Examination of Witnesses (Questions 180-199)
RT HON
LORD FALCONER
OF THOROTON
QC AND MR
ALEX ALLAN
22 MAY 2007
Q180 Mr Tyrie: But, on the basis
of a misunderstanding, you thought—
Lord Falconer of Thoroton: So
it would appear.
Q181 Mr Tyrie:— you were discussing
a permanent deal and now you have discovered you were debating
an interim arrangement.
Lord Falconer of Thoroton: It
would appear that the issue at the moment between us is: should
the review start straightaway or should it wait for a year or
two?
Q182 Mr Tyrie: Is it common for people
in your position and the Lord Chief Justice to spend seven months
negotiating at cross purposes?
Lord Falconer of Thoroton: This
is a serious matter.
Q183 Mr Tyrie: You were doing the
laughing and I was asking a serious question.
Lord Falconer of Thoroton: Indeed
you were and it is a very serious matter. I believe that, as I
say, the right thing to do at this particular point is to continue
to discuss how we deal with the review/inquiry issues. Can I just
make clear in answer to Mr Tyrie's questions that I am not remotely
complaining about the issue of interimness being raised yesterday.
All I am saying is that this is what has been happening in the
course of the negotiation and that is why we need to reach the
end of the negotiation.
Mr Allan: If I could perhaps come
in on some of the process, as the Lord Chancellor is saying, one
of the particular issues of concern to the judiciary was the budget-setting
process to ensure that there was visibility, that there was appropriate
judicial input as we went through the various stages, not just
on the annual budget, but the capital budget over a number of
years, the Comprehensive Spending Review years, and we have been
working through quite detailed processes to ensure that there
is judicial involvement in all stages so that some of their concerns
about the Lord Chancellor arbitrarily raiding the court budget
to fund some other portion of the Ministry of Justice's budget
would be alleviated. We have been through a complicated process
negotiating that which, as the Lord Chancellor says, is very close
to completion and that has been addressing one of the issues they
raised which was in terms of, as they referred to it, ring-fencing.
I believe we have produced a solution through this process which
meets the particular concerns to ensure transparency of the budget-setting
process and full involvement of the judiciary.
Q184 Bob Neill: But is that a solution
which is a matter of agreement with the judiciary or is this one
of the things where you are so apart?
Mr Allan: It is one of the things
where, as the Lord Chief Justice's statement says, the working
group have come close to setting and we are very close, but we
are not there yet.
Q185 Bob Neill: Is that partial ring-fencing
then?
Lord Falconer of Thoroton: No,
that is unfair. That is totally unfair. The discussions have gone
on and there broadly is agreement in relation to this. The issue
is not whether there is disagreement in relation to this, and
you have characterised that and I am not blaming you for that
because you have not been party to the negotiations, but there
is of course agreement in relation to that and the issue is not
the detail of that because how the budget is to be set is now
agreed in detail through the working party. The question is: is
this interim or is it permanent? That is now the issue.
Q186 Bob Neill: Is there any element
of ring-fencing, all or partial?
Lord Falconer of Thoroton: There
is no element of ring-fencing.
Q187 Jeremy Wright: Can I just put
something to you which I am sure you will agree with. Senior members
of the judiciary are not given to indiscretion and they are not
given to overstatement.
Lord Falconer of Thoroton: No.
Q188 Jeremy Wright: Now, given the
tone of the evidence, which two very senior members of the judiciary
have given to us today, and you will have a chance obviously to
review it, I appreciate you have not seen it in its entirety—
Lord Falconer of Thoroton: But
I have got the document.
Q189 Jeremy Wright:— I think
you will find, when you look at what has happened when they gave
evidence to us, that the tone of it is quite striking. Now, if
what you have described to us is right, that, in terms at least
of an interim agreement between the Government and the judiciary
on these arrangements, there are some matters yet to be worked
out, but there is a very substantial measure of agreement, why
do you think those members of the judiciary thought it appropriate
to come and give us the evidence they gave in the tone they gave
it?
Lord Falconer of Thoroton: Well,
there is a disagreement about the longer-term position. The point
that we have reached is that we can go forward on an interim basis,
that they are concerned about the longer-term position and we
need to discuss it further with them.
Q190 Jeremy Wright: Do you think,
or would you concede perhaps, that some damage has been done to
the relationship between the Government and the judiciary over
the way in which these issues have been handled?
Lord Falconer of Thoroton: I hope
not, I do not think it has and indeed there were similar things
said after 12 June 2003 when the proposals about the Lord Chancellor
were made on the last occasion, and I hope it became clear from
what Lord Woolf has said in evidence which he has always given
and what Lord Phillips said today that there has not been a difficult
relationship between the judiciary and the Executive over the
last year since 2003; indeed it has been good.
Q191 Chairman: Between what happened
in 2003 and what is happening now, which is that in 2003 most
of what had been decided could not be implemented until the legislation
had been completed, and during that process a concordat was reached,
changes were made to the substance of the proposals and there
were lengthy debates in both Houses of Parliament before most
of it came into effect, but that is not happening this time.
Lord Falconer of Thoroton: What
happened in relation to that was that the announcement was made
in June 2003. In practice, quite a lot them were put into effect
straightaway. I indicated I would not sit as a judge and I indicated
that I did not want anymore to be the head of the judiciary, which
in effect, although legally I had not divested the role, it meant
that I was hugely compromised in that particular role. There were
then discussions that lasted between July and December, which
is four months with a gap in the middle, about the same length
of time these discussions had started, and they reached a conclusion,
as I believe these will. The difficulty always is, if there is
any thought of running commentary, you have the difficult discussion
that we are having now.
Q192 Keith Vaz: Can I just be clear,
following the article on 19 January, whenever it was, when you
first read about these proposals, if the judiciary had said to
you, "We oppose the creation of the Ministry of Justice because
we believe that this compromises our independence", you also
would have opposed the creation of the Ministry of Justice?
Lord Falconer of Thoroton: Most
certainly.
Q193 Keith Vaz: And they have never
said this to you?
Lord Falconer of Thoroton: They
have never said that to me and I most certainly would have opposed
it because, if the senior judiciary said to me, "This compromises
our independence", then my duty, both constitutionally and
as a result of the Constitutional Reform Act 2005, is to defend
their independence. I would inevitably be guided by what the Lord
Chief Justice and the senior judges said to me, but they never
said that. What they have said is, "We don't object, subject
to safeguards". What we have got to balance in central government
is making sure that they get the safeguards against the wider
benefits that come from having a Ministry of Justice and that
is what I am striving to do.
Q194 Keith Vaz: Just to follow on
from what Mr Tyrie has said, there has clearly been a misunderstanding
to some extent as to what you have been negotiating, in all seriousness.
Would it not be a good idea, following this session where we have
heard from the judges and we have heard from you and you have
heard from the judges only yesterday, for you and the Lord Chief
Justice to actually get together and see whether a deal can be
done? Can we act as a kind of dating agency?
Lord Falconer of Thoroton: The
Lord Chief Justice and I need to discuss what is the best way
to go forward in relation to this. If we agree that it is best
that we discuss it together, then we will do that. If we agree
that it is best for further discussions to go on in the working
group, then we will do that, but this is a very, very important
matter that we need to resolve.
Q195 Chairman: Mr Vaz asked you whether,
if the judges had said to you that they were opposed in principle
to a Ministry of Justice, you would have opposed it if they believed
it compromised their independence, and that was not their position,
but it was their position that bringing it into existence without
safeguards could compromise their independence. You are the Ministry
of Justice, you preside over a Ministry of Justice which has been
created in the absence, at least for the time being, of those
safeguards. That cannot be right, can it?
Lord Falconer of Thoroton: I am
sure that balancing the need to make sure that the judges are
properly protected against the benefits that come from the Ministry
of Justice in the way that we have done it is perfectly satisfactory.
They were saying, "We don't oppose, subject to safeguards",
and by the time the announcement was made on 29 March a working
party was up and running, discussing those safeguards.
Q196 Chairman: What is the urgency
about putting a Ministry of Justice in place that meant that you
could not pursue the safeguards? Was it the imminent retirement
of the Home Secretary?
Lord Falconer of Thoroton: The
best way of running the Home Office was a driver in terms of timing
in part because what the Home Secretary was saying and proposing
was, "You are far better, in terms of the current security
threat, to have a Home Office that focuses on a few things".
That affected the timing. It seemed to me that, once the judges
were saying, "We don't oppose, subject to safeguards"
and there was the pressure from the Home Office, saying, "Let's
split the Home Office", the right thing to do was to go ahead,
and in fact the security stuff went ahead earlier, but the split
occurred on 9 May. That is a sensible balance to strike. Although
one has got to very much recognise the importance of resolving
the concerns of the judges, there are other interests that need
to be balanced as well in terms of timing, so I do not accept
the implication of your questions which is, "You could have
waited". Lord Justice Thomas is saying, in my view quite
correctly, that the inquiry might take a year, then you might
have legislation which will take a year and then that might take
six months to implement, and it would have been illegitimate and
wrong, having regard to the other issues, to wait, say, two and
a half years before you did the Ministry of Justice.
Q197 Chairman: You have to wait several
years to create the Supreme Court until you finish the building.
Lord Falconer of Thoroton: I do
not think the Supreme Court has quite the same measures.
Q198 Jeremy Wright: I think though,
to be fair, Lord Chancellor, the Chairman is making a slightly
different point because, in order to get agreement on an interim
arrangement, what you would have to do is agree with the judiciary
that an inquiry could be started, not that it would have to be
completed, and I think what we are really suggesting to you is
that it would have been sensible to get that degree of agreement
before any further progress was made, and that clearly did not
happen.
Lord Falconer of Thoroton: And
that is my fault. I thought the working party was sufficient and
now what is being suggested is an inquiry, so let us see whether
one needs to discuss how one deals with that, and I take complete
responsibility for making the mistake that I thought the working
party would be sufficient.
Q199 Mr Tyrie: Could you just explain
in a little more detail what you mean by the phrase "the
driver for these changes in terms of timing"?
Lord Falconer of Thoroton: Over
the course of the period from May to July and December, the Home
Secretary had been presiding, as is well known, over an ad hoc
group in relation to looking at terrorism and he had made a variety
of proposals emerging from that in December/January, which is
about the time that the suggestion of the split comes up, in which
he is basically saying that it would be a better organisation
to have a more focused Home Office, able to focus more on terrorism,
and there are bits of the counter-terrorist activity that are
not in the Home Office or were not in the Home Office at the time,
but were elsewhere in government, so he said to bring them into
the Home Office and reconfigure as between the Home Office and
the DCA.
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