Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 60-79)



  60. It is a rather modest view of regionalism, it is just a sort of greater county council.
  (Lord Falconer of Thoroton) Regional assemblies are in the Office of the Deputy Prime Minister. Regional assemblies are a significant issue in relation to the localism agenda you have referred to and bringing decision-making closer to the particular community, but they have always been in the Office of the Deputy Prime Minister or its predecessor because there is a very close link between any regional assembly arrangement and what you do about local government. For example, it was made absolutely clear that one of the necessary conditions for regional assemblies was there would be only one tier of local government beneath it. Sensibly, that is a matter therefore which has to be dealt with in the department which deals with local government.

  61. That is an area where one can see perhaps a dynamic of change evolving in the future?
  (Lord Falconer of Thoroton) Yes, indeed. We have made it clear that we are supportive of that approach if that is what the particular region wants.

Lord Acton

  62. One very short question: when the reform of the office of the Lord Chancellor is completed, what would be the seniority of the Secretary of State for Constitutional Affairs in the Cabinet?

  (Lord Falconer of Thoroton) That would be a matter, I imagine, for the Cabinet Secretary or the Government to decide. Currently the Lord Chancellor, not in Cabinet seniority but in terms of the precedence in the state, comes I think not third but there is the Royal Family, the Archbishop of Canterbury and then the Lord Chancellor.

  63. Yes in precedence, and I believe indeed in pay, but I would hate to discuss such a matter now.
  (Lord Falconer of Thoroton) The Lord Chancellor by statute—I make no comment on what everybody else is paid—used to be paid more than the Prime Minister, the Lord Chief Justice, et cetera, but the current, modest Lord Chancellor and Secretary of State for Constitutional Affairs now gets the same pay as a Cabinet Minister in the Lords, of which there are still two.

  64. My serious point is that in view of your slightly special job—well, they are all special jobs but the slightly special nature of your job—will it have a special seniority of its own? But there is no such plan at the moment.
  (Lord Falconer of Thoroton) We need to discuss precisely what comes with the special status to which I referred when answering the questions of the noble lord, Lord Jauncey, but that is a matter to be determined not in accordance I think with the precedence of the Lord Chancellor in the state but by reference to what comes out.

  65. I was asking about the Cabinet.
  (Lord Falconer of Thoroton) In the Cabinet, yes. I have never really worked out on what basis Cabinet seniority is determined. Unlike the Lord Chancellor's precedence in, as it were, the non-political world, there is as I understand it no pecking order for Cabinet Ministers save that the Prime Minister comes first.

  66. There is a list, is there not?
  (Lord Falconer of Thoroton) There is a list but, if you go back to the 1980s, why was the Lord Chancellor second by the end of the 1980s in relation to that, ahead of all what had previously been regarded as the great office holders of state? It is not just based upon the time being in the Cabinet, it is based upon a whole range of things only somebody who sets the precedence list in Cabinet could work out, I suspect.


  67. I do not want to press you too much on that but the position of some secretaries of state is because it is a specific post mentioned in statute rather than simply a secretary of state, and your Cabinet ranking would be a matter for the normal processes at the moment.

  (Lord Falconer of Thoroton) Yes.

  68. Which I used to understand was a prime ministerial prerogative, and Cabinet Ministers used to look at the Cabinet list to see whether they were in favour or not depending where they came in the list. Before we move on to one or two specific policy areas in which we have a particular interest, particularly devolution, one final point on looking at the constitution, how it is dealt with and how you define it. How would you respond to the criticism that the creation of a Department of Constitutional Affairs has come too late? That you have had these disparate constitutional changes and introduced the Department of Constitutional Affairs after they have been brought in, whereas there had been an argument for having a Department of Constitutional Affairs which would be able to engage in joined-up thinking and one would think it would be necessary to relate one change to the other rather than have them come in in a rather disparate and discrete way.
  (Lord Falconer of Thoroton) It cannot be a bad thing to have it for the future. The question is, should one have done it earlier.

  69. Indeed.
  (Lord Falconer of Thoroton) We came to power in 1997 with a very clear series of constitutional changes previewed in the manifesto, and in relation to some of them, in particular devolution in Scotland, worked out by a constitutional convention beforehand. So, having got elected in part on the basis of those manifesto commitments, they were going to happen anyway. I can see an argument for saying it should have been done before but that is not a reason for not doing it now.

  70. No, the argument was it should have been done sooner because you can argue there is agreement in principle but in terms of detail, and the devil is in the detail, you can relate the detail of one change to another because one can of course impact upon the other.
  (Lord Falconer of Thoroton) Yes, and indeed that is certainly part of the thinking in relation to having a Constitutional Affairs Department. I believe it is a sensible thing to do and, like all sensible things to do, I wish it had been done a long time sooner.

Lord Lang of Monkton

  71. Lord Chancellor, you have said in your letter which you co-signed with the Secretary of State for Transport and Peter Hain, who I think at that stage was Minister for Europe, on 17 June, during those rather chaotic few days after the announcement of the changes —

  (Lord Falconer of Thoroton) When you refer to the Secretary of State for Transport, that is the Secretary of State for Wales and the Secretary of State for Scotland?

  72. As they now are in brackets, in parenthesis, after their main functions, as I understand it. That was the point I was asking you. You have said the devolution settlement has remained the same and you said today that no changes were planned, but Helen Liddell told us very forcefully how important her job still was and how substantial and hard-working she was and that the job was going to remain in force. The abolition of the role of Secretary of State for Scotland, or the reduction of it as a separate voice in the Cabinet, does not necessarily constitute a direct change in the devolution settlement which is embodied by the Scottish Parliament, but the fact remains that the role of the Secretary of State is now diminished because it is no longer so focused specifically and solely on Scotland, it is an add-on to the functions of the present Secretary of State for Transport. Surely you are going to have to make arrangements to deal with conflicts of interest when they arise both in Scotland and in Wales?
  (Lord Falconer of Thoroton) Yes, but so far there has been no difficulty in relation to that. On the point about what the previous Secretary of State for Scotland said, of course it is a busy, demanding job, but it is impossible not to recognise—and you will know this better than anybody in the room—the Secretary of State for Scotland pre-1997 was responsible for a whole range of policy issues which you were having to decide as Secretary of State for Scotland which are now decided by the Scottish Parliament or the executive in the Scottish Parliament. It is inconceivable those responsibilities have not reduced, having gone from the Secretary of State to the Scottish Parliament. You are in a much better position than I am to say what the effect would be.

  73. I agree with you, but I argued for six years that was going to be the case, indeed this Committee recommended it but it was constantly denied by the Government of the day, including by the Prime Minister in his response to our report. But that was not really the point I was making, it was the measure of change which will result from the readjustment of roles. If I can raise a second area where there has to be a change, and that is the appeal of devolved matters which at present go to Privy Council, if these are going to go to the Supreme Court that Supreme Court will have to be geared up to Scottish law as well as English law.
  (Lord Falconer of Thoroton) Certainly.

  74. Am I not right in thinking also the Treaty of Union will have to be changed which at present requires the Supreme Court of Appeal on Scottish matters shall be at Westminster?
  (Lord Falconer of Thoroton) No, it does not need to be changed. The Treaty of Union issue, the Act of Union issue, is any appeal must not go to the English legal system. That was the objectionable aspect pre-Treaty of Union. Therefore it was fine for Parliament to in effect be the final Court of Appeal. There is no objection to a Supreme Court being the final court of appeal for Scottish civil appeals, which is what is currently envisaged, because a Supreme Court is a United Kingdom court not an English court.

  75. It is an issue which was raised by Lord Hope of Craighead before the Lord President of course.
  (Lord Falconer of Thoroton) Indeed and I have had a long discussion with Lord Hope and also other members of the Scottish judiciary and I do not want to presume to say what their views are, but I think the answer I have given would be one they would not find objectionable, but Lord Jauncey is here.

  Lord Lang of Monkton: Yes.

Lord Jauncey of Tullichettle

  76. You have put it in the negative way but I rather thought the provisions of the Act were to the Queen in Parliament, that Parliament was actually mentioned, which would make it difficult for the Supreme Court and would, as Lord Lang suggests, require an amendment of the 1707 Act.

  (Lord Falconer of Thoroton) Obviously I will go back and look but I do not think that is right. I think if you look at the Act of Union there are certain categories of court defined in the Act of Union which are not allowed to hear Scottish matters.

  77. Quite, but is there not a positive in joining as well? It is sometime since I looked at it and I may be wrong but my impression at the time of reading it was there was this positive injunction that it should go to the Queen in Parliament, and that was the problem. But I am sure if you have not looked into it, you obviously will do.
  (Lord Falconer of Thoroton) I do not think that is right. I remember there was a period of time—and it never actually got off the ground—in which an Act was passed in the 19th century which in effect created a supreme court, which was intended to be a final court of appeal including for Scotland but which, for a variety of reasons, never went ahead. That did not involve an amendment to the Act of Union. I will certainly go and look.

  78. Is not one of the advantages of these appeals still going to the Privy Council is that it will be much easier to go up to Scottish judges than it would be to go to the Supreme Court because of course the inner house judges are now privy councillors anyway?
  (Lord Falconer of Thoroton) We need a process by which the Supreme Court when it is hearing devolution appeals can reach for a pool which includes perhaps more Scots or Northern Irish judges than would be members of the Supreme Court. The reason why it was put in the Privy Council in the first place was because it was thought to be wrong for the House of Lords Judicial Committee to resolve disputes between Westminster and Holyrood when the body which was resolving them was in effect part of the Westminster Parliament. Once that objection goes, there is no reason why there should not be one court dealing with all these issues, but I take your point, you need to be able to draw on a pool wider than as it were the equivalent of the current law lords.


  79. Can I move on to a number of policy areas. We have touched upon devolution in structural terms and perhaps we will come back to it and in substantive terms as well. As you know, our report on devolution published at the beginning of the year made a number of recommendations in relation to devolution and when you appeared before the Committee of the Lord Chancellor's Department in the other place you sought to justify the Government's rejection of our recommendation in relation to the two Secretaries of State which suggested the rationale for the rejection was two-fold. One is you did not need to spend so much time as you used to as Secretary of State for Wales and Scotland, which did not strike us as going against our recommendation but rather sustaining it. The second was, nonetheless, both those territories were entitled to have Cabinet Ministers speaking for them in Cabinet on Welsh and Scottish issues. That seemed to be the extent of it, and we drew attention to the fact if you look at a Secretary of State they have an important role in the transitional period—and you are very well aware of the importance of transitional periods—but once the transitional period has ended, things wind down, they are not responsible for projects, they are not responsible for finance, they do not speak for the devolved administrations in Cabinet, so it is not clear why that is a very strong rationale for not having one Secretary of State who actually enjoyed some degree of joined-up thinking for handling devolved matters which in a way is a rationale for your Department in terms of bringing these things together.

  (Lord Falconer of Thoroton) You have the Secretary of State for Constitutional Affairs looking at the constitution as a whole which includes devolution; you have in the Cabinet a Secretary of State of Cabinet rank and standing for both Wales and Scotland. That is a good thing in political terms, it is good for the relations between the UK Government and the devolved governments. A judgment has to be made and that, with respect, seems a sensible way to deal both with the issue, as Lord Lang of Monkton has confirmed, that the workload has gone down dramatically, but also to ensure there is a proper strong voice in Cabinet for those two areas.

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