Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 80-99)



  80. But you said earlier you are responsible for the devolution settlement —
  (Lord Falconer of Thoroton) Yes.

  81. — so you are the English one and there are separate Secretaries of State for Scotland and Wales, is there not a stronger rationale for those being subsumed within your position?
  (Lord Falconer of Thoroton) From the point of view of Scotland and Wales, the effect of the changes on 12 June is that they have a Scottish and Welsh MP respectively of Cabinet ranking speaking for them, not as it were on the overall constitutional position but speaking up for Scotland and Wales in the Cabinet, and that is a good thing. Just repeating the basic political argument, which I think has considerable force and I suspect there is not a right or wrong answer, I think that is a sensible solution.

  82. How do you balance it? They are speaking for their area and there is a voice in the Cabinet but at the same time they are clearly part-time posts.
  (Lord Falconer of Thoroton) They are speaking for Scotland and Wales on Scottish and Welsh issues, and that is a good thing in terms of the way the Government operates.

Lord Morgan

  83. One of the problems is that there is a growing tendency to diverge, is there not? You might therefore find the Secretaries of State having or offering quite different policies on top-up fees or health for the elderly, particularly in Scotland. That could be a problem, could it not?

  (Lord Falconer of Thoroton) You mean if you had a hypothetical situation where you had a Secretary of State for Education also being the Secretary of State for Scotland and there being a different funding regime? We can all think of hypothetical difficulties in relation to how it works but we have reached a solution which is practical and which reflects the changes which have occurred which meets a lot of the imperatives for Scotland and Wales.

Lord Jauncey of Tullichettle

  84. What if the Minister of Transport is an Englishman with an English constituency?

  (Lord Falconer of Thoroton) I do not think we envisage that the Secretary of State for Transport should habitually be the Secretary of State for Scotland irrespective of the fact he represents Bodmin. Mr Darling's claim was not based on the fact he was Secretary of State for Transport, it was that he was a Scottish MP of great standing.


  85. What will not change the constitutional position is the fact there is a Secretary of State for Constitutional Affairs, there is a Secretary of State for Scotland, so what happens if there is clash between the Secretary of State for Constitutional Affairs and the Secretary of State for Scotland on a devolution issue?

  (Lord Falconer of Thoroton) That is extraordinarily unlikely to arise, but the question should be more directed in a way to Lord Lang of Monkton. What happens when there is a dispute between the Secretary of State for Scotland and other members of the Cabinet in relation to policy issues which affect Scotland? There is a constant issue which can potentially arise; less so now because of devolution.

Lord Lang of Monkton

  86. I think those are resolved by discussion in Cabinet, but at the moment the Secretary of State for Scotland (Transport) has no locus to speak for Scotland in the sense he is not elected, he speaks in a personal capacity for a Scottish constituency but his bread and rations, as you have described them, are in your Department. He is having to defend the role and decision-making process of the Scottish executive of which he is not an elected member; it may even be a different party from him. So he has no real locus to speak for Scotland other than in the most general headline terms.

  (Lord Falconer of Thoroton) There are reserved issues. He speaks for Scotland —

  87. — on reserved issues.
  (Lord Falconer of Thoroton) — on reserved issues in the Cabinet.

  88. Yes, but he cannot make a general representation on behalf of Scotland, for example, to the Chancellor of the Exchequer in the preparation of his Budget, because he does not represent the Scottish executive whose views and priorities may be very different from his.
  (Lord Falconer of Thoroton) The purpose of the devolution settlement was for the Scottish Parliament to deal with those issues which were devolved. There will still be significant UK Parliament or UK executive issues which will affect Scotland which are decided by Westminster. The territorial departments are always consulted on these and have frequently got views on how those issues will affect Scotland, and the Secretary of State for Scotland and similarly Wales will express views in the executive about that.

  89. I will not repeat what I have already said but it still remains true, it is also the case that in practical terms a member of the Cabinet who does not have a substantial department beneath him has less clout and less capacity to convey the force of the argument he is advancing over one who does have a substantial departmental base.
  (Lord Falconer of Thoroton) It is not for me to ask questions but —

  90. Shall we swap seats!
  (Lord Falconer of Thoroton)—is that simply a judgment of how politically important they are or how many civil servants they have?

  Lord Lang of Monkton: I think it is a judgment of the reality of realpolitik.


  91. This is in danger of becoming a seminar, although speaking as an academic I have no objection to seminars. One of the things we are concerned with at the moment is the draft constitution for Europe and, since you are now Secretary of State for Constitutional Affairs, whether you have some input into the issue itself, and equally what would be the output in terms of your Department? Do you envisage that the European constitution would have any consequences for your Department?

  (Lord Falconer of Thoroton) I am the Minister responsible for the constitution but the negotiations on "the constitution for Europe" are being conducted obviously by the Foreign Office. The White Paper in relation to that has been produced, rightly, by the Foreign Office. There are certain things in the constitution which impact upon the things which my Department does, for instance civil justice, but the issue is not a Constitutional Affairs Department issue, it is a Foreign Office issue. As far as how it affects the constitution is concerned, broadly in the light of enlargement there need to be new arrangements to deal with a larger European Union, and that is what the constitution for Europe is doing, but it is not effecting fundamental change in relationships between Member States.

  92. So you would not see it as becoming de facto the constitution of the United Kingdom? There is the argument that the Treaties already do that.
  (Lord Falconer of Thoroton) Certainly not. Obviously a part of the constitution is affected currently by, for example, the content of the European Communities Act 1972 and also by subsequent changes—the single internal market, et cetera, et cetera, et cetera. Insofar as there are changes, those will affect the everyday position in this country as well, but I certainly do not see it becoming the constitution for the UK.

  93. Some have already argued that once the Treaty is in place to some extent we already have a constitution, and in a way this takes it a step further or formalises that relationship.
  (Lord Falconer of Thoroton) That is no more than saying, is it, that for example there are certain European laws in certain circumstances which already trump even a statute of Parliament, and that is part of our constitution.

  94. That would be an argument about creating a constitution for the United Kingdom because we are bound, albeit self-bound, by that.
  (Lord Falconer of Thoroton) All I am saying is there is no change before or after what comes out of the intergovernmental conference.

  95. So you see it as a natural continuation rather than in any sense a paradigmatic change?
  (Lord Falconer of Thoroton) Exactly, yes.

  96. You have mentioned the range of the consultation exercise which is going on at the moment and you have rather a lot of consultation papers which we can respond to if we wish. Is there an end point? Do you have a particular timescale for consultation submissions to be in? In terms of the various changes which the Government envisages you are consulting essentially on the means rather than the ends. Do you have a timescale in mind for when you see these various changes in place and therefore do we see a settled state for the constitution?
  (Lord Falconer of Thoroton) In relation to the specific changes which are, Lord Chancellor's abolition, independent Appointments Commission, Supreme Court, House of Lords reform, although the timescales are not confirmed you can broadly see what the end dates of the consultation periods are. We would envisage seeking to legislate as soon as parliamentary time would allow, and that is not for obvious reasons an indication of a long time in the future but as soon as possible in relation to that. That is the timescale for the existing changes. What do we have in mind beyond that? The only one which is perhaps worth mentioning is the House of Lords reform. We made it clear in the statement we made on 18 September that we would seek to try and build a consensus of further reform but what the timescale of that is I cannot tell you.

Lord Elton

  97. I wonder, possibly with the help of your permanent secretary, if you could tell us before you entered the transition phase was the work of the Lord Chancellor, other than that deriving from the Speakership, less than, more than or roughly the same as any other Secretary of State?

  (Lord Falconer of Thoroton) I do not think anybody worked harder than my predecessor. I do not know. My permanent secretary has been a permanent secretary not just to the Lord Chancellor but to a number of other Cabinet Ministers, so I think he had better answer.
  (Sir Hayden Phillips) I think my observation of working in that Department and other departments is that the workload is high and very high, but that would be said of most Cabinet Ministers. I think the important thing that the announcements on 12 June reflected was the growing awareness, as I was trying to contribute to the answer to Lord Acton, that as the Department grew and as its justice responsibilities became more and more important and larger and larger, the role of the Lord Chancellor in doing these other things meant the squeeze on his time to focus on his departmental responsibilities was by definition much greater than on any other Minister who had some other extraneous functions, because these were not extraneous, these were central to carrying out the role. That is my observation.

  98. Up to that point then there was a rough parity. Therefore it would seem that the Speakership of the House of Lords could be carried by any competent Secretary of State?
  (Lord Falconer of Thoroton) If that is a job which a Secretary of State has to do, that is a job a Secretary of State has to do. I think there are issues beyond the timing issue. There are issues as well in relation to, is it appropriate for that to occur, but the Lord Chancellor has done it for quite some considerable time and I would not remotely suggest it could not be done by somebody also being a Secretary of State for some other department. This is another point which is not quite connected with your question but Lord Chancellors used to appoint comparatively few judges because there were comparatively few judges, but because of the growth of the tribunal system, because of the increase in the number of judges, the role of the Lord Chancellor in that respect has absolutely mushroomed over the last 100 years in terms of judicial appointments. It is a pretty heavy job but that will be going on the basis of the Judicial Appointments Commission.
  (Sir Hayden Phillips) Also, if I may say so, there is a cultural point worth noting here. Most Secretaries of State, all Secretaries of State, are able to spend the majority of time in their professional life, when they are not speaking in Parliament or voting, in and with their Department. That connection is quite an important thing for the way the Civil Service works. We have reached a point over the last five years where, because of the amount of time the Lord Chancellor has to spend in the House connected with his representational duties, we have a situation where the Lord Chancellor and I were spending our time here when our Department was somewhere else. For the long term that, as a good bureaucrat, is not a healthy position to have.

  Lord Elton: I am obliged to you.


  99. Lord Chancellor, one final question. As you know the most important and perhaps dangerous questions are always left to the last. On your Department's website there is a heading which says "Parliament" and it links you to the Select Committee on the Lord Chancellor's Department in the House of Commons but there is no link to the Constitutional Committee of the House of Lords.

  (Lord Falconer of Thoroton) It should.

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