Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 1-19)




  1. Welcome to this afternoon's session. According to the Number 10 website, you are the Secretary of State for Constitutional Affairs and Lord Chancellor for the transitional period but, since that is a bit of a mouthful, I think we will summarise the title as we proceed! We have your paper before us that you have prepared for this meeting. We have also circulated the transcript of your session with the Lord Chancellor's Committee in the other place to save time because obviously we do not want to go over ground that you have already dealt with. However, we may want to pick up on one or two points that are relevant to our concerns, but we are concerned not to go over ground that has already been covered and put in the public domain. Before we get under way, there are really two things to put on the record. Perhaps you could tell us who is accompanying you and then whether there is anything you would like to say additional to the paper you have put in before we get under way.

  (Lord Falconer of Thoroton) I am accompanied by Sir Hayden Phillips who is the Clerk in Chancery and the Permanent Secretary to the Department for Constitutional Affairs. I think there is nothing I can say that would assist beyond the memorandum.

  2. I know you have had a note as to how we thought it may be helpful to proceed, so, rather than just ask disparate questions, to give some structure to it, we will look at structure, then look at what is called vision, and then more specific policy issues. Perhaps I could begin by looking at the structure of your department. You will be familiar with our own report; we have an interest with the official structure as well as the overall ministerial structure. If I could start with the overall structure, there has been some perplexity in terms of understanding the structure and I have to say that that perplexity is not resolved by looking at the Department's website.
  (Lord Falconer of Thoroton) I apologise.

  3. Or some of the other material that we have before us. If I could summarise how I see it. As I understand it, we have the Scotland Office and we have the Wales Office which are distinct entities but are both within the Department of Constitutional Affairs, so the junior ministers in those two offices are technically within the Department of Constitutional Affairs, although they are not included on your website but they are within the structure of your Department. However, the Scotland Office is answerable to the Secretary of State for Scotland and the Wales Office is answerable to the Secretary of State for Wales, but of course neither Secretary of State falls within your Department. I really have two questions: one is straightforward, is that a factually correct summary? Secondly, I am just wondering what the poor undersecretary in the Scotland Office would do, for example, in the highly unlikely event of you ever falling out with the Secretary of State for Scotland.
  (Lord Falconer of Thoroton) Broadly, your description is accurate. What happened on 12 June in relation to the changes was in the light of devolution to Scotland and Wales, inevitably the functions of the relevant two Secretaries of State went down as they had always intended to do. That inevitably, over time, had a very significant effect on the work done by the two prospective territorial offices. The effect of the change of 12 June was, in administrative terms, to recognise that by putting the officials and, as you rightly say, the junior ministers, in the Department for Constitutional Affairs, the Lord Chancellor's Department, for the purposes of pay and rations. But, in political terms, the Secretary of State for Scotland and the Secretary of State for Wales perform precisely the same functions that they did on 11 June. Equally, junior ministers, albeit cited in my Department for the purposes of pay and rations, report to the Secretary of State for Scotland and Wales respectively. The issue of what happens if I fall out with the junior Ministers for Scotland and Wales does not arise because, although pay and rations-wise, they are fed by my Department, I have no control, and rightly so, over pay and rations for other ministers.

  4. So, what you might call policy line accountability is fairly straightforward though they are accountable upwards to their Secretary of State and not to you.
  (Lord Falconer of Thoroton) That is correct.

  5. If we take your ministerial structure and look at the official structures related to what we have looked at and what we have a particular interest in, how the constitution is dealt within Government at ministerial level, could you therefore tell us a little more about the Constitution Directorate—which I think in terms of structure we would welcome—and how it fits within the Department? How large is it and what role does it have because, looking at your website, it does not seem to have been updated to put that on.
  (Lord Falconer of Thoroton) Stop me if the detail becomes too wearisome and say whether you would prefer a written document but, broadly, the position is as follows. The Constitutional Directorate consists of 117 staff. It sits within the Clients and Policy Group of the Department. It has nine divisions and I will just go through them until you get too bored hearing them: Information Rights Division, Electoral Policy, Devolution and Crown Dependencies, Constitutional Policy Division and House of Lords Reform, Gender Recognition Division, Human Rights Division, European Policy Unit, Reform of the Office of Lord Chancellor, and Supreme Court Policy Division, which I think makes nine headings. It was not that boring!

  6. And that is answerable to you in terms of discussing constitutional issues?
  (Lord Falconer of Thoroton) Yes, it is.

  7. We would like to come back particularly in terms of structure and to policy in terms of devolution, and you touched on this in your evidence to the Committee of the Lord Chancellor's Department in the other place. In terms of your position now as Secretary of State for Constitutional Affairs, how distinctive is it and are you a Secretary of State or is the Secretary of State for Constitutional Affairs something that is distinctive in legal terms?
  (Lord Falconer of Thoroton) Currently, as Secretary of State, there is nothing distinctive about my position, though there is something very distinctive about the position of Lord Chancellor in the Cabinet. As we proposed in the consultation papers relating to the reform of the role of Lord Chancellor, I would, subject to Parliament agreeing to this, envisage that the role of Secretary of State for Constitutional Affairs would be distinctive from other Secretaries of State because it would have a special responsibility placed upon it by statute to safeguard the independence of the judiciary and that would not be a function that was interchangeable with other Secretaries of State. Obviously, that is subject to Parliament agreeing to the terms of a legislative provision.

  8. So, Secretary of State for Constitutional Affairs would be a post recognised in statute?
  (Lord Falconer of Thoroton) It would be a post recognised in statute.

Lord Lang of Monkton

  9. In your paper, you say that the constitution must be strengthened and safeguarded. That carries the implication of buttressing, stabilising and reinforcing the constitution but, from a government that are determined or have indicated a strong will to carry out further constitutional reform and have already carried out quite a lot of constitutional reform in various parts of the constitution, could you clarify or enlarge on what you mean by strengthening and safeguarding.

  (Lord Falconer of Thoroton) I think that would mean from time to time changing the constitution. I think that the constitution needs to be looked at not with a view to changing all the time, but any sensible government would be looking to see the extent to which there needs to be constitutional changes. As society changes, so, I believe, must the constitution. Therefore, I think that you have to look all the time and see whether or not the constitution needs changing in order to enhance its credibility and effectiveness in the eyes of the public and also whether you need to change it in order to strengthen our democracy and public engagement with decision making, so that people's understanding of and sense of acceptance of the constitution remains strong. Two obvious examples in relation to where change strengthens; the first is, I believe devolution to the Scottish Parliament on the basis that that enhanced people's sense of where decisions were being made in relation to Scotland. And another example of constitutional change was the suffrage for women in 1918 on the basis that, if we did not give women the vote, I believe that would have significantly undermined people's confidence in the way that our constitution operated. When you change, the speed at which you change is obviously a matter for political judgment ultimately.

  10. Normally, if one is talking about strengthening and safeguarding, one assumes that it might come under assault from some direction. Is it not the case that the most likely assault on the constitution is from the government of the day? I am not making a party political point but it is at the will of the government of the day to inflict more change on the constitution than any other source.
  (Lord Falconer of Thoroton) I think that one of the things a constitution has to do is to be able to protect the citizens and the public from an over-mighty state including an over-mighty government and that is broadly one of the things any constitution seeks to achieve. That is an incredibly important factor in order to ensure the democratic principles and the parliamentary sovereignty in our system.

  11. The Lord Chancellor, in his present or previous role, had, in a sense, one foot in the Cabinet of the government of the day and one foot outside.
  (Lord Falconer of Thoroton) Yes.

  12. You have identified shortcomings in that situation which you seek to change, but is it not the case that, in that situation, he is better able to take an independent view of his constitutional obligations than a secretary of state for a government department forming part of the collectivity of government?
  (Lord Falconer of Thoroton) I think there are two separate issues there. First of all, the Lord Chancellor's role in terms of the judiciary has been to protect their independence, which I regard as a vital part of the constitution. You need to make arrangements after the Lord Chancellor's role is abolished that the judiciary's independence is protected. That was a special part of the Lord Chancellor's responsibility. There is an entirely separate question about constitutional change generally, moving away from the judiciary. It has not traditionally been the Lord Chancellor's role to make decisions about the constitution of the country generally. For example, the Lord Chancellor would not have been regarded as the person who was driving universal suffrage or suffrage of women. Indeed I suspect, though I cannot tell you this, that the Lord Chancellor may not have been that in favour of such moves at the time. Equally, although my predecessor had a significant role in relation to devolution, those very important constitutional issues were not being driven by the Lord Chancellor, they have been driven by the relevant secretaries of state. I am sorry, am I going on for too long?

  13. Will you, as Secretary of State for the Constitution, see your role rather like the present Attorney General as giving independent detached advice to colleagues in government where you see constitution jeopardised by something that your colleagues propose?
  (Lord Falconer of Thoroton) My role as Secretary of State for Constitutional Affairs, assuming that all the arrangements broadly outlined in the consultation papers do take place, will be the politician in the government responsible for the constitution. That is not a role I am performing as a lawyer in any sense. I think all politicians, not just lawyer politicians, have a responsibility to safeguard the fundamentals of our constitution. That, though, is just as much a political issue as a legal issue.

  Chairman: You mention in your paper that you are the first Secretary of State responsible for the constitution and I think that is something we would like to come back to presently.

Lord Morgan

  14. I wonder if I could have a general view from you about the way you see your new role. We put to Lord Irvine when we saw him a couple of years ago the view, which he did not altogether dissent from, that he personally embodied joined-up government and that he did provide a personal and perhaps institutional link between a great variety of very remarkable changes that the Government are actually pursuing. Do you see yourself as having a kind of integrated role pulling together a variety of different changes which are not perhaps intrinsically related in themselves?

  (Lord Falconer of Thoroton) If and insofar as those changes are constitutional, then, in looking at any constitutional changes that might be introduced, having a Secretary of State for Constitutional Affairs means that you are able to look across the whole constitution rather than just parts of it. For example, human rights and/or freedom of information and/or data protection had previously been regarded as Home Office issues. They were transferred to the Lord Chancellor's Department before 12 June, but I believe they had a quite significant effect on the freedom of the individual which is a very, very important constitutional issue. So, having a Secretary of State for Constitutional Affairs allows changes to the constitution to be looked at right across the piece. So, to that extent, yes. I am not sure if Derry's answers also related to the particular role of the Lord Chancellor in joining up the Judiciary with the Executive in a way that did not undermine the independence of the judiciary.

  15. We did allude to that. Would it follow that if there were a question of, as it were, potential contradictions emerging in a particular part, let us say reform of this legislature with aspects of devolution, would it be your Department that would try to produce a common view?
  (Lord Falconer of Thoroton) Devolution is a very good example. I am responsible for the devolution settlement in the sense that the devolution settlement is something of great importance to the UK as a whole. If there is to be a change in the devolution settlement—and I should make it clear that none are planned—in looking at it, there needs to be somebody who is asking the questions and considering the policy on the basis of the whole of the United Kingdom in relation to devolution.

  16. Could I pick up on that particular point because it is very interesting to me and also I think interesting to the Committee because, as you will know, Lord Chancellor, we spent a year looking at inter-governmental relations. And one of the important aspects, it seemed to us, to need further thought—and I think that the Government actually indicated that in their response—was the need to firm up and make, perhaps, clearer and more firmly set down (and perhaps also establish a more frequent contact) relations between the different legislatures. What we had in mind particularly was that inter-governmental relations, worked quite well partly because of a series of adventitious reasons like the presence of Labour administrations and so on, but that perhaps somebody would need to take a wider look, perhaps if there were a crisis, because of the impact of Europe—one could think of a number of reasons which might impose the need for looking at this rather more persistently.
  (Lord Falconer of Thoroton) I agree with both parts of what you have said. I agree that inter-executive relations between the three devolved and the one central Parliament work pretty well. In relation to the parliamentary relations, again there does not seem to be any problem in relation to them. That constitutional issue needs to be looked at by the Executive but it also needs to be considered not just by the Executive but also by Parliament itself, not, I say, with a view to some legislative change but to working out how the relation would be. We have a role in the Executive but there is also a role for the Speaker of the House of Lords, whoever the new Speaker might be—and do not take that as an indication as to what the right title might be—or whoever the new person who sits on the Woolsack would be after any arrangement is reached in relation to that.

  Chairman: Indeed, there have been meetings between presiding officers and certainly clerks of the various parliaments.

Lord Morgan

  17. My final question would be a simple follow up from that: do you see your Department as a pro-active department? It could be, as it were, a tidying up, nuts-and-bolts department but, if there is a problem of the kind you describe in relation to, in this case, inter-governmental relations, would it be your Department that would be the motor of change?

  (Lord Falconer of Thoroton) If the issue was, as it were, a structural issue in relation to devolution settlement, most certainly, yes.

Lord Acton

  18. How much of your time do you spend currently on departmental oversight and how much of your time do you expect to spend after the proposed changes to your office?

  (Lord Falconer of Thoroton) That is a very difficult question to answer. I spend from about 1.45 to 3.00 or 4.00 engaged in the dressing, undressing and sitting on the Woolsack. I spend a significant amount of my time, but I cannot tell you scientifically how much it is, in relation to doing the job which is exclusively related to the judiciary which is in relation to the judicial appointments and related to judicial issues. I spend the rest of my time on what I think you mean by departmental oversight, which is the Legal Aid, Court Service, justice issues.

  19. Then manifestly, if there is a Speaker of the House and if the ideas about the judiciary go through, you will cease to be doing those, so you will have a great deal more time to spend on what I call departmental oversight even though we cannot quantify it. My next question is, in the light of that, your Department has grown enormously in recent years and expenditure has become very substantial. When you have, as you hope, this extra time, will you be spending a lot of that on the oversight of expenditure?
  (Lord Falconer of Thoroton) Just before I come to that, I do not want to imply that my only role as Speaker of the House of Lords is simply sitting on the Woolsack because there are other responsibilities as well because any Second Chamber which has a Speaker requires more of the Speaker than that and that is important. As far as the expenditure of the Department is concerned, it is inextricably linked with any department that a minister runs that the control of expenditure, how expenditure takes place and discussions with the Treasury about what further expenditure might become possible, is an inevitable and vital determinant of what you do in terms of oversight of a department.

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