Oral evidence

Taken before the Committee on the Lord Chancellor's Department on Monday 30 June 2003

Members present:

Mr A J Beith, in the Chair
Peter Bottomley
Mr James Clappison
Ross Cranston
Mrs Ann Cryer
Mr Jim Cunningham
Mr Mark Field
Mr Clive Soley
Keith Vaz

__________

Witnesses: RT HON LORD FALCONER OF THOROTON QC, a Member of the House of Lords, Secretary of State for Constitutional Affairs and Lord Chancellor, and SIR HAYDEN PHILLIPS GCB, Permanent Secretary, Department for Constitutional Affairs, examined.

Q1  Chairman: Good afternoon, Lord Chancellor and Secretary of State.

Lord Falconer of Thoroton: Good afternoon.

Q2  Chairman: Was there a moment on 12 June, somewhere between six o'clock and ten o'clock, when the Government thought they had actually abolished the office of Lord Chancellor?

Lord Falconer of Thoroton: No, I think they always knew that what was required was a phase whereby legislation would have to be passed before the Lord Chancellor's office was abolished, so it was always known and I was appointed on the basis that I would be Lord Chancellor until the office was abolished.

Q3  Chairman: When questions have arisen both in press conferences and in the House of Lords about the full range of duties of the Lord Chancellor and therefore the complex processes that will have to be gone through to reassign those duties, I seem to remember seeing the words "a lot of work is being done on this." Does that mean that when the Prime Minister made the decision on the rapid abolition nobody had reminded him about how complicated a task it was?

Lord Falconer of Thoroton: No, I think he was fully aware of the fact that the Lord Chancellor covered a huge range of things that he did. You will have seen the reference in the press to the fact there are something like 5,000 references in primary and secondary legislation to what the Lord Chancellor does. I cannot tell you that every single one of them has been properly identified at this particular moment, but the overall range of what he does is known, the basic functions that he performs are known, and it is knowing that that led to the conclusion that the right thing to do was to transfer as many functions as possible to the Secretary of State for Constitutional Affairs or to an independent Appointments Commission, and then at the end of that process abolish the office.

Q4  Mr Field: I wanted to address the issue of Scotland and Wales in part. I appreciate that a week is a long time in politics but it was only as recently as March this year, so only three months ago, that in response to the Constitution Committee's report on the whole issue of devolution the Prime Minister stated that he had "no plans to merge either the roles of the territorial Secretaries of State or indeed their departments ..."

Lord Falconer of Thoroton: --- Merge with each other.

Q5  Mr Field: --- Merge with each other or indeed within some new convoluted part of the administration. In your view, how do you think the Government could have so absolutely rejected the Constitution Committee's recommendation in March this year on the basis that the Whitehall arrangements were effective yet have changed its mind? Do you have any inside thinking on your former flatmate's thoughts on this matter as to why in three months he has changed his mind and brought in this set-up?

Lord Falconer of Thoroton: Are you referring to the Prime Minister's response to Lord Norton's committee on what to do about the constitution?

Q6  Mr Field: Absolutely.

Lord Falconer of Thoroton: The decisions made and announced on 12 June involved, in effect, preserving the role of the Secretary of State for Scotland and the Secretary of State for Wales on the basis that both of those offices require to have a Cabinet minister speaking on behalf of Scotland and speaking on behalf of Wales. They involve much less work than those Secretaries of State had to do before the devolution settlement came into effect for Wales and Scotland. What Lord Norton's committee was suggesting was something different, as I understand it, he was suggesting merging it into one department, have one minister responsible for both, and have Ministers of State, one for Scotland, one for Wales. That was rejected by the Prime Minister in March and has been rejected again in the reshuffle announced on 12 June.

Q7  Mr Field: What do you think is the rationale for the rejection?

Lord Falconer of Thoroton: The rationale for the rejection is two-fold: one, you do not need to spend so much time as you used to as Secretary of State for Wales and Scotland because much more work done in Edinburgh and Cardiff; and, two, nevertheless, both those territories are entitled and should have a Cabinet minister speaking for them in the Cabinet on Welsh and Scottish issues. That is the rationale behind the Prime Minister's conclusion in relation to keeping Secretaries of State but recognising that they do not have to spend as much time on those jobs as previously. I think that it is sensible and I think that it is clear.

Q8  Mr Field: As part of the new Constitutional Department, however, there is clearly a role also for the Deputy Prime Minister, it is recognised politically that Mr Prescott will have a role ---

Lord Falconer of Thoroton: Hold on, in relation to his role in relation to devolution, that is not devolution in a regional sense but devolution in relation to the territories, meaning those functions have been transferred to the Constitutional Affairs Department because they are now my responsibility because the role of the Constitutional Affairs Department is to be responsible for the constitution as a whole.

Q9  Mr Field: I appreciate that devolution has made things more difficult. As a London Member of Parliament I can appreciate that because I would say that the local Member of Parliament here I have got the Greater London Assembly Member, top-up Members, the Mayor, local councillors, and it becomes more complicated for the electorate at large, and not least more complicated for many people involved in the political process. Are you satisfied that there is clarity amongst the responsibilities that you, Mr Hain, Mr Darling and Mr Prescott and the two Under-Secretaries of State have now got? It is likely, I suspect, to confuse many people outside the political village but are you satisfied that there is a clear allocation of duties here?

Lord Falconer of Thoroton: I am completely satisfied on the allocation of duties and far from it causing confusion to the wider public, I do not think it does. I think there was a period of time immediately after 12 June where people sought to try and over complicate what the arrangements were. The Secretaries of States for Scotland and Wales continue as before. They do not spend as much time in those jobs as they did before because of devolution. Because they have another job as well it is sensible for pay and rations, and for no other purpose, to have officials and ministers in the Constitutional Affairs Department. It is right that there be a minister in the Westminster Cabinet who is responsible for the constitution as a whole and that seems to me a clear and sensible way forward, and it is not at all inconsistent.

Q10  Chairman: With no other purpose, so these junior ministers could not speak to you about any issue other than pay and rations?

Lord Falconer of Thoroton: They can speak to me about any issue that they like but as far as responsibility is concerned their responsibility as Wales or Scottish junior ministers is to their Secretaries of State, which is Alistair Darling and Peter Hain respectively.

Q11  Mr Field: You have said that you felt there was no immediate need for you to get involved in Scottish or Welsh affairs. Do you think there will be any need at all given your new department for you to interfere in these matters?

Lord Falconer of Thoroton: In relation to devolution - and I mean Scotland, Wales and Northern Ireland, not regional devolution - there is an issue which arises, then of course I will get involved. I think there are issues that arise in relation to the Supreme Court particularly which are of particular interest to Wales, Northern Ireland and Scotland and they are constitutional issues and they will need to be addressed having in mind the sensitivities of those territories.

Q12  Chairman: We will be coming to that in due course. Just a little earlier when you were referring to the Deputy Prime Minister's Department you seemed to imply that the setting up of a regional assembly, if that were to happen as a result of the process that has just started, is somehow not a constitutional matter.

Lord Falconer of Thoroton: It is not a matter for the Constitutional Affairs Department. The reason why that has not been transferred is because there is a much closer link with issues of local government rather than with the constitutional issues that arise in relation to Scotland and Wales so for that reason the decision has been made not to transfer that.

Q13  Chairman: I did not think that was the Deputy Prime Minister's policy. I thought his argument was this was not local government, this was a constitutional reform creating regional assemblies dealing with powers that largely transferred from central government and not from local government.

Lord Falconer of Thoroton: Nothing I have said is inconsistent with that. All that I am saying is if you have to find a home for policy on regional assemblies, the most appropriate place is the Office of the Deputy Prime Minister not the Constitutional Affairs Department. I do not think that causes any problem in relation to lack of clarity.

Q14  Chairman: Do you think that would remain the case once assemblies have been set up? The argument is not really the one you advance but simply John Prescott wants to finish the job and once the system is in place it might fit more naturally in the Constitution Department?

Lord Falconer of Thoroton: No, I think the right place is for them to stay in the Office of the Deputy Prime Minister.

Q15  Ross Cranston: First of all, I declare my interest as a recorder and practising barrister. Could I ask you about your continued position as Lord Chancellor.

Lord Falconer of Thoroton: Yes.

Q16  Ross Cranston: In the nineteenth century Lord Herschell I think said that the duties were so onerous that one could not occupy the position for more than three years. Are you going to be Lord Chancellor longer than three years or are you going to be able to get the legislation on the Statute Book before then?

Lord Falconer of Thoroton: We hope that the legislation will be on the Statute Book and the role of Lord Chancellor abolished within about 18 months from now but obviously I cannot give you a complete guarantee in relation to that. During that period of transition I will perform all the functions of the Lord Chancellor. It is impossible for me to tell what the pressures on Lord Herschell's life were at the particular time. There is a lot going on in the job but it is a do-able job, I believe, along with the other responsibilities that I have got.

Q17  Ross Cranston: Of course he sat in the House of Lords and made a great deal of good law but you are not going to do that.

Lord Falconer of Thoroton: It is worth pointing out, as you rightly point out, that what would happen, as I understand it, was the Lord Chancellor would sit in court and then come down to Westminster and sit as Speaker of the Lords into the small hours so that his whole day then was completely engaged in a process where he could not move from either the Woolsack or court.

Q18  Ross Cranston: I want to turn to the Supreme Court. Can I just ask you about the thinking behind this.

Lord Falconer of Thoroton: Yes.

Q19  Ross Cranston: There has been a great deal of argument in favour of this change and of course Lords Bingham and Steyn have been prominent as proponents of this. I am a great devotee of those two judges, excellent judges they are and great thinkers, I think. As late as January this year, Lord Cooke, a very distinguished judge who sat in the Appellate Committee, published an article where he said - and I paraphrase this - it was a good thing that Members of the House of Lords sat in the Appellate Committee because they learned an awful lot about government, about the pressures on government, the difficulties of government; they learned about the political process, it widened their range of experience which they as judges would not have acquired.

Lord Falconer of Thoroton: You mean sitting in the legislative bit of the Lords?

Q20  Ross Cranston: Sitting in the legislative bit and just listening to debates or being there when debates went on. Of course the European Committee of the House of Lords has been presided over by a Law Lord for many years, and many good reports have been produced as a result.

Lord Falconer of Thoroton: Yes.

Q21  Ross Cranston: Now there is an argument - and Lord Cooke is not the only one - in favour of the existing system so what is the rationale for change?

Lord Falconer of Thoroton: Obviously there are arguments both ways but as a government we have come firmly to the view that the right argument is that you should separate the final Court of Appeal from the legislature, it is wrong that the two are together. You could make the same arguments about how useful it would be for judges to have more experience of the way that the Executive operated but patently you could not make them a member of the Executive. We think, as Lord Bingham and Steyn have argued very persuasively, that you should clearly separate the two. The difficulties of the final Court of Appeal being in the legislature are to some extent revealed by the statement that Lord Bingham made on behalf of the Law Lords in the year 2000 indicating those things they would speak on in the Lords normally, and those things they would not normally speak on in relation to the Lords. The two things they said they would not normally speak on were things involving strong party political dispute or things that they might come to have to decide themselves in court sitting as a judge. Now, since June 2000 one can see a large number of areas where they have spoken where it is very difficult to know precisely where the line should be drawn, far better, we think, that there is clarity between what is the final court and what is the legislature. I recognise what Lord Cooke said but I think it is the wrong argument.

Q22  Ross Cranston: We could have a long debate about separation of powers and so on and how Montesquieu got it wrong and Lock is often invoked, but I think Lord Cooke pointed out that Lock was not really concerned about the judiciary, he was concerned about the dispute between the Executive and the legislature. He said if there was a clash one deals with the people or one went to heaven; maybe the Supreme Court is going to be the new heaven; I think we can debate that. I think Lord Cooke's argument was that by a process of osmosis, not necessarily participating but just being there, one could pick up an appreciation of some of the problems of government.

Lord Falconer of Thoroton: No, I understand that but the only way that occurs is because they are participating members of the legislature. Those who are actively sitting in the House of Lords, perfectly legitimately under the current system, also express views of legislatures now as well as sitting on the final Court of Appeal. Of course it is good that they get experience but it is more than getting experience, it is actually about actively participating in the legislative process.

Q23  Ross Cranston: Can I take you to the next step then. Assuming that the issue is foreclosed, Lord Bingham in his lecture to the Constitutional Unit set out a number of models. Now what are we going to be looking at? Are we going to be looking at a Constitutional Court in the American sense? Are we going to be looking at something like the Luxembourg Court? Are we just going to be transferring the House of Lords, as it is, into a different sort of building and cutting them off from legislative business? What are we looking at?

Lord Falconer of Thoroton: I think Lord Bingham in his lecture identifies four possibles. He says, first of all, it could be a constitutional court. We are not looking at a constitutional court like the Supreme Court in the United States of America. We are not looking at a court that can overturn British legislation. Equally to try and identify a "constitutional court" in the way that you have in other countries is very difficult because the constitution of our country is not in one place, there is no one constitutional document, our whole law to some extent is our constitution. So to describe it as a constitutional court I think would be very, very difficult. We will obviously deal with this in the consultation document but I see it as very difficult to identify it as a constitutional court in that sense. The second model he identifies is the sort of Luxembourg model where preliminary points of law without reference to facts are put to the court. Again that is very antipathetical to the way that our courts normally decide things because they have traditionally found it very difficult to decide things in a vacuum because to give principles without facts proves very difficult.

Q24  Ross Cranston: It is contrary to the whole notion of the common law, is it not?

Lord Falconer of Thoroton: Exactly, which develops in a more evolutionary way. So, again, I am not sure that model is necessarily an attractive one. The third model is to say amalgamate what the Appellate Committee of the House of Lords does with the Judicial Committee of the Privy Council. Obviously what the Appellate Committee of the House of Lords does should be dealt with by the Supreme Court, what about the Privy Council? Well, I do not think the Supreme Court can do the appeals from Commonwealth jurisdiction, they are obviously going to go down because New Zealand wants to withdraw and various other Caribbean countries want to withdraw. The Judicial Committee of the Privy Council until April of this year did medical appeals, that has now gone to the High Court, that has reduced. There are various other more minor things but the other major thing that the Privy Council does is devolution issues. Now I think we need to consider very seriously whether or not the Supreme Court should do devolution issues. It was not given to the Appellate Committee of the House of Lords at the time of the devolution settlement because it was thought it would be wrong for Parliament which might under a devolution issue be at odds with the Scottish Parliament and the National Assembly, it should be resolving, as it were, an issue with which it was a party but that goes once you have a Supreme Court away from Parliament. We should seriously consider, I think, whether or not devolution issues should go there. So one model is to have the Appellate Committee of the House of Lords jurisdiction along with the Privy Council's devolution jurisdiction put into the Supreme Court. The fourth model, again of the ones that Lord Bingham suggested, was for it to take over the Appellate Committee jurisdiction only, and we would obviously have to consider that.

Q25  Ross Cranston: So the bottom line, in a way, is very much a continuation of the existing arrangements, not a constitutional court, not a court of reference but possibly having the devolution jurisdiction?

Lord Falconer of Thoroton: Yes, but that is in terms of the jurisdiction of the court. I think in addition to all of that would be the fact that we would have a Supreme Court properly resourced with proper research facilities, with the proper ability to deliver the kind of service to those who make the decisions which other Supreme Courts are able to give to their jurisdictions.

Ross Cranston: I think that has been a point of criticism and I did raise it with the last Lord Chancellor, that the resources do not compare with other high courts.

Chairman: I think we will move into that.

Ross Cranston: Sorry.

Q26  Mr Cunningham: Just to follow on from that. Whichever model you adopt, do you intend to consult those countries which still want to retain the right, as it were, to appeal to the Privy Council?

Lord Falconer of Thoroton: Our decisions about what to do about a Supreme Court it seems to us should not affect the right of those countries outside the United Kingdom which wish to continue to use the Privy Council as a final Court of Appeal. I think, therefore, we will need to retain the Judicial Committee of the Privy Council for those countries who do wish to continue to use it as a final Court of Appeal. I would not regard our Supreme Court as appropriate for that and I would not regard the consultation on the Supreme Court as the appropriate time at which to change that.

Q27  Mr Cunningham: Could you say something about the current situation regarding the Appellate Committee of the House of Lords in relation to resources? It is generally acknowledged that it is under-resourced.

Lord Falconer of Thoroton: Yes, and indeed I will provide the Committee with the details of it but the amount of money that is spent on it - I have got the figure here - total expenditure in 2001-02 was £623,548, total receipt from fees was £499,000 so as a Supreme Court it is not quite totally but pretty close to self-financing. It costs £124,000 net a year and if you compare that with other countries that is absolutely tiny. It needs to be properly resourced, it needs to have greater facilities, whatever the particular jurisdiction that it is going to cover.

Q28  Mr Cunningham: Can you give us any indication then of what sort of resources you would like to see? I accept it is early days but nevertheless you must have some idea.

Lord Falconer of Thoroton: I cannot give you an indication of what the resources it might need are because, I think, first of all, you need to know how many people are going to sit in it, you need to know what its precise jurisdiction will be and you need to know, also, what the associate or reserve members of the Supreme Court might be. If - taking up the answer to Ross's question - one gives it devolution responsibilities, it is perfectly plain that the people who could sit in a Supreme Court would need to be of a wider range of people than normally sit in the current Appellate Committee of the House of Lords because the Appellate Committee of the House of Lords has I think 12 full-time members, two of whom are Scots and one of whom is Northern Irish. If it was regularly hearing devolution appeals it would need to have to be able to draw on a wider pool than simply those numbers.

Q29  Mr Cunningham: What I am asking really is would you expect new resources from Parliament or would you allocate existing resources?

Lord Falconer of Thoroton: No. On the basis of the figures that I have given you it is inconceivable that the resources currently spent on the House of Lords Appellate Committee would fund the Supreme Court of the sort that I have described, irrespective of how small its jurisdiction might be.

Q30  Mr Cunningham: So you would be asking Parliament for more resources?

Lord Falconer of Thoroton: We would be, yes.

Q31  Chairman: You would have difficulty finding it anywhere else in your budget which is growing at a rapid pace?

Lord Falconer of Thoroton: I am just coming to grips with my budget and I think you may not be a million miles from the truth there.

Chairman: I think Mr Clappison has a supplementary.

Q32  Mr Clappison: Can I just seek some clarification from you in the light of the answer which you were giving to Ross. Can you say what functions you would like to see discharged by a new Supreme Court, apart from the functions which are discharged by the House of Lords in the existing arrangements?

Lord Falconer of Thoroton: Going through the possibilities, we need to consider the extent to which it takes on the devolution jurisdiction. Essentially what I believe the Supreme Court should be doing, it should be the final Court of Appeal from all of the jurisdiction within the United Kingdom. It should be the final court of law determining legal issues, in large measure in the way the Appellate Committee of the House of Lords does at the moment.

Q33  Mr Clappison: Is there any reason why the Appellate Committee of the House of Lords could not do that under present arrangements?

Lord Falconer of Thoroton: It could not unite with the Judicial Committee of the Privy Council on the devolution issues in the way that I have described. It does not have the resources that a properly run Supreme Court should have and it has the current problem, also, about the mixing of the legislature with the judiciary which I think is inappropriate.

Q34  Mr Clappison: Keeping to functions, because that last point is totally different.

Lord Falconer of Thoroton: I apologise.

Q35  Mr Clappison: I understand. It could be given the resources though, could it not, or it could have been given the resources?

Lord Falconer of Thoroton: I suspect it is quite hard. You will know better than I that the Palace of Westminster may not be the place in which you try to expand the work of the Appellate Committee of the House of Lords into a better resourced, better funded operation, simply because there are terrible problems about space.

Q36  Mr Clappison: The upheaval which there is and the new legislation which there is going to have to be, do you feel the change in functions really justifies all that?

Lord Falconer of Thoroton: I do because I think it is very important that in the United Kingdom there be this identifiable separate court able to resolve issues of law, also able to resolve the devolution issues, I believe. It will be a real flagship for the British legal system which has consequences both domestically but also abroad.

Q37  Mr Clappison: I hear what you are saying on the point of separation but, to be fair, the House of Lords under present arrangements has served the legal system well, has it not, for a long time?

Lord Falconer of Thoroton: It has, it has served it very well and there is absolutely no criticism that I am making on the way that it has gone in the past. The fact that one could move on and do something perhaps more effective in terms of resourcing, in terms of the cases that it hears and in terms of its ability to have standing both domestically and in the outside world is worthwhile, I think.

Q38  Chairman: If you are trying to create a flagship for the British legal system, is it not a bit unhelpful to do it off the back of a reshuffle? The impression was given that it was simply a matter of allocating responsibilities.

Lord Falconer of Thoroton: I think it is very important that it be done with clarity and that the commitment is made because having done it that way we can move as quickly as is reasonable to set the new arrangement up. The effect of making the announcement on 12 June in the way that it was made means that the process will occur and will occur with reasonable dispatch.

Q39  Chairman: When your predecessor wanted members of the legal profession to consider how they dressed, a consultation paper was set out on the subject of court dress.

Lord Falconer of Thoroton: Yes.

Q40  Chairman: When you decided that the flagship for the British legal system would be the immediate creation of the Supreme Court you made an announcement and then said in a month's time you would issue a consultation paper.

Lord Falconer of Thoroton: The effect of the announcement is saying "This is what we want to do, a consultation paper will be how one does it".

Q41  Peter Bottomley: Was it agreed before the reshuffle?

Lord Falconer of Thoroton: Was what agreed before the reshuffle?

Q42  Peter Bottomley: The point we have been discussing?

Lord Falconer of Thoroton: Agreed between whom?

Chairman: Anybody?

Q43  Peter Bottomley: The Prime Minister, your predecessor Lord Chancellor, you as Lord Chancellor? Up to the time of the reshuffle, the Lord Chancellor was defending present arrangements, including for that matter his vote on the Appellate Committee of the House of Lords. The question the Chairman was asking - and this is a gentle session, it is not getting at you, it is asking a question - was there discussion the day before the reshuffle about this change to the supreme element of our judicial system?

Lord Falconer of Thoroton: Up until twenty to five on Thursday 12 June I was the Minister of State in the Home Office. I am not able to fill in the details of discussions that went on in the weeks and days before.

Chairman: Perhaps Sir Hayden can help us on that?

Q44  Ross Cranston: I think that is unfair.

Sir Hayden Phillips: I am grateful for this protection. My protection officer on the right is helping me. It would not be right for me to go into that, that is not something it would be right for me to do. What I can say are two things, I think. First of all, as you know, in relation to a number of the measures on which we are consulting Lord Falconer's predecessor told this Committee that we were going out to consult on those. In relation to a Supreme Court, this has been discussed inside and out of Government over a very long time and it is not surprising, therefore, that in the year 2003 the Government should have come to the conclusion that it felt it was no longer appropriate.

Q45  Chairman: On 25 May the previous Lord Chancellor wrote to the Chairman of this Committee to say that he was issuing a consultation paper on questions such as whether it would be desirable to make certain kinds of changes, in this case judicial appointment. These things have been in matters of general debate but so major a change is the creation of a Supreme Court it is surely something you would float as a Government for discussion rather than simply announce that as part of the reshuffle this is going to happen?

Lord Falconer of Thoroton: The announcement was made on the same day as the reshuffle. It is part of the process of removing the Lord Chancellor from judicial activity because currently the Lord Chancellor sits in the Appellate Committee of the House of Lords.

Q46  Chairman: And you would resolve that by saying it would not sit anyway, would you?

Lord Falconer of Thoroton: Yes, exactly right. Surely the effect of it is that you give huge momentum to a policy that the Government thinks is right. You can say perhaps you should have had a consultation paper. Is not the right thing, with respect, that we should be debating whether it is the right policy?

Q47  Peter Bottomley: Would it be simpler to say after this meeting, not today, not necessarily in a rush, as the Lord Chancellor or the Secretary of State for Constitutional Affairs, you will write to us saying what discussions there were between Cabinet ministers or members of the Government before 12 June on this significant change? Would that not be helpful?

Lord Falconer of Thoroton: Peter, I am not sure that would be either right or appropriate. The idea that internal discussions within Government about a particular policy should be given to a Select Committee I am not sure is either normal or the way that proceedings would normally go ahead.

Q48  Peter Bottomley: But if it turned out that the previous Lord Chancellor did not know that the Government was contemplating this, what is the point of having a Secretary of State for Constitutional Affairs or a Lord Chancellor if he has these discussions hidden from him? I do not want to build that up too much now because other things are running, but it does seem to me that perhaps the Lord Chancellor and the Secretary of State for Constitutional Affairs should decide about whether it is possible to let us know whether government ministers did discuss this openly before 12 June.

Lord Falconer of Thoroton: There is no basis upon which you could draw the inference that you have said is a possibility, is it correct that what the Government should do is reveal all internal correspondence and debates --- The Chairman is helpfully shaking his head.

Q49  Chairman: He just wanted to know whether there was any.

Lord Falconer of Thoroton: I am sure there was.

Q50  Chairman: Perhaps someone will show it to you.

Lord Falconer of Thoroton: That answers the question.

Chairman: I do not think you know whether there was, which rather confirms our impression that it all came off the back of the reshuffle, that is really the concern that we are expressing. I think Mr Soley has a supplementary on this very matter.

Q51  Mr Soley: Although I can accept that there may have been internal Government discussions, is it not a fact that this has been discussed? It was part of the Labour Party's policy for many years that there ought to be a Supreme Court and there ought to be an independent appointments system which is also in the Joint Committee of the two Houses on House of Lords' reform. All of those things are there, are they not?

Lord Falconer of Thoroton: They are. It is Hayden's point that it is a matter that has been discussed over a long period of time. It has been, as Clive says, part of my party's policy for years that there should be such a Supreme Court. The effect of the announcement on the 12 June is that it is now likely to happen.

Q52  Mr Soley: As someone who was involved in those discussions throughout the 1990s, would he be aware that I and others were discussing the importance of separating out this role for many years and we thought we ought to do it and we have said we ought to do it? How and when, it is true, we left slightly open.

Lord Falconer of Thoroton: Indeed. The Prime Minister would have been aware of that, my predecessor would have been aware of that and it would have been well known to members of the Government. As you say, the question is how and when.

Q53  Mrs Cryer: This is just an absolutely personal query. Are you aware that we had before this Committee about two months ago a chap from the Netherlands called Erik Jurgens who is a professor in constitutional law and he is also a senator and he was a colleague of mine on the Council of Europe. He did a report on the position of the Lord Chancellor's Department and he came to tell us all about it and it was all to do with the fact that we did not have the separation of powers and what were we going to do about it. What he said was that if we did not move towards the separation of powers they would be passing some form of resolution at the Council of Ministers of the Council of Europe. He also said that were we to be applying at this moment to join the Council of Europe they probably would not let us in. I just wondered if you were aware of any of this.

Lord Falconer of Thoroton: I was not aware of that until after 12 June.

Chairman: But you were not aware of the correspondence either!

Q54  Mrs Cryer: I was thinking perhaps Sir Hayden may have done so.

Sir Hayden Phillips: I am well aware of that and we obviously gave him evidence.

Q55  Chairman: Which you may now wish to retract.

Sir Hayden Phillips: It set out the historic value of the office of Lord Chancellor, which all of you appreciate and are very pleased with its history. We were aware of those views. When we have been dealing with the Council of Europe and this debating point has been raised with us before, we have always said when we go around to other countries, particularly newly emerging democracies in Central Europe, "Don't do as we do. What you need is something quite different." We have been absolutely clear about that under Lord Falconer's predecessor and before so that we were not going around trying to preach to people that what we had was right.

Q56  Mr Soley: Is it not also right that a number of countries particularly in east Europe were asking if they could be allowed to do it the way the British did it, in a slightly modernised version? Is that not right?

Sir Hayden Phillips: Yes, I think that is right.

Chairman: I do not think you should assume from our careful probing of the way this matter was progressed that all members of the Committee are hostile to the proposals themselves, quite the contrary in several cases. Even the best friends of this proposal might have hoped for a better start for it, but let us move on.

Q57  Keith Vaz: I should declare that I am a non-practising barrister and my wife holds a judicial appointment. Lord Chancellor, are you happy with your job?

Lord Falconer of Thoroton: Yes, I am happy with my job.

Q58  Keith Vaz: Is it the job you have always wanted?

Lord Falconer of Thoroton: Is that a reference to the Secretary of State for Constitutional Affairs or Lord Chancellor? It is a job I am happy with.

Q59  Keith Vaz: You have held six appointments in six different positions since you entered politics. You were a leading QC before you came into Government. Does it irritate you when people like my colleague Mr Field mentions the flat sharing 30 years ago?

Lord Falconer of Thoroton: I hardly noticed it. I think I am sort of immune to it now.

Q60  Keith Vaz: There is a view that the flat sharing arrangement was wrong, that you should have been Prime Minister and Tony Blair should have been Lord Chancellor. You have announced and the Government has announced the consultation on judicial appointments. What is going to be the arrangement over the next 18 months or three years until this goes through? Are you going to continue to make these appointments?

Lord Falconer of Thoroton: I will continue to make the appointments. I have made it clear that I will continue to perform the functions previously performed by the Lord Chancellor. I think, pending the setting up of the Appointments Commission, it is right that there be certainty about how the process is going to go ahead. The right thing is to continue with the existing arrangements otherwise there would be uncertainty.

Q61  Keith Vaz: Bearing in mind you do not think the existing arrangements are right, those who you appoint may not feel particularly legitimate in their appointment considering the whole process is going to change.

Lord Falconer of Thoroton: I think it is important that an Appointments Commission be set up. I do not think there is a realistic alternative to continuing with the existing arrangements because any attempt to try to create some sort of interim position will simply complicate and confuse. I think the right thing to do is to be absolutely clear we are going on as before, recognising - because it is implicit in the determination to have an Appointments Commission - that we do not think it is the best way to do it. I do not think for one moment those who are appointed during that 18 month period should feel that they are in any way illegitimate as holders of judicial office.

Q62  Keith Vaz: When I put down a Parliamentary Question which was answered by one of your junior ministers, I asked what research had been conducted by your Department and I think the answer came out that no research had been conducted into judicial appointments elsewhere.

Lord Falconer of Thoroton: One of the things we have had to do - and it will come out in the consultation paper which is being drafted at the moment and the drafting of it has been going on for some time because you will know that my predecessor was going to produce a paper in relation to it - is we have looked at other countries' experience in relation to Appointments Commissions in some detail.

Q63  Keith Vaz: Sir Hayden is nodding. There has been research, has there?

Sir Hayden Phillips: We must check the answer to your question. If that was wrong then we must put it right. We have done research into other jurisdictions, we hired academics to do it and we have been quite well informed about what goes on elsewhere.

Q64  Keith Vaz: Is there any country or model that you particularly like? I accept that it has only been two weeks since you took up this appointment.

Lord Falconer of Thoroton: I am not keen in the course of today's hearing to give a steer as to which precise model of Appointments Commission one should adopt. The range is basically from an Appointments Commission that in effect decides without state intervention but by formally making a recommendation to the Government as to who to appoint and the Government is obliged to accept that through to a model whereby they identify who can be appointed as judges, and the Government can only select from that pool. Somewhere between the two there is a series of models and we need to decide which is the best one. I think consultation on that before we come to a conclusion is very important.

Q65  Keith Vaz: So everything is up for grabs?

Lord Falconer of Thoroton: Yes, in the sense that we need a very full consultation on the detail of what the Appointments Commission does and how it operates.

Q66  Keith Vaz: When I put this question to your predecessor - and obviously you cannot take responsibility for him because you were there not but Sir Hayden was sitting next to him at the time - this is what Lord Irvine said, "All major English speaking countries locate the power for judicial appointments in the Executive. If that activity were out-sourced to a quango, the quango would be seen by many as bypassing the democratic process." Do you agree with that?

Lord Falconer of Thoroton: One of the issues we need to accommodate in the Appointments Commission is accountability to Parliament for the judges in this sense: suppose you had a quango that only appointed people who were totally unacceptable for some reason or another, if there was no means by which you could change the members of a quango or explain how that had happened you would have a completely unaccountable appointments system. So there needs to be some involvement at some stage in Parliament so there is a means of ensuring the system is producing the right result. How you do that and at the same time insulate the appointment of individual judges from politics is what the consultation has to be about, it seems to me.

Q67  Keith Vaz: I understand that. So you are not ruling out no intervention by the Executive, there must be some?

Lord Falconer of Thoroton: I am not ruling out no intervention. We need to discuss in the consultation how the role of the Executive and how the role of Parliament is incorporated into the process.

Q68  Chairman: Are you looking at the Scottish experience? We have done so as a Committee and we hope to produce at least a short report indicating some of the practical experiences of the creation of the system in Scotland.

Lord Falconer of Thoroton: Yes, we are looking at that.

Q69  Keith Vaz: You have decided not to sit as a judge and this is obviously an historic decision as no previous Lord Chancellor has not sat as a judge, but the Lord Chief Justice and senior Law Lords continue to speak in Parliament on issues of importance and indeed Members of Parliament have judicial appointments, part time or full time. Do you have any advice for them?

Lord Falconer of Thoroton: Implicit in the decision to take the highest Court of Appeal out of Parliament is that we do not think it is right that the Appellate Committee of the House of Lords is made up of people who are, in effect, appointed to the legislature as a part of the appointment. We think that mixing is inappropriate. As to the question of Members of Parliament or peers who are also Recorders, I think that is a much lesser level of actual problem. I have no reason to suppose that it is a practical problem, but it is something that we need to look at as well.

Q70  Chairman: It was not a practical problem in the case of the judgments, was it, it was a problem of principle?

Lord Falconer of Thoroton: There is a fundamental problem of principle which is that you should not be both legislating and sitting as the highest Court of Appeal. The obvious way that that could demonstrate itself is a member of the highest court speaking out against Government proposals and then sitting in judgment on those proposals. I am absolutely sure that the current members of the Appellate Committee of the House of Lords would only decide the matter on the basis of the law and nothing else, but it could lead to confusion.

Q71  Chairman: The speech that was made a couple of weeks ago by a senior Law Lord on one of the Bills that was going through the Lords, you would have thought that was wrong to have spoken up in that way, would you?

Lord Falconer of Thoroton: I think it would be inappropriate for me to comment.

Q72  Chairman: But you are the head of the judiciary.

Lord Falconer of Thoroton: It would be wrong for me to speak on the specific case. I would simply seek to identify what the danger is and the extent to which it can cause confusion and difficulty in the public's mind about the difference between a judge on the one hand and somebody who is engaged in a process of seeking to support or oppose particular legislative principles.

Sir Hayden Phillips: Just on the point of principles, in the House of Commons you are allowed to sit as a part-time judicial office, but if you were offered and accepted full-time judicial office the House of Commons' Disqualification Act applies and you would not be able to sit as a member and a full-time judge. It is an interesting contrast and piece of history and it is well worth thinking about.

Q73  Keith Vaz: I have two final questions. First of all in respect of the reshuffle and bearing in mind what you have said to the Chairman, it was a bit of a shambles, was it not?

Lord Falconer of Thoroton: As far as how we will look back on the reshuffle is concerned, I hope the way we will look back on the reshuffle is that it was the moment at which a Supreme Court and an independent Appointments Commission had its birth. Whatever view you take about the precise way it was announced, without the sort of momentum that came from that I wonder whether or not those two things would be happening with the momentum and the reasonable speeds with which they are now happening.

Q74  Keith Vaz: On the question of disciplining judges, will you continue to exercise that function over the next 18 months and will that function then go off to some other body, perhaps to judicial appointments?

Lord Falconer of Thoroton: I will continue to exercise that function over the next 18 months in accordance with agreements already reached with the judiciary in many cases in conjunction with the Lord Chief Justice. As far as what happens after the 18-month period, that is something we need to consult about. In particular, we need to consult about whether if appointments are going off to the independent Appointments Commission, to what extent should discipline go off there as well. Again, we are completely open minded about that, but that is something over which there needs to be significant consultation.

Q75  Keith Vaz: If Parliament does not back the proposals and the Lord Chancellorship remains in its present form, how would the Government feel about that?

Lord Falconer of Thoroton: We have set out what our policy is: we would like to see the role of Lord Chancellor abolished, we would like to see an independent Appointments Commissioner, we would like to see the vast majority of the functions of the Lord Chancellor, apart from the appointing of judges, conducted by the Secretary of State for Constitutional Affairs. So we have made it clear what our policy is.

Mrs Cryer: Since I did my 'O' Level in British constitution I have looked forward to the abolition of the position of the Lord Chancellor's Department.

Chairman: I thought you were going to mention you are a retired Justice of the Peace or a non-sitting one.

Q76  Mrs Cryer: I am on the supplemental list. It is not that it is against the law, it is just that I do not have the time to do it. I assume you take the view that the judiciary should be more diverse both from a gender and a racial point of view. I wonder if you have any ideas on how we should be moving towards that position. I did ask this question of a number of organisations when we went to Edinburgh two weeks ago, the Judicial Appointments Board and The Law Society and I did not really get any very satisfactory answers.

Lord Falconer of Thoroton: Yes, I do think that the judiciary should be more diverse both in relation to gender, ethnic mix and experience mix. How do you achieve that? I think there are a number of things that can be done. First of all, I think setting up an Appointments Commission to be in the driving seat on the selection of judges is bound to have some effect, though by itself it will not be sufficient to bring the degree of diversity that is required. Secondly, making it much more open and public how judges are appointed. You will be much more unwilling to apply if you think it is a process shrouded in secrecy or you do not know how your application will be dealt with. Thirdly, I think we need to look very carefully at the career structures of people who become judges. Of course there will always be a place for people who have been very successful lawyers in private practice and who in their late forties want to become judges, but we need to have a system that is also able to welcome people as judges at a younger age and who perhaps have a desire to do it part-time to start with because they have family commitments but who can then move from that job to a higher job in the judiciary. We need to change the appointments system not just to make it more transparent but also to change the sorts of career structures that are available for people who want to become judges. Only if we do that will we have a much more diverse judiciary and I think we do need a much more diverse judiciary and I believe that we can have a much more diverse judiciary without diluting merit.

Q77  Mrs Cryer: Do you think if we have a very diverse Appointments Commission that may help?

Lord Falconer of Thoroton: I think it will help, but I do not think of itself it is sufficient. I think you need to do much more than simply set up an Appointments Commission. I do not put that forward as the only way in which one is going to make the judiciary more diverse.

Q78  Mrs Cryer: I think this is very important. I am not just trying to be politically correct. In the northern cities where we have large Asian communities there is a growing feeling of us and them amongst the young men in those communities. I am thinking about after the riots in Bradford for instance when 2000-odd young men took to the streets and many of their number are now in prison or are about to come out of prison. The sentences may have been more readily accepted had there been an Asian judge involved.

Lord Falconer of Thoroton: Overall, I think we do need to make the judiciary much more diverse. It is about race but it is also about gender and it is also about experience as well. Of course the non-magistrate judges have got to be qualified lawyers, but one could have a much wider experience base of lawyers who become judges and that opens the door to a much wider group of people than I think is currently the case. I think the time has come for a fundamental change in that.

Q79  Peter Bottomley: We all look forward to the day when the colour of anyone's skin is as unimportant as the colour of their eyes or the colour of their hair and whether they are going to be a judge, a QC, a prison officer, accepting people on their merits and their behaviour and experience. There has been quite a lot of support on all sides to get more women and more people with a minority ethnic background into the QC business. I understand that there has been a suspension of consideration for people asking or being considered to be QCs. Is it possible for that suspension to be lifted and for the process to go on until there is a conclusion on the senior advocate's position?

Lord Falconer of Thoroton: The reason why my predecessor, in my view rightly, suspended the Queen's Counsel competition was because he made it clear he was going to consult about whether or not the role of Queen's Counsel should continue. He was in effect posing the question - and we are going to produce a consultation paper about that on the same day as the other consultation papers on the constitutional issues - is it right that there should be a kite-mark given to a particular profession and is it right, if there is such a kite-mark, for it to be given by the Government. These are pretty fundamental issues. If the conclusion of the consultation paper is that the role of QCs should not go on then plainly it is right to suspend the process now. If it is decided that it should go on and the Government have a role on it then the 2004 competition which has been suspended will take place a little later than it would otherwise take place. I do not think any prejudice has been done by suspending it, but I think it is the right thing to do to suspend it pending the results of the consultation.

Q80  Peter Bottomley: Can I put it to you that if a number of people decided not to put themselves forward for the 2003 round because they thought they had a better chance in 2004 and if many of those were women from ethnic minority backgrounds, there is at least an argument for saying, if there is going to be change, let it happen after a number of those who have been retraining themselves to give themselves a better chance of being accepted apply because otherwise, unless the QC title is abolished, we are going to be left with an historic imbalance which is not necessarily desirable.

Lord Falconer of Thoroton: I understand entirely what you are saying. Maybe one of the problems about a lack of diversity is that the role of Queen's Counsel has played too significant a part in who becomes judges. What you are talking about with Queen's Counsel is people who have been high-flying advocates and what I am saying is one needs to try and diversify the group from which one selects judges beyond the high-flying advocates. Of course advocacy has not been the only consideration, indeed it is one of only a number of considerations in whether or not judges are appointed, but we need to make it clear that it is not just the people who are good in court, it is a much wider group than that.

Q81  Mr Soley: It is actually very difficult to get to where we all want to be. I just wonder if you would give some thought to the Commission having a role in making recommendations about training, selection and so on. If you take politics, it took all women short-lists to get to where we are in our present Labour representation, which is still very low and in the judicial process it would be even more difficult unless the Commission has some formal role in actually creating a situation in which it is more likely for people from diverse backgrounds to become qualified and come forward.

Lord Falconer of Thoroton: I think that is right and I think we should promote that as much as possible and we should go further and we should think about the independent Appointments Commission having a quite wide human resources role in relation to attracting but then also seeing the particular people who are appointed through their careers as judges, because only if they are able to some extent to deal with issues about promotion within the judicial hierarchy, for example from district judge to circuit judge, would they be able to give the sorts of assurances to people who are not adequately represented in the judiciary at the moment that there is a career for them there and that might attract them in at an earlier age.

Q82  Mr Clappison: I declare an interest as a member of the Bar in order to avoid appearing anywhere as a spokesman of the Bar. Perhaps I can invite you to draw on your experience to put some of the comments which we have just heard into context. Would you agree that it is the case now, over the last ten or 15 years, that the composition of the Bar has become much more diverse by way of political agenda and ethnicity than ever it used to be and that there are grounds for optimism in the future as to the sort of people who are coming forward who will be appointed as QCs and judges with the right type of experience acquired over time?

Lord Falconer of Thoroton: I do think that the Bar has become much more diverse. If you look at the figures for people who enter the Bar now by reference to sex or ethnic group, it is much more diverse than it was. If you look at the numbers at the start in any particular year, they go down quite dramatically. You might have, for example, equal numbers of men and women starters at the Bar now but ten years on you have got more men than you have women because women have dropped out in that process. We have got to do more than just attract a more diverse starter, we have also got to make the career for the lawyer and the career for the judge attractive for somebody to stay in it rather than drop out.

Q83  Mr Clappison: That is a problem which other professions have as well, I think it is fair to say.

Lord Falconer of Thoroton: If you look at the senior appointments to the judiciary, I suspect they are less diverse than senior appointments in other professions. Right at the top, in the final Court of Appeal in this country we have not had and do not have at the moment a woman senior member of the highest court in the land and I wonder how many countries that can be said of.

Q84  Mr Clappison: Notwithstanding that issue, which is important in its own way, I think you would also agree with me if I said to you that our judiciary is widely admired because of its long-established integrity and independence.

Lord Falconer of Thoroton: Of course I accept that entirely.

Q85  Mr Clappison: I wonder if you could tell us what steps you intend to take to ensure that the Lord Chancellor's responsibility for preserving and protecting judicial independence and integrity is continued?

Lord Falconer of Thoroton: The rule of law and the independence and integrity of the judiciary go hand in hand. Our constitution is based on the independence and integrity of the judiciary. As Lord Chancellor and upon the abolition of the role of Lord Chancellor, as Secretary of State for Constitutional Affairs, whoever holds that office, one of his/her responsibilities will be to preserve the constitution and the constitution depends upon the independence and integrity of the judiciary.

Q86  Mr Clappison: Can you give us an absolute assurance that is going to go on?

Lord Falconer of Thoroton: I give you an absolute assurance that is going to go on.

Peter Bottomley: To the extent that if the Home Secretary appeared to criticise the judiciary, could a Cabinet colleague make a public noise contradicting that appearance?

Q87  Chairman: To put that another way, might you in those circumstances be as forthright before this Committee as your predecessor was?

Lord Falconer of Thoroton: The critical role is to defend the independence and the integrity of the judiciary. The fact that the judiciary do something that the Executive may not like is not the same as saying their independence or their integrity is affected. I give an absolute assurance along the lines of James' question that the independence and the integrity will be protected. As it has been in the past, so it will be in the future.

Q88  Chairman: What about phrases like the Home Secretary's phrase to the Police Federation, "We only want judges who will help you and us to do our job"?

Lord Falconer of Thoroton: You are unfair to take particular statements and put them to me. The critical point to make is that just as Lord Chancellors in the past have preserved the integrity and independence of the judiciary, so I will as Secretary of State for Constitutional Affairs and so will my successors. There is no point in seeking to draw a division between individual ministers in relation to it. As Peter will be aware, because he was a member of the Government, since time began members of governments have expressed disquiet about decisions made by individual judges. That is not remotely the same as saying that is an attack upon the independence and the integrity of the judiciary and one has got to be moderately sensible and mature about what is required.

Q89  Peter Bottomley: Tell Mr Beckett that.

Lord Falconer of Thoroton: That was the government before.

Sir Hayden Phillips: There was not too much separation of powers either.

Q90  Chairman: There is a point in another member of the Cabinet being able to relinquish his position when that member of the Cabinet is the member responsible for safeguarding the independence of the judiciary, and the fact that your predecessor felt able to come before this Committee and indicate his disapproval of ministerial statements which appeared to question that independence indicates that he thought there was some point in departing from traditional Cabinet solidarity when it was necessary to underline that the Government as a whole respected the independence of the judiciary. You are not saying there would not any point in doing that in the future, are you?

Lord Falconer of Thoroton: I am saying that my role and my successor's role must be to preserve and protect the independence and the integrity of the judiciary. I am trying to avoid being drawn into whether or not I agree or disagree with individual statements made by predecessors of mine in relation to particular issues. I think we have got to decide at the time what the appropriate course to take is to preserve that integrity and I will do that, as will my successors, I am quite sure.

Chairman: We will see if a problem arises again.

Q91  Mr Soley: I am a very strong supporter of the action that has been taken, but I think one of the problems you have is there are major constitutional issues now which have to be addressed and yet at the same time there is an incredible work burden of which the most important thing for the average person in this country will be the efficiency of the courts system. Also, if I could link with that the other very big issue, that is the use of Legal Aid and the amount of public money that goes into Legal Aid and how efficiently it is used. How are you going to ensure that those two issues do not get lost in the necessary constitutional challenges you are also going to have to make?

Lord Falconer of Thoroton: Obviously both those issues, an efficiently run court service and an efficiently and effectively delivered Legal Aid system, are critical parts of what my Department does. One of the effects of the constitutional changes, namely the withdrawal of the Lord Chancellor from the appointment of judges, the withdrawal of the Lord Chancellor from sitting as a judge and also, hopefully in time, the withdrawal of the Lord Chancellor from sitting as the Speaker of the House of Lords will enable more time to be spent by the holder of the office to drive improvements in Legal Aid and a more efficient court service.

Q92  Mr Soley: Particularly the more efficient court service, there is an immediate almost crisis problem there. My concern is that your time on that will be marginalised by all the other issues. Can you give us any indication of how much time you think you are going to be able to spend on such a critical issue as that?

Lord Falconer of Thoroton: I cannot give you a percentage in terms of the day, but in terms of priorities, making the court system and, in particular, the criminal court system work effectively has to be a priority because it is a priority of the Government. As well as performing the role of Lord Chancellor I am also a member of a Government which is absolutely committed, it is a priority, to making the criminal justice system work much better than it does. So it is very high up the list. As to what percentage of time I will spend on it, I cannot tell you what the percentage is, but I must spend time making the system work better.

Q93  Mr Soley: Do you need additional ministerial assistance in order to do that in the short term? By that I mean another political minister in your Department.

Lord Falconer of Thoroton: I have got three ministers in the Department, Mr Leslie, Mr Lammy and Lord Filkin. I do not think I need more, I think I have got the help and the time to do it, but it is a priority.

Q94  Mr Soley: Who will focus on the reform of the courts?

Lord Falconer of Thoroton: I am focusing on the reform of the courts at the moment. This morning I spent the whole morning at a conference of the Courts Service in which we were addressing the issue of how you make the criminal courts work better and that was a detailed consideration of the things that need to be done, how you get co-operation from other agencies, how you make victims and witnesses and the public who use the criminal justice system believe that it is working better. That will be typical of the time that I focus on that issue, because you are absolutely right to say it is an absolutely critical issue.

Q95  Mr Soley: Who is going to spend most of their time on Legal Aid and how sure are you that you can keep your eye on the ball there because there are concerns about Legal Aid?

Lord Falconer of Thoroton: Mr Lammy is the minister responsible for Legal Aid. There are very considerable issues about the management of the budget, the effective use of the funds and again it is something which has got to be given priority.

Q96  Mr Soley: How are you going to assess the success of the reforms on the court system over a period of time again given the need you have now to resolve some of the issues around the constitution?

Lord Falconer of Thoroton: In relation to the court system, as far as the criminal system is concerned, I think the way that one will judge whether or not the reforms have been successful is the timeliness of cases, the number of ineffective trials there are, there needs to be a reduction in the number of ineffective trials, the number of discontinuances and the extent to which confidence goes up as measured by the British Crime Survey in the criminal justice system. So there are a number of measures by which one can measure it. In relation to the family court system, one of the critical issues there is delay. Cases take much too long to come on particularly when they involve children. So one of the critical measures in relation to the family justice system will be the extent to which one can see delays going down.

Chairman: I think we will have to go and vote.

Chairman: Gentlemen, we will just finish off Legal Aid which I think Mr Cranston wanted to come in on as well.

Q97  Ross Cranston: It was really just to underline this important issue. A point I made to the previous Lord Chancellor was that these constitutional issues might move us here in Westminster, but out in my constituency people are concerned about whether, if they are tenants, they can sue their landlord or employees can sue their employers for unfair dismissal and so on.

Lord Falconer of Thoroton: I entirely accept that. Constitutional changes are important, but they are for a purpose and one of their purposes is, as the Prime Minister said when dealing with the reshuffle, to get the head of the Department, of which I am now head, dealing with precisely these sorts of problems which you and Clive have identified.

Q98  Ross Cranston: One of the particular concerns that has come out of previous discussions is the increasing numbers of Legal Aid lawyers both at the Bar in terms of family practice but also on the high street. It is early days, I know, but have you got any thoughts on this?

Lord Falconer of Thoroton: There is a significant number of Legal Aid practitioners. We need to be sure that the number of Legal Aid practitioners is able to meet the demand that is out there. You need to be sure that the demand that comes from criminal Legal Aid and demand that comes from family law is capable of being met. You have got to strike a balance between not having too many out there but having enough to meet the demand. How one makes sure that happens I would be unwilling to express views on at the moment because it is too early days.

Q99  Ross Cranston: There is a consultation paper now on the CFAs where there is the criticism that insurance companies have taken every point in the book to upset agreements. Sir Hayden gave us evidence about the high fee criminal cases. I am just wondering what is being done there. Maybe Sir Hayden can answer that question.

Lord Falconer of Thoroton: I do not feel that I have got right into the detail of this, but something like 46% of Legal Aid in criminal cases was spent on those high value cases. The way forward in relation to that looks like fixed fees for those big cases so you do not end up in a situation where costs career out of control, but instead you end up in a situation where people can tender to do the work for a fixed fee and there is then control over the expenditure. That is the way to seek to keep a handle on those cases in principle. As far as CFAs are concerned, in principle it has worked well, but as you have pointed out, there is too much satellite litigation. There needs to be agreements reached, for example, with insurance companies to stop all of that satellite litigation so that one can move forward on the basic principles.

Sir Hayden Phillips: I hope we are through the worst of that now. The court cases that have come from it should have closed a lot of this off. The Master of the Rolls has put a lot of effort into a better cross-working and I think we are out of the woods, but this is something you may want to ask me about on the 15 July when I come before you then.

Q100  Mr Clappison: I know you cannot comment on individual cases, but I have certainly had a lot of comments to me as a Member of Parliament about one particular case recently in which the judge himself felt moved to comment about the costs which had been run up and the number of lawyers involved in the case and the nature of the case itself. I am referring here to the case of the Lithuanian asylum seeker who brought an action about the quality of the accommodation which they were offered. The sums of money which have been reported in the press as being involved in that case in terms of Legal Aid have been very large sums indeed. Do you have any comment that you can make generally about cases like that where judges themselves feel moved to comment about the quantity of costs which are involved and the nature of the case involved?

Lord Falconer of Thoroton: In the immigration and asylum area, as an area of law that has rapidly expanded over the last few years. It is plain from comments made by judges in particular cases that the expenditure on that area could be much better targeted. It is a very important area, people do need proper representation, but we need to be sure that the money that is being spent there is well targeted on ensuring that the representation is effective and also not something where the same point comes up again and again, maybe put in a different way in relation to the same people. It is plain that work needs to be on that issue.

Q101  Peter Bottomley: While you hold judicial responsibilities can you make it plain to the Court Service and to others that local newspapers have a right to know the listings in courts and that public coverage and media coverage of what goes on in our courts, subject to the obvious reporting restrictions or children's cases, is part of our open judicial system?

Lord Falconer of Thoroton: Putting aside the special cases which we all know about, yes, plainly courts must co-operate in making it clear what cases are coming on and when because if they do not then the principle of open justice gets, in effect, subverted.

Q102  Peter Bottomley: Before turning to ecclesiastical matters, I need to declare that I am married to a lay canon of Guildford Cathedral, I was for six years a trustee of Christian Aid and I have had lots of other church links as well as 50 years as a sinner in Westminster Abbey. Can I ask how you plan to deal with the responsibilities of the holder of your office in relation to the 500 livings or thereabouts to which you have the advowson?

Lord Falconer of Thoroton: The Lord Chancellor has a number of significant roles in relation to ecclesiastical matters, the 500 livings: he is an ex officio church commissioner, he has a special place in relation to the passing of ecclesiastical law, he appoints people who sit in consistory courts, so he has a particular function which in very many cases is because he is somebody who is independent of the Church. I do not know what the best way to deal with those particular roles that he performs is, but we need to work out a solution in consultation with everybody but particularly the Church. We intend, as we made clear last week, to come forward in September with a detailed consultation paper about the other roles of the Lord Chancellor apart from those in relation to the judicial system and the court system. The ecclesiastical aspects of it are important and need to be dealt with properly and fully and in a way that gives people confidence that those roles are properly dealt with.

Q103  Peter Bottomley: Can I suggest to you that when that happens there should not be a rush to abolish Royal peculiars.

Lord Falconer of Thoroton: Royal peculiars were raised by me this morning by the Dean of Westminster and they will obviously need to be considered very carefully as well.

Q104  Keith Vaz: On the subject of immigration appeals, Lord Chancellor, you are aware of the letter that Baroness Scotland sent to the adjudicators just before the reshuffle. Basically she wrote to everybody involved in immigration appeals asking for their views on whether the IAT should be abolished. Do you have any views on that?

Lord Falconer of Thoroton: This is the issue about whether there should be a single tier in effect. There is much to be said for reducing the complication of the process as long as there is proper judicial scrutiny given to each individual case.

Q105  Keith Vaz: But part of the problem, and the Committee is obviously investigating immigration appeals, is because of the Home Office backlog. Are you going to seek to try and reinvigorate the relationship between the three departments to make sure there is a better flow of cases?

Lord Falconer of Thoroton: Yes, we do need to have a very close working relationship in relation to those issues and a relationship that really works in getting the cases through the system because one of the problems obviously is that the system is not perceived to be working that well.

Q106  Keith Vaz: Underlining the points made by my colleagues about the delay, last Friday my office tried 20 different firms of solicitors to find a solicitor who was going to do immigration Legal Aid work and eventually we found somebody to represent a constituent. Will you undertake in the next year, despite your very heavy commitments, to visit a busy Legal Aid practice to see for yourself and hear for yourself what the practitioners are going through?

Lord Falconer of Thoroton: Of course, and I hope I will be able to visit more than one during that period. I can certainly give the undertaking you seek.

Q107  Peter Bottomley: Many of us will have enjoyed the mild apathy (?) which some believed followed the Lord Chancellor being brought in on judicial appointments to try to give that some independence. Obviously there is a debate and there are changes in progress to the responsibilities of the whole of the Lord Chancellor's office. The title itself has a great deal of history. Is abolishing the title something where there is a prejudiced and closed mind or do you think Government and the House of Lords might be willing to see whether the title should be used as the Privy Seal's title of Lord President of the Council in some way which might provide some continuity and recognise tradition as well as change?

Lord Falconer of Thoroton: In the debates that there has been in the Lords since the 12 June about the speakership there have been views expressed by a number of peers, Baroness Williams of Crosby is one, saying keep the title of Lord Chancellor perhaps as the title of the role of the person who sits in the Speaker's chair. I think the critical thing to do is to make sure that the current role of the Lord Chancellor is fundamentally changed. I wonder whether, having done that, it would then be possible to keep the role of Lord Chancellor without there being confusion. In other words, if you completely change the role of the Lord Chancellor I would expect the most sensible thing to do then is to abolish the role of Lord Chancellor, but as Gareth Williams said in the House of Lords, nothing is ruled out. Clarity suggests that one does that particularly if one is changing the role, but Gareth made it clear that nothing was ruled out and obviously that is the position of the Government.

Q108  Chairman: There have been a few changes in the role of Lord Chancellor in the course of its many centuries of existence.

Lord Falconer of Thoroton: Yes, but evolving it from its current role to becoming the title of the Speaker of the House of Lords, which is Baroness Williams' suggestion, is nothing like what has happened before to it and it is not an evolutionary process, it is giving somebody a title they have never had before.

Q109  Chairman: On that diversionary note I think we will end our session. I apologise that we had to interrupt it. Thank you very much indeed.

Lord Falconer of Thoroton: Thank you very much.