Examination of Witnesses (Questions 420
- 439)
TUESDAY 1 MAY 2007
RT HON LORD FALCONER OF THOROTON QC
Q420 Chairman:
We were told in the dying moments of the evidence which you have
just heard that the subject of the ring fencing of the costs of
the judiciary was expressly excluded from the agenda of the working
party.
Lord Falconer of Thoroton: Before the announcement
on 29 March and before the setting up of the working party I made
it clear that I was against ring fencing, and I will tell you
the reason I am against ring fencing is because I found, doing
it for the last four years, that from time to time I have had
to move money from the courts. The best example is I moved money
away from the courts at one point in order to fund better the
Legal Aid Fund because ensuring a good justice system may involve
saying some maintenance on the court buildings has to be delayed
in order to ensure that people are properly represented in court.
So I am against the idea of ring fencing of the court budget,
but I completely accept the need for a properly funded court system.
The protections there come in Section 1 of the 2003 Courts Act
and Sections 1 and 3 of the Constitutional Reform Act 2005. If
ring fencing was regarded as a necessary acceptance of the Ministry
of Justice then no doubt I would have been told, "I am afraid
on that basis we cannot agree to it," but that is not what
I was told.
Q421 Chairman:
I would just like to come back to your own key responsibility
as the defender of the independence of the judiciary. In a sense,
your role has morphed from, in the old days, being head of the
judiciary to being the protector or defender of the judiciary
now. Do you see yourself, in the light of these changes and the
creation of the Ministry of Justice, being in any way inhibited
in that role?
Lord Falconer of Thoroton: Absolutely not. The
idea that a minister being responsible for courts and the judges
cannot also be responsible for prisons, probation and sentencing
policy seems completely wrong. It is a model in many other countries
and I would regard my ability to defend the judges, their independence
and a proper functioning court system as in no way affected by
that. That is a critical consideration in me supporting the idea
of a Ministry of Justice.
Q422 Viscount Bledisloe:
You have said you are convinced that this is going to work subject
to the safeguards being in place. You have said that you are confident
that the working party will come to a solution. The other half
of this negotiation has said that it is very unconfident that
it will come to a solution, particularly in the light of the bars
you have put down on any new legislation and so on. Supposing
it does not come to a solution? What happens? Do you unravel the
changes you have made? Would it not be more sensible to wait until
the working party has solved the problem before implementing this
change?
Lord Falconer of Thoroton: No, absolutely not.
First of all, I did not hear all Sir John Thomas's and Sir Igor
Judge's evidence. I did hear Sir John Thomas saying that maybe
we will not reach agreement by 9 May. I have not heard him say—though
he may have said it to you—that he thinks they will not
reach agreement.
Q423 Viscount Bledisloe:
He said that it is very difficult and very doubtful.
Lord Falconer of Thoroton: My own view is that
it will be possible to reach agreement but no doubt we will wait
and see. If we cannot reach agreement, that is not going to stop
the Ministry of Justice going ahead on 9 May 2007. We have made
it absolutely clear and the judges know perfectly well that the
Ministry is going to go ahead on 9 May. I believe that what needs
to be done is that the working party needs to go through the various
issues. I believe they have gone through a number of the issues
and have reached agreement on a number of the issues, but it is
all subject obviously to an overall agreement.
Q424 Viscount Bledisloe:
They are negotiating with no muscle at all because it is going
to happen anyhow, whether they agree or not.
Lord Falconer of Thoroton: The judges and the
executive are negotiating in good faith to achieve a common end.
You need to strike a balance between, on the one hand, there not
being a prolonged period of uncertainty in relation to which ministry
is in charge of what against the need to agree in principle the
things that matter. The position of the judiciary has been it
is okay subject to suitable safeguards being worked out. That
is what the Lord Chief Justice has said and that is what is now
being negotiated.
Q425 Viscount Bledisloe:
They are not worked out.
Lord Falconer of Thoroton: I believe that they
will be.
Q426 Viscount Bledisloe:
It takes two to tango and to make an agreement. If an agreement
is not made, what happens?
Lord Falconer of Thoroton: If an agreement is
not made there will be areas where there is agreement and there
will probably be areas where there is disagreement. Those areas
that are agreed will be put into effect and the rest will have
to evolve.
Q427 Chairman:
With your ministerial hat on, you are saying that this is going
to go ahead on 9 May. Then you are saying that there is this very
successful negotiation, which is not the impression we got from
the judges. We have the impression that there are some very large
issues still unresolved but you will talk to your Permanent Secretary
about that. We do not have an impression of an easy, downhill
slope for the next few days; we have some big issues. What sort
of negotiation is it that says it does not matter whether we agree
or not because we are going ahead?
Lord Falconer of Thoroton: Both of us, like
in so many areas in politics, accept that the best thing to be
achieved is agreement even though neither side has any sort of
leverage in relation to it. I completely agree with you that there
are difficult issues to be negotiated but I have complete confidence,
particularly in regard to those doing the negotiations on both
sides, that because they both want to reach agreement it will
be possible to reach agreement. That is not in any way to underestimate
the difficulties of the negotiations but my own view is that they
will reach agreement despite the difficulties. If they do not,
there will be some areas of disagreement but I suspect there will
be agreement on most things. I suspect one will find that ways
will be found over time to deal with those areas of disagreement.
Q428 Chairman:
Do you think there will be a role for Parliament to play in trying
to make sure that agreement is reached?
Lord Falconer of Thoroton: Of course.
Q429 Chairman:
How might that work?
Lord Falconer of Thoroton: There would have
to be a debate in Parliament upon it. The fundamentals of the
relationship between the judiciary and the executive are those
set out in the Constitutional Reform Act and the concordat. They
are not changing.
Q430 Chairman:
The concordat which you negotiated with Lord Woolf, which is the
foundation stone of the Constitutional Reform Act, is of enormous
constitutional significance. It has been represented to us—and
I think we probably agree—that it has been a quasi-entrenched
piece of parliamentary and constitutional significance. Is it
not possible in the light of what has been negotiated and changed
here that it will need to be developed in some way?
Lord Falconer of Thoroton: There is an issue
about whether or not a judge or judges should sit on the DCA board
or the Ministry of Justice board. I am more than happy to discuss
that. We need to discuss whether or not they should be on the
HMCS board as well as the DCA board or not on the DCA board. The
fundamentals of the concordat do not need changing, I do not think.
The question of whether somebody should sit on the DCA board needs
to be looked at but I do not regard that as going to the fundamentals
of the concordat because, as you know, basically what the concordat
says—and this is reflected in the Act—is that the
Secretary of State is under a duty to ensure that there is an
effective and efficient court system to support the carrying on
of the business of the courts as set out in part one of the Courts
Act. He is accountable to Parliament for the overall efficiency
and effectiveness of the administration of the court system. He
is responsible for ensuring that the public interest is served
in decisions taken on matters affecting the judiciary and he is
responsible for supporting the judiciary in enabling them to fulfil
their functions for dispensing justice. That fundamental principle
and obligation on the part of the Secretary of State for Justice
remains the same. There are responsibilities put upon the Lord
Chief Justice on behalf of the judiciary and they equally remain
the same. What the concordat was doing was establishing a new
relationship once the Lord Chancellor stopped being a judge. That
remains the position.
Q431 Lord Goodlad:
You have only rarely been on the receiving end of judicial review
challenges as Secretary of State for Constitutional Affairs and
the Lord Chancellor. Do you think the picture will be different
after 9 May?
Lord Falconer of Thoroton: I hardly dare tell
you this but I am from time to time judicially reviewed or if
not me the Legal Services Commission. I think I had 31 judicial
reviews, many of which did not get anywhere. I know the Prison
Service or the Secretary of State for Home Affairs in his capacity
as Prisons Minister gets a lot more than that, but the principle
that I currently deal with is, from time to time, the courts have
to make decisions about the granting or refusal of legal aid that
can potentially have an effect on legal aid funding and that can
in its turn have an effect on funding available to the courts.
The judges obviously make these decisions completely in accordance
with the law and the facts. So far as I am concerned, it gives
rise to absolutely no difficulty in my relationship with the judges.
I have never been aware whether or not a judge I have been speaking
to on a particular issue is involved in the hearing of an individual
case. I cannot believe that in relation to the prisons judicial
review, of which there are more, that would give rise to any practical
difficulty, but I am more than willing to discuss ways that we
can deal with that.
Q432 Lord Goodlad:
Do you think there will be any constitutional problems flowing
from the fact that the Secretary of State and the Lord Chancellor
will be routinely a defendant in judicial review claims?
Lord Falconer of Thoroton: No, I do not. I am
not sure "routinely" would be quite fair but I completely
accept there will be many more judicial reviews from the Ministry
of Justice in relation to prisons. Again, the problem is there
in principle already. I do not think you need to change the Constitution
to deal with that problem.
Q433 Lord Goodlad:
Do you think there are likely to be difficulties in having the
kind of regular dialogue with the Lord Chief Justice and other
senior judiciary over the administration of justice under the
Constitutional Reform Act when they are sitting in judgment on
the legality of policies and executive action taken by the Ministry
of Justice?
Lord Falconer of Thoroton: No. They are already
doing that to a certain extent in relation to legal aid issues.
That has given rise to absolutely no difficulty whatsoever, even
though those are important issues, even though they may be, as
it were, finding my department breaking the law in some way, and
even though those decisions may have an effect on conduct.
Q434 Lord Goodlad:
Do you think there is any risk that the Lord Chief Justice and
other senior judges with management roles who are in regular contact
with the Ministry of Justice will be put in a position where they
have to decline to sit in any case involving the Ministry of Justice,
for risk of breaching Article 6 of the European Convention, which
requires judges to be seen to be independent and impartial?
Lord Falconer of Thoroton: No, I do not think
so. We need to explore that right to the bottom but I do not think
that will happen because, in a whole variety of ways at the moment,
judges are involved in assisting in the management of courts.
There are presiding judges in regions; there are resident judges
in courts; there are judges at the centre sitting on a variety
of committees; there are judges in discussion with my department
on a variety of issues. It has not yet given rise to a problem
and I do not think it will give rise to a major problem.
Q435 Chairman:
Is that too on the agenda of the working party?
Lord Falconer of Thoroton: Yes, it is. The judicial
review stuff is a point that has been raised.
Q436 Baroness O'Cathain:
Both you and Lord Justice Thomas have said that there will be
more judicial reviews. Obviously they are going to cost money.
Therefore, the whole exercise is going to need additional funding
or is it going to get additional funding? Is some other part of
the legal system going to be deprived of funding? Has this been
cleared with the Treasury?
Lord Falconer of Thoroton: There has been a
transfer of funds from the Home Department to the Ministry of
Justice. The people who resist and pay for defending judicial
reviews at the moment are plainly in the prisons bit, if you are
talking about prisons judicial reviews, of the Home Department.
All of their budget has come over to me so it is not going to
create any more pressure on the courts' budget but there are judicial
reviews which are going on anyway at the moment. They are being
funded by the Prison Department.
Q437 Baroness O'Cathain:
I thought the implication was that there were going to be more
judicial reviews.
Lord Falconer of Thoroton: Unless I have misunderstood
Alastair's and Harry's question, it is basically that the Home
Department currently gets lots and lots of judicial reviews. They
will transfer from the Home Department to the Justice Department.
You are going to be the Justice Minister. That means the courts
will be deciding a lot more issues affecting your department than
previously. They are not suggesting the fact that there is a Ministry
of Justice means that there will be more judicial reviews in respect
of prisons. Harry is nodding.
Q438 Viscount Bledisloe:
It is your role as the Lord Chancellor to make certain that the
government is not infringing the rule of law in what it is doing.
The greatest number of cases where in recent times it has been
held that government is infringing the rule of law is in the Home
Office and in some of the areas that have been transferred to
you. Can you really see yourself saying to yourself, "I must
not do that, though that is what my department wants to do, because
if I did that I would be flouting the rule of law"?
Lord Falconer of Thoroton: Most certainly. I
think it is a good thing that these things come over to the Department
of Justice. It is an extremely good thing and entirely beneficial
to the Constitution that every minister has an obligation in relation
to the rule of law spelt out in section one of the Constitutional
Reform Act. The Lord Chancellor has a special obligation in relation
to that and I think it is a thoroughly good thing.
Q439 Viscount Bledisloe:
Do you see the litigant bringing one of these cases being delighted
to see that the Department of Justice whom he is suing is the
person who is responsible for the courts and the court system?
Lord Falconer of Thoroton: The litigant is already
willing to sue me even though I am in charge of the court system.
I do not think he will be deterred by that.
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