has been created, although they
have been critical of aspects of government policy, have always
lavished praise on you.
Lord Falconer of Thoroton: We
are in the middle of these negotiations. We have got to a point
where we are very near to a position, there are these longer-term
issues, we need to reach a solution and very quickly.
Q128 Keith Vaz: Why do not you take
personal charge of these negotiations? It is an unprecedented
situation here, where the Lord Chief Justice and a senior Court
of Appeal judge comes before the Committee of members and has
the kind of complaints that they have. Surely it is time, despite
the great effectiveness of Mr Allan and his team, that you should
take charge of this, because in the end you are the Government
minister responsible. They have faith in you and they feel that
you can deal with this issue. Why do you not take charge?
Lord Falconer of Thoroton: I am
responsible for all that has gone in relation to these negotiations.
I think the right course is for the negotiations to continue and,
watching the Lord Chief Justice and speaking to the Lord Chief
Justice, I do not understand the negotiations to have come to
an end.
Q129 Keith Vaz: But, Lord Chancellor,
you have excluded from the discussions most of what they would
like to see on the agenda. You have excluded any discussions by
the working group of structural changes requiring primary legislation.
You have made it very clear that you do not wish to be discussing
the amendments to the Concordat. After all the Concordat was the
great Magna Carta of this Government as far as the judiciary and
the Government was concerned. You will not even consider changing
that, despite the fact that the Ministry of Justice really does
change the whole atmosphere as far as these matters are concerned?
Lord Falconer of Thoroton: The
issue about it, the anxiety of the judiciary, which I am very
alive to, is the sense that when you cease to be responsible not
only for courts and legal aid but also become responsible for
prisons, probation, criminal sentencing, criminal policy, your
willingness to protect the independence of the judiciary and the
independent running of the courts might get diminished. That is
the essential concern. What we have done in the arrangements that
we have been discussing is build in safeguards that try to provide
assurance that will not happen whilst at the same time ensuring
proper parliamentary responsibility.
Q130 Keith Vaz: Do you not think
there ought to be an amendment to the Concordat? The Concordat
was arrived at between you and Lord Woolf in different circumstances.
There is no criticism here of what is being proposed, except that
you will not look at the reality of the situation as it is now.
Why can you not amend the Concordat?
Mr Allan: First of all, parts
of the Concordat subsequently were enshrined in the Constitutional
Reform Act, so there are parts of the Concordat which were effectively
overtaken by primary legislation and to change them would, of
course, require primary legislation in turn. There are other bits
of the Concordat that will need to be amended. Some of the actual
arrangements have changed.
Q131 Keith Vaz: You are appropriate
to do that. The position we had was that the Government was not
prepared to move on the Concordat.
Mr Allan: If you look at what
the Lord Chief Justice's statement says, the changes to the Concordat,
there are some that are absolutely inevitably, but the changes
to the Concordat that were being discussed are the ones that are
subsequently enshrined in the Constitutional Reform Act and would
require primary legislation.
Q132 Keith Vaz: Are you prepared
to amend the Concordat in view of the new changes that have occurred?
Mr Allan: As I said, I think that
the changes which are under discussion are the ones that require
primary legislation to change; they are not simply an agreement.
Q133 Keith Vaz: You are not prepared
to change that?
Mr Allan: That is a matter of
having new primary legislation, which is a different issue.
Q134 Keith Vaz: Do you feel the judges
have been slightly ungrateful. You have spent the last three and
a half years giving them all this power, giving up your power
of appointment and here they come back complaining again?
Lord Falconer of Thoroton: No,
I do not think they are being remotely ungrateful. I think they
are rightly standing up to ensure that there is a proper relationship
between the Executive and the judiciary, and that does involve,
it seems to me, quite detailed negotiations.
Q135 Keith Vaz: But they did warn
us about this, did they not? They did say that, as soon as you
propose to abolish the role of the Lord Chancellor, as soon as
you became an ordinary member of the cabinet as opposed to the
protector of the judges, this is exactly what would happen; there
would be no big beast who would be in the Government prepared
to protect them. This is exactly what they said would happen.
Lord Falconer of Thoroton: Then
you recall what happened after that, there was the Concordat reached
and the Constitutional Reform Act and the view that is widely
expressed is that entrenched judicial independence much more,
and, what is more, that was done on the basis that the Lord Chancellor
would no longer be the head of the judiciary. That is the basis
on which we have gone into the Ministry of Justice.
Q136 Keith Vaz: Lord Goldsmith has
suggested maybe this is the time for us to have a written constitution.
With all these changes that have occurred with the creation of
a Ministry of Justice, now is the time to enshrine all this in
a written constitution. Do you agree with him?
Lord Falconer of Thoroton: I think
the right thing to do is to resolve these issues by reaching an
agreement with the judiciary. The critical thing is to reach an
agreement with the judiciary, but what is happening is you are
coming into the discussions, quite legitimately, this Committee,
at a point when the discussions are still going on. We have got
to resolve, the Executive with the judiciary, and we should be
given a chance to do that, in my view.
Q137 Keith Vaz: You are confident
that it can be resolved?
Lord Falconer of Thoroton: I am
confident it can be resolved.
Q138 Keith Vaz: Are you prepared
to take over the lead of these negotiations?
Lord Falconer of Thoroton: I think
the right thing to do is to not break down the format of the negotiations.
I think the right thing to do is to let the negotiations continue
until a point is reached where there is agreement.
Q139 Chairman: When you read your
Sunday newspaper or received your telephone call on the Saturday—you
referred to the day before—did it occur to you to get in
touch with your senior colleague, the Prime Minister, and say,
"Look, I think it would be better if we did this in a way
which enabled the judges to present their concerns before we actually
create the Ministry of Justice, set it in stone"?
Lord Falconer of Thoroton: Not
on that weekend, but subsequently I had discussions with the Prime
Minister in relation to this issue, and not only did I have discussions
with the Prime Minister about it but also with the judges in relation
to it. There needs to be a proper negotiation, we all agreed,
in relation to it. I say "we all"—myself and the
Prime Minister, myself and the judges—and that is what is
going on now and the right thing to do, in the interests of the
constitution, is wait until we get to the end of those.
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