Examination of Witnesses (Questions 60-79)|
WEDNESDAY 15 OCTOBER 2003
60. It is a rather modest view of regionalism,
it is just a sort of greater county council.
(Lord Falconer of Thoroton) Regional assemblies are
in the Office of the Deputy Prime Minister. Regional assemblies
are a significant issue in relation to the localism agenda you
have referred to and bringing decision-making closer to the particular
community, but they have always been in the Office of the Deputy
Prime Minister or its predecessor because there is a very close
link between any regional assembly arrangement and what you do
about local government. For example, it was made absolutely clear
that one of the necessary conditions for regional assemblies was
there would be only one tier of local government beneath it. Sensibly,
that is a matter therefore which has to be dealt with in the department
which deals with local government.
61. That is an area where one can see perhaps
a dynamic of change evolving in the future?
(Lord Falconer of Thoroton) Yes, indeed. We have made
it clear that we are supportive of that approach if that is what
the particular region wants.
62. One very short question: when the reform
of the office of the Lord Chancellor is completed, what would
be the seniority of the Secretary of State for Constitutional
Affairs in the Cabinet?
(Lord Falconer of Thoroton) That would
be a matter, I imagine, for the Cabinet Secretary or the Government
to decide. Currently the Lord Chancellor, not in Cabinet seniority
but in terms of the precedence in the state, comes I think not
third but there is the Royal Family, the Archbishop of Canterbury
and then the Lord Chancellor.
63. Yes in precedence, and I believe indeed
in pay, but I would hate to discuss such a matter now.
(Lord Falconer of Thoroton) The Lord Chancellor by
statuteI make no comment on what everybody else is paidused
to be paid more than the Prime Minister, the Lord Chief Justice,
et cetera, but the current, modest Lord Chancellor and Secretary
of State for Constitutional Affairs now gets the same pay as a
Cabinet Minister in the Lords, of which there are still two.
64. My serious point is that in view of your
slightly special jobwell, they are all special jobs but
the slightly special nature of your jobwill it have a special
seniority of its own? But there is no such plan at the moment.
(Lord Falconer of Thoroton) We need to discuss precisely
what comes with the special status to which I referred when answering
the questions of the noble lord, Lord Jauncey, but that is a matter
to be determined not in accordance I think with the precedence
of the Lord Chancellor in the state but by reference to what comes
65. I was asking about the Cabinet.
(Lord Falconer of Thoroton) In the Cabinet, yes. I
have never really worked out on what basis Cabinet seniority is
determined. Unlike the Lord Chancellor's precedence in, as it
were, the non-political world, there is as I understand it no
pecking order for Cabinet Ministers save that the Prime Minister
66. There is a list, is there not?
(Lord Falconer of Thoroton) There is a list but, if
you go back to the 1980s, why was the Lord Chancellor second by
the end of the 1980s in relation to that, ahead of all what had
previously been regarded as the great office holders of state?
It is not just based upon the time being in the Cabinet, it is
based upon a whole range of things only somebody who sets the
precedence list in Cabinet could work out, I suspect.
67. I do not want to press you too much on that
but the position of some secretaries of state is because it is
a specific post mentioned in statute rather than simply a secretary
of state, and your Cabinet ranking would be a matter for the normal
processes at the moment.
(Lord Falconer of Thoroton) Yes.
68. Which I used to understand was a prime ministerial
prerogative, and Cabinet Ministers used to look at the Cabinet
list to see whether they were in favour or not depending where
they came in the list. Before we move on to one or two specific
policy areas in which we have a particular interest, particularly
devolution, one final point on looking at the constitution, how
it is dealt with and how you define it. How would you respond
to the criticism that the creation of a Department of Constitutional
Affairs has come too late? That you have had these disparate constitutional
changes and introduced the Department of Constitutional Affairs
after they have been brought in, whereas there had been an argument
for having a Department of Constitutional Affairs which would
be able to engage in joined-up thinking and one would think it
would be necessary to relate one change to the other rather than
have them come in in a rather disparate and discrete way.
(Lord Falconer of Thoroton) It cannot be a bad thing
to have it for the future. The question is, should one have done
(Lord Falconer of Thoroton) We came to power in 1997
with a very clear series of constitutional changes previewed in
the manifesto, and in relation to some of them, in particular
devolution in Scotland, worked out by a constitutional convention
beforehand. So, having got elected in part on the basis of those
manifesto commitments, they were going to happen anyway. I can
see an argument for saying it should have been done before but
that is not a reason for not doing it now.
70. No, the argument was it should have been
done sooner because you can argue there is agreement in principle
but in terms of detail, and the devil is in the detail, you can
relate the detail of one change to another because one can of
course impact upon the other.
(Lord Falconer of Thoroton) Yes, and indeed that is
certainly part of the thinking in relation to having a Constitutional
Affairs Department. I believe it is a sensible thing to do and,
like all sensible things to do, I wish it had been done a long
Lord Lang of Monkton
71. Lord Chancellor, you have said in your letter
which you co-signed with the Secretary of State for Transport
and Peter Hain, who I think at that stage was Minister for Europe,
on 17 June, during those rather chaotic few days after the announcement
of the changes
(Lord Falconer of Thoroton) When you
refer to the Secretary of State for Transport, that is the Secretary
of State for Wales and the Secretary of State for Scotland?
72. As they now are in brackets, in parenthesis,
after their main functions, as I understand it. That was the point
I was asking you. You have said the devolution settlement has
remained the same and you said today that no changes were planned,
but Helen Liddell told us very forcefully how important her job
still was and how substantial and hard-working she was and that
the job was going to remain in force. The abolition of the role
of Secretary of State for Scotland, or the reduction of it as
a separate voice in the Cabinet, does not necessarily constitute
a direct change in the devolution settlement which is embodied
by the Scottish Parliament, but the fact remains that the role
of the Secretary of State is now diminished because it is no longer
so focused specifically and solely on Scotland, it is an add-on
to the functions of the present Secretary of State for Transport.
Surely you are going to have to make arrangements to deal with
conflicts of interest when they arise both in Scotland and in
(Lord Falconer of Thoroton) Yes, but so far there
has been no difficulty in relation to that. On the point about
what the previous Secretary of State for Scotland said, of course
it is a busy, demanding job, but it is impossible not to recogniseand
you will know this better than anybody in the roomthe Secretary
of State for Scotland pre-1997 was responsible for a whole range
of policy issues which you were having to decide as Secretary
of State for Scotland which are now decided by the Scottish Parliament
or the executive in the Scottish Parliament. It is inconceivable
those responsibilities have not reduced, having gone from the
Secretary of State to the Scottish Parliament. You are in a much
better position than I am to say what the effect would be.
73. I agree with you, but I argued for six years
that was going to be the case, indeed this Committee recommended
it but it was constantly denied by the Government of the day,
including by the Prime Minister in his response to our report.
But that was not really the point I was making, it was the measure
of change which will result from the readjustment of roles. If
I can raise a second area where there has to be a change, and
that is the appeal of devolved matters which at present go to
Privy Council, if these are going to go to the Supreme Court that
Supreme Court will have to be geared up to Scottish law as well
as English law.
(Lord Falconer of Thoroton) Certainly.
74. Am I not right in thinking also the Treaty
of Union will have to be changed which at present requires the
Supreme Court of Appeal on Scottish matters shall be at Westminster?
(Lord Falconer of Thoroton) No, it does not need to
be changed. The Treaty of Union issue, the Act of Union issue,
is any appeal must not go to the English legal system. That was
the objectionable aspect pre-Treaty of Union. Therefore it was
fine for Parliament to in effect be the final Court of Appeal.
There is no objection to a Supreme Court being the final court
of appeal for Scottish civil appeals, which is what is currently
envisaged, because a Supreme Court is a United Kingdom court not
an English court.
75. It is an issue which was raised by Lord
Hope of Craighead before the Lord President of course.
(Lord Falconer of Thoroton) Indeed and I have had
a long discussion with Lord Hope and also other members of the
Scottish judiciary and I do not want to presume to say what their
views are, but I think the answer I have given would be one they
would not find objectionable, but Lord Jauncey is here.
Lord Lang of Monkton: Yes.
Lord Jauncey of Tullichettle
76. You have put it in the negative way but
I rather thought the provisions of the Act were to the Queen in
Parliament, that Parliament was actually mentioned, which would
make it difficult for the Supreme Court and would, as Lord Lang
suggests, require an amendment of the 1707 Act.
(Lord Falconer of Thoroton) Obviously
I will go back and look but I do not think that is right. I think
if you look at the Act of Union there are certain categories of
court defined in the Act of Union which are not allowed to hear
77. Quite, but is there not a positive in joining
as well? It is sometime since I looked at it and I may be wrong
but my impression at the time of reading it was there was this
positive injunction that it should go to the Queen in Parliament,
and that was the problem. But I am sure if you have not looked
into it, you obviously will do.
(Lord Falconer of Thoroton) I do not think that is
right. I remember there was a period of timeand it never
actually got off the groundin which an Act was passed in
the 19th century which in effect created a supreme court, which
was intended to be a final court of appeal including for Scotland
but which, for a variety of reasons, never went ahead. That did
not involve an amendment to the Act of Union. I will certainly
go and look.
78. Is not one of the advantages of these appeals
still going to the Privy Council is that it will be much easier
to go up to Scottish judges than it would be to go to the Supreme
Court because of course the inner house judges are now privy councillors
(Lord Falconer of Thoroton) We need a process by which
the Supreme Court when it is hearing devolution appeals can reach
for a pool which includes perhaps more Scots or Northern Irish
judges than would be members of the Supreme Court. The reason
why it was put in the Privy Council in the first place was because
it was thought to be wrong for the House of Lords Judicial Committee
to resolve disputes between Westminster and Holyrood when the
body which was resolving them was in effect part of the Westminster
Parliament. Once that objection goes, there is no reason why there
should not be one court dealing with all these issues, but I take
your point, you need to be able to draw on a pool wider than as
it were the equivalent of the current law lords.
79. Can I move on to a number of policy areas.
We have touched upon devolution in structural terms and perhaps
we will come back to it and in substantive terms as well. As you
know, our report on devolution published at the beginning of the
year made a number of recommendations in relation to devolution
and when you appeared before the Committee of the Lord Chancellor's
Department in the other place you sought to justify the Government's
rejection of our recommendation in relation to the two Secretaries
of State which suggested the rationale for the rejection was two-fold.
One is you did not need to spend so much time as you used to as
Secretary of State for Wales and Scotland, which did not strike
us as going against our recommendation but rather sustaining it.
The second was, nonetheless, both those territories were entitled
to have Cabinet Ministers speaking for them in Cabinet on Welsh
and Scottish issues. That seemed to be the extent of it, and we
drew attention to the fact if you look at a Secretary of State
they have an important role in the transitional periodand
you are very well aware of the importance of transitional periodsbut
once the transitional period has ended, things wind down, they
are not responsible for projects, they are not responsible for
finance, they do not speak for the devolved administrations in
Cabinet, so it is not clear why that is a very strong rationale
for not having one Secretary of State who actually enjoyed some
degree of joined-up thinking for handling devolved matters which
in a way is a rationale for your Department in terms of bringing
these things together.
(Lord Falconer of Thoroton) You have
the Secretary of State for Constitutional Affairs looking at the
constitution as a whole which includes devolution; you have in
the Cabinet a Secretary of State of Cabinet rank and standing
for both Wales and Scotland. That is a good thing in political
terms, it is good for the relations between the UK Government
and the devolved governments. A judgment has to be made and that,
with respect, seems a sensible way to deal both with the issue,
as Lord Lang of Monkton has confirmed, that the workload has gone
down dramatically, but also to ensure there is a proper strong
voice in Cabinet for those two areas.