Examination of Witnesses (Questions 20-39)|
WEDNESDAY 15 OCTOBER 2003
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 obviouslyand
we have been through itthe 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
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
(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?
(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 envisageHayden may be better able to answer this
than Iit 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.
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 Governmentand 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 powerfulmeans 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
(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, historicallyand
I will be corrected immediately by a whole range of youthe
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
(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
(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 officerswho 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 viewmy 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 Lordsand
I may have misunderstood youparticipated 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 proposingand
it is a matter for the House of Lords to decide whether this proposal
is acceptedthat 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
(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 Servicenot
the judges, the Court Servicefor 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
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.