Cabinet Office: Constitution Committee Report

Lord Goldsmith Excerpts

Tuesday 6th July 2010 Lords Chamber

[Lord Goldsmith]

My Lords, I am in a happy position as the second listed speaker to congratulate the noble Lord, Lord Goodlad, on three things: first, on securing the debate; secondly, on this report, about which I want to say something in a moment; and, thirdly, on his stewardship and chairmanship of the committee. He is leaving, although I do not know whether this is the last time that he will speak in this House as chairman. Yesterday, during the Statement on constitutional reform, he made a remark that suggested that there may be at least one more report that he will bring to the House, but in any event I take the opportunity to congratulate him on the way in which he has steered this important committee through some choppy waters. I should say that, although I am listed as a member of the committee, I was not a member of it on this occasion and I have a sadness that I will not be under the noble Lord, Lord Goodlad—if I may put it that way—when the work starts.

I will focus on one aspect of the report—the part that deals with changes in government machinery and, particularly, the proposal to abolish the office of Lord Chancellor. The report and the evidence collected by the committee make striking reading, not least because of the dignified silence that the noble and learned Lord, Lord Irvine of Lairg, kept over this issue, despite, as the House now knows, the sudden and perhaps even brutal way that his office ended. As someone who stood a little to the sidelines, I am glad that that is now in the open.

I am, as it happens, a great admirer of the former Prime Minister, Tony Blair, but this was a bad business. There are lessons for the future, which is why I want to say a few words about it. It is plain from the report that inadequate consultation and advice were taken on the effect of a proposed change in the machinery of government, as it may have seemed to some, although it was in fact a major constitutional change. In the end, it is unclear from the report just what advice was provided. I say simply to avoid the accusation of being among the rogues gallery that my office was not consulted about the change either.

The consequence of what took place was not merely problematic in terms of how this House was to operate and how the judiciary was to act; it was much more serious. There was perhaps a comic element. I remember at least hearing stories that my noble and learned friend Lord Falconer had to scurry around to find tights so that he could sit on the Woolsack for the House to have a session. That is all very amusing, but there is a much more serious problem, because, if I may say so, he and the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, who is in his place, were left in a strange position. It was not at all clear what the constitutional position would be in relation not just to a great Minister of State—the Lord Chancellor—but to the judiciary. Noble Lords will recall that what then took place was a period of negotiation between the noble and learned Lords, Lord Falconer and Lord Woolf, on behalf of the judges, which ended up with a concordat. However, that might well not have occurred and we have a great deal to thank the two noble and learned Lords for their wisdom and persistence. Dealing with the relationship between the Executive and the judiciary—the appointment of judges and who was responsible for what aspects of the courts—was a hugely important issue, which needed careful thought before the structure was changed.

Although the concordat was a good result that resolved many of the problems, it was done in an unsatisfactory way in terms of great public scrutiny and obvious concern by the judges. It put a great deal of strain on what had to be done by the noble and learned Lords, Lord Falconer and Lord Woolf, and led to one or two not wholly satisfactory results. I, for example, as Attorney-General at the time, was concerned to find a speedier way of dealing with certain court cases. That led to a question about whether we could produce lists of court cases that were ready for prosecution. It is a technical, but important, issue. The blank answer from the judges was, “It has been agreed in the concordat that listing is exclusively a matter for the judges”. I see that the noble and learned Lord, Lord Woolf, is smiling. He thinks that that is absolutely right. I should have liked an opportunity to debate that question further, but it is one of the consequences of a decision about the critical constitutional position of the judges and the Executive being made in that way.

The moral is clear. I want to end with two points, including a question to the Minister. Constitutional changes require proper thought and planning, and then more thought. The pieces of our constitution fit together; sometimes, like an unsolved jigsaw, it is not apparent how they fit together, but fit together they do. That does not mean that they are immutable, but it does mean that if you are going to make changes you need to plan carefully and be clear what the end result will be.

The changes were rescued on this occasion because of the work that was done, but that might not be the case on a future occasion. The present Government need to bear that very much in mind. My question to the Minister relates to paragraph 212 of the report, where the committee—I was going to say “complains”, but it is too elegant for that—states that it never received sufficient information, as it perceived, in documents from the Cabinet Office on what had actually taken place. As a result, the committee states in paragraph 213:

“It is impossible to discern a consistent picture from the evidence received of what happened. With regret”,

the report says with English understatement,

“we must therefore leave it at that”.

Can the Minister say whether, if a similar problem were to arise in the future with the committee, he and others in government would make sure that that sort of information was provided to the committee?