Examination of Witnesses (Questions 440
- 459)
TUESDAY 1 MAY 2007
RT HON LORD FALCONER OF THOROTON QC
Q440 Viscount Bledisloe:
The initial movement for this change came because the Home Office
was said to be overworked and there was more than the Home Secretary,
senior officials and senior ministers could cope with. Are you
at present underworked?
Lord Falconer of Thoroton: No, I am not underworked.
Q441 Viscount Bledisloe:
Are you not going to become overworked when you get this?
Lord Falconer of Thoroton: No, I do not think
I will be. I would not have agreed to these changes unless I was
a strong supporter and proponent of a Ministry of Justice. I am
enthusiastically in favour of the idea of bringing prisons, probation
the running of the court system, sentencing policy and criminal
law all under one roof. It is extremely important to reach an
agreement with the judges which I believe we will do but there
is such a prize and an opportunity in terms of the good administration
of justice to obtain a Ministry of Justice. Yes, there are issues
in relation to the quite legitimate focus on the part of the Secretary
of State for Home Affairs on issues of crime and terrorism but
there are fundamentally good reasons as well, which I strongly
support and have supported for some considerable time, for the
creation of a Ministry of Justice. Let us get the detail of how
we deal with the judges absolutely right and to their satisfaction
but let us not lose sight of the overall benefits of doing this
as well.
Q442 Viscount Bledisloe:
Assuming there is a case for a Ministry of Justice and the continuance
of the Home Office, why should not the Lord Chancellor not be
a third, detached person who fulfils neither of those roles?
Lord Falconer of Thoroton: Because I strongly
believe that part of the justification for the Ministry of Justice
is that the courts, subject to proper safeguards and with a minister
with a special responsibility to protect the administration of
the courts and the independent judiciary, should be there in the
Ministry of Justice as well. In my view, that has to be an integral
part of it and that is why the government made the decision to
go ahead on 9 May with this Ministry of Justice.
Q443 Chairman:
We can see you are very excited about the Ministry of Justice.
Lord Falconer of Thoroton: Yes, I am very supportive.
Q444 Chairman:
What will happen to those important constitutional affairs for
which you are presently responsible? Will they become orphans?
Lord Falconer of Thoroton: No, they remain in
the Ministry of Justice and it is a thoroughly good thing that
they do. Issues like human rights, freedom of information, the
Constitution of the United Kingdom are inextricably linked, I
think, with the rule of law and the running of the courts. It
is the right place for them to be. It is a job of substance. It
is a big job. It is a bigger task than being just a Department
for Constitutional Affairs. I do not want in any way to underestimate
it but the size of it does not mean it is the wrong organisation
of government and does not mean it is wrong in constitutional
terms. Far from it. I think it is right.
Q445 Viscount Bledisloe:
Making that very interesting connection, if in an uncertain future
another machinery of government change is proposed to dismember
the constitutional issues from the court system and the Ministry
of Justice, you would be very unhappy?
Lord Falconer of Thoroton: I am in favour of
the current arrangements.
Q446 Viscount Bledisloe:
The current arrangements start on 9 May.
Lord Falconer of Thoroton: Sorry. I stand corrected.
You are absolutely right. I am in favour of the arrangements running
from 9 May.
Q447 Baroness O'Cathain:
If you are so enthusiastic about it, what is your objection to
having legislation putting the framework in a very solid form
so people could see exactly what is happening?
Lord Falconer of Thoroton: Because I do not
think we need legislation. The fundamental, constitutional change
which occurred was in 2005 where the Lord Chancellor ceased to
be a judge. He was rightly subjected to a number of duties and
obligations and continued the obligation under the 2003 Act. That
is the right constitutional arrangement. I stand by that as being
absolutely the right arrangement. I am against ring fencing for
the reasons I have given. Therefore, legislation is neither required
nor appropriate.
Q448 Baroness Quin:
Perhaps I can also follow up the concern about your workload.
You have just been asked by the Chairman about the constitutional
issues. You are very much attached to the idea of retaining all
those, including things like electoral reform, devolution and
so on, within the Ministry of Justice rather than, say, the Cabinet
Office or some other part of government?
Lord Falconer of Thoroton: Yes, I am. I think
the arrangements are correct. There are objectivity issues about
courts obviously. People need confidence in relation to electoral
administration, in relation to the working of the Constitution
but there is a degree of objectivity which I think is most appropriately
to be found in a Ministry of Justice.
Q449 Baroness Quin:
In terms of the practicalities of the change, because obviously
this change is coming very soon, are you confident that the new
arrangements will ensure the necessary coordination? I ask this
question having been in the Home Office myself and remembering
the importance of, say, weekly meetings between ministers and
the heads of relevant departments so that there was a good flow
of communication. We have seen in recent issues how important
that is and how difficult it can be if there is not sufficient
communication and coordination. How is this going to be ensured
over this rapid changeover?
Lord Falconer of Thoroton: In relation to criminal
justice, those very important issues of coordination have to some
extent been addressed by setting up the Office of Criminal Justice
Reform which is trying to operate trilaterally across the three
relevant criminal justice departments. We need to promote and
deepen trilateralism, which I think will become easier under a
Ministry of Justice. In addition, it is not just the criminal
justice issues but there are, for example, issues concerning relations
between the prison estate and the Immigration and Nationality
Directorate in so far as they are responsible for the immigration
estate. We need to be absolutely clear that good relations, proper
working arrangements in respect of those issues, have to be promoted.
I am very convinced of that.
Q450 Baroness Quin:
Will there be regular meetings between ministers and heads of
department in both the Home Office and the Ministry of Justice
working together?
Lord Falconer of Thoroton: Yes. Obviously the
working arrangements need to be sorted out between the various
departments but I would envisage yes, there would be. For example,
the National Criminal Justice Board brings together a whole range
of heads of agencies irrespective of which department they may
be connected with. It also brings ministers there as well. That
approach of bringing together agencies that interact with each
other and ministers who interact with each other, separate from
any Cabinet Committee system, is extremely important. I think
the Ministry of Justice gives an opportunity to promote that.
Q451 Baroness Quin:
In terms of European Justice and Home Affairs Councils, how are
the arrangements going to work there both at ministerial and official
level?
Lord Falconer of Thoroton: In relation to European
relations, the Justice Ministry will deal with criminal procedure,
sentencing issues and criminal law issues. The Home Department
will continue to deal with terrorism and precharge issues in dealing
with Justice and Home Affairs Councils. Obviously the Ministry
of Justice will also continue, as they have done in the past,
to deal with civil justice issues. You will know from your experience
that the justice-interior split is quite well known. The response
of a variety of European ministers is that they understand what
has happened and are keen to work with the new arrangements.
Q452 Lord Windlesham:
Can we look at the relationship between the two Houses of Parliament
and your own situation as a peer? Can you envisage responsibility
for constitutional reform being the responsibility of a new minister?
In short, do you think there are going to be some changes between
the two Houses?
Lord Falconer of Thoroton: The Lord Chancellor
being in the Lords is obviously historically what has happened
over many hundreds of years. I do not think a Lord Chancellor
with responsibility for constitutional reform in the Lords is
remotely unusual and it has occurred over a considerable period
of time. Prisons, probation, criminal law and sentencing, as you
know much better than I do, have traditionally been in the Home
Office and the Secretary of State for Home Affairs has obviously
always practically got to be in the Commons. What judgment anyone
makes in the future about where the mix should be is a matter
for Prime Ministers to come. A judgment will be required. I do
not think it is impossible for the job to be done in the Lords.
Whether at a particular time it is the right thing or the wrong
thing depends upon the circumstances at the time.
Q453 Lord Windlesham:
The circumstances at the time might include individuals. One perhaps
in the whole of your office at the moment might be particularly
suited to the House of Lords and might be brought in by the Prime
Minister from outside the Cabinet and that should be relatively
easy in the Lords but not at all in the Commons. That narrows
the field.
Lord Falconer of Thoroton: It is very difficult
to speculate on what a future Prime Minister might do in relation
to it. You are right. You can bring in somebody into the Lords
from outside under the current arrangements. The contrary argument
obviously is that there are issues of public expenditure and issues
that have considerable effects. Prisons, probation and crime are
issues in some ways more suited to the Commons. A balance has
to be struck.
Q454 Chairman:
If you were to give advice to a future Prime Minister as you have
to the present one, what advice would you give?
Lord Falconer of Thoroton: On what particular
topic?
Q455 Chairman:
On the very topic we are talking about.
Lord Falconer of Thoroton: It would depend upon
the circumstances of the time.
Q456 Chairman:
You would have no subtle view?
Lord Falconer of Thoroton: I think it would
depend.
Q457 Lord Windlesham:
It does allow a degree of flexibility for the Prime Minister which
no doubt the Prime Minister greatly appreciates.
Lord Falconer of Thoroton: Yes, I agree with
that. I am all for flexibility.
Q458 Lord Woolf:
Clearly you thought it was important that there should be the
agreement of the Chief Justice in principle to the change. Is
it right to stress that agreement in principle if in fact the
principle was made subject to his being satisfied on requirements
when we do not know yet whether the requirements are going to
be met or not?
Lord Falconer of Thoroton: I emphasised that
because if it had been said that this is not doable that would
no doubt have had a considerable influence on what happens. What
the Lord Chief Justice is saying—I do not want in any way
to understate the importance of the process that is going on—is,
subject to safeguards, this is doable. I know what he has in mind
in relation to it. I knew what he had in mind at the time of the
discussions. It involves work, detail, getting down to reaching
an agreement but, on the basis of what he said, I believe, as
I said publicly before, this is doable but it is very important
that agreement be reached.
Q459 Lord Woolf:
You have excluded from the working party safeguards which certain
members of the judiciary think are necessary.
Lord Falconer of Thoroton: You are absolutely
right. What I said was I am not in favour of ring fencing. I do
not believe you need to change the basic statutory or concordat
arrangements or the basic role of the Lord Chancellor. That is
the basis on which I am looking at it and the working party has
been set up on that basis.
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