Examination of Witnesses (Questions 80-99)|
WEDNESDAY 15 OCTOBER 2003
80. But you said earlier you are responsible
for the devolution settlement
(Lord Falconer of Thoroton) Yes.
81. so you are the English one and there
are separate Secretaries of State for Scotland and Wales, is there
not a stronger rationale for those being subsumed within your
(Lord Falconer of Thoroton) From the point of view
of Scotland and Wales, the effect of the changes on 12 June is
that they have a Scottish and Welsh MP respectively of Cabinet
ranking speaking for them, not as it were on the overall constitutional
position but speaking up for Scotland and Wales in the Cabinet,
and that is a good thing. Just repeating the basic political argument,
which I think has considerable force and I suspect there is not
a right or wrong answer, I think that is a sensible solution.
82. How do you balance it? They are speaking
for their area and there is a voice in the Cabinet but at the
same time they are clearly part-time posts.
(Lord Falconer of Thoroton) They are speaking for
Scotland and Wales on Scottish and Welsh issues, and that is a
good thing in terms of the way the Government operates.
83. One of the problems is that there is a growing
tendency to diverge, is there not? You might therefore find the
Secretaries of State having or offering quite different policies
on top-up fees or health for the elderly, particularly in Scotland.
That could be a problem, could it not?
(Lord Falconer of Thoroton) You mean
if you had a hypothetical situation where you had a Secretary
of State for Education also being the Secretary of State for Scotland
and there being a different funding regime? We can all think of
hypothetical difficulties in relation to how it works but we have
reached a solution which is practical and which reflects the changes
which have occurred which meets a lot of the imperatives for Scotland
Lord Jauncey of Tullichettle
84. What if the Minister of Transport is an
Englishman with an English constituency?
(Lord Falconer of Thoroton) I do not
think we envisage that the Secretary of State for Transport should
habitually be the Secretary of State for Scotland irrespective
of the fact he represents Bodmin. Mr Darling's claim was not based
on the fact he was Secretary of State for Transport, it was that
he was a Scottish MP of great standing.
85. What will not change the constitutional
position is the fact there is a Secretary of State for Constitutional
Affairs, there is a Secretary of State for Scotland, so what happens
if there is clash between the Secretary of State for Constitutional
Affairs and the Secretary of State for Scotland on a devolution
(Lord Falconer of Thoroton) That is extraordinarily
unlikely to arise, but the question should be more directed in
a way to Lord Lang of Monkton. What happens when there is a dispute
between the Secretary of State for Scotland and other members
of the Cabinet in relation to policy issues which affect Scotland?
There is a constant issue which can potentially arise; less so
now because of devolution.
Lord Lang of Monkton
86. I think those are resolved by discussion
in Cabinet, but at the moment the Secretary of State for Scotland
(Transport) has no locus to speak for Scotland in the sense
he is not elected, he speaks in a personal capacity for a Scottish
constituency but his bread and rations, as you have described
them, are in your Department. He is having to defend the role
and decision-making process of the Scottish executive of which
he is not an elected member; it may even be a different party
from him. So he has no real locus to speak for Scotland
other than in the most general headline terms.
(Lord Falconer of Thoroton) There are
reserved issues. He speaks for Scotland
87. on reserved issues.
(Lord Falconer of Thoroton) on reserved issues
in the Cabinet.
88. Yes, but he cannot make a general representation
on behalf of Scotland, for example, to the Chancellor of the Exchequer
in the preparation of his Budget, because he does not represent
the Scottish executive whose views and priorities may be very
different from his.
(Lord Falconer of Thoroton) The purpose of the devolution
settlement was for the Scottish Parliament to deal with those
issues which were devolved. There will still be significant UK
Parliament or UK executive issues which will affect Scotland which
are decided by Westminster. The territorial departments are always
consulted on these and have frequently got views on how those
issues will affect Scotland, and the Secretary of State for Scotland
and similarly Wales will express views in the executive about
89. I will not repeat what I have already said
but it still remains true, it is also the case that in practical
terms a member of the Cabinet who does not have a substantial
department beneath him has less clout and less capacity to convey
the force of the argument he is advancing over one who does have
a substantial departmental base.
(Lord Falconer of Thoroton) It is not for me to ask
90. Shall we swap seats!
(Lord Falconer of Thoroton)is that simply a
judgment of how politically important they are or how many civil
servants they have?
Lord Lang of Monkton: I think it is a judgment
of the reality of realpolitik.
91. This is in danger of becoming a seminar,
although speaking as an academic I have no objection to seminars.
One of the things we are concerned with at the moment is the draft
constitution for Europe and, since you are now Secretary of State
for Constitutional Affairs, whether you have some input into the
issue itself, and equally what would be the output in terms of
your Department? Do you envisage that the European constitution
would have any consequences for your Department?
(Lord Falconer of Thoroton) I am the
Minister responsible for the constitution but the negotiations
on "the constitution for Europe" are being conducted
obviously by the Foreign Office. The White Paper in relation to
that has been produced, rightly, by the Foreign Office. There
are certain things in the constitution which impact upon the things
which my Department does, for instance civil justice, but the
issue is not a Constitutional Affairs Department issue, it is
a Foreign Office issue. As far as how it affects the constitution
is concerned, broadly in the light of enlargement there need to
be new arrangements to deal with a larger European Union, and
that is what the constitution for Europe is doing, but it is not
effecting fundamental change in relationships between Member States.
92. So you would not see it as becoming de
facto the constitution of the United Kingdom? There is the
argument that the Treaties already do that.
(Lord Falconer of Thoroton) Certainly not. Obviously
a part of the constitution is affected currently by, for example,
the content of the European Communities Act 1972 and also by subsequent
changesthe single internal market, et cetera, et cetera,
et cetera. Insofar as there are changes, those will affect the
everyday position in this country as well, but I certainly do
not see it becoming the constitution for the UK.
93. Some have already argued that once the Treaty
is in place to some extent we already have a constitution, and
in a way this takes it a step further or formalises that relationship.
(Lord Falconer of Thoroton) That is no more than saying,
is it, that for example there are certain European laws in certain
circumstances which already trump even a statute of Parliament,
and that is part of our constitution.
94. That would be an argument about creating
a constitution for the United Kingdom because we are bound, albeit
self-bound, by that.
(Lord Falconer of Thoroton) All I am saying is there
is no change before or after what comes out of the intergovernmental
95. So you see it as a natural continuation
rather than in any sense a paradigmatic change?
(Lord Falconer of Thoroton) Exactly, yes.
96. You have mentioned the range of the consultation
exercise which is going on at the moment and you have rather a
lot of consultation papers which we can respond to if we wish.
Is there an end point? Do you have a particular timescale for
consultation submissions to be in? In terms of the various changes
which the Government envisages you are consulting essentially
on the means rather than the ends. Do you have a timescale in
mind for when you see these various changes in place and therefore
do we see a settled state for the constitution?
(Lord Falconer of Thoroton) In relation to the specific
changes which are, Lord Chancellor's abolition, independent Appointments
Commission, Supreme Court, House of Lords reform, although the
timescales are not confirmed you can broadly see what the end
dates of the consultation periods are. We would envisage seeking
to legislate as soon as parliamentary time would allow, and that
is not for obvious reasons an indication of a long time in the
future but as soon as possible in relation to that. That is the
timescale for the existing changes. What do we have in mind beyond
that? The only one which is perhaps worth mentioning is the House
of Lords reform. We made it clear in the statement we made on
18 September that we would seek to try and build a consensus of
further reform but what the timescale of that is I cannot tell
97. I wonder, possibly with the help of your
permanent secretary, if you could tell us before you entered the
transition phase was the work of the Lord Chancellor, other than
that deriving from the Speakership, less than, more than or roughly
the same as any other Secretary of State?
(Lord Falconer of Thoroton) I do not
think anybody worked harder than my predecessor. I do not know.
My permanent secretary has been a permanent secretary not just
to the Lord Chancellor but to a number of other Cabinet Ministers,
so I think he had better answer.
(Sir Hayden Phillips) I think my observation of working
in that Department and other departments is that the workload
is high and very high, but that would be said of most Cabinet
Ministers. I think the important thing that the announcements
on 12 June reflected was the growing awareness, as I was trying
to contribute to the answer to Lord Acton, that as the Department
grew and as its justice responsibilities became more and more
important and larger and larger, the role of the Lord Chancellor
in doing these other things meant the squeeze on his time to focus
on his departmental responsibilities was by definition much greater
than on any other Minister who had some other extraneous functions,
because these were not extraneous, these were central to carrying
out the role. That is my observation.
98. Up to that point then there was a rough
parity. Therefore it would seem that the Speakership of the House
of Lords could be carried by any competent Secretary of State?
(Lord Falconer of Thoroton) If that is a job which
a Secretary of State has to do, that is a job a Secretary of State
has to do. I think there are issues beyond the timing issue. There
are issues as well in relation to, is it appropriate for that
to occur, but the Lord Chancellor has done it for quite some considerable
time and I would not remotely suggest it could not be done by
somebody also being a Secretary of State for some other department.
This is another point which is not quite connected with your question
but Lord Chancellors used to appoint comparatively few judges
because there were comparatively few judges, but because of the
growth of the tribunal system, because of the increase in the
number of judges, the role of the Lord Chancellor in that respect
has absolutely mushroomed over the last 100 years in terms of
judicial appointments. It is a pretty heavy job but that will
be going on the basis of the Judicial Appointments Commission.
(Sir Hayden Phillips) Also, if I may say so, there
is a cultural point worth noting here. Most Secretaries of State,
all Secretaries of State, are able to spend the majority of time
in their professional life, when they are not speaking in Parliament
or voting, in and with their Department. That connection is quite
an important thing for the way the Civil Service works. We have
reached a point over the last five years where, because of the
amount of time the Lord Chancellor has to spend in the House connected
with his representational duties, we have a situation where the
Lord Chancellor and I were spending our time here when our Department
was somewhere else. For the long term that, as a good bureaucrat,
is not a healthy position to have.
Lord Elton: I am obliged to you.
99. Lord Chancellor, one final question. As
you know the most important and perhaps dangerous questions are
always left to the last. On your Department's website there is
a heading which says "Parliament" and it links you to
the Select Committee on the Lord Chancellor's Department in the
House of Commons but there is no link to the Constitutional Committee
of the House of Lords.
(Lord Falconer of Thoroton) It should.