Examination of Witnesses (Questions 1
- 19)
WEDNESDAY 22 NOVEMBER 2006
RT HON LORD FALCONER OF THOROTON
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.
| 
