Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 20 - 39)



  Q20  Lord Goodlad: Could you tell the Committee what brought about the change of mind?

  Lord Falconer of Thoroton: It was perfectly obvious that in being a defender of the independence of the judiciary and the rule of law within government you are greatly assisted by holding a great historical office. In those circumstances, whilst I strongly believed and believe that the role of the Lord Chancellor should change, in particular no longer being the head of the judiciary, I think there is no benefit whatsoever in abolishing the office if one of the things the office has to do is to defend the judges within government.

  Q21  Lord Goodlad: But you thought differently before.

  Lord Falconer of Thoroton: I did; I was wrong but I made that clear throughout. I regret being wrong. I should make clear that the Magna Carta lecture was not the first occasion I had admitted my profound error; I had admitted my profound error to the House of Lords on many, many occasions. If you think I have not eaten enough humble pie, I am more than happy to do so again.

  Q22  Chairman: Do you envisage as likely or possible that a prime minister might want to de-couple the offices of Secretary of State for Constitutional Affairs and Lord Chancellor?

  Lord Falconer of Thoroton: I do not know; I do not think so. Unless you are doing both lists of things that I have referred to, whilst there is more than enough to do as Lord Chancellor, the Secretary of State for Constitutional Affairs, if all he or she was doing was data protection and freedom of information, there is not a job there it seems to me. Equally, I think putting the Lord Chancellor's role together with freedom of information, human rights, electoral law, that sounds a very, very appropriate mix.

  Q23  Baroness O'Cathain: Lord Chancellor, how many civil servants do you have in DCA?

  Lord Falconer of Thoroton: I am responsible for 22,000 over all. That is the Court Service. There is a very, very, very full time job running the Court Service, running the Tribunal Service, running Legal Aid and those issues which probably employ 80 or 90 per cent of the officials for whom I am responsible. If you said that all that the person was responsible for was, say, freedom of information—

  Q24  Baroness O'Cathain: I did not say that.

  Lord Falconer of Thoroton: I am not quite sure what the underlying—

  Q25  Baroness O'Cathain: What you said was that if you did not have the job of Lord Chancellor there really would not be a job.

  Lord Falconer of Thoroton: You are seeking to draw from that, and there you were trying to abolish the Lord Chancellor's role. Is that the pay-off line?

  Q26  Baroness O'Cathain: You are now saying that they have to be combined; at least that is what you are implying.

  Lord Falconer of Thoroton: Yes.

  Q27  Baroness O'Cathain: If they were not combined there would not be a role for another person; there would not be two different heads, so to speak, one as Lord Chancellor and one as DCA.

  Lord Falconer of Thoroton: That is correct.

  Q28  Baroness O'Cathain: I am just finding that rather strange if there is such a big job. First of all you say there is not a job but in fact there is a big job.

  Lord Falconer of Thoroton: The original proposal was that the Secretary of State for Constitutional Affairs would do both the jobs in the Lord Chancellor's list and the jobs in the Secretary of State for Constitutional Affairs' list. What then happened was that the role of Lord Chancellor was preserved and certain jobs were basically tied to the office of Lord Chancellor. I still have two titles and in my view rightly so. There is still a very, very big job to do. If, however, you separated out those things which I do under my heading of Secretary of State for Constitutional Affairs there is not very much in those.

  Q29  Chairman: Your advice to future prime ministers would be to not separate the two roles.

  Lord Falconer of Thoroton: It would be.

  Q30  Lord Morris of Aberavon: Could I ask you about the duty to defend the judiciary and the different obligations and the different people: there is the Lord Chief Justice, yourself, all ministers and all worded slightly differently. Does it matter?

  Lord Falconer of Thoroton: It does, I think. I think the effect of the Constitutional Reform Act is that I have got an obligation to speak out both privately and, if necessary, publicly to defend the independence of the judges, in particular from attack from within government. I think the effect of the Constitutional Reform Act 2005 means that I have much, much greater licence than any other ministers to speak publicly on that issue.

  Q31  Viscount Bledisloe: Earlier you said that you did not see any need to include anything in the ministerial code about what ministers should say about judges, but there have been things which surely you would accept were the wrong side of the line of personal attack and would it not be much better if those were spelt out as things that ministers should not do rather than merely them knowing that they have a duty to uphold the independence of the judiciary?

  Lord Falconer of Thoroton: If they were the wrong side of the line then they were contrary to the law so there would already be a breach of the ministerial code because there is a specific legal duty in the Constitutional Reform Act. I accept what you say, that from time to time ministers do go too far. That is not a problem just with this particular Government; it has happened since there were judges and ministers. I do not think the problem is whether it is in the ministerial code or not; I think the line is quite difficult to draw and I think there are inevitable tensions in the relationship between the executive and the judiciary. I do not think the position would be materially changed, as I said in answer to Lord Holme's questions. I do not think it would make much difference. I do not think, for example, it would make it easier to resolve precisely where the line is.

  Q32  Viscount Bledisloe: Are these conflicts between government and judges partly because, on the really critical issues like what is contrary to the Human Rights Act, it always seems to be decided on argument and impression? Would it not be better if evidence was called when somebody said, "This is going to have a very serious effect on so and so" and it was all done much more with evidence so that the judge could say, "Well, I am founding my view on what was said by X or Y".

  Lord Falconer of Thoroton: I think the courts would say that they do decide the cases on evidence rather than on impression. For example, in relation to the Belmarsh case (the detainees after the 2001 Act) an important issue was the extent to which terrorism might come from home as opposed to abroad because the issue the judges were dealing with was whether there was a discriminatory effect in only being able to imprison people that you can also deport who would naturally be foreign. Certainly in many of the judgments the approach that was taken in the House of Lords Appellate Committee was: what is the evidence on foreign based terrorism as opposed to national terrorism? So it was decided on the evidence. I am not quite sure what point you are getting at. There is evidence of the basic facts; a legal conclusion has to be reached on that. By and large the courts have been using evidence rather than assertion or anything else.

  Q33  Lord Morris of Aberavon: My understanding, Lord Chancellor, on your answer that the distinction between a ministerial duty for all ministers and your own is that yours is a bigger and weightier responsibility.

  Lord Falconer of Thoroton: Yes.

  Q34  Lord Morris of Aberavon: Does that apply to the junior ministers in your department? On the Sweeney case which you are familiar with the judgment was handed down on the 12th, there was complete silence governmentally on the 13th and the 14th and I think on the 15th June you said something and then on the 16th your junior minister said something which she had to completely withdraw.

  Lord Falconer of Thoroton: The duty is upon me and not upon my junior ministers. I would expect every one of my junior ministers to entirely agree with what I say and say publicly what I say and if they do not then obviously, as happened on that particular occasion, they will have to accept that they accept what I say or something happens.

  Q35  Lord Morris of Aberavon: An exchange of letters.

  Lord Falconer of Thoroton: I take the view that Vera Baird is an extremely good contributor to the Government. There appeared, on the face of it, to be a disagreement; she accepted she should not have said it and as far as I am concerned that is the end of the matter.

  Q36  Lord Morris of Aberavon: It was just unfortunate.

  Lord Falconer of Thoroton: Yes, it was, but it is a matter that is over now.

  Q37  Lord Rowlands: Could I refer back to your Magna Carta lecture at Sydney where you posed the question: "Where is the legitimacy for courts to challenge and indeed strike down the acts of the executive where it is plain those acts would have majority support amongst the electorate?" How far do you now expect judges to read opinion polls and get an impression of what public opinion is about?

  Lord Falconer of Thoroton: In my lecture I was posing the question in the context of the Human Rights Act which, for example, gives judges the power to make decisions that have an impact on, for example, the fight against terrorism. I answered the question by saying that if we are a society that lives by the rule of law there is no alternative but for judges who cannot be elected, who cannot be accountable to people making those decisions. That is the conclusion I reached in the Magna Carta lecture which I am sure is the right one. If judges were to be elected or had to satisfy the public in a popular sense then we might as well not have judges.

  Q38  Lord Rowlands: Would you suggest in that question that judges ought to take a look at public opinion and the way it was moving in making his or her decisions?

  Lord Falconer of Thoroton: I am saying that they should not take account of public opinion but I referred earlier in the lecture to a remark made by Lord Devlin who, when talking about sentencing (which is very much a matter bound up with public opinion) asked how one should approach sentencing? Should the judge become, as it were, an expert criminal penologist or should he approach sentencing as he would regard the reasonable man would approach it? I strongly support Lord Devlin's approach which is that he should approach it like a reasonable man. What that means, it seems to me, is that you do not necessarily do the popular thing but you should do something that the public can understand and you can defend.

  Q39  Lord Rowlands: Let me remind you of the quote because it was put in a kind of rhetorical question: "Where is the legitimacy for courts to challenge and indeed strike down the acts of the executive where it is plain those acts would have majority support amongst the electorate?" If the public opinion is heavily in favour of locking everybody up in certain circumstances judges should go along with it.

  Lord Falconer of Thoroton: The answer I give is that you cannot, as a judge, decide things on the basis of popularity. One of the things judges have got to do is defend unpopular people because the law says even though everybody hates you, even though everybody thinks you have done wrong, your legal rights are this. In asking the question: what is the legitimacy for it? There is a legitimacy you can have in our society or in part of our constitutional arrangements which comes from somewhere other than democratic election. As far as the judges are concerned the legitimacy comes from the fact that our society, as Lord Holme said at the outset, is based in part on democratic election of the executive and legislature and in part on the idea that in the rule of law everybody is equal before the courts. The only way you get to that proposition is having independent judges, so that is their legitimacy.

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