Examination of Witnesses (Questions 60
WEDNESDAY 22 NOVEMBER 2006
RT HON LORD FALCONER OF THOROTON
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.
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.
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
advantagewe assume legitimatelyof 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 basiswhich I am quite sure would not be the
intentionthen 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.
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
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
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
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.
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
Lord Falconer of Thoroton: Yes, quite.
Chairman: And the Archbishop of
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 responsibilityinformal so far as the Lord Chief
Justice is concerned but formal so far as the Lord Chancellor
is concernedby 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.
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
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.