Select Committee on Constitution Tenth Report

Appendix 2

Reply from the Lord Chancellor and Secretary of State for Constitutional Affairs,
the Rt Hon. the Lord Falconer of Thoroton

Thank you for your letter of 3 July. I hereby enclose the memorandum for the Committee you requested. I look forward to our meeting on 15 October.

Role in the new constitutional arrangements as Lord Chancellor and as Secretary of State for Constitutional Affairs

The proposals announced on June 12 amount to a fundamental change in Ministerial oversight of the constitution. Once all the necessary changes have been made I, as Secretary of State with responsibility for constitutional affairs, will discharge my duties exclusively as a Minister and not as the head of the Judiciary or the Speaker of the Upper House. The changes are necessary to clarify the relationship between the arms of the state.

The nature and breadth of powers of the ancient office of the Lord Chancellor mean that change cannot be effected overnight, but instead requires a period of transition. We have begun the process of change where the issues are clear cut (a Transfer of Functions Order has been laid before the house) and are consulting on a variety of functions which have fallen to the office of Lord Chancellor.

The most significant changes concern the relationship with the Judiciary. Once legislation has been passed I will no longer be head of the Judiciary as well as a Minister. During the transitional period I will not sit as a judge in the House of Lords. To bolster further the independence of the Judiciary the Government has announced its intention to establish a new and independent Judicial Appointments Commission. We are consulting widely on the establishment of a Commission, and no decisions will be taken until that consultation is complete, but the Government's proposals for a Commission envisage a significant reduction in Ministerial discretion in the appointment of Judges, and a more open and transparent appointments process.

The future of the Speakership of the House of Lords is a matter for the Lords. We await the recommendations of the Select Committee.

I presently retain the other functions of the Lord Chancellor. Many of those powers which do not relate to the core business of government will be redistributed and we are presently consulting on how best to do that.

Once the office of Lord Chancellor ceases it will be the Secretary of State for Constitutional Affairs who has responsibility in the executive for safeguarding the independence of the Judiciary. We are currently consulting on whether the office holder should be bound by a statutory duty to do so.

The Department for Constitutional Affairs is a major public service department, charged with the delivery of a broad range of justice services. The Secretary of State will take responsibility for those services.

The office holder will also take on the Lord Chancellor's policy role in respect of the reform and strengthening of the constitution. Here the Secretary of State will have the lead on Human Rights, Freedom of Information, Data Protections and UK electoral policy. In the summer I took on the overarching strategic responsibility for devolution, including, for example, responsibility for the overall devolution settlements, overall policy responsibility on devolution and the formal machinery of inter-administration arrangements.

Consultation papers have now been published on the establishment of a Supreme Court for the United Kingdom, a statutory Judicial Appointments Commission, the future of the position of Queen's Counsel, the reform of the role of Lord Chancellor and the next phase of House of Lords Reform. The response period for the first four of these papers ends on 7th November and that on Lords Reform ends on 12th December. The Government invites comments on these topics and will use the responses it receives to shape plans for future reform.

Special consideration to constitutional matters

In his evidence to you in 2001, Lord Irvine noted that there is no all embracing definition of "constitutional measures" that the Government holds as its own. Our system presently means that there is no dogma on the handling which is appropriate for constitutional measures and for those which do not carry that label.

I agree with that. But the Government takes seriously its obligation in respect of the constitution. The constitution must be strengthened and safeguarded. The Secretary of State has a particular responsibility in these matters. For the first time we have a Secretary of State in the Cabinet who is charged with responsibility for the constitution.

Of course, it is an important function of my new Department to develop constitutional policy which is coherent and responsive to the needs of the UK in the 21st Century. Within my department we have now established a Constitution Directorate focusing exclusively on constitutional reform. This will be the focal point for our work.

Although the Government takes care to consult on constitutional change, it is not the our view that measures which might be deemed constitutional should be subject to any further processes other than those presently required by Parliament. In that sense, proposals which have an effect on the constitution are treated like many non-constitutional issues, such as access to health care, which concern the relationship between the state and the citizen. I think that is right. We do not have a body of fundamental constitutional law which may be closely demonstrated as requiring separate treatment. That does not mean that the constitution is unimportant, not that we should reform it in a haphazard or ill-considered manner. Far from it. We must focus hard on providing a constitution which is fit for the purposes of the people of this country. A constitution which provides clarity and which inspires the trust of the public. That is our task.

The Government's current view of the process of constitutional change (in light of Lord Irvine's evidence to the Select Committee in October 2001)

Lord Irvine said in 2001 that the process of constitutional change often begins with longstanding popular dissatisfaction about a particular constitutional provision. Pressure is applied to the Government, through Parliamentary debate or direct representation, to bring about change and, following this process, a policy proposal may be put forward to Parliament for debate. It was just this narrative which culminated in the announcement of 12 June on the policy proposals and consultations on a Judicial Appointments Commission and a Supreme Court.

We carefully considered the argument that the relationship between the judiciary and executive should be more clearly defined. We then set in train the consultative process I have already described. The announcement of 12 June was preceded by lengthy deliberation and debate across a wide range of forums and over a number of years, most recently in the LCD Select Committee in April of this year. The consultation process will give everyone who wants the chance to have their say and there will be many opportunities for parliamentary debate.

Our approach has been, and will remain, to consult where it is appropriate to do so. Lord Irvine described the way in which that was done during the 1997 administration, by means of a series of White Papers. You will be familiar with the consultative papers I have issued over the last four months. They are evidence of our commitment to constructive consultation. But that does not mean that our role is simply to react to debate. We have a responsibility to lead debates and to prompt action. Where we have concluded that a certain course of action is appropriate it would be disingenuous to seek views on its merits. Our current consultative process is clear on the question where views are sought.

The method by which the Government dealt with House of Lords reform is an example of the way in which we use a process suitable to the subject matter in question, having considered the prior history of the debate. The recent announcement came out of the need for the Government to set out a course for proceeding in an area where almost continuous consultation and debate since 1997, both in Parliament and in public, had failed to arrive at a firm policy conclusion. As all the issues had been openly discussed in great depth, it was quite right that the Government should step in with its firm proposals on an issue of which is central to the country's constitutional arrangements. Further discussion in a White Paper in advance of the Government publishing its consultation paper would have added little or nothing to what had gone before.

We do not, however, just respond to calls for change depending on which corner shouts loudest. Reforms may be undertaken to address constitutional anomalies. They may also be radical changes like the Human Rights Act 1998. Whatever their nature they must be for a clear purpose which we must articulate. Underlying our approach to reform is the firm belief that the public has a right to a constitution that serves the needs of British citizens in the 21st century. All change to the constitution must be measured by reference to that conviction: how do these changes serve the public? We have a strong, mature democracy which we must cherish and guard and a constitution which, for the most part, delivers good, democratic government to the people. While we must be astute and preserve that which works well, we must also measure our institutions against the needs of the public in today's circumstances.

Since 1997 we have achieved great progress in reforming the constitution for the better and creating a real difference for real people. The changes which arose from the 1997 manifesto were big projects developed during Opposition. These were necessary and long overdue constitutional reforms and, crucially, it is from these changes that subsequent reforms have sprung. Where there are further calls for change then the Government must listen. But reacting will not always be sufficient. Where change is needed, where the constitution could better fit the needs of the people, then the Government will not be afraid to take difficult decisions and propose radical reforms.

30 September 2003

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