Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 20-39)



  20. Quite. Which brings me to my final question and that is, the Treasury must be very pleased with your first reforms because you will be able to spend more time with that which is inextricably bound up with their affairs because you will have more time. What, if any, part did they play in promoting change to the role of the Lord Chancellor in the light of the increased expenditure of the Department because obviously—and we have been through it—the Lord Chancellor could not spend that time because he did not have that time?
  (Lord Falconer of Thoroton) I am quite sure that the decisions announced on 12 June were not motivated by, as it were, financial management. Financial management is inextricably linked with a minister having more time to spend on traditional ministerial duties than that which the Lord Chancellor does, but the changes were motivated by a desire to, as we would see it, reform the constitution with the purpose of making the constitution more effective in delivering outcomes to the public in a way that did not in any way undermine the basic constitutional principles which we all operate.

  21. Which is a very satisfactory answer but you would say that! Would I be right in saying that your reaction to my final question is that the Treasury no doubt are very happy at the result of the constitutional plans that have been made?
  (Lord Falconer of Thoroton) The Government I am sure are.

  22. I did not mean you, I meant you generically.
  (Lord Falconer of Thoroton) The Government are pleased by the changes. I have absolutely no sense at all that it was driven by financial management issues at all.
  (Sir Hayden Phillips) May I just add one comment which is that, as you may know, over the next two years, the Department's staff numbers will rise from 12,000 to 20,000 when the unified administration of the courts comes into being and, beyond that, we have proposals for a unified tribunal service which will increase the numbers still further. I think the logic of that, however it is driven, the focus that is required on such an increasing service delivery task in the justice system is the other motivating force behind the creation of the new Department.

  Lord Acton: Thank you. That is very helpful.


  23. Just as a supplementary of that while we are still under the heading of "structure" because we will come back later to our report on devolution, there is a point arising because one of the things that struck us and slightly perplexed us was the disparity in size between the Scottish Office and the Wales Office. Am I right in thinking that that aspect would fall within your responsibility since this is to do with structure overall?

  (Lord Falconer of Thoroton) Do you mean the number of officials working for the Secretary of State for Wales and the number of officials working for the Secretary of State for Scotland?

  24. Yes.
  (Lord Falconer of Thoroton) That is a pay and rations issue for the Department for Constitutional Affairs. I would not envisage, unless there was some great issue about and I cannot imagine there would be, that the judgments about what the size of the numbers on Scotland and Wales affairs would be a matter for the Secretary of State for Constitutional Affairs.

  25. If so, it would be in terms of the remit as a structural point rather than policy.
  (Lord Falconer of Thoroton) No. I was saying that I cannot envisage—Hayden may be better able to answer this than I—it has certainly not happened so far, that I would remotely be making decisions about how many staff should be dealing with Scotland and how many staff should be dealing with Wales. That has not arisen as an issue and I cannot see that it would.
  (Sir Hayden Phillips) In those circumstances, I think it would be for me to deal with the head of the Scotland Office and the Wales Office and their two respective Secretaries of State directly, but not a matter for the Secretary of State for Constitutional Affairs to be involved in that.

Lord Elton

  26. It was reassuring to hear you say at the beginning that one of your prime functions would be to protect the citizens from an over-mighty government. That was at least half of the purpose for which Parliament itself was called into existence and remains a large part of its duty, in which I hope you are able to assist it. There are commentators who feel that, over the last few years, Parliament has diminished in this ability, a process not started, if I may say, since 1997 but in actual fact accelerated, in my view, since then. That being the case, can I come back to the issue raised by noble friend Lord Lang of Monkton and ask whether in fact being a wholly incorporated member of the Cabinet of the Government—and I think it is accepted any government is the principal threat to citizens of becoming over-mighty; it must be; its function is to control the Government from being too powerful—means that a Member of the Government is a party to the wish to become more powerful? I think that is the way it works. Do you not see any need for any conventional if not statutory barrier between you and the rest of the Government, or refuge from it, were a government of which any of your successors is a member to seek to take to it more power over the citizen than the constitution properly should allow?

  (Lord Falconer of Thoroton) The major constitutional bastion that the Lord Chancellor is is in relation to the independence of the judiciary but also as the Speaker of the House of Lords. The Lord Chancellor being an important bastion of freedom in those two respects is also, because he is a Member of the Government, for all the reasons that you have said, equally somebody who potentially, in the wrong hands, could be a real threat to freedom. So, that is the principle in relation to which the role should change, but you could only change the role in such a way that you provide proper protection for the judiciary in relation to their independence which will come, subject to Parliament, from the statute and also, as far as the House of Lords are concerned, in the arrangements they make for the appointment of their Speaker. Beyond those two roles, historically—and I will be corrected immediately by a whole range of you—the Lord Chancellor was not, as it were, the guardian of the constitution as a whole, he was a member of a government. So, I do not think, whatever view one takes about other constitutional changes taken by other governments, that the change that we are proposing in any way reduces constitutional freedoms because we are going to build in those other protections. We are not in relation to Speaker of the House of the Lords, that is a matter for our House to work out how it does it, but I imagine that they would be acute to ensure independence of the House in particular from the Executive.

  27. I am interested with the link you make to the Speakership and the Chancellor, which of course is about to be broken.
  (Lord Falconer of Thoroton) Yes.

  28. And, if I may, I will return to that in a moment. I do not think it is necessarily a satisfactory or at least an optimum answer to say that you are not making things worse. I would have thought that an opportunity of making them better was perhaps being missed. I hope that at least you might look at the position of the law officers who are, I understand, in some ways insulated. The Attorney General is insulated from the Government by convention and possibly, I do not know, by statute, so that what he says is not the Government speaking, it is an independent person speaking. I just wondered if you had no aspirations for yourself or your successors to some sort of status like that which will enable you with propriety and not embarrassment to draw in the reins of a government just about to bolt over the horizon.
  (Lord Falconer of Thoroton) I expressed myself badly. I would not put the case on the basis that it does not make things worse. I would put the case in relation to the changes as it makes things positively better because I do think it is wrong in principle that a member of the Cabinet can both chair the Supreme Court of Appeal in this country and is also the Head of the Judiciary. There is no other country that I am aware of, a constitutional democracy of any sort, that has such systems, so I think that makes it positively better. I think, in relation to my role when Secretary of State for Constitutional Affairs and not Lord Chancellor, I most certainly will have a role that is independent of politics and that is the role of guarding and safeguarding the independence of the judiciary in the context of a government. But, in relation to the rest of my role, unlike the law officers—who are rightly insulated because they have to express objective views about the law, it is an analysis of what the law is that their role involves and they have to give their views, it is an objective analysis, not a political view—my role, apart from the independence of the judiciary, will be to be as a politician in a government.

  29. You rightly give enormous weight to the importance of the independence of the judiciary, but I think you will agree that the judiciary is not the sole repository of the constitutional authority outside government.
  (Lord Falconer of Thoroton) I agree.

  30. Whose prime authority is Parliament from which the judiciary derives that authority through statute.
  (Lord Falconer of Thoroton) Yes.

  31. Your translation, when it takes place, will actually affect the parliamentary institution by de facto removing one of the two people who hitherto have ex officio been members both of the House of Lords and of the Cabinet. You said a moment ago that the Speaker of the House of Lords—and I may have misunderstood you—participated in the guardianship of the independence of government.
  (Lord Falconer of Thoroton) No, not the independence of government, the independence of Parliament.

  32. Independence from government.
  (Lord Falconer of Thoroton) I am sorry.

  33. And that you endorsed that. Therefore, it does not, I suspect, lie with Parliament to decree that the Speaker shall be a member of the Cabinet. I wonder if you recognise the potential quite serious change because one voice is much less powerful than half of two voices in such a, if I may so put it, Lords unfriendly atmosphere, that of a Cabinet dominated by the other place. Do you recognise this as an important shift of authority and, if so, as the Secretary of State for Constitutional Affairs, what would you propose to do about it?
  (Lord Falconer of Thoroton) The Speaker of the House of Lords is, by convention, the Lord Chancellor and he is also a member of the Cabinet. One of the reasons for proposing—and it is a matter for the House of Lords to decide whether this proposal is accepted—that the Lord Chancellor's role change is in order that the Prime Minister of the day should not appoint the Speaker of the House of Lords because that is in effect what happens at the moment and that is contrary to a traditional view about the separation of powers, and again I would put that forward as a positive good thing rather than a bad thing. As to the point about whether it undermines the authority of the House of Lords that that means there is not a guarantee of at least two Cabinet Ministers in the House of Lords, well, the consequence is that there will be, I suspect, no guarantee of at least two Cabinet Ministers in the House of Lords. Whether that will undermine the authority of the House of Lords, I suspect that it will not. There will always be at least one and I suspect more, but that is really a matter for the Prime Minister rather than for one individual member of the Cabinet. Should the Secretary of State for Constitutional Affairs see his role as seeking to ensure that there is more than one member of the Cabinet in the House of Lords, if he or she thought that was right for the constitution, then obviously he or she should argue that, but I would not see his or her role being, as it were, the guardian of the number of Cabinet Ministers in the House of Lords.

  34. I notice that you look to future generations to carry out the argument without actually telling us what your own view on that particular issue will be.
  (Lord Falconer of Thoroton) Of course from my point of view, there being two members of the Cabinet in the House of Lords looks a good thing from the point of view of the way that the House operates.

Lord Jauncey of Tullichettle

  35. Lord Chancellor, can I take you up first of all on two small points which have arisen during your early discussions with Lord Acton and Lord Elton and then turn to the question of independence of the judiciary. Lord Acton asked about financial consideration. It is the case that the creation of the new Supreme Court is going to cost a colossal amount of money, is it not?

  (Lord Falconer of Thoroton) It will cost some millions of pounds. I think that Lord Acton's questions were in the context of a budget that was in excess of £2 billion a year and I think that Lord Acton's questions were much more directed to the idea of a huge budget which was increasing not in terms of lack of control but there was going to be more and more that was done. I think the scale of the cost of the Supreme Court, which must be properly funded to be effective, is as a proportion of that £2 billion quite small.

  36. Nevertheless, you have to start from scratch really, have you not?
  (Lord Falconer of Thoroton) Yes, we have. Well, we have to start from scratch in terms of a building, in making sure that a building is properly tooled up to be a supreme court that we, as a nation, can be proud of.

  37. With a library and all that?
  (Lord Falconer of Thoroton) Exactly.

  38. To Lord Elton, you remarked about the position of the Lord Chancellor being the Chairman of the Appellate Committee and the Head of the Judiciary really as something which was not particularly commendable. That could have been solved very simply by the Government and the Lord Chancellor deciding that it would be inappropriate for him to continue to sit but that he would remain not as Head of the Judiciary but remain responsible for the legal matters and the judicial appointments which he had previously been doing.
  (Lord Falconer of Thoroton) In relation to the first part, that is what we have done because I have indicated that I will not sit as a judge which, although I am entitled to. And indeed I am the Chair of the Judiciary Committee of the House of Lords and, if I were able to sit, I have made it absolutely clear that I will not sit. That does not, I believe, solve the essential lack of separation of power that exists. Even if I do not sit as a judge, I am the person who appoints all the judges. That can only be done on the basis that it is done entirely independently of the Government. Equally, as Head of the Judiciary, I am responsible for ensuring that the judges' views in relation to issues about judicial pay, resources, etc, etc, etc are properly represented within government. I am, as Lord Chancellor in that capacity, at one removed from a large number of political concerns and what is at the root of the 12 June changes is the proposition that that is ultimately not maintainable, not just because a cabinet minister should not appoint all the judges but also the cabinet minister who is responsible, for example, for the Court Service—not the judges, the Court Service—for example, for Legal Aid, for example for the constitution has to be part of a government that is elected and he must be part of that government in a political sense.

  39. So far as the appointment of judges is concerned, surely, over the years, the convention has been, has it not, that the Lord Chancellor took advice from the judiciary. It must have been very rare for the Lord Chancellor to have gone out on a limb and appointed a senior judge simply because he had, one might say, a notion to do so without the agreement of the senior judiciary. Would that not be fair to say?
  (Lord Falconer of Thoroton) Of course, every Lord Chancellor and my immediate predecessors have consulted extraordinarily widely but all of my predecessors and myself take the job incredibly seriously and it means, in relation to every single judicial appointment, particularly the senior ones, that we have to be completely satisfied that the appointment is an appropriate one and I am afraid that the advice that one gets is of the highest standard but is often contradictory and so the Lord Chancellor, from my experience and from the experience of my predecessors and from speaking to members of the senior judiciary, has a very, very real responsibility in relation to the appointments that he makes.

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