Examination of Witnesses (Questions 40-59)|
WEDNESDAY 15 OCTOBER 2003
40. Why should a commission find it easier to
reach a decision on the basis of conflicting evidence than the
Lord Chancellor has?
(Lord Falconer of Thoroton) I do not think that they
necessarily will find it easier to make the decisions but they
are not a member of the cabinet doing it.
41. If it were the case that your successor
was not in the Lords but in the Commons, is it not possible that
he or she would find it much more difficult to stand up for the
independence of the judiciary if he were simply a minister against
some possibly rather overbearing fellow minister in the Cabinet
whereas, at the moment, the Lord Chancellor, as you say, has to
some extent an independent role and is in a far better position
to look after the judiciary than would be a cabinet minister whether
it is in the Lords or in the Commons?
(Lord Falconer of Thoroton) I make it clear that the
Secretary of State for Constitutional Affairs, subject to Parliament
agreeing to this, will have an independent role in standing up
for the judiciary. I do not believe that conventional politicians
are not just as aware of the importance of that as somebody who
has had a background in the law as all Lord Chancellors have had.
The ability of the individual minister or Lord Chancellor to be
effective with his fellow ministers I suspect has changed over
the years by reference to the identity of the holders of the various
posts. I am not talking of the recent past but hundreds of years
of history. I think the critical thing is that it should be absolutely
clear that the relevant minister, whether he be Lord Chancellor
or Secretary of State for Constitutional Affairs, has a responsibility
independent of his political role to ensure the independence of
the judiciary insofar as he can.
42. That presupposes, of course, he is not overborne
by fellow members of the Cabinet.
(Lord Falconer of Thoroton) Of course, but you have
to be marked out by something to have that role; statute in the
future, the peculiar role of the Lord Chancellor in the past.
As far as the question of how effective the Lord Chancellor or
Secretary of State for Constitutional Affairs is and not being
overborne by members of the Cabinet depends on the special role
which will continue but also on the personalities involved.
43. Hitherto Lord Chancellors had, I think it
is fair to say, a unique constitutional relationship with the
Sovereign in such matters as royal peculiars, the delegation of
visitorial powers and functions, and advice on appointments. Do
you visualise that relationship changing? In particular Lord Chancellors
have a right of offering formal ministerial advice as a member
of the Governmentdo you think that will have to change
(Lord Falconer of Thoroton) We have issued
a consultation paper in September about these things. We are very
keen to try to ensure in relation to those particular things of
which you have given examples, the visitorial role, the royal
peculiars, that if there is a desire and merit in the
Secretary of State for Constitutional Affairs
continuing with that rolebecause the consultation paper
is posited on the proposition the Lord Chancellor is abolishedwe
would be more than happy to do that. We are very keen to hear
people's views in relation to that. I suspect the Secretary of
State for Constitutional Affairs will in some respects have a
particular role in those sorts of things but I cannot tell you
what they are because we need to consult very carefully about
those before any decisions are made.
44. Something which was aired on 30 June was
the Privy Council Appellate Committee and the relationship with
the Church. How do you see those two relationships going forward
with the Secretary of State?
(Lord Falconer of Thoroton) When you say the Privy
Council Appellate Committee, do you mean the Judicial Committee
of the Privy Council?
(Lord Falconer of Thoroton) Insofar as that makes
decisions about devolution issues, issues between the Westminster
Parliament and the Northern Irish, Scottish and Welsh devolved
bodies, we would envisage that that be transferred to the Supreme
Court. Insofar as dealing with Commonwealth appeals is concerned,
we would envisage that would go on for as long as the Commonwealth
would wish that to go on. New Zealand is in the process of breaking
the link with the Privy Council; there is an Eastern Caribbean
peripatetic Court of Final Appeals which is in the process of
being created I believe, though it is not yet at the point where
it is about to break the link. There are a number of dependenciesTurks
and Caicos and otherswhere appeals from time to time come
and I would imagine that would continue, so there would still
be a role for the Judicial Committee of the Privy Council and
we will continue it for as long as those Commonwealth countries
and dependencies want it. As far as the role of the Church is
concerned, I am I think the person who appoints to more livings
than any other individual apart from the Sovereign possibly and
the Church itself. Again, we have asked how people want that to
be dealt with and I think there are a number of schools of thought
about how it is best dealt with, and we will earnestly seek to
come to the arrangement which is best for the Church in that respect.
46. You are not prepared to offer any opinion
yourself as to the best way forward?
(Lord Falconer of Thoroton) I have been doing the
job for four months, I do not feel well enough informed to express
a view because that might affect the consultation. What we have
to try to do is come to the right decision in relation to it on
the basis of what all the consultees say.
Baroness Howells of St Davids
47. My question was asked by Lord Fellowes but
I will ask a supplementary to it. Could the small islands have
any financial help with setting up their appeals and the new process?
Has there been any discussion about that because the islands I
come from, although they are making attempts to do this, find
it quite costly?
(Lord Falconer of Thoroton) We, as a
department, have historicallyand I wish to continue this
historical relationshipsought to do all we can to support
Commonwealth and common law jurisdictions in setting up courts
and supporting their existing courts. The extent to which that
support might come in terms of IT or intellectual support or other
forms of support by sending people to help that setting up we
are very keen to explore. I am not in a position to offer, I am
afraid, great amounts of money but we are very keen to have a
relationship with such courts and to help as much as possible
with the set-up.
48. I am sure you will be watching developments
on St Kitts and Nevis.
(Lord Falconer of Thoroton) As far as the Privy Council
is concerned, they know the Privy Council will continue for as
long as they want, and that is entirely a matter for them as to
how long it goes on. Some of them are in the process of setting
up their own court of appeal, as I say.
49. Moving on to what George Bush would call
the "vision thing" and how you view the constitution
developing, indeed how you view the constitution. You mention
in your paper and you have referred to it already, you are the
first Secretary of State with responsibility for the constitution
and your paper stresses the significance of the constitution and
your department is responsible for constitutional change. You
also refer to the evidence of your predecessor before us when
he said the Government had no all-embracing definition of constitutional
measures. In fact what your predecessor told us was he could not
tell us what the constitution was, the Government did not have
a definition of the constitution. You are now the Secretary of
State for the constitution, can you tell us what you are responsible
(Lord Falconer of Thoroton) This Committee
has produced a definition of the constitution which you will know,
but let me read it: "A set of laws, rules and practices which
create the basic institutions of the state and its component and
related parts and stipulate the powers of those institutions and
the relationship between the differing institutions and between
those institutions and the individual." I think that is an
impressive, accurate definition of what constitutes a constitution
but inevitably, because it is not possible otherwise, it is question-begging.
What are the "component and related parts"? Is it all
the powers of those institutions or just some of the powers? It
is not very helpful for me to pick away at it. I do not think
there is any comprehensive definition of the constitution one
can produce which would be entirely satisfactory. It is to some
extent an academic exercise to do that though it is an exercise
which is useful to embark upon. The constitution is I believe
dynamic and changing and there needs to be to some extent a decision
on a case-by-case basis as to what changes are required, but ultimately
you are looking for arrangements which have credibility and effectiveness
as far as the governance of the nation is concerned in the eyes
of the public which strengthen democracy, which involve public
engagement, and which I believe enhance people's trust in the
institutions of the state.
50. While we are grateful you recognise we know
what a constitution is, I take it you are saying you have some
idea as well. The reason it is so important you have at least
some idea of what a constitution is is because if you are Secretary
of State for the constitution you need to have some idea of the
contours of your responsibilities relative to other members of
(Lord Falconer of Thoroton) Of course.
51. That is the essential point, that is why
I said your responsibilities relative to others, which has not
come up before because it has been spread amongst different officers
in the Cabinet.
(Lord Falconer of Thoroton) That it is why it was
quite important to prosaically go through at the beginning, in
answer to your first question, the nine specific areas because,
you are absolutely right, on the basis of some definitions of
the constitution one could be in every single activity of government,
and there does need to be some definition of what the Department
does and I think those nine headings are quite important in that
52. So we know what the constitution is and
we know what the contours of your responsibilities are relative
to others, the question is really then where are we going? You
have just mentioned your powers and the sort of things which guide
you in constitutional change, and how these changes would serve
the public is the essential criterion against which you will judge
change. Your predecessor in a debate in the House last December
enunciated three principles which would guide the Government and
you have expanded in your comments then on what you have in the
paper. Is there a clear enunciation by Government of the principles
that guide constitutional change and, a related question, where
do you think it is taking us? In other words, what sort of constitution
do you envisage for the United Kingdom in five or ten years' time?
(Lord Falconer of Thoroton) On the question of the
principles, on two separate occasions the answers I have given
to this Committee indicate what I think the broad principles are.
They are about enhancing credibility and effectiveness, strengthening
democracy and public engagement and enhancing people's understanding
of and trust in the arrangements. Where does that mean we are
going in the next five years in relation to constitutional change?
The basic parameters of our constitution are not going to change
in those five years. They are democracy, the sovereignty of Parliament,
the independence of the judges, the freedom of the citizen. What
does that mean in practical detail? It means changes I suspect
in relation to the House of Lords, it means changes in relation
to the role of the Lord Chancellor, which is a significant change
I believe in terms of the relationship between the judiciary and
the executive. It also means differences and changes between the
executive and the House of Lords. It is those sort of detailed
changes one would envisage in the next five years rather than
anything remotely concerned with the foundations of our constitution.
53. How do you get a balance? You have stressed
today the purpose of the constitution is to protect the citizen
from an over-mighty state but at the same time there must be some
facility for the majority will to be expressed and ultimately
to be accepted. It is where you get the balance between those
two in any liberal democracy. What I am trying to get a sense
of is how you see that balance emerging and how your proposals
relate to that.
(Lord Falconer of Thoroton) In terms of that balanceand
I hope nothing I have said implies the only purpose of a constitution
is to protect the citizen from an over-mighty state, that is only
one of the functionsI entirely agree with your formulation
that it is the balance between giving effect to the will of the
majority in an appropriate way and at the same time observing
individual freedom. I do not envisage in relation to the constitutional
changes which we are proposing there should be a fundamental shift
in that balance.
54. It depends on your starting point for saying
that. Do you mean the arrangements where we are now as a consequence
of change or, if you like, traditionally where we were, because
the British constitution essentially has been geared more towards
ensuring the majority will is expressed? Are you envisaging significant
change from that or would you say changes which have been carried
(Lord Falconer of Thoroton) If you look at the constitutional
changes since 1997, I would regard the Human Rights Act as a constitutional
change, I would regard the Freedom of Information Act as a constitutional
change, I would regardand this is pre-1997the Data
Protection Act as a constitutional change. They, I think, significantly
enhanced individual rights but I do not think they constituted
a fundamental shift in the way that we, for example, select the
executive or what the powers of the political government are in
making decisions about the broad sweep of policy. It is in relation
to that latter area that I would not envisage significant changeshow
we select our executive, its accountability to Parliament. Of
course changes in the House of Lords may have some effect in relation
to that but they will not be fundamental. In relation to human
rights, et cetera, that is something where, without the change
in the basic way we select our government, individual freedom
55. So essentially you see it as adding to the
existing constitutional arrangements rather than a paradigmatic
change to the new constitutional framework of the United Kingdom?
(Lord Falconer of Thoroton) Yes.
56. I am listening with great interest. It seems
to me while, as you rightly say, the Government has been concerned
in preserving the essence of these institutional and other arrangements,
the driving theme which I would have thought would perhaps supply
a bridge between the two principles Lord Norton mentioned was
the theme of local accountability. That has come out strongly
in devolution. The structure of society, and then what the relationships
of institutional arrangements are to the different aspects of
society, have been changing, and therefore to that extent your
Department could be a continuing motor of change seeing that centralisation
is less and less the way in which we deal with our affairs.
(Lord Falconer of Thoroton) Very much
so. One of the principles I indicated was public engagement and
strengthening democracy. That is I believe the driving force behind
the devolution which has occurred because the credibility and
trust in institutions was not as strong as it should be because
there was not a sufficient connection between the particular part
of the United Kingdom and certain sorts of decisions which have
been made, and that is why we drove devolution.
57. If the Richard Commission, looking at the
powers of the Welsh Assembly, decided that the idea of local accountability
and indeed the role of the Welsh Assembly needed enhancing, where
would the motor of change be there in forming a view on that?
Would that be your Department? In effect making the Welsh Assembly
more comparable to the Scottish Parliament.
(Lord Falconer of Thoroton) The issue of who would
respond to the Richard Commission, in the first instance that
would be the Secretary of State for Wales because that is regarded
at the moment as a Welsh issue. I do not believe that any fundamental
change to devolution is thought of or proposed at the moment but,
if it was, that would come under my Department.
58. It might come within your purview?
(Lord Falconer of Thoroton) If very significant changes
were envisaged, yes, but I do not think that is the view at the
59. Would that also apply to regional assemblies?
I notice you say that is under Mr Prescott's department.
(Lord Falconer of Thoroton) Yes.