Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 60 - 79)



  Q60  Lord Goodlad: You might speak privately to the Lord Chief Justice.

  Lord Falconer of Thoroton: Yes.

  Q61  Lord Windlesham: Can we now turn to domestic relationships, and that is the continuing presence of the senior judiciary in the House of Lords and the relationship between the two? I was personally not alone I think in welcoming the continuation of this strange, almost unique, arrangement, but there it is, it is in the Constitutional Reform Act and it can be welcomed as a result. However, some questions arise. The senior judiciary will no longer have the ability to speak on the floor of the House to raise concerns they may have about government policy affecting the judiciary and instead the Lord Chief Justice may make written representations to Parliament (that is under section five of the Constitutional Reform Act). Lord Woolf is no doubt listening closely to this question. May I ask you this, on what sort of issues do you envisage this new mechanism being exercised? Do you see it in your mind as a rarely used power or would you welcome a more routine and regular use of the mechanism? The written representations will be to Parliament rather than to the Government, but do you envisage that the Government will often need to respond formally in some way?

  Lord Falconer of Thoroton: The sorts of issues that I would envisage the new mechanism being exercised for would be serious issues only. It would be, in my view, a rarely used power; it would be used for issues that touch and concern in particular the independence or the position of the judiciary. So, for example, if there was a proposal which the Lord Chief Justice regarded as affecting the independence of the judiciary (for example something that affected their terms and conditions in a way that he or she regarded as undermining their independence). It is that sort of issue. Or, in a very extreme case, if the Lord Chief Justice thought the resourcing of the court system was such that there could not be a properly functioning court system, that would be another sort of issue that could be raised. Or, if the Lord Chief Justice thought there was undue interference in the appointments system (which is now handled by the Judicial Appointments Commission). Those sorts of issues, as it were very, very serious issues, the representations to Parliament being the nuclear option, because almost invariably the sorts of issues will be issues that are primarily with the executive and I would envisage that prior to representations being made to Parliament those issues would have been raised between the judiciary and the executive and there would have been a lack of satisfaction in relation to those debates.

  Q62  Lord Windlesham: Could I ask you, without compromising the need to preserve ministerial discretion in these matters, did you have difficulty with your ministerial colleagues in persuading them that judges should still be in the House of Lords, this strange situation which has arisen for historical reasons? Or is it accepted that this is the way things work in this country?

  Lord Falconer of Thoroton: I do not recall having difficulties. Without breaking any confidences, my ministerial colleagues have a variety of differing views about the House of Lords. By and large I find that most of my ministerial colleagues' views on the House of Lords do not focus on the judicial element in the House of Lords; there are a lot of other, more significant issues as far as the House of Lords is concerned which they tend to stop at before they get to the judges. They have not seen problems in relation to the judges in the House of Lords particularly. The issue about the judges coming out of the House of Lords was to do with the principle of whether or not you should have a supreme court and they were supportive of that principle.

  Q63  Lord Carter: I am not entirely clear on this point. There was discussion when all this was going on about having either a select committee or a joint select committee which would be there to receive the representations. In the absence of that it seems to me now that your annual visits to this Committee and other representations will do, if they used the nuclear option and referred to Parliament, not the Government, who would respond? Presumably Parliament hands it over to the executive to respond.

  Lord Falconer of Thoroton: I would have thought there would have to be a government response. Can I just pick up on one thing? As a matter of practice the Constitutional Affairs Select Committee in the Commons has, from time to time, had as witnesses senior members of the judiciary. Quite recently a number of family judges came and spoke about the extent to which family proceedings should be public. That seems to be a classic issue in which the judges have a view because they are extremely used to knowing what the effects of having press or public in would be. I believe this Committee has, from time to time, had judges before it as well. Lord Woolf will be better able to say this authoritatively than I, but in the course of the discussions we had during the passage of the Constitutional Reform Act there was absolutely no hostility on the part of the judges to the judges regularly giving evidence to committees in Parliament as long as it was about issues that did not touch on individual cases and was not drawing them into politics. Lord Woolf himself has given evidence to various select committees; I think Lord Phillips has given evidence here.

  Q64  Chairman: As a matter of record, if I could interrupt, we have only had Lord Chief Justice Phillips in front of this Committee.

  Lord Falconer of Thoroton: Yes, but other judges have gone to the Constitutional Affairs Select Committee in the other place. This is not the only route and by and large there does not seem to be that much difficulty about it. It is one of those areas where it is easy to reach agreement.

  Q65  Chairman: It would probably be a pity if one were to think of Parliament's role in this greater separation of powers between the three arms of the constitution if Parliament's role were thought of as the nuclear option because there may well be a point at which parliamentary accountability is helpful and not simply a last resort.

  Lord Falconer of Thoroton: I think there is a world of difference between Parliament being quite legitimately critical of ministers for doing things that Parliament might regard as offending against constitutional principles or the independence of the judges and the Lord Chief Justice on the other hand taking advantage—we assume legitimately—of a particular power to say, "What the Government proposes is so difficult for me that I feel I have to tell you, Parliament, why I object to it". Indeed, I think that if the representations were used on a routine basis—which I am quite sure would not be the intention—then I think that would greatly reduce the effect of the power. You want the power to be used in circumstances where, if it is used, the constitutional ramifications are such that you would want the representations to be acted upon. That, inevitably, involves using the power, I believe, very sparingly.

  Q66  Chairman: I think we may, in different ways, be saying the same thing, that a normative lower key method of communication might be valuable.

  Lord Falconer of Thoroton: Yes.

  Q67  Lord Rowlands: When senior members of the judiciary express concerns to the Government, how open and transparent should these be?

  Lord Falconer of Thoroton: I think this goes back to the questions I was being asked about whether judges should make public their concerns about policy. I think there should be detailed discussions privately on particular issues. By and large I do not think they should be made public. If they are made public you do not want to create that question in the public's mind: "Do the judges like this law or not?" The success of our system is that judges do not do politics; they simply give effect to the law in an independent way.

  Chairman: Lord Woolf, if you would like to come in on this round of questioning you would be extremely welcome.

  Q68  Lord Woolf: I can indicate that what the Lord Chancellor has said very much accords with my own views, particularly with regard to putting a statement before the House (or both Houses) is undervalued it seems to me if it was used other than for issues of constitutional importance in the eyes of the judiciary. As I understand it, the Lord Chancellor agrees with me about that. Do you see as a second part of that power the related power which is dependent on convention that in appropriate circumstances the Chief Justice can ask to see the prime minister to express his concerns?

  Lord Falconer of Thoroton: Yes. Of course the Lord Chief Justices can do that. Whether it is part of the constitution or whether there is a prime minister in the world who would refuse to see the Lord Chief Justices I do not know. On the basis that it is used sparingly, yes.

  Q69  Lord Windlesham: Has it been done in modern times and, if so, on what issue?

  Lord Falconer of Thoroton: I am aware of it being done on two occasions, once during the course of this Government and once during the course of the previous Government. I will not say which, but one was completely unsuccessful and one was successful.

  Q70  Chairman: What do you mean by "successful"?

  Lord Falconer of Thoroton: The Lord Chief Justice said that they disagreed with this and they wanted this and that happened. The other one they said the same and the Prime Minister said, "I've listened to what you say but I am sorry, I am continuing with the course I have adopted".

  Q71  Lord Windlesham: Was this done in confidence?

  Lord Falconer of Thoroton: Obviously the content is in confidence, yes.

  Q72  Lord Windlesham: The fact that there had been discussions or intervention, was that known?

  Lord Falconer of Thoroton: It may well have been done in confidence but it certainly became known on both occasions. It was reported widely in the newspapers on both occasions. It was intended to be secret, I am quite sure.

  Q73  Lord Carter: In the debate on the ouster clause in anti-terrorism, I have just forgotten how that got into the public domain. Was that a statement by Lord Bingham? Was it a representation?

  Lord Falconer of Thoroton: The ouster clause was not in terrorism, it was in the Asylum and Immigration Bill and it was actually in the bill and I think the then Lord Chief Justice, Lord Woolf, made a number of public speeches complaining bitterly about the ouster clause. That was a very, very public debate. You can check that later but I think that was broadly the position and then we withdrew the clause from the bill between the Commons and the Lords.

  Q74  Chairman: This infrequent event of the Lord Chief Justice wanting to see the Prime Minister, would you expect that to be done through the Lord Chancellor or directly?

  Lord Falconer of Thoroton: I think the office may facilitate the arrangement but the intention is that the Lord Chief Justice should speak directly to the prime minister. I suspect it is partly to do with the fact that they may not be getting satisfaction from the Lord Chancellor at the time; I am pretty sure that could be the reason.

  Q75  Lord Morris of Aberavon: The chiefs of the general staff, they have access direct to the prime minister.

  Lord Falconer of Thoroton: Yes, quite.

  Chairman: And the Archbishop of Canterbury.

  Q76  Lord Peston: I think you have more or less dealt with the question I was supposed to ask you, it is about the problems arising from the inter-relationship between the Government, Parliament and the judiciary. Would I be right in interpreting everything you have been saying today that where these problems exist you personally see the way to deal with them as a rather informal approach, rather than starting to write new bits to the constitution in a very formal way.

  Lord Falconer of Thoroton: Yes, subject only to this, that there is resting on the Lord Chancellor's shoulders a responsibility to try to make them work so that there is a formal responsibility on him to try to ensure that they work. My experience is that because the Lord Chief Justice and the Lord Chancellor both have a responsibility—informal so far as the Lord Chief Justice is concerned but formal so far as the Lord Chancellor is concerned—by and large, because their motivation is for there to be peace rather than tension, it works.

  Q77  Lord Smith of Clifton: Referring to our meeting last year, Lord Chancellor, I did ask you about your review of different voting systems in this country and you said you were undertaking it and your permanent secretary has since said to the Constitutional Affairs Committee that the report would definitely be published. Might I ask when?

  Lord Falconer of Thoroton: You may ask when. As you can tell from the fact that this is a question being asked 12 months later, this is a most serious piece of work that is going on internally and it will be published; I reaffirm our commitment to that. I cannot give you a precise date, but I can tell you that progress is being made in relation to it.

  Q78  Chairman: Can you give us an indication of the sort of timescale? Soon?

  Lord Falconer of Thoroton: Not really. It will certainly happen. We have a manifesto commitment to it. I would not like to commit myself to "soon", but within a reasonable time.

  Q79  Viscount Bledisloe: Is the new system wholly in place or are there still parts of the judicial appointments that are being made under the old system?

  Lord Falconer of Thoroton: It is not wholly in place. I am continuing to make judicial appointments in the old way where the process for a particular competition was half-way through, and that includes the High Court Bench (which I will continue until approximately spring of next year). Once spring is reached then I will completely relinquish any role, save in one area which is appointments to the House of Lords, which depends on the supreme court coming into force.

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