Examination of Witnesses (Questions 40
- 59)
TUESDAY 23 OCTOBER 2007
Rt Hon Jack Straw
Q40 Baroness O'Cathain:
Because you are talking to them at the moment.
Mr Straw: I know. Sorry, I do not want
to put words into their mouth. They are working very cooperatively
on this; whether they would prefer a different approach is a matter
I do not want to answer for them. But they are working very cooperatively
on this and if we can reach agreement I think that is better.
Q41 Viscount Bledisloe:
I am glad to see, Lord Chancellor, that the government has ruled
out the idea of American-style confirmation hearings for judges.
Do you contemplate any other form of parliamentary involvement
in the judicial appointment process and how could that be without
encroaching on the independence of the Judicial Appointments Commission?
Mr Straw: There is a consultation on
this whose publication is pretty imminent and what we sought to
do in that document is obviously to analyse where we are at the
moment. There is a good deal of foreign example given, which I
thought was important, from major EU and OECD countries, to look
at what happens elsewhere, including in respect of America. My
starting point on this, I may say—and I am still on record
as saying this—is to allow what is in the Constitutional
Reform Act for some years before you change it, and the Lord Chief
Justice in a lecture he gave in Kenya a couple of months ago made
some interesting observations about this, where he said that the
Executive should not be involved directly in making the appointments,
and indeed I am not, as you know, because the power I have is
very much a back-stop one and working with the senior Judiciary
not against them, save in respect of the very senior positions—and
I am paraphrasing what the Lord Chief said—where he said
words to the effect that it is important that at the very least
that people who hold these very senior judicial appointments should
have some broad confidence of the Executive, and I think that
is true. And that does not detract from their independence in
any way, so it is squaring that circle. This is an issue, that
if you were to go down the route of some parliamentary involvement
it would have to be post-appointment, it would not be pre-confirmation.
Q42 Viscount Bledisloe:
May I venture to suggest that you are amalgamating somewhat the
Executive and the Parliament. I agree obviously that you have
a role in that you have a right to approve or disapprove recommendations;
I was asking more whether you saw any parliamentary involvement.
Mr Straw: All I would say is that you
could have a role. I expressed my personal opinion but we have
said we will have a consultation about this. We are going to give
a good deal of information about what happened in other countries.
You could do, but whether it is desirable or not is another matter
and we will look forward to the current weight of opinion. But
my assessment of the current weight of opinion is that people
think it is not such a good idea, but if we are opening up a constitutional
debate we need to be open to other people's ideas even if we are
not persuaded of them at the moment.
Q43 Chairman:
You will have noticed that this Committee was distinctly unenthusiastic
about the idea of parliamentary confirmation hearings.
Mr Straw: Yes, I did, and I think we
will find that is probably true the other end, but since practices
vary in OECD countries it is quite important that this should
be brought out, and if both Houses come to the view that it is
not desirable that is really important because it is their decision
then, not the Executive's for them.
Q44 Lord Rowlands:
Can we go back a fraction on the question of the role of the Court
Service and its status. As a former member I took a very active
interest in the state of Her Majesty's courts, my Crown and County
Court—they were part of the community fabric—and I
hope you would not come across to any decision which would stop
a Member of Parliament, for example, making representations about
the state of the buildings or the performance of the court at
any particular time.
Mr Straw: Lord Rowlands, if I may say
so, that is a very important point. If you take the issue of the
state of buildings, of amalgamations, court closures, these ultimately
are political decisions and I think that the Court Service which
was an NDPB at arm's length which has to make those decisions
would find that extremely uncomfortable. I also think that the
system would not work. There are five Members on this side, Lord
Holme, who have served quite a long time down the other end, and
with respect to each of them if there had been a proposal to close
the courts in your areas, regardless of whether there was an NDPB
officially making that decision, it would have been raised in
the House of Commons, the minister responsible would have been
on the rack and ultimately, whatever the formalities, it would
have had to go to ministers for a decision. So I want to make
sure that in any rearrangements of the relationship between the
ministers, the department, the Court Service and the Judiciary
we reflect the reality of where decisions ought to be made and
the difference between the decisions which are ultimately political—which
of course impact on the Judiciary, such as where you put courts.
Let me say with the public in East Lancashire there is quite an
argument going on in respect of the future of the courts and their
physical condition for some time, and I am expected to sort it
out, as a local Member of Parliament.
Q45 Lord Smith of Clifton:
Lord Chancellor, if we could move on to the Green Paper, is there
an underlying philosophy or intellectually coherent thread which
ties together the proposals in the Green Paper on The Governance
of Britain and, if so, how would you define it, please?
Mr Straw: The answer is yes and you would
expect me to say that; it would be a career shortening answer
if I said no. How would I define it? In a nutshell it is about
making the Executive much more accountable to Parliament and Parliament
more accountable to the people, and I really mean that. The accountability
of the Executive has shifted over time compared with when I was
serving as a special adviser in the mid-1970s Labour Government—ministers
and officials are infinitely more accountable than they were.
For example, there were virtually no Select Committees—there
was the old Trade and Industry one and there was a science one
and for two years there was an education one and there was also
a Public Accounts Committee, but ministers with whom I worked,
Barbara Castle and Peter Shaw and their juniors, never ever had
to go before a Select Committee and have a grilling—ever.
Yes, from time to time they went to the Commons and answered questions
but it was a "thank you very much" and a rather benign
session, but I have been to less than benign sessions—two
hours being grilled is a very different circumstance from the
repartee of the Commons. Both are important, but that is freedom
of information which has made ministers much more accountable,
with many other changes. But it is still the case that in some
areas ministers are not as accountable as they should be and the
Prime Minister is very alive to that, which is why he made, to
many people's surprise, the whole constitutional agenda such a
key part of his set of priorities, worked on it for some months
before his election as Labour Leader and then incoming Prime Minister,
and it was the first big announcement he made. That is what we
are trying to achieve.
Q46 Lord Smith of Clifton:
Lord Chancellor, I think many of us were enthused by that statement
and the subsequent Green Paper. Since then there has been a perceptible
lack of momentum in that—it has been "Events, dear
boy, events" and all that—how do you see that momentum
being maintained?
Mr Straw: I beg to differ because there
has been no lack of momentum in my department and I am sitting
with some officials behind me who I could bring to the stand and
ask them whether they have been doing nothing since 3 July, and
I promise you that they have not been. What has been going on
is that there has been very heavy work on a series of consultative
documents on war powers and treaties, upon the appointments to
the Judiciary, elsewhere in government, on rights and protest
and a huge amount of work going on in respect of the British Bill
of Rights and Responsibilities. It is true that there have not
been any major announcements, except that we published two statements
at the end of July. One was a consultative document in respect
of the role of the Attorney and the other was the draft Queen's
Speech, but I promise you, Lord Smith, that it is a great deal
of work and that will continue.
Q47 Lord Rowlands:
In that case can you give us an update on where the Constitutional
Reform Bill stands? We know there have been several consultations
but are we going to get this Bill published in a draft and are
we going to have pre-legislative scrutiny with a Bill of this
importance? Can you give us an idea first of all of timescales?
Mr Straw: The publication of three of
these consultative documents is pretty imminent, and I think the
consultation period lasts for three months so by the turn of the
year they will feed into the preparation of the Constitutional
Reform or Renewal Bill, which will be published in the New Year—I
cannot give you an exact date—and that will be published
in draft and for sure there will then be a period of consultation
and pre-legislative scrutiny. The current aim is to have that
include the provisions in respect of the Civil Service which have
been the subject of quite longstanding consultation, so we are
not intending to publish a further consultation on those because
you will recall the response to the Select Committee at the other
end. But the government back in 2005 or 2006 published its own
draft Bill in respect of the Civil Service, so that forms a template
for that part of this draft Bill.
Q48 Lord Rowlands:
That touches upon a point about which the Committee have been
rather concerned, that this sort of jumbo Bill, which would have
the ratification of treaties, the role of the Attorney General
and the Civil Service Bill all rolled into one is really not a
satisfactory way to proceed, certainly not including the Civil
Service Bill.
Mr Straw: It would include the Civil
Service Bill.
Q49 Lord Rowlands:
But we are saying why?
Mr Straw: Why? Frankly, because these
are cognate in the sense that they are all to do with constitutional
renewal and it makes sense that if you want securer form to have
them in one Bill rather than in a large number of Bills.
Q50 Lord Rowlands:
They are very disparate issues.
Mr Straw: They are and they are not.
With great respect they are within the overall framework of making
the Executive more accountable to Parliament and perhaps we should
call it that, and reducing the effect of the prerogative. So rather
than calling it the Constitutional Reform Bill maybe I should
call it the Executive Accountability Bill because that is what
it is all about. Then you will have different parts of it. Could
I just make this point to Lord Rowlands to try to persuade him
that this is a better way of proceeding? First, it would be faster
because there would be a draft Bill, but everybody who has had
experience of legislation knows—and there is a former Chief
Whip sitting there—that five separate Bills takes a lot
longer than five cognate subjects put into one. It is a choice
but if there is a broad consensus behind this, as I think there
will be, it is better to have it in one Bill. The other point
is this—and this is a point that has been made against me
for having one Bill—that it would be very wide in scope,
so if others wish to raise other issues on the constitutional
change and accountability of the Executive they could do that
and these will be in scope. So the paradox of this is that there
will be greater opportunity for both Houses to discuss other issues
which are within that overall framework.
Q51 Chairman:
So you see it as a positive advantage that it is a portmanteau
Bill and people can put other things in the portmanteau?
Mr Straw: I do.
Q52 Chairman:
So that might not be compatible with the government wanting urgently
to get the Bill through.
Mr Straw: That is the point made by business
managers to me so I hope that the business managers do not hear
what I am saying. It happens to be true and we are alive to it,
but I think overall it is better to have it in one Bill than a
number.
Q53 Lord Lyell of Markyate:
If I may come back quickly? Lord Chancellor, you keep saying that
all these three aspects are to do with the Executive. You, Lord
Chancellor of Britain, are not saying that the Crown Prosecution
Service with its independent prosecuting duties is part of the
Executive, are you?
Mr Straw: No, I have never said that.
Q54 Lord Lyell of Markyate:
You have just said it is part of a Bill to deal with the Attorney
General—
Mr Straw: I am sorry. It was not I who
mentioned the Attorney, with great respect, I do not think. I
talked about the Civil Service, war powers, treaties—
Q55 Lord Rowlands:
The Attorney General will not be in this jumbo Bill?
Mr Straw: It is not a jumbled up Bill,
Lord Rowlands.
Q56 Lord Rowlands:
A "jumbo" Bill.
Mr Straw: It is a coherent Bill. I really
resist that description. It is wholly coherent Bill, or will be,
to do with holding the Executive better to account.
Q57 Lord Lyell of Markyate:
Then why does the Attorney General come into it?
Mr Straw: On the Attorney that consultation
is continuing—it may or may not. I have never ever suggested
that the CPS is, at the point where it is making decisions about
prosecutions, an arm of the Executive—it is obviously a
department of government but it is at arm's length from the Executive,
and the announcements that Baroness Scotland made on 3 July actually
strengthen that independence.
Q58 Lord Lyell of Markyate:
They did not actually. No Attorney General sitting in this room
and none that I can think of has ever taken a prosecuting decision
which was not required by statute. So she just does not do it.
The Prime Minister said she did and he told her to say it but
it was wrong.
Mr Straw: It was a more complicated process
than the Prime Minister telling her to say it, let me tell you.
Chairman: We have to move on. Lord Rowlands.
Q59 Lord Rowlands:
Can I finally press you on the question of legislative scrutiny?
First of all, to have an assurance that all constitutional issues
of any significance will be the subject of pre-legislative scrutiny?
Secondly, we have been very disappointed, and in fact we have
relayed our disappointment to the former Leader of the House about
the number of Bills that have been subject to pre-legislative
scrutiny. I know that the principle has been accepted but the
actual practical aspects of it, very few Bills have actually been
subject to pre-legislative scrutiny. Can we have a principle about
how many Bills and the type of Bills that are going to be subject
to such scrutiny?
Mr Straw: On the first it is our hope
and intention that Bills in this area will be subject to pre-legislative
scrutiny, and I cannot think of any area which would not be. It
is not in my gift to give an absolute promise that there are no
circumstances in which we would not introduce a constitutional
change without pre-legislative scrutiny, but it obviously makes
sense to have it. Actually the record on that has been pretty
good; if you look at going back over the last ten years in this
field on the whole we have consulted widely on these issues.
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