Examination of Witnesses (Questions 200-208)
RT HON
LORD FALCONER
OF THOROTON
QC AND MR
ALEX ALLAN
22 MAY 2007
Q200 Mr Tyrie: And this is because
the terrorist threat had generated concerns to the point where
it was felt essential to respond to it by splitting the Home Office
and the delay of a few months to enable you to consult on the
judicial aspects of these changes would have been inappropriate?
Lord Falconer of Thoroton: Again,
and I take the responsibility for this, nobody else, the working
party looked sufficient. The need for an inquiry was not recognised
at that particular point. Again, I am still doubtful about whether
you need an inquiry, whether or not it is a review after a period
of time, but you are asking about the driver of the changes and
that is, as it were, the foundations of the changes. I was very
supportive because, quite separately from the counter-terrorism
material, I was very keen that there should be a Ministry of Justice,
but, as I have answered to Mr Vaz and Mr Beith's questions, only
if the judges did not feel that it compromised their independence.
Q201 Chairman: Might we have another
of these changes any day now? Is the present or future Prime Minister
discussing with you whether the Attorney General's role might
be dramatically changed?
Lord Falconer of Thoroton: Not
that I am aware of, Mr Beith.
Q202 Chairman: So will you read it
in one of the Sunday papers and will we then find that the implications
have not been thought through?
Lord Falconer of Thoroton: Again,
I think you are slightly unfair in saying that the implications
have not been thought through. I think the process will produce
a perfectly sensible answer in relation to this.
Q203 Mr Tyrie: Well, we are certainly
not in a happy situation now, are we? You would not describe it
as a happy situation, would you?
Lord Falconer of Thoroton: I am
in the middle of discussions or the working group is in the middle
of discussions.
Q204 Mr Tyrie: In public where the
Lord Chief Justice has felt the need to come to this Committee
and go just one step short of pressing the nuclear option and
making a statement to Parliament.
Lord Falconer of Thoroton: Well,
I wish that had not happened, but I think the right thing to do
is to reach an agreement.
Q205 Jeremy Wright: But the point,
Lord Chancellor, surely is that you do not just have to wish that
it had not happened, but you could have stopped it happening because
you could have reached agreement with the judiciary before the
Ministry of Justice was set up and not afterwards, which you are
telling us will happen, but has not yet happened. Surely, it would
have been more sensible, and this has been asked of you before,
to set up the Ministry of Justice only when you gained unconditional
agreement, not conditional agreement, from the judiciary that
it would not compromise their independence, and we are not in
that position.
Lord Falconer of Thoroton: No,
and I am, with respect, Mr Wright, disagreeing with that proposition.
I am saying that, once the judiciary were saying, "We don't
disagree in principle, but there need to be safeguards",
there were other drivers that made it good to do it as quickly
as possible and there was a process by which those safeguards
could be agreed, and that seemed to me to be balancing all the
interests and an appropriate way to go forward. It would not have
been right, it seems to me, to delay until the concerns of the
judges had been sorted out because there were other factors in
play as well which I have gone into.
Q206 Chairman: Let us just clarify
one point that we discussed with the Lord Chief Justice, and that
is the situation that arises when the Lord Chief Justice is hearing
cases to which the Ministry is a party and increasingly yourself
or your successor. What is your view of that situation and how
it should be handled?
Lord Falconer of Thoroton: I have
been judicially reviewed or my Department has been judicially
reviewed and the Legal Services Commission has been judicially
reviewed 31 times, I am told, during the course of the last year.
It has never occurred to either myself or the Lord Chief Justice
until this moment that that caused any difficulty between us.
I do not know whether or not the Lord Chief Justice or the other
members of the senior judiciary I have been speaking to were hearing
any of these, but it never occurred to us that that was a particular
problem. If it seems inappropriate for the individual judge, a
member of the Court of Appeal or the plenum which is hearing it
to speak to the Lord Chancellor, I would not have much difficulty
about that; I do not think that will provide a particular difficulty
in resolving problems between us.
Q207 Chairman: In fairness, I do
not think it was raised in that spirit. It was simply that an
arrangement has to be made which may result in your not being
able to have the sort of day-to-day contact with the Lord Chief
Justice at certain times that you might otherwise have had.
Lord Falconer of Thoroton: Well,
the area of problem is that there are significantly more judicial
reviews against the Prison Service in one shape or form than practically
any other bit of the State. I do not know how many judicial reviews
the Lord Chief Justice has heard, I think very, very few, so,
although I can see it is a sensible safeguard, I cannot see it
as being much of a problem on a day-to-day basis.
Q208 Chairman: Well, Lord Chancellor,
there are one or two other things we could have gone into today,
but I think we have had enough of a mind-boggling exposition of
the way in which these things are determined in government to
be sufficient for the afternoon. Thank you very much.
Lord Falconer of Thoroton: Thank
you very much indeed for having me.
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