moved Amendment No. 1:
Before Clause 1, insert the following new clause—
This Act is not to be construed in a way that would adversely affect—
(a) the existing constitutional principle of the rule of law, or
(b) the Lord Chancellor's duty (not cognisable in law) to respect that existing principle in the exercise of his functions."
My Lords, the House has on several occasions considered how to ensure that reform of the office of Lord Chancellor does not weaken the protection for the rule of law. I hope that today we can move towards a settlement of this most important of issues.
It is trite to say that we have no codified constitution, although we have statutes of particular constitutional significance such as the European Communities Act 1972 and the Human Rights Act 1998. So we have no single source that definitively states what the place of the rule of law is in our constitution. That it has a role is undeniable.
There is a significant measure of agreement in the House about the importance of the rule of law and the Lord Chancellor's role in relation to it. Where we have disagreed, however, is in seeking to translate those shared goals into appropriate statutory language. I completely understand the desire on the part of noble Lords to match the strength of their feelings on the issue with similarly strong language in the Bill. However, in our desire to ensure continued protection for the rule of law, we must be immensely careful that we do not inadvertently disturb other crucial arrangements of our constitution or even undermine the rule of law itself by doing away with one of its most important aspects, legal certainty.
The Government have no problem in accepting that the rule of law must and does guide the actions of Ministers and all public officials. It is also clear that Ministers and other public officials must comply with the law. That obligation is enforceable in the courts. So, if a Minister acted beyond his powers or used them for a purpose other than that for which they were intended, he may have his actions overturned by the courts. It is now settled that Ministers can be required by the courts to take or not to take certain actions, and if the Minister disobeys such an order he can be held in contempt. With that in mind, I shall outline two fundamental issues that need to be addressed in the attempt to legislate with respect to the rule of law.
First, the notion of the rule of law cannot be expressed in the form of an ordinary legal rule. Such a rule cannot itself determine whether the law in general always prevails. There is a paradox in trying to formulate a legal rule that determines the status of the law. Such a rule must be open to the interpretation that it is referring to standards that lie outside—and, in a sense, above—the law. That leaves open the question of which prevails when the two come into conflict.
If we are not careful, we could be taken as seeking to create a special rule with a higher status than that of the law itself, including primary legislation. That would be to limit the sovereignty of Parliament by reference to the rule of law. The question of which prevailed in the event of conflict would have to be resolved by the courts. That is something that we cannot contemplate. A rule of law can never, in our constitution, enable individual cases to be decided by the courts in such a way as to invalidate an Act of Parliament validly passed. Such a radical and fundamental constitutional change surely must not be enacted by Parliament in a Bill devoted to limited reforms relating to the Lord Chancellor and the judiciary.
The second issue is that the success of the rule of law in our system has never been dependent on grand statutory exhortations. That success has been assured by a delicate and gradually evolved institutional balance based on a mixture of convention, practice and law. There is no single or even privileged guardian of the rule of law in our constitution. A statutory statement that singles out one of the major actors risks undermining the position of the others.
I do not regard either of those fundamental issues as necessarily fatal to any provision in the Bill concerning the rule of law, but I think that they need to be extremely carefully thought through and resolved satisfactorily before we can commit to any amendment. We and others have been grappling with the issues for some time now and have come up with what we think is a workable and appropriate solution.
I believe that my Amendment No. 1 would meet the objective of preserving the existing position in relation to the rule of law while avoiding broader constitutional effects, particularly in relation to parliamentary sovereignty. My amendment seeks to maintain the balance in our constitutional arrangements and to preserve the sovereignty of Parliament, while providing the clarity and reassurance that the House has rightly sought with respect to the rule of law.
The obvious way of providing that reassurance, while properly addressing the issues I have outlined, is to keep in mind the specific issue that we are trying to address; namely, the perceived threat to the rule of law from the changes the Bill will bring about, particularly the reform of the office of Lord Chancellor.
We should start with a proposition about what the Bill is not to be taken as doing. The proposition is that it should not be taken as detracting from the rule of law, as it is currently understood as a principle of the United Kingdom constitution. The amendment acknowledges the rule of law as a principle of the constitution of the United Kingdom. This is, to my knowledge, unique in statutory language in this country and represents a powerful statement of the Government's commitment to the rule of law. It does not, however, create any legal paradox or create ambiguity with respect to other constitutional principles. Most importantly, it does not detract in any way from the principle of parliamentary sovereignty. The reference in the amendment is to the existing principle of the rule of law, which is, and will remain, subject to the sovereignty of Parliament.
The second effect of the amendment is also to state what the Bill is not to be taken as doing, but this time with specific reference to the office of Lord Chancellor. Subsection (2) recognises that the Lord Chancellor has had, and will continue to have, a duty to respect the rule of law in the exercise of his functions, and states that the Bill cannot be interpreted as affecting that duty adversely either.
Members of the Select Committee, many of whom I am glad to see in the Chamber today, and other followers of this debate will note that I have listened to concerns that my previous amendment was too narrowly drawn, in that it related only to those statutory functions conferred on the Lord Chancellor in the Bill. I accept that it is right that the duty should relate to all of the Lord Chancellor's functions, which would include his duty to speak up, if necessary, in Cabinet, and we have so provided in this amendment.
I hope that it will also have been noted that this amendment also refers to the Lord Chancellor's duty to "respect" the rule of law. I have considered carefully our last debate on this issue and I accept that the term "respect" is preferable in this context, as the noble Lord, Lord Goodhart, said.
Throughout the debates we have had on the rule of law, the contention has been that the Lord Chancellor has always had a role with regard to the rule of law and that it is important that we do not inadvertently lose or diminish that role. There has also been general, if perhaps not universal, agreement that such a duty was a political one—that it was not a duty to be enforced in the courts. My amendment seeks to give effect to both these lines of argument: it acknowledges that the Lord Chancellor has a duty with regard to the rule of law and it acknowledges that that duty is not one that is cognisable as a matter of law. It will ensure that the rule of law features in the deliberations of the reformed Lord Chancellor in the same way as it does now with the existing Lord Chancellor. But it does this in a way that does not have wider, unintended effects.
I shall now deal with the two other amendments in this group. First, we have Amendment No. 6, tabled by the noble Viscount, Lord Bledisloe. The noble Viscount made it clear in Committee that he would return to this issue on Report. Although I fully understand his reasons for doing so, I confess to some disappointment that the amendment before us now is identical to that tabled in Committee. I recognise, however, that the noble Viscount will be similarly disappointed to hear that I remain unable to accept this amendment. It fails to engage with either of the fundamental issues that I outlined earlier. It simply assumes that a duty to uphold the rule of law can be inserted into a statute, as if we were operating in a constitutional vacuum. For that reason alone, this House should not accept it.
This is not merely a theoretical issue. The content of the principle of the rule of law is controversial, with opposing views having been expressed over time by different judges, academics and practitioners. Under this amendment, individual Ministers could never know with certainty what was required of them. For example, there are respectable academic arguments to the effect that certain provisions in anti-terrorist legislation could be regarded as impinging upon the rule of law, in accordance with a wide interpretation of the principle. Provisions limiting the rights of terrorist suspects might be said to be within this category. The Government could not accept such an analysis. By bringing the rule of law directly into play as a legal rule in potential conflict with the law itself, the noble Viscount's amendment would create confusion and uncertainty, risk undermining parliamentary sovereignty, and risk impairing the clarity and effectiveness of the law in vital areas such as national security and the prevention of terrorism. For all these reasons, I ask the noble Viscount, Lord Bledisloe, not to move his amendment.
Finally, we have Amendment No. 2, tabled by the noble Lords, Lord Kingsland and Lord Goodhart. Let me first acknowledge that the terms of this amendment represent a genuine attempt to seek consensus and to get to grips with the very important and difficult issues that I outlined earlier. I am genuinely grateful for the efforts that the noble Lords, Lord Kingsland and Lord Goodhart, have made to move the debate forward in a positive manner. It is, therefore, a bit disappointing that the Government are unable to accept Amendment No. 2 as it stands. We do, however, recognise that it contains at least a partial solution to the fundamental issues.
But in several important respects, the amendment fails to address the concerns that I have already outlined. First, although I initially thought that a reference to parliamentary sovereignty was a good idea, I have now come to the view that such a reference would be dangerous. The problem is the need to ensure that parliamentary sovereignty remains the overriding principle. Simply mentioning it as an additional principle "together with" the rule of law would not be enough. The reference in the amendment to the rule of law and parliamentary sovereignty as central principles does not remove this problem. It says nothing about the relationship between the principles, which is the crucial issue. The amendment would leave the status of parliamentary sovereignty vis-à-vis the rule of law ambiguous, and as such would not be acceptable or clear.
Secondly, I am concerned about the precise meaning of the "best endeavours" test in subsection (2), and how it might interact with constitutional conventions such as the Lord Chancellor's role as a Cabinet Minister. I think subsection (2) also engages the very difficult issue that I mentioned earlier about the paradox of a legal duty to ensure that others respect the rule of law. This amendment also quite seriously mis-states the current duty of the Lord Chancellor. The Lord Chancellor has never been responsible for enforcing the law against others; this amendment states that he is. It is not confined by reference to the Lord Chancellor's functions; nor does it state by whom the rule of law is to be respected.
Lastly, I understand the intention behind subsection (3) to be to render the amendment declaratory, as we all intend. But subsection (3) implies that the Lord Chancellor's duty is to some extent currently enforceable as such. That implication must surely be inaccurate.
This amendment is a carefully crafted and well thought-out suggestion that seriously engages with the very difficult issues we are facing here. But I think the problems I have identified must be fatal to the text as it stands.
To conclude, I have sought to listen very carefully to the views of your Lordships' House, as expressed in previous debates and in the debates in Committee, and have brought forward an amendment that seeks to give effect to all of the views that have been expressed. I believe that it gives effect to those views. I submit that Amendment No. 6 goes too far and should be rejected by the House as it would undermine parliamentary sovereignty and create confusion and uncertainty, which is surely contrary to the very rule of law that the amendment seeks to uphold. While Amendment No. 9 has much to recommend it, I cannot see that it satisfactorily resolves the issues before us. I believe that Amendment No. 1 has that effect.
I have spoken with noble Lords about the terms of my amendment. As I have indicated, I believe that my amendment achieves what we are all seeking to achieve. I have gone through it in some detail, as it is a very important amendment. A number of noble Lords have asked me to discuss the content of my amendment with them further. I believe that it achieves what we want to do. I am happy to wait until Third Reading before I put my amendment to give effect to those further conversations, but I hope I have set out as fully as I can the reasons why I think my amendment achieves that which we all wish to achieve. I beg to move.
My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his explanation of Amendment No. 1. I particularly welcome his statement that he is prepared to wait until Third Reading before putting forward whatever new amendment he tables at that time. I think that there is a clear difference between Amendment Nos. 1 and 2, but I do not think that, in the interim period, it will prove unbridgeable. Let me, very telegraphically, explain why I think that there is still a difference of importance.
I agree with the noble and learned Lord the Lord Chancellor that any rule of law clause in the Bill should not be justiciable. That reflects the constitutional tradition. The rule of law is a term that is not explained in any detailed measure in our constitution; and to make it justiciable would give the judges too wide a scope to determine what our constitutional law should be. In that respect, we are ad idem.
I take issue with the noble and learned Lord the Lord Chancellor on his explanation of the relationship between the sovereignty of Parliament and the rule of law. The doctrine of the sovereignty of Parliament is a doctrine of the courts. Parliament is sovereign only because the courts say that it should be so. Until the middle of the 18th century, it was the view, widely held by common law judges, that the sovereignty of Parliament was subordinate to the wisdom of the common law. That doctrine fell away in the 19th century, and we all readily admit now that Parliament is sovereign. Nevertheless, that sovereignty is an expression of the courts; it is not an assertion of Parliament. So, with great respect to the noble and learned Lord the Lord Chancellor, I submit that the two match happily in the first of the three clauses of Amendment No. 2, in the name of the noble Lord, Lord Goodhart, and myself.
The real difficulty lies in the difference between paragraph (b) in the noble and learned Lord's amendment and our proposed subsection (2). As I understand it, the noble and learned Lord's paragraph (b) binds the Lord Chancellor in relation to his own functions. Our proposed subsection (2) requires the Lord Chancellor to use his best endeavours to ensure that the rule of law is respected by Ministers other than himself. That is my understanding of what a Lord Chancellor does in Cabinet. If a Minister makes a proposal for a draft legislative measure which, in the Lord Chancellor's opinion, is about to impinge on the rule of law, it is his constitutional duty to speak up in Cabinet and say so. That is what the proposed subsection (2) of Amendment No. 2 would do. In my respectful submission, paragraph (b) of the amendment tabled by the noble and learned Lord the Lord Chancellor does not say that.
If, in the interim period between now and Third Reading, the noble and learned Lord the Lord Chancellor can convince me that that is what his paragraph (b) says, or if there is some movement from the noble and learned Lord between now and Third Reading, then we shall happily coalesce around an agreed amendment at that time.
My Lords, my position is much the same as that of the noble Lord, Lord Kingsland. We have both put our names to Amendment No. 2.
I believe that our objectives and those of the noble and learned Lord the Lord Chancellor are, in substance, identical. We both aim to preserve the Lord Chancellor's existing duties in respect of the rule of law and, in particular, to ensure that the change in the more general duties of the office of Lord Chancellor does not alter his duty—a duty not enforceable at law—to bring to the attention of other members of the Government any proposed action that may offend against the rule of law. Therefore, it is simply a question of drafting the most effective and accurate way of achieving that aim.
It is desirable to take some further time on this. Although I am well aware that detailed discussions have been taking place with the parliamentary draftsmen and in the Department for Constitutional Affairs, the first time that the noble Lord, Lord Kingsland, and I saw the amendment was last Friday. It needs time for further consideration, and there are aspects of the Government's draft, which the noble Lord has drawn to the attention of your Lordships' House, with which we are not entirely happy.
I can also see some justice in the criticisms that the noble and learned Lord made of our draft. It would be appropriate to try to reach agreement between now and Third Reading, so that we could come back with an amendment that we could all recommend to the House as a whole and would achieve the result for which we are aiming. I therefore hope that it will not be necessary to move either of the amendments today and that they can be carried over until Third Reading.
My Lords, it was somewhat less than gracious or charitable of the noble and learned Lord to chide me for putting down the same amendment as I put down last time. The rule of law has been under debate since your Lordships' Select Committee started meeting. The noble and learned Lord's theme has continuously been, "I will come forward with an amendment to deal with the rule of law". At one stage in the Select Committee, without giving us the draft in advance, he produced a draft that was subjected to criticism from all sides. He withdrew it in haste and almost with apology. Since then, we have seen nothing from him until, as the noble Lord, Lord Goodhart, said, last Friday.
It was therefore hardly surprising, since there was nothing on the topic, that I put down an amendment to raise the topic. It may be somewhat unkind to say so, but I have a nasty suspicion that if neither I nor anyone else had done so, we would not have seen anything from the noble and learned Lord the Lord Chancellor even now.
If the noble and learned Lord tells us that he will take the matter away, think about it and come back, in decent time, with a draft that we can consider, I am happy not to move my amendment. Indeed, I prefer Amendment No. 2, in the names of the noble Lords, Lord Kingsland and Lord Goodhart. The noble and learned Lord has criticised that, but could he answer two simple questions? First, does he, as Lord Chancellor, regard the rule of law as a central principle of our constitution? Secondly, does he, in fact, use his best endeavours to ensure that the rule of law is respected? I shall ask him a third question: if his answer to either of those is "No", when will he resign?
The noble and learned Lord's amendment is inadequate. First, it starts off, very undesirably, on a negative basis, saying:
"This Act is not to be construed in a way that would adversely affect",
the rule of law and the Lord Chancellor's duty. It does not put the matter positively; it merely puts it negatively. Secondly, in paragraph (b), the Lord Chancellor's duty is qualified by the phrase,
"in the exercise of his functions".
What limitation, if any, do those words put upon it? Is it part of the Lord Chancellor's functions to advise his colleagues that their proposed measures may infringe the rule of law? If so, what do those words add? Is there not a nasty risk that it would be suggested that the exercise of his functions is merely the performance of his departmental duties? Would it not be much better to remove those words?
If I get satisfactory answers to those questions, I would be content that this matter stood over till Third Reading.
My Lords, I hesitate to intervene in the incestuous squabbles between two members of the Fountain Court Chambers, amusing though that may be. Have we not come to a rather pathetic pass when we actually have to consider putting into law that the Lord Chancellor should obey the law? To me that is horrifying. I have assumed that every Lord Chancellor whom I have ever seen, of whom Lord Simon was the first, in Churchill's Cabinet—right through from the great Lord Elwyn-Jones and Lord Hailsham, even to the present Lord Chancellor, the noble and learned Lord, Lord Falconer—was there to uphold the law. It is awful that we have even come to think of imposing, in an Act of Parliament, that the Lord Chancellor should be so bound. That is the result of mucking about with the constitution, without thinking, to which this Government are so prone.
My Lords, I want to ask a question to which I am sure that I should know the answer, but other noble Lords who are not lawyers may be puzzled about it, too. Amendment No. 1 states:
"This Act is not to be construed in a way that would adversely affect . . . the existing constitutional principle of the rule of law".
Why does it say, "the existing constitutional principle"? Is that principle going to change in the next few years? Obviously, the law changes—but does the principle change? If it does not, why does it say "existing"?
My Lords, I was not going to intervene until I heard the remarks of the noble Earl, Lord Onslow. I think that he was suggesting that there was something bad about the amendment, in that it suggests that the Lord Chancellor would otherwise be above the rule of law. My understanding is that the amendment is simply not designed to deal with the liability of the Lord Chancellor, like every other Minister of the Crown, to obey the law. If the Lord Chancellor were, for example, to fetter the right of access to courts, as has happened before, and was challenged by way of judicial review, as I understand the matter the amendment would not touch that situation. The Lord Chancellor would be liable, as would any other Minister, under the rule of law, in accordance with the law.
Finally, I agree with the noble Lord, Lord Kingsland, that common law antecedes and defines the sovereignty of Parliament.
My Lords, I wish briefly to raise a question about the statement by the noble and learned Lord that Parliament is always supreme. I would have agreed with him five years ago. However, the ouster clause passed by the Commons in relation to the then asylum Bill caused me to give a great deal of thought to what would have happened if it had become law. It would have excluded the right of the courts to intervene under any circumstances. Its width was quite breathtaking, and I am confident that if it had been passed, the judges would have said, "We're not having this".
How the judges could have done that is a different matter. One possibility would be that they might have grounded their opposition, and based their insistence on taking jurisdiction, on the rule of law. We have a tripartite constitution, unwritten though it may be, under which it is not open to any two of the three components simply to close down the third. I make that point because I would not like the statement to go uncontradicted that in all circumstances Parliament is superior to the rule of law. It is in 99 out of 100 cases, yes, but not in all circumstances.
My Lords, I should like to follow up the remarks of the noble Lord, Lord Lester of Herne Hill. I am not clear, although the noble and learned Lord the Lord Chancellor may help me to become clear, that paragraph (b) in his amendment is not sufficiently general to exclude attempts to challenge the Lord Chancellor's actions—based, for example, on the rule of the law in its principle that the access to the courts should not be unduly fettered. The noble and learned Lord the Lord Chancellor will know that a Lord Chancellor was successfully challenged on that, notwithstanding the fact that others supported him. When that happened, the Lord Chancellor of the day immediately accepted the judgment of the court and altered the arrangements that had been challenged.
Grateful as I am to my noble friend Lord Onslow for believing that Lord Chancellors always obey the law, inadvertently it may happen that something goes wrong and the courts have the function to correct it. The principle on which that case was decided was the constitutional principle as part of the rule of law that access to the courts was not to be impeded. There was a particular case, and it was generally thought that legal aid would cover the point—but there was no legal aid for defamation, and therefore there was a loophole. A litigant seeking a defamation action was thought by the divisional court to have been wrongly excluded from the court by the necessity to pay fees.
It is not clear to me that the Lord Chancellor's duty, said not to be "cognisable in law", is sufficiently constrained not to be put at jeopardy with regard to that particular type of action. I would be grateful to the noble and learned Lord the Lord Chancellor for dealing with that matter. Perhaps he will satisfy me that the provision does not deal with that kind of situation, as the noble Lord, Lord Lester, said. For my part, I feel grateful that the noble and learned Lord has considered the matter and introduced the amendment. My only difficulty with it so far is the one that I mentioned.
I agree that this is a difficult area and that we are trying to replace what was very much a matter of convention and understanding. That is because of the way in which the Government have chosen to legislate about the office of the Lord Chancellor. We are now, in view of those changes, trying to legislate for what was a delicate and important position in the past, which rested on convention and understanding.
My Lords, I am grateful for all the interventions. First, I agree with the noble Lord, Lord Kingsland, that the history of how parliamentary sovereignty came to be sovereign is a matter of interest. However, I did not understand him to say that he disputed the principle that Parliament was sovereign in relation to what it did, so I believe that we start from the same proposition.
Secondly, in relation to functions, I hope that in the remarks I made in introducing the amendment I put the noble Lord's mind at rest. I want to make it absolutely clear that the functions of the Lord Chancellor in relation to the rule of law do not just stop at his departmental functions, but include dealing with other Cabinet Ministers who put forward proposals that in his view offend against the rule of law, and offend against the rule of law in relation to areas which do not relate to his own departmental responsibilities. I believe that that deals to some extent with the point made by the noble Lord, Lord Goodhart.
The point that has to be made, on which I believe that noble Lords agree, is that the Lord Chancellor does not traditionally have a roving, proactive brief to go to each individual Minister, see each piece of legislation and express a view on whether that legislation is sufficiently certain to comply with some people's concepts of the rule of law. The distinction that I seek to draw is that the Lord Chancellor is not like the German Minister of Justice, who has to approve every piece of legislation and every government Act in accordance with that provision. I believe that we are agreed with regard to that matter. My view is that paragraph (b) in my amendment, which the noble Lord, Lord Kingsland, believes does not deal with that point, does in fact deal with it. It is my intention that it should. My hope is that between now and the next stage, I shall be able to persuade him on that matter.
In response to the questions asked, very tellingly, by the noble Viscount, Lord Bledisloe, I say that the rule of law is a central principle of our constitution and that I regard my role as seeking to uphold it. However, I do not regard my role in relation to the rule of law as being, for example, always to support an increase in expenditure on the police in counties where crime is going up and the number of police is going down. I believe that that would be the effect of the amendment in the name of the noble Lords, Lord Kingsland and Lord Goodhart. It is important to define what we mean in that regard.
I am very grateful to the noble Viscount, Lord Bledisloe, for having tabled his amendment. No doubt, it suitably chides us all into action. I hope that he will participate actively in any discussions which we have on it. As regards what the noble Earl, Lord Onslow, said, I do not think it has ever been in question that the Lord Chancellor and, indeed, every other Minister in the Government, would seek to comply with the law. The issue that we seek to deal with is the extent to which the Lord Chancellor has a particular role in government to see that the rule of law is enforced.
In relation to the point made by the noble and learned Lord, Lord Mackay of Clashfern, I refer to the Witham case, which concerns access to justice, although I stray very diffidently into it. I had absolutely no intention of excluding—nor do I think that I have done so—the court from reaching a conclusion that what the Lord Chancellor had done inadvertently in the Witham case was to, as it were, break the law by illegally fettering access to justice. It was certainly not my intention—nor do I believe that it would be the effect of my amendment—to prevent a subsequent Lord Chancellor who did precisely the same thing being sued in the future. However, I shall certainly consider the matter in the light of what the noble and learned Lord said.
The noble and learned Lord, Lord Donaldson of Lymington, referred to the ouster of judicial review. Assuming that an ouster of judicial review had been passed and assuming that the court concluded that it applied to the particular circumstances before it, in my view if it had been passed by Parliament it would determine what the position would be. Given the principles of parliamentary sovereignty, there would be no basis on which the courts could say, "We think this is going too far even though Parliament intended to pass it, and we can strike it down because we do not like it".
In the light of what has been said, I do not intend to press my amendment. I hope that we can bring it back—
My Lords, before the noble and learned Lord sits down, I remind him that, no doubt inadvertently but perhaps somewhat Freudianly, he has not yet replied to my request for undertaking that his new proposal will be brought forward in good time to enable us to discuss it, rather than having it bounced upon us at the last moment.
My Lords, my proposal is contained in Amendment No. 1.
My Lords, by that I mean that the court should not be able to say, "This is the stance that the Lord Chancellor should take in Cabinet on a particular position". I apologise to the noble Baroness, Lady Carnegy of Lour, for not having answered her question; namely, why use the word "existing"? I think that we are all agreed that what we are seeking to do through this provision is to preserve the Lord Chancellor's existing duty, rather than to create any new one. That is why we use the word "existing". We do not intend in any way to restrict the development of the law. The duty of the Lord Chancellor that we are discussing is a general duty to seek to ensure that government complies with the rule of law.
My Lords, would the noble and learned Lord be willing to arrange meetings involving himself, the noble Lord, Lord Kingsland, the noble Viscount, Lord Bledisloe, and myself to discuss the issues, on the basis that at that stage none of us produced a new draft? We could examine the existing draft to determine what each of us regarded as the problems and whether we could work out a solution to those problems. I suggest that that might be an appropriate way to deal with the matter, rather than inviting the noble and learned Lord to come forward with a redraft before we have started discussion.
My Lords, I accept that suggestion with enthusiasm. I say to the noble Viscount, Lord Bledisloe, that I would very much welcome further discussions with everyone with whom I have already had so many enjoyable discussions. I beg leave to withdraw the amendment.
My Lords, the amendment would give effect to what I thought the Committee had decided a few months ago, on
Perhaps I should remind your Lordships of the position as it then was, starting with the Long Title of the Bill:
"A Bill to make provision for replacing the office of Lord Chancellor, and to abolish that office".
Clause 12 of that Bill stated:
"The office of Lord High Chancellor of Great Britain is abolished".
On that occasion, Amendment No. 1 was moved by the noble Lord, Lord Kingsland. That amendment inserted the words "the Lord Chancellor" in Clause 1, where they now stand. The noble Lord linked to the amendment the Question whether Clause 12 should stand part of the Bill. The issue, as defined by the noble Lord, Lord Kingsland, when he moved his amendment, was whether the office of Lord Chancellor should be retained or abolished. On that occasion, he reminded the Committee that it was common ground that if the office was retained, it should be modified. For example, the Lord Chancellor should no longer sit as a judge. That was common ground.
It was common ground that the concordat reached between the Lord Chancellor and the Lord Chief Justice—who I am glad to see is present—should take effect under Part 3 of the Bill. As I say, all that was common ground. Part 3 contains the important provisions on the Judicial Appointments Commission, on which everyone is agreed. With those modifications, the Lord Chancellor was left with his present job of running a large department responsible for the administration of justice and with his special function of protecting and defending the independence of the judges and the rule of law. I believe that everyone agrees that the question whether he should continue as Speaker of this House is a question not for this Bill but for this House to decide in the fullness of time.
All that, as I say again, was common ground, so what actually was the issue that detained the Committee on
Yet, the Lord Chancellor now says that all that was at issue was a name, a shell without the kernel, so that the Lord Chancellor would become just another name like the Lord President of the Council and the Lord Privy Seal. I cannot accept that as a fair reading of the debate that took place in Committee. I am afraid that I will have to make that good by a number of quotations from the debate. It will be somewhat tedious, but I suspect that it is one of the things that should be done when the Committee is reporting to the House.
I start with the noble Lord, Lord Kingsland. Having set out clearly, as I hope that I have done, all that was common ground, he then stated the issues as follows:
"First, the individual who occupies the office of the Secretary of State for Constitutional Affairs must, in our view, be a senior and experienced lawyer . . . Secondly . . . the Secretary of State will have to be in your Lordships' House. This is not only because there is a poverty of qualified lawyers coming from another place . . . but also because your Lordships' House is able to stand back from the hurly-burly of political life in another place and assess the constitutional implications of Bills that come to it".—[Hansard, 13/7/04; col. 1144-45.]
In support of that argument, he quoted the evidence given by Professor Robert Hazell. That was the way in which the question was defined by the noble Lord who moved the amendment.
Then I come to the noble and learned Lord, Lord Howe. Again, he described the job as I have described it, and went on as follows:
"Three things follow from that analysis, which are quite familiar. First, we need to have in that office a distinguished senior figure",
he went on to explain that he meant a senior legal figure,
"at the end of his career . . . The second proposition, which is again familiar to the Committee, is that the holder of the office should be in this House".
His third conclusion related to the title of the office.
"If the office holder is to have the qualifications of a senior lawyer and Member of this House, with the duties imposed on him as we are all agreed, one comes back to that old phrase that if it looks like a duck".—[Hansard, 13/7/04; cols. 1153-4.]
I think that I will improve his quotation slightly. If it looks like a duck, and if it quacks like a duck, it probably is a duck. The noble and learned Lord used the expression "walks like a duck"; I think "quacks" is better. What is important there is that the question of the title came third. That was the third conclusion, and it was derivative from the other two conclusions; that he should be in the House of Lords and should be a senior lawyer.
I know that one should never quote oneself, but if I may:
"I therefore come to the fourth and last argument that has been advanced. It is said that the Prime Minister should be free to appoint whoever he wants to run the courts—free to appoint a Member of the other place who is not a lawyer and could be quite junior in Cabinet ranking. That is the real difference between the two sides in this debate. In my view, the task of defending judicial independence in the Cabinet is one of such critical importance that it should be given to a senior judge or lawyer who is a Member of this House and not to a politician on his way up the greasy pole".—[Hansard, 13/7/04; col. 1148.]
I do not see the noble Lord, Lord Carter, in his place. Having referred to the removal of certain functions from the office of the Lord Chancellor, on which we were all agreed, he went on to say:
"Even if those functions are removed, all the amendments in this group are intended to ensure that there is a senior lawyer and a Member of the House of Lords in the Cabinet to protect the independence of the judiciary and the rule of law".—[Hansard, 13/7/04; col. 1164.]
Of course, the noble Lord, Lord Carter, went on to say that in his view, that function could be performed equally well by a Member of the House of Commons. But, the point that I stress is that he too regarded that as being the issue in debate. The same is true of the noble Lord, Lord Richard, and how he put the issue. He said:
"'Where should the Minister sit?', the automatic reaction of anyone who has been connected with politics would be, 'Down the other end'. I am not saying that the Lord Chancellor has to sit down the other end, but I am saying that you cannot rule it out".—[Hansard, 13/7/04, col. 1176.]
The same point was made by the noble Lord, Lord Brennan. He said:
"It would certainly be undemocratic to require such a Minister to be a lawyer and from this House".—[Hansard, 13/7/04; col. 1160.]
The noble Viscount, Lord Bledisloe, perhaps put it clearest of all, when towards the end of the debate he said:
"The Government say that we are to have an ordinary, run-of-the mill House of Commons politician in the middle of his career looking for promotion, with no particular knowledge of the law and its workings, hoping to keep the Prime Minister's good will and get promotion and move upwards, sideways or perhaps, if he is difficult, outwards, in a very short time.
Contrariwise, we say that there should be somebody in the traditional mould of a Lord Chancellor who has served the British constitution in an evolving way for many centuries. It should be a senior lawyer in this House, bound by an oath to the duties imposed on him by Clause 1. It should be somebody—and this is the key perhaps—at the ceiling of his career, who has nothing to hope for by way of promotion and who therefore is in a stronger—I only say stronger—position".—[Hansard, 13/7/04; col. 1180.]
All those speeches were all one way. There was only one contrary voice, and that was voice of the noble Lord, Lord Goodhart. He said that the only issue in the debate was the title, the name. He said that that was all that we would be voting on, not where he should sit; not whether he should be a lawyer or not. There may have been special reasons why he took that particular example.
Nobody followed that line in that debate, and it was specifically repudiated by the noble Lord, Lord Crickhowell, from the Conservative Benches, and by the noble Lord, Lord Skidelsky, from the Cross Benches. Nor was that line—and this is perhaps the most significant point of all—adopted by the noble and learned Lord the Lord Chancellor when he replied. He never once mentioned the speech made by the noble Lord, Lord Goodhart. On the contrary, he described the question for the debate in exactly the same way as had been described by everyone else:
"But the question is, should the Prime Minister be constrained to have a senior lawyer in the House of Lords?"—[Hansard, 13/7/04; col. 1189.]
That was said just before the vote was taken. A little later, he said:
"Returning to the heart of the debate, the only grounds on which the amendments in this group can be supported is either that the office of Lord Chancellor is not abolished, or, if it is, that the name is retained".—[Hansard, 13/7/04; col. 1190.]
In the event, of course, the office of Lord Chancellor was not abolished, so the question whether the name should be retained simply did not arise.
It would seem to me that that vote having been taken, the contrast having been made so clearly by the Lord Chancellor, and the vote having gone against him as it did, the amendment that I am putting before your Lordships is simply unnecessary, because the Committee has already decided the point. One can make that good by looking now at the new Long Title, which states:
"A Bill to Make provision for modifying the office of Lord Chancellor, and to make provision relating to the functions of that office".
So the question that now arises is what are the modifications to which the Long Title refers? They are those that are spelt out in the Bill. They are those upon which we are all agreed, that the Lord Chancellor should no longer sit as a judge and that he should be bound by the concordat made between him and the Lord Chief Justice.
It seems that the Lord Chancellor is introducing further modifications to the office of Lord Chancellor which are nowhere to be found in the Bill as it stands. The Lord Chancellor has always been a Member of this House and he has always been a lawyer. That convention is as strong as any law and will remain until it is amended by statute.
My Lords, could the noble and learned Lord, Lord Lloyd of Berwick, explain why he has tabled the amendment, if, as his argument seems to be, it is unnecessary to consider this question because it has already been decided by the vote in Committee.
My Lords, if the Lord Chancellor wished to ensure that the Lord Chancellor need not be a Member of the House of Lords, it would have been be for the Lord Chancellor to table that amendment, not us. That is why I am saying that our amendment is not, strictly speaking, necessary. But, having been once misunderstood, it seemed better now that we should table this amendment to make it clear once and for all and, I hope, with as large a majority as was registered on the last occasion, that we should ensure that the Lord Chancellor is a Member of this House and a senior lawyer—as he has always been. I would answer the noble Lord, Lord Goodhart, simply with the words, "once bitten, twice shy". On this occasion I hope that we shall make absolutely clear what we want.
I have spoken much too long already. I have not advanced any of the reasons that should be advanced—I hope that that will be done by others—regarding why it is so necessary for the Lord Chancellor to be a Member of this House. The evidence given in Select Committee was almost overwhelmingly in favour of that—the views expressed by the Law Society; those expressed very firmly by the House of Commons Constitutional Affairs Committee; the views expressed by the noble and learned Lord, Lord Bingham, on many occasions on behalf of the judges, when he was Lord Chief Justice; and in the Law Lords' evidence to the Select Committee, and so on. All of that points to ensuring that the Lord Chancellor should be a Member of this House.
I know that I have trespassed on your Lordships' time, but perhaps I may repeat, because it is something that many of your Lordships may not have heard, a speech by the noble and learned Lord, Lord Cooke of Thorndon, which explains the view of the Lord Chancellor's office from the other side of the world— indeed, from all around the world. Those who heard the speech will never forget it and I hope that your Lordships will pay due attention to it. He said:
"What is the greatest legal office in the world? Before the Bill was conceived, there could have been little doubt that it was that of the Lord Chancellor. In a non-Gilbertian sense, he embodied the law of England. His—and it could be her—high status has been an enduring symbol of the commitment of the United Kingdom to the rule of law and the independence of the judiciary. That was not primarily because he sometimes sat as a judge—a practice which was falling into desuetude and is now being abandoned. That was incidental. It was because he was a senior Member of the House of the Lords and of Cabinet—an illustrious and universally respected lawyer who was able to speak with authority for all that the law represents. He was a kind of guarantor or watchdog of legality at the heart of the constitution".—[Hansard, 11/10/04; col. 38.]
I beg to move.
My Lords, we seem to have been speaking to Amendment No. 4 as well as this amendment. I shall be brief. One asks a simple question: does not the substance of concern about qualifications for appointment to the office of Lord Chancellor relate exclusively to the due discharge of his functions? One of those is the due discharge of the constitutional advisory role in Cabinet; and I am grateful to the noble and learned Lord for acknowledging that function twice today. Assuredly, that function may be discharged only by a Lord Chancellor who, on appointment, is or becomes a Member of this House and has requisite legal expertise.
Another point has arisen recently, to which the noble Lord, Lord Goodhart, referred. Does one need to table amendments if the extant conventions would continue to operate in any event? That is right, up to a point, because they would—and I have been advised that they would. But was that advice right? Should one take that on trust? Is that not a fundamental question on which this House now, at this stage, should know where it stands and have this matter resolved on the face of the Bill?
I have always said that the constitutional function is the only other matter for which I would go to the stake. That function has been acknowledged. It has not yet been expressly acknowledged on the face of the Bill—and I hope that that will be the case in the revised draft. But whether it is or is not does not affect the points made by the noble and learned Lord, Lord Lloyd of Berwick, regarding the "once bitten, twice shy" and "empty shell" arguments, which hang over our heads. It is best to have this matter resolved.
Finally, membership of this House affirms entitlement to a Writ of Summons to attend, to speak and to vote.
My Lords, once the principle of maintaining the ancient and esteemed office of Lord Chancellor has been accepted, and I give the Government some credit for accepting the verdict of this House last July, the issue of whether or not he or she should be a Member of this place revolves for me around whether or not that will strengthen his or her ability in Cabinet to uphold the rule of law and the independence of the judiciary.
Consider the circumstances against which that vital role is to be carried out in 2004. Government is becoming ever more presidential and concentrated. It is also becoming more centralised year by year. Above all, with the continuing breakdown of community life and ever more mobility, the sinews of our society are increasingly those of statute law, which we are churning out at the rate of more than 12,000 pages of new law per year. That means ever more, and more contentious, work for the judges.
Why should a lawyer sitting in this place be more likely to have more experience, prestige and authority as Lord Chancellor than a lawyer in the other place? For the purposes of this amendment, I have assumed that the Lord Chancellor, whether he or she be there or here, should be a lawyer.
A small but not insignificant point is that we would probably have to abandon the title of Lord Chancellor if he or she was in the Commons, which would be damaging to public recognition. It would be a complete anomaly to have a Lord sitting in the Commons. However, the substantial point is that the Commons, year by year, is a more partisan assembly, made up of professional politicians—men and women who have done little if anything but pursue a political career. I say that with no disparagement at all.
We know, for example, that the Government have not lost a single whipped vote since they came to power in 1977.
My Lords, I am sorry. I meant 1997, although it seems more like 1977.
That record contrasts with an average of two or three defeats in the Lobbies per week in this place. The greater independence of Members of this place is not just a function of having a fifth of our Members sitting on the Cross Benches; it is also because most Members of this House have long and often distinguished histories—they have worked and led in the big wide world, which tends to bring with it a singular independence of judgment and action. There are also few financial or other inducements to stifle honest dissent, as the infinitely more diverse voting record of Members in this place manifests.
Added to that is the presence here of many senior lawyers. Again, that is wholly unlike the other place these days. Even though the Law Lords may, after reform, cease to sit here while still on the Bench, many will come here after retirement and so continue to contribute richly to our deliberations, not least by trenchant comment on the discharge of his or her office by the Lord Chancellor of the day. I am convinced that all that will be of the greatest support to future Lord Chancellors, no less than to those in the past. I must say in passing that the argument that we should abandon the status quo because some Lord Chancellors have been less than independent and effective is an argument for the abolition of every office in the state.
I turn to my final point. The provision of Clause 1 for the independence of the judiciary to be the duty of not just the Lord Chancellor but also other members of the Cabinet seems to be—how shall I put it?—virtuous but useless. If virtue could be attained simply by the passing of a provision of a statutory enactment, Parliament would have been out of business long ago. The reality is that the convention or constitutional principle of the independence of the judiciary and of the rule of law is a function of our political culture. It is lodged in hearts and minds more than in the annals of the law. It is significantly bound up with the role of the Lord Chancellor, which, in its turn, is intrinsically dependent on his or her status as a senior lawyer in this House.
My Lords, I rise to address your Lordships primarily with regard to Amendment No. 3, but I hope your Lordships will forgive me if I stray outside that purpose, because the primary reason that I am before the House today is to express the views of the Judges' Council, of which I am chairman. Those views apply to other groups of amendments and it may be convenient for your Lordships to hear what I have to say on its behalf all at one go, so to speak, because that will probably save time later.
As I understand the Bill, it is intended to promote two extremely important constitutional principles. The first principle is that the independence of the judiciary must be preserved. This is essential, not for the benefit of the judiciary, but for the benefit of the public. A healthy parliamentary democracy cannot function satisfactorily without an independent judiciary. That principle is a long-established part of our unwritten constitution.
The second principle is that there should be separation between the different arms of government. This principle is commonly known as the separation of powers. It has not previously been a part of our constitutional arrangements, although it is well observed in most other western democracies.
Significant changes have been made to the Bill since it was originally presented to the House. From the point of view of the judiciary, the most important of these changes has been the amendment which provides for the title—here I use my words carefully—but not all the functions of the Lord Chancellor to be retained.
I have always personally regarded the historic office of Lord Chancellor as a bulwark for the independence of the judiciary, but I recognise that its existence demonstrated a total disregard for the principle of the separation of powers when the Lord Chancellor performed his traditional functions. However, the office as now proposed in the Bill is in accord with that principle.
The critical distinction between what has existed and what is now proposed is that the Lord Chancellor is no longer to be the head of the judiciary or a judge. His former responsibilities, in the concordat mentioned by the noble and learned Lord, Lord Lloyd, have been reallocated so that he will exercise only functions appropriate to a government Minister, while those functions which should properly be under the control of the judiciary will be exercised by the Chief Justice. Functions that are properly matters for both the executive and the judiciary will, under the Bill, be exercised jointly by the Lord Chancellor and the Chief Justice, although the fact they have jointly to exercise those powers means that if they do not agree, they cannot be exercised.
By changing the functions of the office while retaining the title, it appears to me that the House has managed to square the circle. The House has respected our historic traditions while acknowledging the principle of the separation of powers that has become the symbol of modern democracies.
Before the Bill was introduced, the judiciary had approved the concordat reached between the Lord Chancellor and myself. As the noble and learned Lord, Lord Lloyd, said, the concordat now forms a substantial part of the Bill. As I understand it, all parts of the House accept that the concordat establishes a modern framework for the future relationship between the legislature, the executive and the judiciary.
A strength of the concordat is that it ensures the continuation of the working relationship between the different arms of government. It does this in a manner that furthers both the principles to which I referred at the outset. Indeed, in addition to respecting the separation of powers, the concordat ensures that the judiciary's independence will be fully protected in the future.
However, it is important that the House should hear the views of the Judges' Council on this Bill in its present form. After all, the Judges' Council is the one body that consists of members from, and representing, every level of the judiciary, including the Master of the Rolls, whom I am pleased to see in his place today, supporting what I say. The Judges' Council is in the best position to speak for the judiciary as a whole. Even though it is for the protection of the public that we value the independence of the judiciary so highly, the serving judiciary's collective view on how the Bill will affect its independence is surely worthy of close attention.
At a meeting on
Subject to that clarification, the Judges' Council would welcome the retention of an office called "the Lord Chancellor". It would like to see a requirement that the holder should be a lawyer, ideally with similar qualifications to those required before a person can be appointed a High Court judge. The Lord Chancellor will not be a judge, however, and so he should not take the judicial oath. But, again, there is a proposal for a different form of oath in one of the groups of amendments.
The Judges' Council recognised that there were difficulties in fettering the Prime Minister's discretion as to his choice of Lord Chancellor. Therefore, the council considered it preferable, but not vital, that the Lord Chancellor should be a Member of this House.
The second concern is that there should be some way of compensating for the fact that the Chief Justice of the day will no longer be a Member of this House and thus entitled to draw to your Lordships' attention matters of importance to the judiciary. I hope that in due course noble Lords will consider that Amendment No. 24, as tabled by me and my noble and learned friend Lord Cullen of Whitekirk, meets this need.
The third and final concern of the Judges' Council is with the provisions of the Bill dealing with the creation of the Supreme Court and the consequences of its creation. The Judges' Council considers that the provisions of the Bill relating to the Supreme Court should not come into force until a suitable prestigious building is ready for occupation. The Judges' Council recognises that that concern could be met by an appropriately drafted sunrise clause. The council has not itself drafted a clause but is happy to leave its approval to the senior Law Lord, who, I believe, has already seen and approved a draft.
In the past, I personally have not been vocal in support of a Supreme Court. However, I recognise that it would have very real advantages over the Appellate Committee. It would make our final court of appeal more accessible to the public; it would be more in accord with the separation of powers; and its role would be more understandable to the public.
My coolness to what should be an exciting innovation in this jurisdiction was primarily financial. Would the new court be housed in a building worthy of a Supreme Court and would it take money away from the existing courts? My coolness was limited in that direction because I understand that the Supreme Court's powers will be virtually identical to those of the Appellate Committee.
Here, I recognise that a sunrise clause could go a considerable way towards meeting my reservations. My noble and learned friend Lord Bingham of Cornhill and his fellow Lords of Appeal have made clear the nature of a building that would be worthy of a Supreme Court. In addition, the practicalities involved in the creation of the court mean that, almost inevitably, it will be delayed for a sufficient number of years for the necessary resources to be made available without unduly prejudicing the existing overstretched court budget. Accordingly, subject to there being a suitable sunrise clause, the creation of a Supreme Court will have my support and that of the Judges' Council.
Those concerns apart, the Bill has the strong support of myself and the Judges' Council. Of course, there is some tidying up still to do and no doubt there are parts of the Bill that do not match individual preferences.
However, as a whole, the Bill marks a gigantic step forward in our constitutional arrangements. Above all, it means that the future independence of the judiciary will be safer than it has ever been. That independence will no longer be dependent on the hope that there will be in the future, as there has been in the past, a benevolent Lord Chancellor or Prime Minister who is prepared to mount his steed and ride to the rescue of the judiciary.
We must recognise, however, that the world has changed and that today the pressures on the judiciary are of a different order from those of the past. The temptations for an administration, irrespective of its political hue, to select a route that impinges on access to justice can be enormous. The danger to the judiciary will not, in this country, come from a single fatal blow but from the more insidious effect of a thousand cuts. Against that, the concordat will provide protection.
I urge your Lordships to recognise that, if we value an independent judiciary and its task in protecting our personal freedoms, we should ensure that this Bill reaches the statute book. The time available for that to happen is limited. Delay could result in its loss. We must not, in order to achieve a short-term advantage, miss the window of opportunity that the Bill still has for this new constitutional settlement to be entrenched in statute.
The Bill's conception may have been in unfortunate circumstances. Fortunately, thanks to an extraordinary amount of effort by the Department for Constitutional Affairs and a small team of the judiciary led by Lady Justice Arden, and thanks also to the improvements made during its passage through this House, particularly in the Select Committee, the Bill has developed into a piece of great reforming legislation. If it is given life, it will rank in importance with the great constitutional instruments of the past. We must ensure that that happens.
My Lords, I fear that I failed to make myself clear. The separation of powers has nothing to do with whether the Lord Chancellor sits in this House or the other place. As I indicated, the view of the Judges' Council was that it was preferable that the Lord Chancellor should sit in this House. But, for reasons that I also explained, the Judges' Council said, and was of the opinion, that this was not vital.
My Lords, in the current complexity of constitutional unknitting, so unlike that for which we pray in our prayers day by day—the remaking of all our common life—it seems to me that one thing needs to remain constant. Historically, we have believed that it is possible for one man—alas, rather like the occupants of these Benches, they have all been men—to combine the different powers of the Crown—judicial, legislative and executive—in one office. We have had sufficient trust to allow that to happen, to allow an eminent member of his profession and a Member of this House to hold those different reins with integrity and we have never been disappointed.
I suggest that that trust is worth preserving and, indeed, making visible: that is the belief that a noble Lord can be trusted not to be swayed by influence and prejudice, not to be corrupted, and not to have his judgment clouded. The office of Lord Chancellor, as the noble and learned Lord, Lord Lloyd of Berwick, has outlined it to us, expresses our confidence that someone can be a party man and yet exercise impartial discretion; he can be a political appointee and yet withstand the pressure of those who have appointed him; and he can speak here and yet interpret the law objectively.
Around those matters the historic office has clustered and, although I understand what the Judges Council want to put in place around the separation of powers and judicial responsibilities, the holding together of those threads in the office under one person seems to me to be important. The very existence of the office gives expression to our willingness to trust one another and, in building a common life in the country, nothing can be more important when trust is undermined everywhere by just that kind of separation.
We human beings are very complex creatures: individual compositions of different roles and functions with rich varieties of tastes and interests and responsibilities and experiences. All that is true, but we cannot be reduced to players of role or limited functions. People cannot be dissected and carved up; that way lies social disintegration and despair. Choose to relate to only the parts of people of which you approve and one will soon relate to no one at all.
As the debate on Amendment No. 1 shows, the difficulty is what happens when we try to define and divide up the roles that we have traditionally held together. Those who sit on these Benches have had recent experience of being challenged to prove our soundness in the eyes of various interest groups in the Church by indicating our support for particular groups' positions. We have resisted, refusing to be pulled about in such a way. As I have said, we are complex creatures and we relate to one another in all that complexity, or we do not relate at all.
So I urge your Lordships to think long and hard before modifying this office over-strenuously and, in particular, by making it possible to remove it from this House. The cold text of statute will now promise the independence of the judiciary. But, welcome though that text may be, will it really be a better protection for that independence than the presence of the Lord Chancellor, a person of enormous professional competence and utter personal unimpeachability at the very heart of government and at the very heart of your Lordships' House? In other words, are we ready to replace the personal with the propositional? We may be, but I urge the House to consider the message that that sends out about noble Lords' trust of one another before it does so, and therefore to consider seriously the amendment that the noble and learned Lord, Lord Lloyd of Berwick, has laid before us.
My Lords, it is a wise advocate who takes his best point first. I have recently had a pacemaker fitted. I am told that that should speed up the delivery of the timid and deferential submissions that I occasionally make to your Lordships.
I totally support my noble and learned friend Lord Lloyd in his recollection of what took place in the debate on
"a special constitutional importance enjoyed by no other Member of the Cabinet and who is usually at the end of his career",
and thus no longer is available to the temptations that occur if one is still struggling up what my noble and learned friend Lord Lloyd referred to as the greasy pole of politics.
There was also reference to the anxieties expressed by the Law Lords in their written evidence to the Select Committee. They said that they were,
"very greatly concerned that the important constitutional values which the Office of the Lord Chancellor protected, should continue to be effectively protected . . .
In the past, the Lord Chancellor's role was to uphold constitutional propriety and champion judicial independence. The Constitution would be gravely weakened if that safeguard was removed".
So much for supporting what was said and what was agreed. Now, quite shortly, I come to the justification, if we have to consider the matter all over again. Towards the end of the debate my noble and learned friend Lord Falconer of Thoroton, the current Lord Chancellor, agreed with the basic proposition that his department—the Department for Constitutional Affairs—had to be strong enough to stand up to not just the Home Office—I do not know why he chose that department—but any department that might seek to infringe the rule of law.
I submit that that was an important concession because it gave high importance to the immediate question of how it was that the current Lord Chancellor—the Secretary of State—was not prepared to resist the ouster provisions of an immigration Bill which prevented total access to the courts to challenge the legality of an immigration tribunal. Thus, that clause was condemned by lawyers from the Lord Chief Justice downwards as being a constitutional outrage; that it should never have seen the light of day; and that it was the worst area of the law in which to prevent access to the courts because the consequences of asylum decisions often sent people to their deaths.
Those criticisms were voiced before the matter came to Parliament. They were voiced on the basis of the words in the Bill as published. From the Lord Chief Justice downwards, pressure was put upon the noble and learned Lord, Lord Falconer, not to pursue the ouster clause. That failed. The noble and learned Lord, Lord Falconer, at no stage, as far as I know, expressed any resistance to the clause. He was prepared to espouse it.
Why did he not go on espousing it? It was not because a Lord Chancellor—because none then existed—had said, "Look, you cannot do that; that is grotesquely unconstitutional". He did not have such advice from someone with such stature.
What caused him to give up, because that is what he did, was a threat by a recently sacked Lord Chancellor, who expressed silently his opposition to the Bill by putting down his name on the list of speakers in the debate to indicate that he would speak against it. That was the strength of the threat. One would have thought that a future Secretary of State, with the power and the strength of mind to which the noble and learned Lord, Lord Falconer, referred, would have said, "To hell with this; I have thought about it. I resisted criticism before the debate. I shall continue to do so". But he did not. He did not throw in his hand at the end of the debate but before the debate. Therefore, a great number of speakers gave voice to the strong criticism that they would have made if the noble and learned Lord, Lord Falconer, had adhered to his original views.
I had put my name down, also to speak hostilely, but since the matter had been dropped, it seemed a somewhat unnecessary waste of your Lordship's time. I think that that particular event justifies, more than all the other arguments put together, the fact that we need a senior member of the Cabinet and lawyer of substance and experience, who would be able to say, "Look, I am telling you now that if you adhere to what you intend to do, there will be an almighty constitutional row. You are ill advised and wrong in continuing with this approach".
I do not see that happening with someone in the Commons who is not a lawyer, who is a junior member of the Cabinet and whose future has still to be made. It is just not on. If you are going to seek to safeguard the independence of the judiciary, you need to have someone who is at least able to say that.
I appreciate that the Prime Minister can sack the Lord Chancellor the next day. It is pretty expensive to sack Lord Chancellors because they are entitled to their not inconsiderable pensions immediately on taking office. One could see forensic and non-forensic eyebrows being raised if, a Lord Chancellor having been fired, someone—assuming he had the stature and substance—with consistently the same view were appointed to be Lord Chancellor.
Accordingly, under the pressure of my pacemaker, I say to your Lordships that what is proposed is just not on. It is not feasible. That has been demonstrated by the attitude of the noble and learned Lord, Lord Falconer, to the ouster clause.
My Lords, it is a privilege to speak in this debate, having had the opportunity of hearing the noble and learned Lord the Lord Chief Justice make his contribution on behalf of the Judges Council, and in particular to hear his view on the two questions covered by Amendments Nos. 3 and 4. He made it quite clear that the judges are firmly of the opinion that the Lord Chancellor should be a senior lawyer, who is qualified for judicial office at a high level, and that they have a clear preference for the Lord Chancellor to be in this House. It is also most welcome that the right reverend Prelate the Bishop of Salisbury expresses the same view on that second question from his Benches.
The extent to which our debates and the evolution of the Bill have fortified the points we present in our case today is remarkable. As the noble and learned Lord, Lord Woolf, pointed out, the clarity of removing the judicial function from the Lord Chancellor's role solves that problem—if and in so far as it is a problem—because the judicial role was virtually never recognised anyway. Our view is becoming clearer that the Lord Chancellor's office is of unique importance because of the spread of its functions in relation to the legal system.
We know of the Lord Chancellor's duty to uphold traditional independence. That has already been emphasised in the debate. We have been anxious to spell out with great clarity his duty to uphold the rule of law. Not quite so frequently expressed is the role that he will continue to play in overseeing all judicial appointments. It is true that he will no longer make the appointments himself. That passed beyond the bounds of possibility in the days when the noble and learned Lord, Lord Irvine, was Lord Chancellor. The Judicial Appointments Commission existed de facto. That has been embodied in the Bill.
The Lord Chancellor will play an important and unique part in relation to judicial discipline, as the noble and learned Lord, Lord Woolf, appreciates from the terms of the compact. There are many occasions when the Lord Chancellor and the Lord Chief Justice will have to co-operate together on that. So he will play a central role in every aspect of the administration of justice. It has virtually become common ground now, and I hope it will be acknowledged by the Government, that he needs to be a lawyer of distinction. The residual question we are really focusing on with this amendment is: does he need to be in this House, as judges and others wish, and beyond that, do we need to specify that by law?
People say—and they have said it here today—that it would be wrong to fetter the Prime Minister's discretion to have this choice open to him, but nobody has actually argued that he should appoint the Lord Chancellor from the Commons. That has been rejected on all sides from the evidence I have seen so far. The reason we need to put the issue in statute form is that of convention. For as long as memory goes back the Lord Chancellor has been in this House. That convention was dealt a most alarming blow by the events of
Therefore, I come back to the point which others have made but which cannot be expressed too strongly in expressing the importance of giving the Lord Chancellor this unique position as senior lawyer in this House, to be distinguished from any Secretary of State. Secretaries of State do not always realise it, but their functions can be shuffled around at will. Secretaries of State are relatively small beer compared with the importance of the Lord Chancellor's position.
I want to cite two passages to explain how important it is to have that statutory guarantee of the independence of the Lord Chancellor. The noble and learned Lord, Lord Bingham, in his memorable address in July last year—the Ditchley lecture—said:
"If the office is held by senior, authoritative, respected, politically disinterested Ministers, and if those Ministers act as robust champions of constitutional propriety and judicial independence, then the core of the Lord Chancellor's office will be preserved . . . I do regard the conditions as spelled out as crucial if the safeguard of proven value, which has served us well over many centuries, is not to be lost, perhaps for ever."
That is strong language, which is perhaps not surprising coming from a former Lord Chief Justice and senior Law Lord. However, more important even than that are the comments made by the House of Commons Constitutional Affairs Committee, in its first report of
"By virtue of the office's 'great antiquity, much dignity and considerable importance', the holder has special status within Government. He has always in recent times been a lawyer. He has generally in recent times been at one remove—at least in the public eye—from the day to day activity of the Government. Often Lord Chancellors have been promoted from a career outside Parliament . . . All have been distinguished within the legal profession, to which they have displayed great loyalty".
Then there is the argument that has been advanced several times, but not quite in this form, coming from a House of Commons committee:
"There is a radical difference between on the one hand a Lord Chancellor . . . who has a special constitutional importance enjoyed by no other member of the Cabinet and who is usually at the end of his career (and thus without temptations associated with possible advancement) and on the other hand a minister who is a full-time politician and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion".
That is the crucial thing. A Lord Chancellor in this House is, almost by definition—even for such a young man as the noble and learned Lord, Lord Falconer—not at the end, but at the pinnacle of his legal and political career. It is an incentive to get people who are trying to pursue the two occupations of lawyer and politician together to note that that is one office open to them at the end of their career as a possible triumphant conclusion, and it is of huge importance that that office should continue to have all those qualities attached to it and that it should be in this House.
It may have been sufficient until now to rely on the Prime Minister of the day to obey the conventions of the constitution but, after the events of that reckless press release that destroyed the horse on which the noble and learned Lord, Lord Irvine, had until then been riding, it is surely crucial for Parliament to say clearly and beyond doubt that the Lord Chancellor, with his functions defined as the noble and learned Lord, Lord Chancellor, seeks to do, should be firmly, by statute, placed in this House.
My Lords, there seems to be a slight air of unreality to this debate. We have been round the course and have heard the arguments several times already. The only new evidence that there has been this afternoon has been the extraordinary speech by the Lord Chief Justice, who brought a judicial view to our proceedings that was both refreshing and novel and ought to be treated extremely seriously by the House.
When the Select Committee was considering the Bill, the noble and learned Lord, Lord Howe, took the view, I thought, that the office of Lord Chancellor should be associated with the office of Secretary of State for Constitutional Affairs—in other words, that the surviving office, if I may use that phrase, should broadly be what it is at present, as occupied by my noble and learned friend Lord Falconer. The speech that the noble and learned Lord just made seemed to indicate that he actually wanted a distinction: there would be two Ministers, one the Secretary of State for Constitutional Affairs—
No, my Lords.
My Lords, the last thing in the world that I want to do is to disaggregate the functions now exercised by the noble and learned Lord, Lord Falconer. I was simply making the general point that Secretaries of State can have their functions shuffled one from the other, but I do not want to disturb the present functions exercised by the noble and learned Lord.
My Lords, I thank the noble and learned Lord for what he said and now appreciate precisely what is his position. I merely say to him as a former Chancellor of the Exchequer that the proposition that someone who administers a budget of £3 billion to £4 billion per annum must sit in the House of Lords is extraordinary. In normal circumstances, it may well be that the Lord Chancellor and the Secretary of State for Constitutional Affairs would sit in the House of Lords, but I cannot imagine that any government would sensibly want to fetter their discretion in that way.
We cannot disentangle the two issues of what are the functions of the Lord Chancellor and in which of the two Houses he or she sits. If, as we have heard a great deal this afternoon, the role of the Lord Chancellor is merely to be preservation of the independence of the judiciary—although, having heard the Lord Chief Justice, it seems to me that the judiciary now feels that its independence is, on the whole, pretty well safeguarded as a result of the concordat—there is an argument for saying that he should sit in this House and should be in the Cabinet. However, a Secretary of State administering a budget of that size should prima facie be accountable in the same way as are other Secretaries of State who have a budget of major proportions. If we take away the Secretary of State functions, what is left? With respect, the answer is very little.
If the judges were coming to the House and saying collectively, through the mouth of the Lord Chief Justice, "We will feel vulnerable if the Bill goes through", then all right. One could then see at least an argument for saying that the independence of the judiciary needed protection. But when the Lord Chief Justice comes to the House to say precisely the opposite, which is that the Bill strengthens the independence of the judiciary and is in fact a major piece of legislation that defines, probably for the first time in a sensible way, the relationship between the executive, the judiciary and the legislature, the arguments that we have heard so often before and again this afternoon lose a great deal of their force.
My Lords, I intervene briefly to take us back to the opening speech by the noble and learned Lord, Lord Lloyd, but, just before doing so, I comment to the noble Lord, Lord Richard, who often prayed in aid the Lord Chief Justice, that the Lord Chief Justice after all told us that the Judges' Council thought that it would be preferable, but not essential, for the Lord Chancellor to sit in this House.
I return to the points made by the noble and learned Lord, Lord Lloyd, when he spelt out what happened last time and what the House was voting about last time. I do so because I was struck by the remarkable evidence given only six weeks ago by the noble and learned Lord the Lord Chancellor to the Select Committee on the Constitution. Right at the beginning, he was asked by the chairman whether the position that he held as Lord Chancellor was to remain in place. The noble and learned Lord the Lord Chancellor replied:
"Well, I have made no such statement to that effect. The position in relation to the Constitutional Reform Bill remains that the Government's position is that they wish to replace the role of the Lord Chancellor with the Secretary of State for Constitutional Affairs".
A little later, when talking about the defence of the rule of law, the noble and learned Lord said that he envisaged that role being performed by the Secretary of State for Constitutional Affairs. He said:
"You all know well that there is a very considerable issue joined in the House of Lords whether, accepting that one wants the office-holder to fulfil that role, is it more effectively performed by the new office of Secretary of State for Constitutional Affairs or is it better performed by somebody who continues to hold the historic office of Lord Chancellor because the historic office of Lord Chancellor carries with its status, history and values that have persisted a long period of time. There is that very, very important debate going on".
He was pressed on whether he thought that we should have a Secretary of State for Constitutional Affairs or a Lord Chancellor. He said that either was possible, depending on how the debate which I have indicated is resolved. He added that, although the Lord Chancellor could be in the House of Lords, he much preferred that he should be in the House of Commons.
I make those points because I believe that this House knew what it was voting about in Committee. It seems remarkable that only six weeks ago, in an important committee, the Lord Chancellor said that he did not accept the House's position, that he still hoped that we would revert to having a Secretary of State for Constitutional Affairs and that he should be in the Commons. If there is no other reason for pressing this amendment, it is to ensure that the will of the House, expressed so clearly in Committee, is carried into effect and not challenged again only a few weeks later by the Lord Chancellor.
My Lords, today's debate has been notable for the contribution of the noble and learned Lord the Lord Chief Justice. If intelligence, objectivity and wisdom are the marks of a good judge, he has them all. The manner in which he addressed this House about matters as fundamental as the independence of the judiciary surely reassures us all that we have an independent judiciary, and we should be astute to ensure that its independence is properly maintained in the Bill.
The noble and learned Lord, Lord Lloyd, relied on the sentiment of this legislature during its last debate in Committee. I am afraid that I favour clarity in legislation to sentiment. The Bill makes no provision for the Lord Chancellor to be a Member of this House; that is why this amendment was required. It must therefore be considered as a constitutional proposition. The Bill is a new written chapter in the constitution of the United Kingdom. Why must one part of it say that a particular Minister must be a Member of this House? Why is it constitutionally necessary? For those who look to the benefits of yesterday, there might be many reasons, but the Lord Chancellor of yesterday has not survived this Bill. He is no longer the head of the judiciary; the concordat makes the Lord Chief Justice its head. If the Bill needs to state it explicitly, so be it. The Lord Chancellor does not sit as a judge henceforth. He shall not directly involve himself in disciplining judges, because Chapter 3 of the Bill makes it clear that he is likely to delegate that function to the Lord Chief Justice and the judiciary.
Only one role of yesterday is extant: the need to protect the independence of the judiciary and to promote the rule of law. Clause 1 of this constitutional chapter guarantees that independence by requiring not just the Lord Chancellor but every Minister to uphold those principles as a constitutional duty. How can it be plausibly suggested that it is better not to have such a written protection but corridor negotiations conducted in secret, the success of which, in the hands of any Lord Chancellor, will depend on his personal strength and capacity as a Minister?
The choice for those who think of tomorrow for the constitution is: put it in writing; write it clearly; make our protections plain to our country. If this is the reforming purpose of the Bill, which of that Minister's roles requires him to be in this House in the future constitution? Is it appropriate that, with a budget of some £3 billion, he is not in the elected Chamber? Is it appropriate that, because of the need to protect the independence of the judiciary, as is supposed, he must be in this Chamber?
What is the logic? If the logic is that we will look to a senior person no longer fired with political ambition to take up the role, I am afraid that that is yesterday's thinking. There is but a handful of practising lawyers in the other place and in this place. The future Lord Chancellor may be a lawyer; one hopes that he is, but it is not a constitutional requirement. In particular, it is not a requirement that he be from this Chamber. Nobody thus far has advanced a cogent reason under the Bill for the Lord Chancellor to be a Member of this House. All the arguments have been based on what we were used to in the past; they do not take into account the Bill as it stands.
I close by offering great deference to the views of the Judges' Council. It is very careful in its words but, if the best that it chooses to use is that it would be preferable to have the Lord Chancellor in this Chamber, I disagree. I think it preferable that it be a person from either Chamber, according to ability and circumstance. The protection of the judiciary under the Bill, if Amendment No. 24 is agreed, will be far stronger. The Lord Chief Justice will have the right to make representations to Parliament directly. What stronger and more public protection could there be?
When the noble and learned Lord, Lord Lloyd of Berwick, quoted from the previous debate, his advocacy was so persuasive that I had to ask for Hansard to be brought. It appears to be suggested that I had expected the Lord Chancellor to continue in some form in his previous role. Before the few sentences that the noble and learned Lord quoted about it not being democratic to have a Minister here, I said:
"To continue the role would be to preserve a name. It would be confusing and unhelpful. It would certainly be undemocratic".—[Hansard, 13/7/04; col. 1160.]
The House must consider the Bill as it is, the reform as it will be, and not hark back to yesterday.
My Lords, I wish briefly to clarify the application of the principle of separation of powers. In reference to the speech of the noble and learned Lord the Lord Chief Justice, we must all concede that, since time immemorial, the higher levels of the judiciary have been left completely alone and have not been interrupted in their work or influenced by politicians. But surely there is a danger of our carrying the principles of the separation of powers too far.
I am now in my 60th year of being in Parliament. I became a Queen's Counsel 50 years ago. When I was a Back-Bencher in the other place, I used to do part-time judicial work. A number of other noble Lords have had the same experience. We managed to do our judicial work without applying any parliamentary principles or sympathies. We had to, and did.
For us to carry the principle too far would be a disadvantage—for the following reason. We are legislators in both Houses. It is best that legislators should have had plenty of useful experience. Among the useful experience is having done part-time judicial work. Of course, there are other noble Lords who have been in Parliament and in the Cabinet. That is not a conflict. The separation of powers does not apply to them.
We must realise that if we wish our legislation to be practical and acceptable to the people, it is a very valuable factor, when it is being considered, to have the opinions of representatives of the people and, perhaps I may dare to say, more mature representatives of the kind that we find in your Lordships' House.
So although the separation of powers is to be considered and respected, it should not be carried too far. I wish to support the views expressed by the noble and learned Lord, Lord Lloyd of Berwick. I wonder whether there is any hope that it could be maintained that we continue to have the advantage in your Lordships' House of the Law Lords. They can help in a positive and learned way to improve our legislation.
My Lords, I speak for my party as well as for myself. The Lord Chancellor should not be required by law to be a Member of your Lordships' House. We have had the advantage of a remarkable speech by the noble and learned Lord the Lord Chief Justice. I agree with him—I welcome his endorsement of it—that this Bill is an enormous constitutional step forward.
I recognise that other things being equal there are indeed some advantages in having the Lord Chancellor in your Lordships' House. There is a developing tendency to put senior legal figures into your Lordships' House rather than into the other place. Since 1997, we have continuously had one of the Law Officers in this House.
Until now the Lord Chancellor has in practice had to be a Member of your Lordships' House. If one goes far enough back in history one can find Lord Chancellors who were not, but for the past two or three centuries, the Lord Chancellor has had to be a Member of your Lordships' House because of his important judicial functions and, in particular, his chairmanship of the Appellate Committee of your Lordships' House.
It is now widely accepted that the Lord Chancellor should not continue to be the head of the judiciary or to sit as a judge. If those duties are removed, there is no reason as a matter of constitutional law why the Lord Chancellor should be bound to be a Member of your Lordships' House any more than is the Lord Privy Seal or the Lord President.
Amendment No. 3 would require the Lord Chancellor to be a Member of your Lordships' House, so one needs to look at the duties and powers of the Lord Chancellor that make that membership necessary. First, and in day-to-day work, the most important duty is to act as head of the Department for Constitutional Affairs, which is now a substantial spending department with a large number of staff. Certainly, for departmental purposes, it is better to be in the House of Commons, especially when it comes to the annual fight for money against the Chancellor of the Exchequer.
Secondly, the Lord Chancellor will have powers of some importance under Part 3 of the Bill. Those include a limited power of veto over the recommendations of the Judicial Appointments Commission and a concern with the disciplinary process. But under the concordat there is a double-lock procedure: it cannot be exercised without the agreement of both the Lord Chancellor and the Lord Chief Justice.
Thirdly and finally, there is a continuing duty to protect the independence of the judiciary and uphold the rule of law. That of course does not involve giving legal advice to the Government; that is the duty of the Attorney-General. But it is recognised as the duty of the Lord Chancellor to draw the attention of his Cabinet colleagues to proposed legislation or exercise of the prerogative that may infringe the rule of law. As a duty it is also recognised that it is not enforceable by law.
It is the last of those duties that is mainly relied on as the grounds for keeping the Lord Chancellor in your Lordships' House by law and at all times. It is said that the Lord Chancellor must be a senior figure with no hope of promotion, so that he is able to act independently and without fear of damage to his career.
I have to say that I regard those arguments as unrealistic. First, I accept that under constitutional conventions a Lord Chancellor in your Lordships' House has no prospect of promotion. But if he has no ambition for promotion he will at least have an ambition to stay in his job. Cabinet office involves power, prestige and a stimulating job, and there are few people who will want to give that up even with a decent pension to compensate.
Secondly, it is far from clear how effective that duty is under the existing practices. The noble and learned Lord, Lord Ackner, has referred to the issue of the Asylum and Immigration (Treatment of Claimants, etc.) Bill, on which I will touch no further. My noble friends Lady Williams of Crosby and Lord Rodgers of Quarry Bank, who sat in Labour Cabinets in the 1970s, have, I am sorry to say, no recollection of Lord Elwyn-Jones—the noble and learned Lord—having raised issues of the rule of law with his colleagues at the time when he was Lord Chancellor. The real pressure often comes more from the judiciary and other outsiders than from the Lord Chancellor, as indeed the Asylum and Immigration (Treatment of Claimants, etc.) Bill shows.
Thirdly, requiring the Lord Chancellor to be a Member of your Lordships' House will not ensure that we will get an effective defender of the rule of law and may exclude the person best fitted for the office. The Lord Chancellor is and will continue to be appointed by the Prime Minister. If the Prime Minister wants to find a compliant Lord Chancellor, he will find one inside or outside your Lordships' House.
The noble and learned Lord, Lord Howe, relied on the events of
The protection given by membership of your Lordships' House is an illusion. I hope and indeed expect that the Lord Chancellor in future will frequently be a Member of your Lordships' House. But there will be times when if the Lord Chancellor has to be a Member of your Lordships' House, the Prime Minister may have to appoint someone parachuted in from outside with little or no ministerial or parliamentary experience or appoint a Member of your Lordships' House with a distinguished past who has become an extinct volcano.
If there is a Minister in the other place who would do the job admirably, why should the Prime Minister not be entitled to appoint that Minister and leave him or her in the House of Commons? Insisting that the Lord Chancellor must be a Member of your Lordships' House is no guarantee at all that we will end up with the best person for the job. What it does do is guarantee that, from time to time, the best person for the job will be ruled out. Independence of mind can be found in Ministers in your Lordships' House and in Ministers in the House of Commons. We will get a strong and effective Lord Chancellor if, and only if, the Prime Minister is willing to appoint a strong and effective person to that office, whether the person is a Member of your Lordships' House or of the other place.
My Lords, before the noble Lord sits down, can he tell us on what experience does he base his view that a Member of your Lordships' House has less of a chance of success in the annual financial negotiations than someone who is not a Member of this House?
My Lords, the noble and learned Lord may well have had great success himself—he had previously held ministerial office—but it is a matter of considerable importance that whoever holds the office should be familiar with the operations of the annual carve-up of the cake, and that someone who comes to your Lordships' House with no parliamentary experience is unlikely to have that skill and is unlikely to do as good a job as he would have done if he had a background in the House of Commons.
My Lords, I know that your Lordships' are awaiting the speech of the noble and learned Lord the Lord Chancellor with keen anticipation, and so I shall be extremely brief. First, I pay tribute to the speech of the noble and learned Lord, Lord Lloyd of Berwick. He marshalled his facts and arguments in such a compelling way that I know noble Lords will have been extremely impressed by the force of his logic.
We are delighted to see both the noble and learned Lord the Lord Chief Justice and the noble and learned Lord the Master of the Rolls in their places today. I should like to say to them both that, so far as this side of the House is concerned, we accept entirely the architecture of the Constitutional Reform Bill. We accept the concordat; we accept the Judicial Appointments Commission; and we accept the context in which the new relationship between the Lord Chief Justice and the Lord Chancellor will unfold. The debate today is solely about what kind of person the Lord Chancellor should be.
I should like to say, in particular to the noble and learned Lord the Lord Chief Justice, that when this Bill becomes law, neither his successors, the successors to the noble and learned Lord the Master of the Rolls, the successors to senior Scottish or Irish judges, nor those to any of the Lords of Appeal in Ordinary will sit in your Lordships' House. There is, therefore, a real danger that the judiciary will become isolated from both government and the legislature unless there is a link between the judges and the other branches of government which the judges respect and trust. That is why the position of Lord Chancellor will be so crucial under these new arrangements.
As always, I listened with great interest to the noble Lord, Lord Richard, but I must say to him that I did not understand his argument about the importance of someone leading a large government department being a Member of another place rather than your Lordships' House. While it is true that the Lord Chancellor leads a department which now spends something in the order of £3 billion a year, the relationship between the Lord Chief Justice, the Lord Chancellor and the judges is not like the relationship between a Minister and other civil servants. The Lord Chancellor cannot instruct the judges to behave in a certain way. It is not like a normal departmental relationship. Quite often it will be the judges who tell the Lord Chancellor what to do. So, with great respect to the noble Lord, I think the analogy is—I hesitate to use the word "facile", so I shall substitute it with "misplaced".
My Lords, I thank the noble Lord for giving way. The point I was trying to make—if it was facile, I apologise; perhaps I did not make it properly—is that if the Secretary of State for Constitutional Affairs and the Lord Chancellor are merged into one office, there are pressures in two different directions. There is the pull, which has been vigorously expressed this afternoon, that, given the nature of the Lord Chancellor's part of the job, he should be in this House and there is the immense pull that comes from the other end with an annual budget of £3 billion to £4 billion. The reason for that is simple. It is because Members of the House of Commons will wish to hold him to direct account rather than to indirect account, which is what would happen if he was up here.
My Lords, it is clear that there is a fundamental incompatibility. Someone who is a Member of the House of Lords is elected by a political party on a mandate to fulfil a series of political objectives through the instrument of parliamentary sovereignty.
My Lords, I beg your Lordships' pardon. I meant to say that a Member of another place is elected to fulfil a particular electoral mandate. Such Ministers are responding to the popular will: the will of the majority. The responsibility to protect the rule of law is all about protecting minorities; and, in particular, protecting individuals against majorities that abuse the law. That is why, in my submission to the noble Lord, Lord Richard, it would be wholly inappropriate for a Lord Chancellor to be a Member of another place. As the noble and learned Lord, Lord Falconer, has accepted in his first amendment today, the Lord Chancellor is there to protect the rule of law: the individual against the state, the minority against the majority. Yet the whole force of election to another place is to represent the majority and to fulfil the majority's wishes. Therefore I submit that it is wholly incompatible for a Lord Chancellor to be a Member of another place.
We have had a long debate and all the arguments have been well canvassed by noble Lords. It is now the task of the noble and learned Lord the Lord Chancellor to respond.
My Lords, this is a very important debate and, to some extent, the issues are agreed. Although that is not necessarily the case as regards the answer, but the issues are agreed. In July 2004 there is no doubt that this House voted not only to preserve the title of Lord Chancellor, but also to preserve the office, and I accept that.
The office of Lord Chancellor carries with it values, history and status. I also accept that since 1760, when the kinsman of the noble Lord, Lord Henley, finally got into the House of Lords, it has been a matter of convention that every single Lord Chancellor has been in this House. So there is plainly a convention that, since 1760, the Lord Chancellor should be in the House of Lords.
Why has the Lord Chancellor always been in this House? First, and most obviously, it is because he has had to be a judge and the House of Lords deals with legal matters. Since the end of the 19th century the Judicial Committee of the House of Lords is a committee of the Lords and is the final court of appeal. As judges, successive Lord Chancellors have chaired it. So the Lord Chancellor has had to be in the House of Lords both in recent times and in times gone by.
I anticipate that there is also agreement around this House on what the new role of the Lord Chancellor should be. He should be a Minister at the ministerial end of the concordat—to use a form of shorthand—and he should be responsible for protecting the independence of the judiciary and preserving the rule of law within government. We have also heard during the course of this debate that, as a Minister, the Lord Chancellor will be responsible for a budget of around £3 billion, the administration of the courts, legal aid and various other issues. Those matters could be dealt with by a Minister either in the Lords or in the Commons.
It is important to remember that these matters have a huge impact on people's daily lives. I do not refer just to those who actually go to court—although they certainly affect them—and not just to those who receive legal aid, but also to those in the community who look to the courts to provide them with standards and protections. That is quintessentially a role for someone accountable in the normal way.
Turning to the ministerial end of the concordat, perhaps I may quote the noble and learned Lord the Lord Chief Justice in his evidence to the Select Committee:
"My firm support for the concordat reflects the fact that I see no difficulty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional Affairs by the concordat. I do not consider that such a Minister requires any enhanced status or particular title to enable him or her to exercise those functions".
The concordat was negotiated on the basis that the work could be performed by a Minister. Those two roles are vital parts of the post of Lord Chancellor under the new arrangements, which I think we all agree. Although we all focus strongly on the independence of the judiciary and the rule of law, it would be wrong, first, to forget those two functions, and secondly, to forget that those two functions will be the ones that the Minister most performs on a day-to-day basis.
As to the third function—namely, ensuring the independence of the judiciary and the rule of law, which is vital—it is impossible to ignore the speech of the noble and learned Lord, Lord Woolf. He has made it clear that the new arrangements which he specifically put to the House—and which do not include as a condition that the Lord Chancellor should be in this House—provide better protection for the independence of the judiciary than the current arrangements.
The proposition on which the whole argument depends is that one will always be better off with a Member of this House than with someone in the Commons to protect the rule of law. The basis for that proposition is faulty. In many cases one will be much better off having someone in this House, but surely the right course is not to restrict the holder of the office to this House but to make clear what we expect from that office holder. We expect the office holder to be a competent Minister, to perform the ministerial end of the concordat responsibly, and to be a guardian of the rule of law and the independence of the judiciary.
With the greatest respect to the House, it is misplaced to say that only we can do it. To take up the words of the right reverend Prelate, it is "mistrustful" of the other place to say that it could never produce anyone as good as someone from our place to perform that function. That is not understanding that the role has changed—and changed in a way that we want it to change.
The force of the speeches of the noble and learned Lords, Lord Lloyd and Lord Howe, expressed an arrangement which, by the agreement of the House, we have changed. We should accept that it has changed and that what we are seeking to achieve is not something which is good for this House but something which is in the best interests of the nation as a whole. Surely it is in the best interests of the nation that the Prime Minister should accept the basis on which the person who holds the office is appointed, and that that person should be someone who will be good at all three functions I have identified. We should accept that that does not necessarily mean that in every case the office holder has to come from here.
I am quite sure that either in a short time or a medium time we will come to the conclusion that, as a result of accepting the amendment of the noble and learned Lord, Lord Lloyd, we may have deprived the nation of the best person for the job. I invite noble Lords to reject the noble and learned Lord's amendment.
My Lords, I am grateful to the noble and learned Lord the Lord Chief Justice for coming to the House and expressing the preference of the Judges' Council that the Lord Chancellor should be a Member of this House.
The issue before your Lordships is very simple: if the Lord Chancellor is to do his job properly as a bridge or intermediary between the judiciary and the executive, he must have the confidence not only of the Prime Minister but of the judges. He will have the full confidence of the judges only if he is a senior lawyer and a Member of this House—not for the good of the House but for the good of the nation. I wish to test the opinion of the House.
moved Amendment No. 4:
Before Clause 1, insert the following new clause—
(1) A person is not qualified to be appointed Lord Chancellor unless he has at any time—
(a) held high judicial office for a period of at least 2 years; or
(b) practised as a qualifying practitioner (as defined in section 16) for at least 12 years.
(2) For the avoidance of doubt, a person serving as a law officer of the Crown is practising as a qualified practitioner."
The responsibilities of the Lord Chancellor in relation to the Judicial Appointments Commission, the concordat and the rule of law are, in my submission, reason enough for all future Lord Chancellors to be either judges who have held high judicial office or senior lawyers of practising experience of at least 12 years. I understand that this view is endorsed by the noble and learned Lord the Lord Chief Justice and the Judges' Council. I intend to say no more than that in introducing the amendment.
My Lords, Amendment No. 5, in my name, is grouped with Amendment No. 4. I am more than happy not to move it in favour of the greater wisdom, as always, of the noble Lord, Lord Kingsland.
The noble and learned Lord the Lord Chancellor spent a lot of time in the previous debate praying in aid the fact that the noble and learned Lord the Lord Chief Justice was not adamant about the Lord Chancellor being a Member of this House. However, I point out that he is adamant about him being a lawyer. So I hope that your Lordships will find no difficulty in supporting this amendment.
My Lords, the previous debate has, to some extent, foreshadowed the debate on this amendment. Indeed, some of the steam may have gone out of the debate, following the result of the vote. But it has not reflected the balance of evidence which was put before the Select Committee. It was clearly divided between those who, weighing past experience of the duties of Lord Chancellor, saw the appropriateness of a lawyer discharging that role; but equally weighty evidence was presented by those on the other side, notably from Justice and a number of individuals.
The strongest argument for not confining the choice of Lord Chancellor to someone with legal experience is that in balancing the qualities, weight is given to one, which may be important, but which could outweigh all the others, pointing to the suitability of a particular candidate. In the decisions which have to be taken within Cabinet, I submit that the most important quality is the gravitas of the individual, which derives most commonly from long political experience. Such political experience normally leads to promotion and helps to clinch arguments when there is debate within government.
Undoubtedly, the new job of Lord Chancellor is not as it was before. He will no longer sit as a judge, he will no longer be the head of the judiciary and he will not speak for the judiciary. That job has been assigned, and will be clearly underpinned by the Bill, to the Lord Chief Justice. There is no compelling reason why a lawyer's training should be thought the most essential requirement for this weighty office.
The House has tonight decided that this job must be discharged by someone sitting in this House. It will always be possible to find a suitable person who is a lawyer, ennoble him or her and bring them into this House for the purpose. But if that happens, such a person will not have long political experience and the gravitas that that brings. I think that going down that route would be a profound error of judgment.
When I think back to my experience of those who spoke out in defence of human rights, civil liberties and the rule of law in governments in which I have served and which I have witnessed at close hand, it is not always the lawyers who spring to mind as the people who have been the most profoundly effective advocates on these issues. If I may be extremely personal, the man who seemed to me most readily and effectively to protect those liberties and values was the former Home Secretary, Roy Jenkins. I doubt whether anyone could have argued that he was unsuitable to be Lord Chancellor because he was not legally qualified.
Two of the amendments before us suggest that a lawyer should have 12 years of practice and experience, and the other proposes 15 years. Such provisions would certainly rule out many lawyers who have been elected to the House of Commons on the grounds of inadequate time spent doing the hard graft of a lawyer. They would certainly have ruled me out; I resigned my practice when I became a junior Minister at the age of, I think, 33, although my experience at the English Bar was enough to cause the late Lord Elwyn-Jones to offer me the job of Lord Advocate at the Scottish Office, for which I was wholly unfitted.
There seems to be no reason of principle being deployed behind the argument for the choice of a lawyer for this job. I submit that no good reason of principle could be found. It is certainly evident that we have had lawyers in that role but, as was explained in the previous debate, that was because of the legal function which the Lord Chancellor exercised and which he will not, in his new incarnation, be required to exercise.
It is not as though in the British Isles we are without experience of a Minister of Justice—that is in effect what the Lord Chancellor is—who is not a qualified lawyer. The Scottish Executive began their life with a lawyer as Minister of Justice. I do not know whether I can refer to him as my friend, but my colleague, Mr Jim Wallace, took that role. But he was succeeded in that role by Mrs Jamieson, who is not a lawyer but who is effectively discharging the job of Minister of Justice. It seems to me that there is no good reason for ranking legal experience above all others in choosing the most suitable person for the job. I hope that we shall not limit in that unfortunate way the discretion of the Prime Minister in choosing a Lord Chancellor.
I do not believe that the last word has been said on the issue of whether the Lord Chancellor should sit in this House or in another place, but it is perfectly clear that, as things stand, if there were any possibility that he might sit in another place, there would be too small a pool of suitable candidates for the job. I beg to suggest that there might even be too small a pool in this House for the job in future. The attractions of this House to people who are suitable will diminish with the changing nature of the job, because the Lord Chancellor's functions will be so profoundly different under the new arrangements to which we have given our support.
I cannot conclude my remarks without noting the profoundly important speech made by the noble and learned Lord the Lord Chief Justice in the earlier debate. Nor can I ignore his reporting of the views of the Judges' Council on the issue under discussion. I simply say that those of us who have had experience of government have a different perspective from members of the judiciary on how government works and of the standing that lawyers have in government. To some extent, they are regarded as technicians. They are not regarded as the voice of the people, as other Ministers are. They are, to my mind, regarded as perhaps innately conservative, and that may be a useful function in government. They are also regarded as advocates, which is something that, by its nature, does not lie easily with the ideal that they are in some peculiar way above the battle.
Lawyers are never regarded as free of political taint by those who make the decisions. In the debates that we have had, there has been a slight tendency to idealise the objectivity of lawyers. I am bound to say that I believe that we should have a more realistic view of what their role and function has been and would be. Above all, I beg the House not to make the mistake of so confining the pool of talent for the job as the amendment would do.
My Lords, as the noble Lord said, the Scottish Executive originally had a Minister of Justice who was a lawyer and now has a Minister of Justice who is not a lawyer. Would he comment on the fact that the Scottish Executive includes, ex officio, the Lord Advocate, who is a lawyer? So the Scottish Executive includes a lawyer as part of the constitution of the executive.
My Lords, that is undoubtedly true. Our own United Kingdom Government can call on the services of the law officers to perform a broadly similar role to that described by the noble and learned Lord, Lord Mackay, in the context of the Scottish Executive.
My Lords, very briefly I wish to intervene again, because the noble Lord asked for any arguments in support of the proposition that the Lord Chancellor should be a senior lawyer. I shall quote two brief statements made by Her Majesty's Government in the past two years, which set out that case clearly.
"The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with full understanding of legal culture and the rule of law. His tripartite role enables him to act as both a link and bulwark between the judiciary and the executive and the legislature. He can explain, defend and interpret each to the other".
Most importantly, the noble Lord, Lord Macdonald of Tradeston, speaking in this House on
"the Lord Chancellor's position as head of the judiciary also has the effect of ensuring that only an experienced and senior professional lawyer can be appointed to the position. It is not enough to have a legal qualification; the holder must be practising as a lawyer. A review of the outstanding attributes of the present and former Lord Chancellors underlines the achievement of successive Prime Ministers in appointing only practising lawyers held in high regard".—[Hansard, 7/3/03; col. 1096.]
The first half of that first sentence speaks of the Lord Chancellor's position of the head of the judiciary also having the effect of ensuring those beneficial consequences. We know now that the Lord Chancellor will not be head of the judiciary, so the insurance policy on which the Government relied only 18 months ago in this House has been withdrawn. We need to replace that with a statutory insurance policy now.
My Lords, as a member of the Select Committee, I must say that the whole of our discussion during the weeks when that committee met were based on the assumption that if the Lord Chancellor were to remain he would be a senior lawyer. Indeed, I believe that the present Lord Chancellor would agree that that was implicit in much of what was said in those debates. It is the job for a lawyer, modified as it is, as it involves defending the independence of the judiciary, advising the Cabinet on the effect on the rule of law of their decisions and having a part at least still to play in appointments, as the Minister who decides whether a person put up by the Appointments Commission should be proposed for membership of the judiciary. Those are all jobs that should be done by a lawyer, and I cannot see why the Government should apparently be unwilling to accept that that is so.
My Lords, in response to my noble friend's extremely cogent case for not necessarily having a lawyer in the post, I refer him to Amendment No. 26, which contains Schedule 4 and which the noble and learned Lord, Lord Falconer, will shortly introduce. It describes the other functions of the Lord Chancellor and the organisation of the courts. There are 348 functions itemised, every one of them having a strong legal component. Although it is obviously the case that there are many non-lawyers who could make good Lord Chancellors—my noble friend cited Lord Jenkins of Hillhead—none the less what we are dealing with here is the norm.
We need to be cautious in assuming that for evermore Prime Ministers will appoint the person most fitted to the traditional role of upholding the independence of the judiciary and the rule of law. Caution in that regard is proper, notwithstanding the point made by the right reverend Prelate about trust, which was an important point. In that regard, the balance falls clearly on the side of having a lawyer in this legally concentrated role.
My Lords, this may be ground that we have gone over before. The effect of the provision is yet again to restrict further the pool from which this important office holder can be taken. In the light of the decision made earlier this afternoon he must now be a Lord. If noble Lords vote in favour of his being also a lawyer of 12 or 15 years' practice, inevitably the pool diminishes.
As ever, the noble and learned Lord, Lord Howe, accurately put his finger on how the issue arises by quoting the excellent speech of the noble Lord, Lord Macdonald of Tradeston. If the relevant person is no longer to be a judge and constitute the head of the judiciary the issue arises whether the compulsion for this man or woman to be a lawyer is in the interests of the public and of the nation. Very often it will be in the interests of the nation to have someone undertaking this job who is a lawyer, but I ask noble Lords to consider what the job consists of. First of all, he is a Minister with responsibility for a £3 billion budget. His role in that respect, as everyone would agree, is to deliver a good service to the public regarding the courts and legal aid. Are lawyer Lords always the best people to be in charge of driving either the running of those functions or their reform? Sometimes they will be and sometimes they will not. One should not be driven by populism but what would the public say to the proposition that the people who are in charge of that £3 billion must always be in the Lords and must always be lawyers? I think that their answer might be to ask: why do you not choose the right person for the job who might well be a lawyer Lord but would not have to be?
The concordat was negotiated on the basis that it could be undertaken by someone who was not a lawyer. For example, input into the role of appointing judges would be provided by the Judicial Appointments Commission. The Minister's role would be to be accountable in that respect. Similarly, as regards the disciplining and financing of the judiciary, the Minister's role would not be that of a lawyer, but that of a Minister performing a ministerial function.
Finally, I turn to the independence of the judiciary and the rule of law. It is very difficult to rebut the proposition of the noble Lord, Lord Maclennan, that sometimes someone who is not a lawyer will be braver, stronger and more focused on those issues than a lawyer. During the course of the past century no Lord Chancellor ever resigned even though at one stage the then government procured that the Lord Chief Justice sign a letter of resignation in blank which the government could operate at any date they wished. The Lord Chancellor at that time was a senior lawyer.
I do not think that the right course is to restrict the pool yet further. I do not think that would carry confidence. The right course is to allow the Prime Minister of the day, whoever he or she may be, to choose the right person for the job who can best protect the values of justice, the rule of law and the independence of the judiciary that we all hold so dear.
My Lords, I hope that the noble and learned Lord will answer one question. Is not the answer to his argument about restricting the pool immediately apparent when one contemplates what has happened already under this Government? The Prime Minister had no difficulty in enlarging the pool when he appointed Lord Williams of Mostyn as Attorney-General, later a distinguished Leader of this House, and when he appointed the noble and learned Lord, Lord Goldsmith, as Attorney-General. The merit of having the appointment in this House is that the pool may be enlarged in that way, and the argument about the pool effectively disappears.
My Lords, with respect that demonstrates the gulf between us. Lord Williams of Mostyn, who is much missed in this House, was an excellent lawyer. The noble and learned Lord, Lord Goldsmith, who is much respected in this House, is an excellent lawyer. In practice they were both selected straight from the Bar to hold high office. Do noble Lords think that the person who is to be responsible for a ministerial budget of £3 billion should be selected—or has to be selected—only from among people whose previous experience comprises simply that of being excellent barristers?
Being a barrister is of great assistance as regards some of the functions that the Minister performs. However, as regards quite a few of those functions, I modestly believe that my seven years' ministerial experience is much more significant and has made me much more effective in this role. If I had not spent seven years as a Minister I would not have been remotely able to perform that part of the role. I say with the greatest respect to the noble and learned Lord, Lord Howe, who has himself had a most distinguished ministerial career, that the idea that a member of the Bar can simply pick up the job with no experience of any kind of political or ministerial office is illustrative of the extent to which the pool would be limited by the measure that we are discussing.
My Lords, we have had another extremely interesting debate on an aspect of the Lord Chancellor's character—this time on whether or not he should be a lawyer. I was particularly struck by the noble and learned Lord's illustration that no Lord Chancellor in the 20th century had resigned from office. I regard that as a measure of the success of successive Lord Chancellors in ensuring that the rule of law was respected in Cabinet.
The noble and learned Lord, Lord Woolf, brought us a message from the Judges' Council that it was appropriate that the Lord Chancellor should be a lawyer. Your Lordships heard the noble and learned Lord, Lord Ackner, talk about what I think the vast majority of your Lordships consider to be the biggest threat to the rule of law in recent years; namely, the issue of the ouster clause. I simply do not see how anyone other than a Lord Chancellor who had a good grasp of the law could possibly have dealt with this issue in Cabinet.
That goes for all the rule of law issues that are likely to be disputed in the Cabinet or in Cabinet committees. The fact of the matter is that, as with so many other problems in politics, the devil is in the detail. If you have to get into the detail of the rule of law, you have to be a lawyer to understand it. I believe that our case is incontestable. I wish to test the opinion of the House.
My Lords, this relates to the strength of the duty imposed on the Lord Chancellor and other Ministers to uphold the independence of the judiciary. Your Lordships will see that that duty is set out forthrightly and cogently in Clause 1(1), which states:
"The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary".
That is an admirable statement and an admirable principle. But the trouble is that in subsections (4), (5) and (6) that duty is considerably watered down. Subsection (5) states that:
"Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary".
Ministers of the Crown should not seek to influence particular judicial decisions by any means whatever, other than by making representations to the judge who is hearing those proceedings. The restrictions should not be only on special access to the judiciary, leaving it all right for them to say, "If the judges' decisions continue to go against me, they won't do very well in the next salary review", or something of that kind. Subsection (6) then states that:
"The Lord Chancellor . . . must have regard to . . . the need to defend that independence".
That is infinitely weaker and wetter than a duty to uphold the continuing independence of the judiciary.
In Committee, there were elaborate amendments designed to modify subsections (4), (5) and (6). I think that the noble Lord, Lord Brennan, suggested that it would be much simpler just to concentrate on the duty in Clause 1(1) that the Lord Chancellor,
"must uphold the continued independence of the judiciary",
and to take away the subsequent provisions that water that down. The amendment seeks to do that. I beg to move.
My Lords, I simply wish to endorse everything that the noble Viscount, Lord Bledisloe, has said.
My Lords, I would like to ask a question regarding subsection (5). I have had this thought previously, but I felt that I should mention it. Those who propose a certificate of public interest immunity have a special access in that sense to the judiciary, which is different from the way in which the judiciary deals with other matters. Perhaps it might be necessary to consider whether that requires some special provision.
My Lords, Amendment No. 7, tabled by the noble Viscount, Lord Bledisloe, to which the noble Lord, Lord Kingsland, has also put his name, seeks to remove the majority of Clause 1 altogether. As noble Lords are aware, Clause 1(4) to (6), which the amendment and Amendment No. 9 seek respectively to remove and to amend, are important aspects of the protections put in place for judicial independence in the Bill. These provisions flow directly from the opening sections of the concordat with the Lord Chief Justice. They were put in because of the concordat and reflect in part, I should imagine, the protection of the independence of the judiciary to which the noble and learned Lord, Lord Woolf, referred earlier.
The subsection (5) duty, to which the noble Viscount, Lord Bledisloe, referred, makes it absolutely clear that Ministers must not seek to influence judicial decisions other than by means open to other litigants before the courts. That would include the ability to make an application for a PII certificate, where appropriate, because it would not be special access, in accordance with litigation rules.
The subsection (6) duties on the Lord Chancellor are particularly important. They make it clear that he has a special position regarding judicial independence, that he must ensure that the judiciary has the resources it requires, and that he ensures the public interest is properly taken into account in matters relating to the judiciary or the administration of justice.
I have no doubt that the noble Viscount and the noble Lord agree to the fundamental importance of the need to protect judicial independence. Indeed, they may seek to remove the existing provisions in Clause 1 on the grounds that they are not satisfied that they are expressed with the degree of force with which some noble Lords would wish.
Let us be clear that the Bill is not saying that the particular duties set out in these subsections mark the outer boundaries of the overall duty to uphold judicial independence. The subsections draw out particularly important duties that must necessarily be met. But that is not the end of the matter. Just because the particular duties have been met does not guarantee that the Lord Chancellor has met the overall duty to uphold judicial independence, which will apply in respect of everything he does. But the spelling out of the particular duties gives prominence to some very important matters of particular concern to the judiciary. To delete the whole of this section of the provision, as proposed by Amendment No. 7, does not seem to be a useful way forward.
Amendment No. 9 would undermine two principles that form a relevant part of our institutions: first, that Ministers have to submit many of their decisions to collective decision of the Cabinet and are subject to constraints imposed by other Ministers and Parliament; and secondly, that the fulfilment of the general objectives of a Minister's portfolio is not a matter to be settled by substantive judicial review in the courts, but is the subject of political accountability and the Minister's obligation to resign if he is unable to support a collective decision.
Amendment No. 9 would undermine both those principles by applying a positive statutory standard of conduct across a wide range of the Lord Chancellor's major activities, and beyond. The reference to the rule of law in particular, to which I will return, would extend the scope of the positive duty well beyond the bounds of the Lord Chancellor's current portfolio, imposing the threat of illegality over what he should and should not be saying and doing in respect of other Ministers' areas of responsibility, and even matters completely outside government. This is fundamentally inconsistent with existing notions of ministerial accountability in our constitution and goes well beyond the purpose of codifying the Lord Chancellor's existing roles in statute. Also well beyond that purpose would be the result secured by Amendment No. 9 that major objectives of the Lord Chancellor's portfolio would become matters of substantive judicial review.
Of course we accept, and have included in the Bill, a positive statutory obligation on all Ministers to uphold the independence of the judiciary. But that is binding on all Ministers at once, so does not create significant problems with the constitutional background of collective responsibility. Nor does it open up a large field of substantive judicial review of policy matters. It is confined to securing the already accepted and existing boundary between two branches of government, and we think it accurately reflects the existing constitutional background in this respect also.
There is one further example of how Amendment No. 9 does not take proper account of a crucial part of the broader constitutional picture. It fails to take account of the role of the Lord Chancellor as a Member of one or other House of Parliament. The absolute legal duty created by the amendment would apply to the Lord Chancellor when he was exercising functions in connection with parliamentary proceedings. As the duty would be in absolute terms, with no reference to such proceedings, questions could arise as to the legality of the Lord Chancellor's actions in Parliament, including his position on Bills and the content of his speeches. I am sure that that is not the intention of the noble Lords who have tabled the amendment, but it illustrates the real difficulties in imposing absolute, unqualified duties on a particular Minister without properly taking into account the entirety of his constitutional role.
To sum up, it would seem that Amendment No. 7 is based on a misunderstanding of the clause which it seeks to amend and it would remove important aspects of the protections that exist for judicial independence. The alternative solution that is proposed by Amendment No. 9 also makes no attempt to accommodate itself to the rest of our constitutional fabric, proceeding as if in a vacuum. In consequence, both amendments are misconceived and I ask noble Lords not to press them.
My Lords, the noble and learned Lord has spent much time responding to Amendment No. 9, which has not been moved and not been spoken to. I do not think that it is intended to be moved.
So far as concerns the noble and learned Lord's opposition to Amendment No. 7, he has not dealt with the basic point that subsections (5) and (6) are a great deal weaker than subsection (1), which sets out the Lord Chancellor's fundamental duty.
My Lords, I had assumed that the noble Viscount moved his amendment because he wanted to replace subsections (4) and (6) with his positive duties. I apologise if I have got that wrong. I dealt briefly with his main point. Clause 1(1) is not in any way diluted by subsections (4) to (6). Subsections (4) to (6) are in the Bill because they were agreed in the concordat. The position cannot be made worse once Clause 1(1) is in place. I ask the noble Viscount to respect the concordat and leave the position alone.
My Lords, with respect, the noble and learned Lord must be entirely wrong. If one has a general principle and then some detailed provisions, in matters which are covered by the detailed provisions, they will prevail over the general statement. We just cannot have a provision in the Bill which states that Ministers must not influence judicial decisions through any special access. That would make it plain that it is perfectly all right for them to influence judicial decisions by anything other than special access, which is the most appalling constitutional impropriety.
If Ministers are merely obliged to uphold the continued independence of the judiciary, they cannot seek to influence judicial decisions in any way other than by making representations in court. If they are under an absolute duty to uphold the continued independence of the judiciary, there is no need for a provision which states that they must have regard to the need to defend that. Subsections (5) and (6) quite plainly water down subsection (1) and are undesirable. I will test the opinion of the House.
My Lords, before the noble Viscount sits down, could he please explain something, because I am certainly muddled now? Amendments Nos. 7 and 9 were grouped. Is the noble Viscount saying that without Amendment No. 9 being agreed to, it is satisfactory to remove subsections (4) to (6)?
My Lords, it is entirely a matter for the noble Viscount. As I made clear in my remarks, subsections (4) to (6) neither water down nor are intended to water down Clause 1(1). They are in the Bill to help the judiciary. To knock them out now would have precisely the reverse effect of that which the noble Viscount intends.
My Lords, we must agree to differ and see which view the House prefers.
My Lords, the amendment will clarify the respective positions of the Lord Chancellor and the Lord Chief Justice. It was referred to in the speech by the noble and learned Lord, Lord Woolf. Traditionally, the Lord Chancellor has been referred to as the head of the judiciary. That has always been a non-statutory title, flowing from the Lord Chancellor's position as the most senior judge in the United Kingdom.
As all sides now appear to have accepted, it is inappropriate for the Lord Chancellor to hold judicial office or to be the head of the judiciary. The Bill already provides that the Lord Chief Justice is to assume the new additional title of President of the Courts of England and Wales. The amendment will provide further in the Bill that the Lord Chief Justice should also be acknowledged explicitly as the head of the judiciary of England and Wales. That will put beyond all conceivable doubt the rightful position of the Lord Chief Justice as the leader of the judges in the jurisdiction. It will also put beyond doubt the fact that the Lord Chancellorship is no longer to be a judicial office.
It is also my intention to table another amendment to provide in the Bill that the Lord Chief Justice of Northern Ireland is the head of the judiciary in that jurisdiction. As justice is a devolved matter in Scotland, we have left the position in that jurisdiction to be dealt with by the Scottish Parliament. As the noble and learned Lord, Lord Woolf, has already said, the amendment is supported by him on behalf of the Judges' Council and it is a useful clarification. I beg to move.
moved Amendment No. 11:
Page 3, line 14, at end insert "and is Head of the Judiciary of England and Wales"
My Lords, I have already spoken to this amendment. I beg to move.
My Lords, I think that the noble and learned Lord's explanation of the previous amendment in fact related to Amendment No. 11. My only question is: what will be the position of the President of the Supreme Court? Will he be the head of the judiciary for the United Kingdom as a whole?
My Lords, he will not be the head of the judiciary for the United Kingdom as a whole; he will simply be the President of the Supreme Court. Therefore, he will be the chief judge in the Supreme Court but he will have no function as the head of the judiciary in any of the jurisdictions in the United Kingdom.
My Lords, if the Lord Chief Justice happens to sit, as he may be entitled to do, in the Supreme Court, who will preside?
My Lords, that will be a matter to be agreed between the President of the Supreme Court and the Lord Chief Justice of England and Wales or the Lord President in Scotland or the Lord Chief Justice in Northern Ireland if he were able to sit there.
My Lords, perhaps I may ask the noble and learned Lord when, if at all, the Lord Chief Justice will be referred to as the President of the Courts?
My Lords, he will still be the president of all the courts of England and Wales. The purpose of calling him the President of the Courts of England and Wales is to make it absolutely clear that he is now in charge of all the courts, including the magistrates' courts.
My Lords, does that mean that the Lord Chief Justice will generally be called Lord Chief Justice hereafter?
My Lords, I am sure that he will continue to be called Lord Chief Justice. "Mr President" may not suit him.
My Lords, I seek clarification of one point. If the Lord Chief Justice is invited to sit as a judge of the Supreme Court, surely he will then be an acting judge, invited there by the President of the Supreme Court, and surely it will be the President of the Supreme Court who will preside.
My Lords, that sounds exactly right to me, but it seems that it is for the President of the Supreme Court to decide how he deals with the matter.
moved Amendment No. 12:
Page 3, line 36, at end insert "in England and Wales"
My Lords, in moving Amendment No. 12, I wish to speak also to Amendments Nos. 13 and 14. The amendment makes clear the territorial limitation of the new office of Head of Criminal Justice. The creation of new offices such as Head of Criminal Justice and Deputy Head of Criminal Justice creates the opportunity for clarity and transparency. The clause applies only in England and Wales, and so the territorial and jurisdictional limitations of the new office should be clearly stated.
Clause 3 clearly states that it deals with the President of the Courts of England and Wales, and subsection (1) defines the Lord Chief Justice as President of the Courts of England and Wales. This maintains the clarity as against the Lord President of the Court of Session in Scotland—a post that has been in existence since 1532. When we come to Clause 4, it seems logical that the Head of Criminal Justice and the Deputy Head of Criminal Justice should also be so distinguished.
The Law Society of Scotland, which initiated this set of amendments, has let me know that on many occasions it has experienced misconceptions in the media generated because the jurisdictional limits of certain bodies in the various constituent legal systems in the United Kingdom are not clear enough.
I also wish to speak to Amendment No. 15, and to Amendments Nos. 16 and 17. Amendment No. 15 makes clear the similar territorial limitation of the new office of the Head of Family Justice. It is easy to see that the newspapers in Scotland might light on a judgment by Lady Justice Butler-Sloss as president of the Family Division and speak of such-and-such a ruling in family law in Scotland, whereas in fact we have jealously managed to guard the difference in the law between the two countries. Practically, none of us now knows where we stand on the matter of smacking children.
These amendments to Clauses 4 and 5 are designed to reinforce the clarity and to ensure that there is no opportunity for confusion if commentators or reporters seek to explain the decisions of the Head of Criminal Justice or the Head of Family Justice or their deputies. There are some occasions when the aspects of the legal system are denominated on the basis of jurisdiction; for example, the Council on Tribunals has its Scottish committee; the Scottish Solicitors' Discipline Tribunal is distinguished from the Discipline Tribunal; and there is a Lands Tribunal and a Lands Tribunal for Scotland. As one can see, the distinction between the main England and Wales body and the Scottish body needs to be kept clear.
This Bill presents an ideal opportunity to ensure that there is both clarity and a lack of confusion over the new and important offices created by the Bill. I beg to move.
My Lords, there has been a long history of confusion of this kind, where a body or an officer has had jurisdiction over only England and Wales but the title does not say so. An example is the Highways Agency. It is called the Highways Agency, but it has nothing to do with highways in Scotland. Very often people in Scotland write to the Highways Agency and want to know about their highways, but it has nothing to do with them. That is an important point in relation to clarity.
I hope that the alacrity with which the noble and learned Lord leapt up means that he will accept the amendments. They are important. Such jobs should say whether they apply to England and Wales or to England or to the whole of the United Kingdom. I hope that he will accept the amendments.
My Lords, I support the amendment. On the nature of the clause, I feel rather sad that the Lord Chief Justice is to be the Head of Criminal Justice. In my submission, the Lord Chief Justice is the head of all justice; in my view, he is the senior judge in criminal and civil matters. I feel that crime should be given a particular place in relation to the Lord Chief Justice appointment. I take only a marginal interest in the matter, but I wonder whether the president of the Queen's Bench Division would not be a better Head of Criminal Justice, leaving the Lord Chief Justice as the fountain of all justice in England and Wales.
My Lords, I can see the Lord Chief Justice looking at the noble and learned Lord warmly in relation to that comment. I shall reply to the points made by the noble Duke and the noble Baroness in a moment. On the role of the Lord Chief Justice, Clause 4(2) says:
"The Head of Criminal Justice is—
(a) the Lord Chief Justice, or
(b) if the Lord Chief Justice appoints another person, that person".
Whatever other functions the Lord Chief Justice has, traditionally in England and Wales he has been the face of the criminal justice system as far as the judiciary is concerned. We believe that the Bill should reflect that, but it allows the Lord Chief Justice, if he so wishes, to appoint someone else to be the Head of Criminal Justice. That judgment will be made at the time. I am not unsympathetic to the point that has been made. Let us start from the proposition that he is the Head of Criminal Justice, but if he or she does not want to be, he or she has the means to change that.
On the points made by the noble Duke and the noble Baroness, I believe that it is accepted implicitly in what they say that the extent of the appointment is only in England and Wales. That is clear from Clause 106 of the Bill, which makes it absolutely explicit that the Head of Criminal Justice and the Head of Family Justice are to apply only to England and Wales.
With the greatest of respect, the most optimistic hope of the noble Duke and the noble Baroness is that when newspapers refer to the Head of Criminal Justice hereinafter they will put in the words "of England and Wales". Sadly, they very rarely say the "Lord Chief Justice of England and Wales", which is the official title of the Lord Chief Justice. I see very little merit in making the Bill even longer in the fond hope that English newspapers—it would not be in the Scottish newspapers—will hereinafter put in the words "of England and Wales".
While I am very sympathetic to the point made, I fear that the proposal does not address the particular problem once one accepts that Clause 106 makes it clear that the ambit of the jobs is only England and Wales. With sympathy, I am sorry.
My Lords, I am very disappointed to have that response from the Lord Chancellor. This is exactly the kind of point we are on. I do not wish to denigrate the powers of the press in Scotland, but not all of them will penetrate Bills to the level of Clause 106. This is the precise experience that we have had on numerous other points. The question of a title is rather important. We have been through this in relation to one or two other matters, such as on the reform of the House of Lords when the title given to the Earl Marshal was curtailed. He was not called the Earl Marshal of England, which would have made his position clearer in the event of further developments in Parliament.
In this case I would like to see the formal title include those words, but in the mean time I beg leave to withdraw the amendment.
moved Amendment No. 19:
Leave out Clause 8 and insert the following new Clause—
Schedule (Transfer of appointment functions to Her Majesty) provides for—
(a) Her Majesty instead of the Lord Chancellor to make appointments to certain offices, and
(b) the modification of enactments relating to those offices."
On Question, amendment agreed to.
Schedule 3 [Appointment functions]: