Supreme Court and Judicial Reforms

Part of the debate – in the House of Lords at 6:26 pm on 12 February 2004.

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Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor 6:26, 12 February 2004

My Lords, I agree with the noble Lord, Lord Henley, and the noble Lord, Lord Goodhart, that it has been a remarkable debate. I have been described as a self-inflating tyre, not suave and a constitutional aberration. With the possible exception of a self-inflating tyre, I plead guilty to all the charges made against me.

I join other noble Lords in congratulating with real sincerity the noble and learned Lord, Lord Cullen of Whitekirk, on his speech. I join with the right reverend Prelate—he comes from within approximately 20 miles of the area relating to the title of the noble and learned Lord—in saying that he brings not just a breath of Scottish air. There has been an absolute gale blowing through the debate when one considers those who have spoken, including myself. I very much hope that his will not be a valedictory address but that we shall hear more from the noble and learned Lord in later debates.

The noble Earl, Lord Onslow, referred to his time on the committee chaired by the noble and learned Lord, Lord Scarman. I agree that having Law Lords in place pushes up one's game a notch or two. That has been very much in evidence during the course of today's debate.

Many issues have been raised in the course of this long and interesting debate. I shall focus on the three main issues. What is the case for abolishing the role of Lord Chancellor? What is the case for a Judicial Appointments Commission? What is the case for a Supreme Court separate from the House of Lords? Before I deal with each of those points, I categorically deny all the various conspiracy theories which have been advanced. We most certainly do not wish to reduce the independence or quality of the judiciary. Far from it: our intentions are to increase the independence and enhance the quality.

As regards the theory that it is a ruse in order to get rid of a political personality, again that is completely untrue. I believe that the issues must be debated on their merits.

In relation to the abolition of the office of the Lord Chancellor, I agree that there must be a positive case, not just a theoretical reference to the separation of powers, for the abolition of that important role. That it is an important role I fully and enthusiastically accept. Currently, the main functions of the office of the Lord Chancellor are as a Minister, having a substantial role as the protector of the judiciary, and an important role in relation to the rule of law. That role involves appointing judges. That must be done on an objective basis, defending the independence of the judiciary irrespective of any political concern. I shall continue to fulfil that function until the office is abolished and other arrangements are put in place.

How does it work in practice with the Lord Chancellor being both a Minister and having that role in relation to the judiciary? Through no decision of any government, the budget of the Lord Chancellor's department is now between £2 billion and £3 billion. That budget goes on the administration of the courts and legal aid. Those two issues of expenditure are of huge importance because of the expenditure involved and because the issues they raise are of great importance to the public. The public are keen to see the courts operate in a way which gives them confidence in relation to domestic, civil and criminal issues. So, in relation to the expenditure and those issues, the Lord Chancellor must operate as a Minister. He must be accountable to Parliament and act on behalf of the public in what he does.

Regarding his role as the protector of the judiciary, he has a separate, entirely different function. Do these roles come into conflict? They did not much 20, 30, 40 years ago, but as time has gone on, as I think the noble and learned Lord, Lord Woolf, would acknowledge, these roles have increasingly come into conflict. I give a tiny example. Today the noble and learned Lord, Lord Hobhouse of Woodborough, in a very powerful speech, made an impassioned plea for more money to be given to the Court Service. There is a real issue of priorities there. What is the role of the Lord Chancellor in relation to that? Must he act on behalf of the judges or in his role as a Minister? It must be, I submit, as a Minister.

Two other examples were given in the course of the debate. First, the noble Lord, Lord Kingsland, referred to the Criminal Justice Act, which permitted the admission of previous misconduct evidence into criminal trials in certain specified circumstances. Quite legitimately, certain members of the judiciary have made public their concerns about those provisions. Again, in relation to Clause 10 of the Asylum and Immigration (Treatment of Claimants, etc.) Bill, which is currently in another place, legitimate concerns have been raised by the judiciary.

There is a policy issue, for which in part the Lord Chancellor is responsible, as well as a rule of law issue in relation to both of those issues. As it happens, neither of those provisions infringes against the Human Rights Act or the convention underlying it. That is the advice that we have received; that is a view that I share.