Select Committee on Constitution Minutes of Evidence


Examination of Witnesses (Questions 40-59)

LORD FALCONER OF THOROTON AND SIR HAYDEN PHILLIPS GCB

WEDNESDAY 15 OCTOBER 2003

  40. Why should a commission find it easier to reach a decision on the basis of conflicting evidence than the Lord Chancellor has?
  (Lord Falconer of Thoroton) I do not think that they necessarily will find it easier to make the decisions but they are not a member of the cabinet doing it.

  41. If it were the case that your successor was not in the Lords but in the Commons, is it not possible that he or she would find it much more difficult to stand up for the independence of the judiciary if he were simply a minister against some possibly rather overbearing fellow minister in the Cabinet whereas, at the moment, the Lord Chancellor, as you say, has to some extent an independent role and is in a far better position to look after the judiciary than would be a cabinet minister whether it is in the Lords or in the Commons?
  (Lord Falconer of Thoroton) I make it clear that the Secretary of State for Constitutional Affairs, subject to Parliament agreeing to this, will have an independent role in standing up for the judiciary. I do not believe that conventional politicians are not just as aware of the importance of that as somebody who has had a background in the law as all Lord Chancellors have had. The ability of the individual minister or Lord Chancellor to be effective with his fellow ministers I suspect has changed over the years by reference to the identity of the holders of the various posts. I am not talking of the recent past but hundreds of years of history. I think the critical thing is that it should be absolutely clear that the relevant minister, whether he be Lord Chancellor or Secretary of State for Constitutional Affairs, has a responsibility independent of his political role to ensure the independence of the judiciary insofar as he can.

  42. That presupposes, of course, he is not overborne by fellow members of the Cabinet.
  (Lord Falconer of Thoroton) Of course, but you have to be marked out by something to have that role; statute in the future, the peculiar role of the Lord Chancellor in the past. As far as the question of how effective the Lord Chancellor or Secretary of State for Constitutional Affairs is and not being overborne by members of the Cabinet depends on the special role which will continue but also on the personalities involved.

Lord Fellowes

  43. Hitherto Lord Chancellors had, I think it is fair to say, a unique constitutional relationship with the Sovereign in such matters as royal peculiars, the delegation of visitorial powers and functions, and advice on appointments. Do you visualise that relationship changing? In particular Lord Chancellors have a right of offering formal ministerial advice as a member of the Government—do you think that will have to change now?

  (Lord Falconer of Thoroton) We have issued a consultation paper in September about these things. We are very keen to try to ensure in relation to those particular things of which you have given examples, the visitorial role, the royal peculiars, that if there is a desire and merit in the

  Secretary of State for Constitutional Affairs continuing with that role—because the consultation paper is posited on the proposition the Lord Chancellor is abolished—we would be more than happy to do that. We are very keen to hear people's views in relation to that. I suspect the Secretary of State for Constitutional Affairs will in some respects have a particular role in those sorts of things but I cannot tell you what they are because we need to consult very carefully about those before any decisions are made.

  44. Something which was aired on 30 June was the Privy Council Appellate Committee and the relationship with the Church. How do you see those two relationships going forward with the Secretary of State?
  (Lord Falconer of Thoroton) When you say the Privy Council Appellate Committee, do you mean the Judicial Committee of the Privy Council?

  45. Yes.
  (Lord Falconer of Thoroton) Insofar as that makes decisions about devolution issues, issues between the Westminster Parliament and the Northern Irish, Scottish and Welsh devolved bodies, we would envisage that that be transferred to the Supreme Court. Insofar as dealing with Commonwealth appeals is concerned, we would envisage that would go on for as long as the Commonwealth would wish that to go on. New Zealand is in the process of breaking the link with the Privy Council; there is an Eastern Caribbean peripatetic Court of Final Appeals which is in the process of being created I believe, though it is not yet at the point where it is about to break the link. There are a number of dependencies—Turks and Caicos and others—where appeals from time to time come and I would imagine that would continue, so there would still be a role for the Judicial Committee of the Privy Council and we will continue it for as long as those Commonwealth countries and dependencies want it. As far as the role of the Church is concerned, I am I think the person who appoints to more livings than any other individual apart from the Sovereign possibly and the Church itself. Again, we have asked how people want that to be dealt with and I think there are a number of schools of thought about how it is best dealt with, and we will earnestly seek to come to the arrangement which is best for the Church in that respect.

  46. You are not prepared to offer any opinion yourself as to the best way forward?
  (Lord Falconer of Thoroton) I have been doing the job for four months, I do not feel well enough informed to express a view because that might affect the consultation. What we have to try to do is come to the right decision in relation to it on the basis of what all the consultees say.

Baroness Howells of St Davids

  47. My question was asked by Lord Fellowes but I will ask a supplementary to it. Could the small islands have any financial help with setting up their appeals and the new process? Has there been any discussion about that because the islands I come from, although they are making attempts to do this, find it quite costly?

  (Lord Falconer of Thoroton) We, as a department, have historically—and I wish to continue this historical relationship—sought to do all we can to support Commonwealth and common law jurisdictions in setting up courts and supporting their existing courts. The extent to which that support might come in terms of IT or intellectual support or other forms of support by sending people to help that setting up we are very keen to explore. I am not in a position to offer, I am afraid, great amounts of money but we are very keen to have a relationship with such courts and to help as much as possible with the set-up.

  48. I am sure you will be watching developments on St Kitts and Nevis.
  (Lord Falconer of Thoroton) As far as the Privy Council is concerned, they know the Privy Council will continue for as long as they want, and that is entirely a matter for them as to how long it goes on. Some of them are in the process of setting up their own court of appeal, as I say.

Chairman

  49. Moving on to what George Bush would call the "vision thing" and how you view the constitution developing, indeed how you view the constitution. You mention in your paper and you have referred to it already, you are the first Secretary of State with responsibility for the constitution and your paper stresses the significance of the constitution and your department is responsible for constitutional change. You also refer to the evidence of your predecessor before us when he said the Government had no all-embracing definition of constitutional measures. In fact what your predecessor told us was he could not tell us what the constitution was, the Government did not have a definition of the constitution. You are now the Secretary of State for the constitution, can you tell us what you are responsible for?

  (Lord Falconer of Thoroton) This Committee has produced a definition of the constitution which you will know, but let me read it: "A set of laws, rules and practices which create the basic institutions of the state and its component and related parts and stipulate the powers of those institutions and the relationship between the differing institutions and between those institutions and the individual." I think that is an impressive, accurate definition of what constitutes a constitution but inevitably, because it is not possible otherwise, it is question-begging. What are the "component and related parts"? Is it all the powers of those institutions or just some of the powers? It is not very helpful for me to pick away at it. I do not think there is any comprehensive definition of the constitution one can produce which would be entirely satisfactory. It is to some extent an academic exercise to do that though it is an exercise which is useful to embark upon. The constitution is I believe dynamic and changing and there needs to be to some extent a decision on a case-by-case basis as to what changes are required, but ultimately you are looking for arrangements which have credibility and effectiveness as far as the governance of the nation is concerned in the eyes of the public which strengthen democracy, which involve public engagement, and which I believe enhance people's trust in the institutions of the state.

  50. While we are grateful you recognise we know what a constitution is, I take it you are saying you have some idea as well. The reason it is so important you have at least some idea of what a constitution is is because if you are Secretary of State for the constitution you need to have some idea of the contours of your responsibilities relative to other members of the Cabinet.
  (Lord Falconer of Thoroton) Of course.

  51. That is the essential point, that is why I said your responsibilities relative to others, which has not come up before because it has been spread amongst different officers in the Cabinet.
  (Lord Falconer of Thoroton) That it is why it was quite important to prosaically go through at the beginning, in answer to your first question, the nine specific areas because, you are absolutely right, on the basis of some definitions of the constitution one could be in every single activity of government, and there does need to be some definition of what the Department does and I think those nine headings are quite important in that respect.

  52. So we know what the constitution is and we know what the contours of your responsibilities are relative to others, the question is really then where are we going? You have just mentioned your powers and the sort of things which guide you in constitutional change, and how these changes would serve the public is the essential criterion against which you will judge change. Your predecessor in a debate in the House last December enunciated three principles which would guide the Government and you have expanded in your comments then on what you have in the paper. Is there a clear enunciation by Government of the principles that guide constitutional change and, a related question, where do you think it is taking us? In other words, what sort of constitution do you envisage for the United Kingdom in five or ten years' time?
  (Lord Falconer of Thoroton) On the question of the principles, on two separate occasions the answers I have given to this Committee indicate what I think the broad principles are. They are about enhancing credibility and effectiveness, strengthening democracy and public engagement and enhancing people's understanding of and trust in the arrangements. Where does that mean we are going in the next five years in relation to constitutional change? The basic parameters of our constitution are not going to change in those five years. They are democracy, the sovereignty of Parliament, the independence of the judges, the freedom of the citizen. What does that mean in practical detail? It means changes I suspect in relation to the House of Lords, it means changes in relation to the role of the Lord Chancellor, which is a significant change I believe in terms of the relationship between the judiciary and the executive. It also means differences and changes between the executive and the House of Lords. It is those sort of detailed changes one would envisage in the next five years rather than anything remotely concerned with the foundations of our constitution.

  53. How do you get a balance? You have stressed today the purpose of the constitution is to protect the citizen from an over-mighty state but at the same time there must be some facility for the majority will to be expressed and ultimately to be accepted. It is where you get the balance between those two in any liberal democracy. What I am trying to get a sense of is how you see that balance emerging and how your proposals relate to that.
  (Lord Falconer of Thoroton) In terms of that balance—and I hope nothing I have said implies the only purpose of a constitution is to protect the citizen from an over-mighty state, that is only one of the functions—I entirely agree with your formulation that it is the balance between giving effect to the will of the majority in an appropriate way and at the same time observing individual freedom. I do not envisage in relation to the constitutional changes which we are proposing there should be a fundamental shift in that balance.

  54. It depends on your starting point for saying that. Do you mean the arrangements where we are now as a consequence of change or, if you like, traditionally where we were, because the British constitution essentially has been geared more towards ensuring the majority will is expressed? Are you envisaging significant change from that or would you say changes which have been carried out?
  (Lord Falconer of Thoroton) If you look at the constitutional changes since 1997, I would regard the Human Rights Act as a constitutional change, I would regard the Freedom of Information Act as a constitutional change, I would regard—and this is pre-1997—the Data Protection Act as a constitutional change. They, I think, significantly enhanced individual rights but I do not think they constituted a fundamental shift in the way that we, for example, select the executive or what the powers of the political government are in making decisions about the broad sweep of policy. It is in relation to that latter area that I would not envisage significant changes—how we select our executive, its accountability to Parliament. Of course changes in the House of Lords may have some effect in relation to that but they will not be fundamental. In relation to human rights, et cetera, that is something where, without the change in the basic way we select our government, individual freedom is enhanced.

  55. So essentially you see it as adding to the existing constitutional arrangements rather than a paradigmatic change to the new constitutional framework of the United Kingdom?
  (Lord Falconer of Thoroton) Yes.

Lord Morgan

  56. I am listening with great interest. It seems to me while, as you rightly say, the Government has been concerned in preserving the essence of these institutional and other arrangements, the driving theme which I would have thought would perhaps supply a bridge between the two principles Lord Norton mentioned was the theme of local accountability. That has come out strongly in devolution. The structure of society, and then what the relationships of institutional arrangements are to the different aspects of society, have been changing, and therefore to that extent your Department could be a continuing motor of change seeing that centralisation is less and less the way in which we deal with our affairs.

  (Lord Falconer of Thoroton) Very much so. One of the principles I indicated was public engagement and strengthening democracy. That is I believe the driving force behind the devolution which has occurred because the credibility and trust in institutions was not as strong as it should be because there was not a sufficient connection between the particular part of the United Kingdom and certain sorts of decisions which have been made, and that is why we drove devolution.

  57. If the Richard Commission, looking at the powers of the Welsh Assembly, decided that the idea of local accountability and indeed the role of the Welsh Assembly needed enhancing, where would the motor of change be there in forming a view on that? Would that be your Department? In effect making the Welsh Assembly more comparable to the Scottish Parliament.
  (Lord Falconer of Thoroton) The issue of who would respond to the Richard Commission, in the first instance that would be the Secretary of State for Wales because that is regarded at the moment as a Welsh issue. I do not believe that any fundamental change to devolution is thought of or proposed at the moment but, if it was, that would come under my Department.

  58. It might come within your purview?
  (Lord Falconer of Thoroton) If very significant changes were envisaged, yes, but I do not think that is the view at the moment.

  59. Would that also apply to regional assemblies? I notice you say that is under Mr Prescott's department.
  (Lord Falconer of Thoroton) Yes.


 
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