Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 40 - 59)



  Q40  Lord Rowlands: You imply a little later that there had been a significant change. In the seventies, for example, the legislative response to the terrorists outrages were exclusively a matter for the UK Parliament; post 2001 it is a dual responsibility. You went on to say that judges have to make the law and answer a policy question, but at the same time you are trying to keep them out of politics. Is that going to be a rather impossible balancing act?

  Lord Falconer of Thoroton: We have made a decision as a society that we want judges more involved in those issues in determining, for example, the limits of lawfulness in relation to our response to terrorism. The example you are referring to which I gave in the speech was that immediately after the Birmingham bombings Parliament passed a variety of anti-terror legislation and there was no question that the judges would question whether they thought the legislation was right or wrong, they simply enforced the legislation. Now, at a time when I think people do want more of a sense of individual rights, the judges do have a role in determining the compatibility or otherwise of the human rights legislation. However, their legitimacy does not come from democratic election; their legitimacy comes from a sense that outer limits of lawfulness have to be set.

  Q41  Lord Smith of Clifton: Lord Chancellor, how would you describe the constitutional status of the concordat you agreed with Lord Woolf in January 2004 on the Lord Chancellor's judiciary-related functions?

  Lord Falconer of Thoroton: I think it is a document of constitutional significance and I am not just saying that because Lord Woolf is on the Committee. It seems to me to be a document of constitutional significance because, although much of it was then enacted in the Constitutional Reform Act, it sets out the basic principles on which the judges and the executive will relate to each other in the future. I have never known any piece of legislation to be utterly comprehensive; there are bound to be issues that come up in the future where it is the principle that matters rather than precise detailed legislation and I believe the concordat will be important for that.

  Q42  Lord Smith of Clifton: Thank you for that answer because it covers my supplementary, does it still have a continuing practical importance. I will ask instead, do you think it provides a precedent—as indeed Baroness Kennedy's Power Inquiry suggested—for resolving demarcations between different levels of government (local government and central government and so on)? Do you think it provides that this notion of a concordat will be prayed in aid as a precedent?

  Lord Falconer of Thoroton: I think it could do because I very much welcomed it and thought it was a very good thing to have done, but the nature of the concordat that the executive and the judiciary struck on that occasion was between the executive (which, however it may appear, is a unified and coherent body) and the judges (who, in fact, have always had strong leadership) and therefore it was possible for two people to sign a document and there would be a sense that they brought with them the groups they were representing. It would be a very good idea for there to be a concordat between central and local government. Obviously central government would have one voice but to what extent would it be possible for, as it were, the president of the LGA to say, "I speak on behalf of Liverpool and Hertfordshire in making this arrangement". I think it is a precedent we need to look at and see whether it can apply in other areas. How difficult would it be to apply to other areas? I suspect it would be quite difficult.

  Q43  Lord Woolf: I would like to ask you whether you feel it is going to have a continuing role in the relationship day to day between the judiciary and the executive.

  Lord Falconer of Thoroton: I think that it will. Just by way of example, very frequently I see documents which will either go to the executive or go to the judges, in terms of documents from one judge to another or from one judge to a group of judges or from me to other departments, and they will very frequently refer to a paragraph in the concordat saying that is what has been agreed on deployment or this is what has been agreed on the role of the resident judge in the concordat. It still plainly has a continuing day to day impact on the actual practical resolving of particular issues.

  Q44  Lord Woolf: Do you see its role changing when you cease to be Lord Chancellor?

  Lord Falconer of Thoroton: No, I think it will go on forever. I think it will be more important when I have gone because it is the record of what we agreed and it represents the settlement that was reached at that particular time. It seems to me that I can always say at the moment "What we meant was this" which my successor cannot do, he will have to rely on the words.

  Q45  Baroness O'Cathain: From time to time in recent years there have been periods of tension or disagreement between the judiciary and the Government, often arising from Home Office matters and involving robust comment from ministers to the news media. What advice do you give to your fellow ministers about the content and tone of their remarks about individual court judgments?

  Lord Falconer of Thoroton: You should never do anything that undermines respect for the court system. If you ever attack an individual judge or a group of judges as having a particular motivation, that undermines respect for the system. That does not mean that you cannot comment adversely on particular decisions because it is perfectly legitimate to disagree with decisions. If you disagree with a decision, say what you are going to do; if you are going to appeal, say you will appeal; if you are going to change the law, say you will change the law. If you cannot appeal and cannot change the law then my advice would be to keep quiet because there is not much you can do about it.

  Q46  Baroness O'Cathain: What happens if they do not?

  Lord Falconer of Thoroton: Then I will speak to them privately and tell them not to do it again. If they do it again then I will say something publicly. That is too black and white an account of it, but broadly that is the way it works.

  Q47  Chairman: Has that very sequence not happened recently?

  Lord Falconer of Thoroton: It has happened from time to time.

  Q48  Baroness O'Cathain: Recently?

  Lord Falconer of Thoroton: Recently, yes.

  Q49  Lord Peston: Could I go back to this whole question of the independence of the judiciary? I am right, Lord Chancellor, in saying that we do not mean by "independence" that the judges should not be subject to critical scrutiny?

  Lord Falconer of Thoroton: No, indeed not, quite the contrary.

  Q50  Lord Peston: They should be subject to critical scrutiny.

  Lord Falconer of Thoroton: Of course. To take an easy example to start with, the mesothelioma decision in the House of Lords in which the House of Lords came to a particular conclusion which people regarded as making it harder for mesothelioma sufferers to recover. There was widespread criticism of that decision which was then reversed by an act of Parliament. Not a soul that I am aware of, including those who were party to the unpopular decision, regarded the debate that followed the mesothelioma decision as being remotely improper or inappropriate. Nobody would regard that as being the situation. The judges were in effect criticised for coming to the wrong conclusions; that was regarded as legitimate debate and the law was changed. What is objectionable is not critical discussion of decisions; it is something which expressly or impliedly says that there is something wrong with these judges for reaching this conclusion. That is where the problem arises. Because a government minister saying that has a particular impact, the Government has to be particularly careful not to do that because it undermines one bit of our constitution. As an addition to that, the judges are always advised, whether by the Lord Chief Justice or the Lord Chancellor, to try to avoid controversy in what they say. That does not mean they cannot say controversial things in their judgments, it does not mean that they cannot lecture on the law, but they should not externally get involved in what might be described as political debate. They are, to some extent, disabled from defending themselves so for that reason as well it is quite important to have a clear view about how ministers should behave. I cannot obviously deal with non-ministers, politicians or the media; the judges have always had to put up with that. However, a responsible government should not seek to undermine judges in the way that I have described.

  Q51  Lord Peston: There was something else that you added to that that slightly puzzled me. You seemed to say that if you are a minister you might be saying, "Yes, the law absolutely means that the judge has to take the decision, we are not criticising the judge". You would then add, "There is something wrong here" which as a minister—an elected person—you are entitled to say that. You then seem to be saying that if you are not in a position to right that wrong you really ought not to be saying that there is something wrong here. To take an obvious example, there was a judge on television this morning (something to do with a programme that is coming up) and this judge said something to the effect that he applies the law and when it comes to sentencing he does the right sentence as he sees it, even though if he sends someone to prison he is also aware of the fact that there may be no places in prison to send anybody to. I thought that was all very sensible and was exactly what I would have done in his position. Clearly you are not saying that a minister then should not say, "We have to do something about this".

  Lord Falconer of Thoroton: You are right to pick me up. What I was saying was that if you are a government minister and you are saying that the law is wrong and it should be changed but unfortunately you cannot do anything about it, there is nothing wrong so far as the independence of the judiciary is concerned. It is a pretty unwise thing for a minister to say that there is something but we are not going to do anything about it. That is all. I was not implying that it would be wrong for a minister to say, "The law is this, I think the law is wrong, there is nothing I can do about it".

  Q52  Lord Carter: It is now almost three months since the DCA July 2006 report on the implementation of the Human Rights Act called for myth busting to correct erroneous impressions about human rights. What in practice will this or has this entailed? Can you envisage circumstances in which the HRA could be repealed or substantially amended?

  Lord Falconer of Thoroton: You read in the newspapers and hear in our own chamber people say that the Human Rights Act is a bad thing, for example because Dennis Nilson was given the right by the Human Rights Act to receive hard core pornography in prison. That is a famous myth which is untrue; he was not allowed to receive hardcore pornography in prison by the prison governor. He sought leave to apply to court to be given the right to do so and the judges dismissed his application even to apply. The Human Rights Act gave no such right. Another myth: the man on the roof who was holding out against the police had a Human Rights Act right to have Kentucky Fried Chicken supplied to him. That is another myth. It is another myth that the Human Rights Act requires the state to give prisoners drugs in prison. That was last week's myth. All we can do in myth busting terms—this is what we have committed ourselves to doing—is that every time such a myth appears in the public print or on television or wherever, we disseminate the right answer. For reasons I cannot adequately explain to you, the press appear to be much more interested—some of the press, not all of the press—in disseminating the myth than disseminating the myth busting. All we can do—we have committed ourselves to doing it and the Home Office are doing it as well—is to correct it. There was a newspaper called The Daily Telegraph which reported—I am not sure whether it actually reported it as fact or not—somebody quoting the Dennis Nilson myth. They were kind enough to publish on their letters page a correction by Cathy Ashton that that was not in fact true. I think that was very good of The Daily Telegraph to publish the letter. However, I am not sure about the chance of the letter getting as much readership as the bit earlier on in the newspaper which referred to the Dennis Nilson myth.

  Q53  Lord Carter: My second question was about the chance of repeal or substantial amendment. Do you not see this?

  Lord Falconer of Thoroton: I do not see it no. Will we repeal the incorporation into domestic law of the European Convention? No, we will not. The report you referred to in July 2006 reaffirmed the whole government's commitment to sticking with the Human Rights Act.

  Q54  Lord Carter: To go back to the myth busting, you are always having to play catch up with the myth.

  Lord Falconer of Thoroton: Yes.

  Q55  Lord Carter: Have you made any attempt to circulate all editors with a note explaining the problem and trying to stop it at source?

  Lord Falconer of Thoroton: No, I have not done that. I think we need to think about how we try to get ahead of the game. We have published many, many documents saying what the Human Rights Act does and does not do. In all of those documents we try to bust the myths. We send them to all the newspapers; I have not sent them directly to each individual editor. You can judge as well as I what progress we are making in that respect.

  Q56  Chairman: Of course the Human Rights Act does need this sort of particular defence from you and your department because by definition it often deals with minorities who may not, as you were implying earlier, in popular newspaper terms be popular people or well-respected people. They may be the very people who most need the defence of the Human Rights Act and therefore in a sense it is a compensatory role that you have to play in getting the balance of public opinion which is majority opinion to understand that this exists to protect minorities or individuals.

  Lord Falconer of Thoroton: Yes, and the other bit of it is that all of the rights that are in the Human Rights Act would be rights that I think most individuals would regard as being obviously necessary and obviously right. Who is going to object to the right to a fair trial or the right to free speech or the right to a private life, all of those matters? The Human Rights Act in effect brought those rights together. Because, however, they are perceived to be too lawyerly in some places and perhaps coming from Europe, that leads to an unpopularity which they do not deserve.

  Q57  Chairman: When you say "coming from Europe" I think it is probably true that most of the content of the European Convention on Human Rights came originally from British lawyers.

  Lord Falconer of Thoroton: You are absolutely right.

  Q58  Lord Goodlad: Lord Chancellor, the Kilmuir rules no longer operate to bar judges from speaking to the news media, giving speeches or writing articles that might be critical of government policy or on matters of public controversy. In what kind of circumstances do you think it is now legitimate for members of the senior judiciary to criticise government policy outside the confines of the courtroom? As a supplementary, can I ask whether you draw a distinction between the role of the Lord Chief Justice, as head of the judiciary, and other judges?

  Lord Falconer of Thoroton: To take the general point first, I think it is generally a bad idea for judges to be criticising the Government on policy issues for two reasons. The first reason is that I think the public want judges to be unpolitical and criticising the Government on its policy issues tends to get you into political areas. Secondly—and separately—where there are debates on policy in which judges appear to disagree with the Government it may very frequently be the case that those very same judges then have to enforce laws about which it might be said they have expressed disagreement. Generally I think it is a bad idea and that is why the sort of quid pro quo that I was referring to before, that because the judges are inhibited in publicly defending certain things or making public speeches, the quid pro quo should be the Lord Chancellor and all the other government ministers behaving in a particular way with the Lord Chancellor defending them within government. There are areas where I think it is legitimate for judges to speak out and say particular things and those are areas where they speak with a particular expertise, for example how the courts work and issues like that. It must be legitimate for judges to say, "If you introduce this proposal the consequence will be that all the courts get gummed up and nothing will happen for years". I think it is quite a limited area. I am guided in what I say by, in part, what Lord Bingham said in the practice direction that he issued about when lords who are judicial lords should speak in the Lords on issues. He said, "Do not speak on issue of political controversy; do not speak on any issue where it might be that the courts have to rule on the particular point". That seems to me to be the right way to inform the way that judges should talk. Should the Lord Chief Justice have a special role? Yes, I think he should. I think by and large—although it is a matter for the judges and not for me—one voice is better than a cacophony of voices. I think decisions about when the judges should speak out about an issue that affects them particularly or in respect of which they have an expertise should be a matter for the Lord Chief Justice because I think, as a matter of practicality, all of the judges speaking is not such a good idea.

  Q59  Lord Goodlad: If a senior member of the judiciary were to speak out in a way that you thought was inappropriate, would you think it appropriate for you to do anything about it?

  Lord Falconer of Thoroton: I could not do anything about it. If the Lord Chief Justice thought it was appropriate to do something about it then he would have to do something about it, but I certainly could not now say to an individual judge in any official capacity, "Do not say that". If I thought that he was going too far I might raise it with the Lord Chief Justice.

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