Examination of Witnesses (Questions 412
- 419)
TUESDAY 1 MAY 2007
RT HON LORD FALCONER OF THOROTON QC
Q412 Chairman:
A warm welcome, Lord Chancellor. I should say that this is being
filmed for television so it would be good of you—although
strictly redundant—to identify yourself for the cameras.
Lord Falconer of Thoroton: Lord Falconer of
Thoroton, the Lord Chancellor and Secretary of State for Constitutional
Affairs.
Q413 Chairman:
Thank you very much, and I should also warn you that there are
photographs being taken and I hope they do not distract you. We
have just heard evidence from Lord Justice Thomas and Sir Igor
and one thing that emerges very clearly is that just as on the
occasion of the announcement of the announcement of the abolition
of the Lord Chancellor and creation of the Supreme Court we have
in the last few months been faced with a government demarche,
which is ostensibly about the shuffling of departmental and Cabinet
responsibility as a machinery of government issue, but nevertheless
appears to have very profound constitutional implications, as
the first one did and this one has. I want to ask you very directly:
are you satisfied with the way in which these changes are (a)
leaked, (b) announced, (c) iterated and (d) turned into a rational
process of constitutional change?
Lord Falconer of Thoroton: As to leaks I will
not comment. As to the process I am completely satisfied it is
a sensible way of dealing with it. Can I briefly summarise what
the position is? From February 2007 a Ministry of Justice became
a serious possibility. During February and March there were discussions
and exchanges of papers between the judiciary and myself. On 19
March, ten days before the formal announcement of the Ministry
of Justice, a working party was set up between the Judges and
senior officials to discuss the implications because the implications
are very important in relation to this change. But what is agreed
between the executive and the judiciary is that a Ministry of
Justice is in principle constitutionally acceptable, subject to
certain safeguards being put in place. The working party is a
good, constructive and sensible way of working those details out
because I do not think that anybody is suggesting that we change
the fundaments of Lord Woolf's and my Concordat; nor is anybody
suggesting we change the fundaments of the Constitutional Reform
Act 2005, which changed the Lord Chancellor—and that was
a big constitutional change—from being a Judge in government
to being a minister in government but with a special relationship
with the judiciary, and that special relationship with the judiciary
continues and I do not believe—and nor do I believe other
people in the working party believe—that that special relationship
cannot be preserved subject to sorting out the operational arrangements;
they are very important. I am completely satisfied of the method
by which it was done; I think it was a sensible way of doing it.
I heard the end of some of the questioning of Lord Justice Thomas;
there is absolutely no question of having to conclude, if they
are not concluded, the discussions by 9 May. I have absolute faith
that the Judges, my officials, myself and the Lord Chief Justice
are only concerned to reach a conclusion that leads to the best
result for the good operation of the machinery of government,
and that is absolutely clear from the working of the arrangements
that are in place. Why we have done it in this way is because
I think you need clarity about the arrangements going forward.
If I thought that there was fundamental constitutional uncertainty
about doing it in this way then I would have been against it.
But that is not my view; I believe that the arrangements we have
put in place deal with all the legitimate concerns and I am confident
that with people of the quality of John Thomas, Igor Judge, Alex
Allan and my senior officials we will reach agreement.
Q414 Chairman:
We are impressed by your faith and confidence, but let me put
this to you. It seems that the government may not have come to
terms with the very deep constitutional implications of its own
Constitutional Reform Act, of which you were the co-parent, and
I will put it this way: if there is a greater measure of separation
of powers and the independence of the judiciary, and their sphere
is more clearly delineated from that of the executive and the
government, surely it stands to reason that changes which affect
both parties should be mutually arrived rather than there being
a unilateral demarche by the government, albeit—and I hear
what you say about the working party that follows that up—should
you not have started with the working party, with the judiciary
who have their own sphere here to work through the implications
of this, rather than having the usual simplistic machinery of
government drive towards it?
Lord Falconer of Thoroton: This is an important
change that has implications. You are completely wrong. I do not
know whether it is your words or the Judges'—unilateral
demarche—
Q415 Chairman:
No, it is my word.
Lord Falconer of Thoroton: That is a completely
inaccurate account of it. The critical thing is—
Q416 Chairman:
I am sorry, was it discussed with the Judges before the announcement
started coming out of Whitehall?
Lord Falconer of Thoroton: I cannot comment
on the leaks, I had nothing whatsoever to do with that. As soon
as it became a serious prospect then I discussed it, as you know,
with the Judges and that started in February. The important thing
is to focus on the constitutional implications of the Constitutional
Reform Act because you are absolutely right when you say that
that has to be the foundation of everything. The Constitutional
Reform Act involved a fundamental change in the role of the Lord
Chancellor. What happened to the Lord Chancellor as a result of
that Act of Parliament was that he ceased to be a Judge, he obtained
certain statutory responsibilities, including protecting the independence
of the judiciary; and also the courts and the Lord Chancellor
were linked by primary legislation. The impact of the changes
that we are now discussing involves bringing prisons, probation
and sentencing to the Lord Chancellor. It does not relieve him
of either his responsibilities to the court system or his duties
to the Judges. What has to be worked out is how, in the light
of his increased responsibilities, in operational terms, that
will affect his relationship with the Judges. That is what the
working party is doing and it is very important, I think, to focus
on the fact that the Lord Chief Justice, speaking on behalf of
the Judges, has said in principle that subject proper to safeguards
that is okay, and it is, I think, right to focus on the process
but wrong to think it is either the wrong process or one that
will not produce a result.
Q417 Chairman:
You are not inclined to think that what seems to be a very considerable
amount of questioning on behalf of the judiciary reflects dissatisfaction
with the way in which this has been dealt? You are not inclined
to take that seriously?
Lord Falconer of Thoroton: I take everything
genuinely—and I read in the newspapers dissatisfaction with
some elements discussed by individual Judges—and I am as
keen as I possibly can be and I hope my record reveals over the
past four years that I have been personally as committed as I
possibly can be to having a good constitutionally productive relationship
with the Judges because I recognise my role under the constitution
and my role under the various pieces of legislation. I do believe
that this process is one that will produce results.
Q418 Chairman:
I was interested in the Judges' Council paper, which you will
of course seen.
Lord Falconer of Thoroton: I have.
Q419 Chairman:
The words that say, "The creation of a Ministry of Justice
is not a simple machinery of government change but one which impacts
on the separation of powers." Would you agree with that?
Lord Falconer of Thoroton: The critical framework
for the separation of powers now comes in the Constitutional Reform
Act and the constitution. It has very important implications because
what you have to deal with in the machinery of government changes
where there are implications is a Lord Chancellor with all of
the constitutional position laid out in the Constitutional Reform
Act with these additional responsibilities. The sorts of things
that then arise are, one is worried with maybe the prison or probation
service seeking money—could that impact on the funding of
the courts? Judicial reviews will come—actually judicial
reviews come in to the Legal Services Commission at the moment
and the way that the courts resolve those could well have an impact
on funding for the courts, but we have been able to accommodate
that. The fact we have been able to accommodate that does not
mean it will not be different in practical terms going forward,
and that is what we need to talk about.
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