Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 1 - 19)



  Q1  Chairman: Lord Chancellor, may I welcome you very warmly to the Committee. We always look forward to your appearances before us; thank you for coming. I wonder if I might open the questions with an issue that has been in front of the Committee this morning. I have to say, as a Committee we were very concerned by the response to our most recent report on Waging War: Parliament's Role and Responsibility. We were concerned for two reasons, one is that the response was later than the guidelines indicate. I think the normal indications for responses come within two months; in fact this was five weeks after that. You were kind enough to write to me apologising for the tardiness. I think we had rather hoped that, being late, it would be more substantial. We were seriously disappointed that the response was not just tardy but very cursory. The normal length of government's response to select committee reports generally runs into ten, fifteen, twenty pages; we were honoured with a one and a half page response to a very carefully considered report in the course of which we took a lot of evidence, some of it very authoritative and distinguished, and I feel, on the part of the witnesses (let alone this Committee who spent quite a lot of time on deliberation and some care in our conclusions) that we might have hoped for a more substantial and thoughtful response from the Government. I have jumped into this because it is very much at the top of the Committee's mind although I would hope in a moment to give you a chance to make a general opening statement. I wanted to take this very topical issue first, if you do not mind.

  Lord Falconer of Thoroton: First of all, I apologise for the delay. The reason for the delay was that there were internal discussions within government as to how best to respond, which seemed to me to be the appropriate way to deal with it. I am very sorry that you think the response was cursory and did not deal adequately with the arguments; I apologise if that is what you think. You can see from the response that we gave that we did not go as far as the Committee would like us to have gone in relation to the issues that they raised. Both myself and the Attorney General gave evidence to the Committee in which we set out what the Government's position was and what the constitutional position was on waging war. I think our response, to a large extent, drew on that evidence and referred to that evidence and also referred to what the Prime Minister had said, basically saying that although the constitutional position is that it is the executive that decides, in practice the legislature will always be involved. Length on its own does not have that much merit. That was our position; we made it clear in the evidence and we made it clear again in the report. I am not sure that there is much more that we can do.

  Q2  Chairman: The most compelling phrase is that "the Government keeps its policies under review" so the position taken by the Government is not fixed and immutable.

  Lord Falconer of Thoroton: It is not fixed and immutable but it does have a position.

  Q3  Chairman: Thank you for that. I think these issues will no doubt be raised in the debate on the report in the House but it is good of you to restate what your position is. Could I apologise for slightly jumping the gun there and invite you to make your opening statement?

  Lord Falconer of Thoroton: I was not going to make a long opening statement, you will be relieved to hear. Could I say how much I welcome coming every year and I welcome the opportunity to come before the House of Lords Constitution Committee for our fourth annual discussion on the Constitution. There is only one thing that I would like to deal with in my opening statement and that is about the effect of the Constitutional Reform Act 2005. Some of its provisions have only been in force since April 2006, such as appointments and the appointment of the Lord Chief Justice as head of the judiciary. Others, such as the Supreme Court, have not yet been introduced, but the new structure for the role of Lord Chancellor is in place; he is no longer a judge or head of the judiciary but he remains, however, a staunch and statutory defender of judicial independence within government. I believe the changes are an improvement and bring clarity where previously there was ambiguity. My ministerial colleagues are in no doubt that I will defend the judges privately and, where necessary, publicly as was required surrounding the Sweeney sentencing issues. In private I will speak in Cabinet or privately to ministers where necessary to defend the independence of the judiciary. I have never had any difficulty in obtaining agreement. Have I been hampered in defending the independence of the judges within government by reason of the fact that I am no longer a judge or head of the judiciary? Emphatically not. The separation of roles has, I believe, strengthened the Lord Chancellor in terms of dealing with individual colleagues and publicly where the force of a main stream cabinet minister speaking out is substantial. The separation of roles has been equally effective for the leadership of the judiciary. Having a leader of the judges drawn from the judiciary rather than a politician drives a sense of ownership and momentum. It gives the judiciary confidence that the pressure for change, if it comes from the head of the judiciary, comes from the profession and not from the politicians. Judges have always sought to improve the core processes. In the new arrangements they are keenly and effectively engaged in the partnerships which are required to make justice work better. Court resources and judges are the two things which help the courts work better; clarity in our respective roles has made for better working. These changes to the role of Lord Chancellor have made, I believe, substantial improvements to the system.

  Q4  Chairman: Thank you very much. That very interesting and clear statement does prompt one immediate question which is in terms—you may have been told we are mounting a short inquiry on this in this Committee—as to whether those issues of the relationship between ministers and the judiciary ought (and this would seem consistent with what you have just said to us) to form part of the ministerial code as well as being subject to the ad hoc defence within government of yourself and others.

  Lord Falconer of Thoroton: The ministerial code starts with the proposition that the ministerial code has to be read in the context that ministers have to comply with the law. Part of the law is to do nothing to undermine the independence of the judiciary. You can undermine the independence of the judiciary as a government minister if you make inappropriate remarks about judges so to some extent it is already in the ministerial code. Would it be helped by there being an explicit reference to not undermining the independence of the judiciary? (Remember the effect of the Constitutional Reform Act 2005; there was a specific duty on every single minister not to undermine the independence of the judiciary.) It might do, but I do not think it is a particularly critical issue in determining the relationship between the judges and the ministers.

  Q5  Chairman: So you are open to that as a possibility.

  Lord Falconer of Thoroton: I am open to that as a suggestion but I do not think it is that critical.

  Q6  Chairman: Moving on to other questions, the first is a process question. As you know we have always called for bills that have constitutional implications to be published in draft and we were pleased that the Draft Tribunals, Courts and Enforcement Bill was put out for pre-legislative scrutiny, but very disappointed that the period of consultation coincided almost exactly with the summer recess which clearly reduces the ability of Parliament and committees like this to do anything about it. Why did that happen?

  Lord Falconer of Thoroton: Because I was very keen that we published a draft copy of the bill. The bill was ready in July. It was important to publish a draft copy of the bill so that it would have been available for pre-legislative scrutiny before it was introduced into Parliament. I think it has already had its first reading. We have had a period from July to November in which it has been available publicly. I was extremely keen that a parliamentary committee should take it up for pre-legislative scrutiny and none would. I am as deeply regretful as you are that it was not subject to pre-legislative scrutiny, but could I throw the ball straight back into your court and say, "Find a committee that will do it and I would welcome it" but it is too late now unfortunately.

  Q7  Chairman: This is a slight catch 22 you are throwing us.

  Lord Falconer of Thoroton: No, I do not think it is a catch 22. We were keen for it to have pre-legislative scrutiny; the bill has been available for quite some time. There were other bills that my department were doing that for reasons I cannot adequately explain to you people found more interesting to look at. For example, the Constitutional Affairs Select Committee looked at the Coroners Bill which is now not in the Queen's speech; for example, a joint committee of both Houses was set up to look at the Legal Services Bill. It is a parliamentary matter and not an executive matter that they did not decide to take up the Tribunals Bill and it may be because the people who make these decisions decided they were not interested enough in the Tribunals, Courts and Enforcement Bill, but it is certainly not through any want of enthusiasm on our part for there to be pre-legislative scrutiny.

  Q8  Chairman: Maybe we can do a deal. If you can help on timing we might be able to help on scrutiny. Can I move from those processes into a slightly loftier sphere of discussion which is reverting to this question of the meaning of "the rule of law" of which you are the defender within government? Of course it appears in section one of the Constitutional Reform Act. When we met last time I think your definition—although you said a lot of other very interesting things—was that Parliament determines what the rule of law is. When we met the Lord Chief Justice in the summer we got a rather more expansive definition from him. He said, for instance, that if a court ruled that something was contrary to the Human Rights Act and the Government then refused to comply with that ruling, even if the principle of parliamentary supremacy meant that that was the end of the debate, it nevertheless would be contrary to the rule of law. Do you agree with the Lord Chief Justice's analysis of that, that something could be contrary to the rule of law and yet parliamentary supremacy could be invoked to end the matter?

  Lord Falconer of Thoroton: The rule of law includes both national and international law as far as I am concerned, therefore if we remained in breach of the European Convention then we would be in breach of international law. I think the rule of law also goes beyond issues such as specific black letter law. I think there are certain constitutional principles which if Parliament sought to offend would be contrary to the rule of law as well. To take an extreme example simply to demonstrate the point, if Parliament sought to abolish all elections that would be so contrary to our constitutional principles that that would seem to me to be contrary to the rule of law. The rule of law goes beyond specific black letter law; it includes international law and it includes, in my view, settled constitutional principles. I think there might be a debate as to precisely what are settled constitutional principles but it goes beyond, as it were, black letter law.

  Q9  Chairman: To help us think what the constitutional principles might be, could you give an example less—hopefully—far fetched than the abolition of elections?

  Lord Falconer of Thoroton: I would be quite unkeen to do so. Something that substantially undermined our democracy would be what I have in mind. I do not want to go much further than that.

  Q10  Chairman: It is an important issue because whether you take A V Dicey saying that there are two pillars, one is the rule of the law and the other is parliamentary sovereignty or whether you take the growing impact—as you have referred to—of international law, there clearly is an area of proper debate which is: what does the rule of law mean over and above parliamentary sovereignty? I can understand your reluctance to be drawn into an adumbration of what those principles are or examples of them, but would you agree that it is a proper area of understanding now that the Government itself has engineered a greater separation of powers and this is an important area for democratic understanding?

  Lord Falconer of Thoroton: I agree entirely with that. I am not sure that much is achieved at the moment by trying to draw up a list of things where it might be that even though there was not an offence to black letter law, nevertheless parliamentary sovereignty would not apply. What you are doing is constantly trying to define unnecessarily the constitution in an area where there is no conflict at the moment. There is no conflict between parliamentary sovereignty and the rule of law that I believe to be imminent at the moment. It does not necessarily assist public understanding by trying to define where the conflict might be when no such conflict is imminent. However, I think it is a very important area to look at generally.

  Q11  Chairman: Constitutions are supposed to anticipate and find ways of dealing with such conflicts and therefore for this Committee it is an important issue and I suspect there is growing interest outside.

  Lord Falconer of Thoroton: The reason I am not keen to be drawn into this particular area is because there has been a debate amongst legal academics as to what are the sorts of issues where the courts could, as it were, strike down particular bits of law. There was an issue about whether or not a clause that ousted the court's jurisdiction in certain areas would be something that the courts could strike down. I have a strong view in relation to that; there is no issue about it at the moment because the issues have always been avoided and for 150 years there has been this potential conflict between the rule of law on the one hand and parliamentary sovereignty on the other and we have managed to get through it without ever bringing it to a point.

  Q12  Chairman: This is a particularly pointed question for you as Lord Chancellor because it is possible that it is you who would have to say to colleagues in the Cabinet and in Government, "It may well be that Parliament has decided this but I believe this is contrary to the rule of law".

  Lord Falconer of Thoroton: In relation to the Human Rights issue, the problem does not arise starkly because it would be a breach of international law not to comply. If we were not committed to the European convention and there was a breach of the terms of the Human Rights Act which Parliament decided not to change, that is where the difficulty would arise. At the moment I do not think it is a particularly difficulty. In any event, another incredibly good example, I think, is where we have a constitution which depends upon cooperation and that cooperation is always provided. For example, the courts have declared on I think nine occasions provisions of primary legislation as being incompatible with the Human Rights Act. It is clear that it is a matter for Parliament to decide whether or not they correct the incompatibility and the Government has always promoted legislation to correct the incompatibility. So cooperation works.

  Q13  Lord Morris of Aberavon: Could I ask you, Lord Chancellor, in view of the fact that you occupy two offices—Lord Chancellor and you also call yourself Secretary of State for Constitutional Affairs—what roles precisely do you do under each of these hats? We noticed in the opening of Parliament that you were there in your robes, performing the role of Lord Chancellor. On the opening of the new session of the courts you were there in the Abbey, not in robes, and marched up together with the Lord Chief Justice. If the future Secretary of State for Constitutional Affairs were in the Commons, what repercussions would there be on what has happened so far?

  Lord Falconer of Thoroton: I have a list of what are formally the Lord Chancellor's responsibilities and what are formally the Secretary of State for Constitutional Affairs' responsibility. Can I pass those round subsequently rather than go through the list? Broadly, what I do under the hat of Lord Chancellor are those things that tend to be connected with the courts like judicial appointments, all matters related to the judiciary, procedural rules relating to what the courts do, the running of the Court Service in England and Wales, the running of the Court Service in Northern Ireland. What the Secretary of State for Constitutional Affairs does historically is look at things that have come from other departments: devolution, human rights, data protection, electoral law, that sort of issue. That is where the split is. As you know at the State Opening of Parliament the person handing over the speech is Her Majesty's Government and not either the Speaker of the House of the Lords or the head of the judiciary. The Lord Chancellor has always traditionally dressed up in the way that he has; those robes are not necessarily judicial robes (although judges wear similar robes) and you can see the Speaker of the House of Lords wearing quite similar robes to me. I thought we should not change the State Opening of Parliament and if I am doing it as a government minister—the Lord Chancellor has been doing it as a government minister for however many hundreds of years that ceremony has been going on—I could see absolutely no reason to change it because there is no different symbolism in relation to it. In relation to the opening of the legal year the Lord Chancellor used to lead the procession as the head of the judiciary. Changing my clothes there is intended to indicate that I am no longer a judge or head of the judiciary. That is why the changes were made. The fundamental change in the role is that it is no longer a judge or head of the judiciary.

  Q14  Lord Morris of Aberavon: What happens if the Secretary of State is in the Commons?

  Lord Falconer of Thoroton: If he is not the Lord Chancellor he cannot dress up in the finery you saw me wearing the day before yesterday (or whatever day it was). It is a matter for the House authorities and the Government to decide who is going to hand over the speech to Her Majesty. It has to be somebody who is a member of the Government. The Speaker cannot do it. These are questions not to ask me but to ask, as it were, the great constitutional ceremonialists I suspect. From the point of view of the ceremony I was very keen that it should look the same. It is the most impressive looking event and the symbolism is not changed by the change in the role of Lord Chancellor. Indeed, I was keen to walk backwards but I was told I could not because all the other people now walk forwards and I would look like a very crazed Lord Chancellor on that basis.

  Q15  Lord Carter: I have a question on the previous question. On the process of the discussions within government on the rule of law, independence of judiciary, my hunch—perhaps you could confirm it—is that all these discussions take place outside the cabinet room; they are done within government. There is a phrase meaning "discuss it with colleagues" which you have used yourself and it was also used by your predecessor, Lord Irvine. The number of times a question will come to the cabinet table I would think would be very, very rare. My question is this, I believe the Attorney General now attends the Cabinet and is able to speak.

  Lord Falconer of Thoroton: Yes.

  Q16  Lord Carter: Perhaps this is entirely hypothetical, but if a question needed to be discussed in the Cabinet you would deal with it in your role as Lord Chancellor but would the Attorney General, as the main legal adviser to the Government, sit quietly? It would be rather odd if he did.

  Lord Falconer of Thoroton: The Attorney General and not the Lord Chancellor is the prime adviser to the Government on a legal issue. If there is a legal question that is relevant for cabinet discussion it is not the Lord Chancellor who gives legal advice to the Government, it is the Attorney General. It is the Attorney General's view that is decisive, not the Lord Chancellor's. Indeed, never in our government—but if you look back in quite recent history, you will see lots of difficulties between the Lord Chancellor and the Attorney General if the Lord Chancellor has sought to give advice. It has always been constitutionally clear that the Attorney General is the decisive voice on legal advice.

  Q17  Chairman: That happened in Suez.

  Lord Falconer of Thoroton: Yes and in Suez the then Attorney General, Reginald Manningham-Buller, was not consulted at all on whether or not it was lawful to go to war but the then Lord Chancellor—I think it was Lord Kilmuir—gave private advice to the prime minister and there has been a series of articles subsequently in which the exclusion of the attorney from that advice both gave rise to outrage and established the principle for today. Recently, very interestingly, the National Archive published correspondence between Lord Hailsham, Mr Heath and Sir Peter Rawlinson in which (and this is all public) Sir Peter Rawlinson, the Attorney General complains bitterly that every time he gave advice to the Cabinet—because the Attorney General has frequently gone to the Cabinet in the past—Lord Hailsham would tend to say that that is wrong and give reasons. He writes to say that this must stop and eventually the publicly disclosed documents reveal that Mr Heath, the Prime Minister, spoke to all of them and the problem was resolved (but it does not say how). There was no doubt of what the constitutional position was.

  Q18  Lord Carter: I understand the point about the legal advice but what I meant was that if the question arose at the cabinet table and somebody—I would think it would be the Lord Chancellor—would say, "I have to advise colleagues here that there is a problem with the rule of law". That would be your role. My question really was, does the Attorney General then give legal advice on your view?

  Lord Falconer of Thoroton: He will not give legal advice on my view but a large part of the rule of law is complying with black letter law so you have to know what the law is. The only areas it seems to me where difficult questions about the rule of law will arise is where you are talking about constitutional principles beyond black letter law. If the attorney says to the government that this is against the law then you do not need the Lord Chancellor to say that it is against the rule of law because it is already clear that it is against the law. It is the much deeper, grey areas where the Lord Chancellor may have a role.

  Q19  Lord Goodlad: Lord Chancellor, in the Magna Carta lecture which you gave in Sydney on 13 September on the Role of Judges in the Modern Democracy, you said: "Whilst the role of Lord Chancellor has changed, the office, rightly, has been preserved." That surprised many people because you pressed for the abolition of the office of Lord Chancellor during the passage of the Constitutional Reform Bill.

  Lord Falconer of Thoroton: Not for long.

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