Examination of Witnesses (Questions 40
WEDNESDAY 22 NOVEMBER 2006
RT HON LORD FALCONER OF THOROTON
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 precedentas indeed
Baroness Kennedy's Power Inquiry suggestedfor 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
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.
Has that very sequence not happened recently?
Lord Falconer of Thoroton: It has happened from
time to time.
Q48 Baroness O'Cathain:
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
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 ministeran elected personyou 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 termsthis
is what we have committed ourselves to doingis 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 interestedsome
of the press, not all of the pressin disseminating the
myth than disseminating the myth busting. All we can dowe
have committed ourselves to doing it and the Home Office are doing
it as wellis to correct it. There was a newspaper called
The Daily Telegraph which reportedI am not sure
whether it actually reported it as fact or notsomebody
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.
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
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
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. Secondlyand separatelywhere
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 largealthough it is a matter for the judges
and not for meone 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