Examination of Witnesses (Questions 20
- 39)
WEDNESDAY 22 NOVEMBER 2006
RT HON LORD FALCONER OF THOROTON
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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