I believe that the clause should not stand part of the Bill and I therefore urge my hon. Friends to vote against it. It was included in the other place and we wish it to be removed. I shall explain why the Government take that view.
We oppose the concept, although we understand why their lordships would prefer to keep the reformed office of Lord Chancellor in their Chamber. However, they are wrong and I hope that we can delete the clause. They have fundamentally misunderstood the changed nature of the ministerial post. The title of Lord Chancellor may remain, but gone are the duties to select the judiciary on his own and the power to sit as a judge.
If the Lord Chancellor is no longer solely responsible for selecting the judiciary, can no longer sit as a judge and is no longer head of the judiciary, there remains no reason to be inherently distant from public accountability or parliamentary scrutiny. Of course, we propose nothing that would prevent the Lord Chancellor from being a Member of the House of Lords, but there is no good reason for the clause explicitly to prevent someone's appointment simply because they happen to be an elected representative.
It would be odd if a Prime Minister could appoint anyone except someone who happened to be elected. Deliberately to exclude an individual who was chosen to sit in Parliament by democratic means would appear perverse to most people.
Certainly not. Is not it obvious that the other place has a far less partisan manner of debate and that it is far better for the sort of figure who upholds the independence of the judiciary to come from such an environment, be approaching the end of a career but have the necessary great seniority rather than being some young politician who is starting in the Cabinet, has ambition and wants perhaps to make a name for himself?
The hon. Gentleman is clearly talking about himself again. I wish he would not indulge in relating his personal ambitions, but I am sure he will go a long way in politics. There is nothing to stop a Member of the House of Lords being a young person, perhaps with less experience and knowledge of the world than the hon. Gentleman expects. We are therefore focusing on clause 2, which suggests that membership of the House of Lords is inexorably connected with the nature of the reformed ministerial post. It is different from the former office of Lord Chancellor because of the other changes that the Bill makes. It would be perverse to suggest that anyone could be appointed to the post of Lord Chancellor by virtue of a peerage and being put in the House of Lords but not if they were elected, even if an elected person was, by common consent, the best person for the job. It is nonsense.
The person who fulfils the reformed office of Lord Chancellor will be a Minister of Cabinet rank, responsible for more than £3 billion of taxpayers' money. Why prevent for ever the possibility of taxpayers holding to account, through this Chamber, that individual who is responsible for spending their money? Junior Ministers, who answer to the Lord Chancellor, can try their best to account to the elected House, but should not at least the option exist of having the responsible Cabinet Minister account to elected representatives? It would be strange for the House to accept the proposition of Mr. Heald that any future Lord Chancellor must always be protected from the full force of politics while accepting that his junior Ministers should not be so protected.
In agreeing the concordat that is associated with the Lord Chancellor's reformed functions, the Lord Chief Justice said in 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."
That helps to underline why membership of the House of Lords is an unnecessary qualification for being appointed as Lord Chancellor.
Like many other Ministers in the House of Commons, for example Ministers with perhaps quasi-judicial decision-making responsibilities under the Town and Country Planning Acts, the Lord Chancellor will have to act with neutrality and impartiality in some functions. That should not prevent a Lord Chancellor from being chosen by a Prime Minister from either House of Parliament.
Times change and change is now necessary. Until the 14th century, the Lord Chancellor was always a cleric. Does that mean that we have broken a cardinal rule by departing from that practice? Are we worse off because the Lord Chancellor's duties have evolved since the days when he was primarily a secretary to the King? I do not believe so.
The post of Lord Chancellor has evolved and continues to evolve. It is now time to end the unnecessary qualification that that Minister must be unelected. We should accept the possibility that, one day, the right person for the post might be a Member of the House of Commons. The Lord Chancellor should simply be the best person for the job, sometimes drawn from outside the ranks of elected representatives and sometimes not.
I urge hon. Members to remove clause 2 from the Bill.
Lord Lloyd of Berwick successfully moved an amendment on Report in the other place to require the Lord Chancellor to be a Member of the House of Lords. He made various comments that are worth repeating. He said:
"The issue was, I would submit, very clear; whether the job that I have described, and which was agreed, should be performed by the Lord Chancellor in this House, or whether it could be performed by a Minister in the House of Commons. That was what the debate was actually about.
Yet, the Lord Chancellor now says that all that was in 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 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 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, House of Lords, 7 December 2004; Vol. 667, c. 750–51.]
Is not that point illustrated by the fact that, during the few hours when there was no Lord Chancellor in the botched Cabinet reshuffle, the Government decided to make major changes to the judiciary? That emphasises why we should always have someone around who will say to the Prime Minister and his modernisers, "Don't go so fast with our independent judiciary."
My hon. Friend makes a good point. That strange moment in history was especially bizarre because the Lord Chancellor appeared to say that there was a need to modernise at a time when the constitution was working well rather than waiting until it had become weak. When something does not work and is weak, such as—dare I say it?—the dome, not much appears to be done about it.
I shall come to that in a moment. A package of issues is involved here, the conclusion of which is the part of the Bill that we are now defending, and we have to look at those issues in context.
"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 . . . when he was Lord Chief Justice; and in the Law Lords' evidence to the Select Committee, and so on."—[Hansard, House of Lords, 7 December 2004; Vol. 667, c. 753.]
That position is widely held.
I thank the right hon. Gentleman for making that point. I shall come to his Committee's recommendation in a moment, and he might wish to comment further then.
I am sorry that the hon. Gentleman has said what he just did, because the House of Lords Select Committee did not recommend that the Lord Chancellor should be a peer. Opinion was divided on that issue. Neither did the Committee on which Mr. Beith serves say whether the Lord Chancellor should be a peer or not. In fact, it expressly stated that it found no compelling argument that he should be. Mr. Djanogly should be careful to ensure that he is right when he says that he is giving the overwhelming view of all sides.
I shall not dispute what the hon. and learned Lady has said. I was quoting from Hansard, and it is on the record. She has made her point and I thank her for that.
The requirement for the Lord Chancellor to be a senior lawyer is part of a package that is represented in clauses 2, 3 and 4. In respect of clause 4, we are saying that, for judicial independence to work, the Lord Chancellor needs to be a Member of the House of Lords and to be a senior lawyer. In effect, we are saying that the Lord Chancellor should not just be a full-time politician like any other running a Department; he should be slightly removed from the intensity of political pressure, in order to fulfil the Lord Chancellor's important historic role of acting as guardian of the rule of law and representative of the judiciary.
That would best be achieved by his being a Member of the House of Lords, because the atmosphere in the other place is less political. Furthermore, a peer would be likely to be a senior individual who had reached the latter stages of his or her career, and would therefore be less likely to be swayed towards unquestioning support for the Government on the basis of a promise of political advancement. Lord Howe of Aberavon said:
"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."—[Hansard, House of Lords, 7 December 2004; Vol.667, c. 764.]
That is indeed a sobering thought for the average Secretary of State.
The House of Commons Select Committee on Constitutional Affairs published its report on
"Assuming that the House retains the Bill to an extent in the format in which it arrived from the House of Lords, on balance we prefer to keep the office of the Lord Chancellor and its distinctive status, different from that of all other members of the Cabinet, because as we said in our earlier report when contrasting the role of the Lord Chancellor with other ministers, the Lord Chancellor 'has a special constitutional importance enjoyed by no other member of the Cabinet and . . . is usually at the end of his career (and thus without the temptations associated with possible advancement)'."
The report goes on to say:
"Although it may be more likely that someone in the House of Lords as at present constituted has the seniority and lack of aspiration towards further office which we considered desirable, it is by no means certain, and there will be suitable candidates for the post in both Houses."
I take the point that the Committee makes there. However, that is surely overcome to some extent by the flexibility of the other place to appoint people in a faster and more direct way than exists in this House.
The Lord Chancellor should be a politician at the end of his career, not a junior politician on the make. The Lord Chancellor is the guarantor of judicial independence, and the Government's proposals to open the position to a Member of the House of Commons who might be relatively junior and need not have a legal background would weaken the Lord Chancellor's ability to defend judicial independence against more powerful colleagues. The Bill as it stands will help to ensure that the Lord Chancellor's position as the guarantor of judicial independence is maintained. It would strengthen the office, and the Government should leave this clause alone.
My colleagues and I would like to support the Government in rejecting this requirement and to insist that it is much more important to retain flexibility. Frankly, the arguments adduced by Mr. Djanogly were very dubious indeed.
Not at this stage; I have hardly started. Let me advance my argument first, then we can see what the hon. Gentleman has to say.
The hon. Member for Huntingdon did not refer to the fact that the concordat, which is extremely important, now accepts that this flexibility would be useful. Furthermore, I reject the selective way in which he quoted from the Select Committee chaired by my right hon. Friend Mr. Beith. It was absolutely outrageous. He left out the vital sentence at the end of the recommendation. He led up to it perfectly properly, by saying:
"Although it may be more likely that someone in the House of Lords as at present constituted has the seniority and lack of aspiration towards further office which we considered desirable, it is by no means certain, and there will be suitable candidates for the post in both Houses."
He did not, however, go on:
The hon. Gentleman has quoted the concordat. Is he aware that Lord Woolf said of the Judges Council that
"the council considered it preferable, but not vital, that the Lord Chancellor should be a Member of this House."—[Hansard, House of Lords, 7 December 2004; Vol. 667. c. 758.]?
I thank the hon. Gentleman for giving way. He attacked what I said earlier, and it is only fair that I should be allowed to answer him. The point is that I questioned the very conclusion that he has reached. No, I did not quote the whole report, but I addressed the issue to which he has referred, and I questioned it. He might wish to answer the questions that I posed.
I would like to do so, but first and foremost, the hon. Gentleman should recognise that the Select Committee took evidence and thought very carefully indeed about this issue. Hon. Members on both sides of the House are members of that Committee. Its report stated very clearly that its recommendation was that it was not essential for the Lord Chancellor to be a Member of the House of Lords. That was a balanced judgment from an all-party Select Committee reporting back to the House in very good time so that we could take account of hon. Member's views in our debate this evening. The Select Committee also said:
Perhaps the hon. Gentleman is about to say that the House of Lords should in future have a role in determining the Supply issue, which has always been an important function of this House. We have always said that the other place should not be able to intervene on issues of that kind, so unless he wants to change the constitution in that way, I am afraid that his argument simply collapses.
That is not the only anomaly in the Conservatives' argument. It is also extraordinary that they think it preferable that this very important post should be held by someone who is basically an appointee of the Prime Minister of the day, rather than that he or she should have a mandate from the electorate. This House provides every single one of us with a responsibility not only to Parliament and to our party, but to our constituents and to the electorate at large. It is curious, as my hon. Friend Mr. Heath said on Second Reading, that anyone should
"want to institutionalise that arrangement, so that every future Lord Chancellor—every future Secretary of State for Constitutional Affairs—had to be a crony of the Prime Minister of the day, because only by that patronage does anyone appear in the other place".—[Hansard, 17 January 2005, Vol. 429, c. 597.]
The Conservative party, my party and, I hope, the Labour party are absolutely determined to make the other place an elected House in due course. I think that the hon. Gentleman's party is still signed up to making a majority of those in the other place elected—I believe that 80 per cent. was the last proposal. My party is also committed to the election of a majority of those in the other place. I am not sure about the hon. Gentleman's views, but a substantial number of his colleagues in both Houses—including their leader in the Lords, and the Lord Chancellor himself—are committed to making the other place more democratic and more representative. That, after all, was what all Labour Members of Parliament were committed to at two general elections, and what they had a mandate to implement. It has not happened yet, and I suppose we should not hold our breath.
The hon. Gentleman referred to an anomaly. He assumes a continuation in the other place of appointees of the Prime Minister of the day. If he is now resiling from the policy of his own party, let him say so.
The hon. Gentleman is kicking the ball way out of the baseball park—[Laughter]—or even the football ground. How can he pre-empt the form of a future elected upper Chamber? If there happened to be a list system, which his party would presumably propose, a certain number of advocates could be stuck on the list—whoever his party wished.
You would probably call me to order, Mrs Heal, if I spoke at length about the proportional representation system that I—along with members of the hon. Gentleman's party and members of the governing party—hope to include in a draft Bill in a couple of weeks; but it will not be a list system.
This Bill, we hope, will ensure that the Lord Chancellor of the future is the best person for the job. We would wish to ensure not just that that person was accountable to the Prime Minister and Cabinet of the day, in terms of collective responsibility, but that he or she was accountable to the nation at large through Parliament. We accept the argument that the best way to achieve that is to prevent any discrimination against any individual holding the post.
I find extraordinary the way in which members of the Conservative party so patronisingly describe all those in the other place as being at the end of their careers—on the verge of their dotage, according to the hon. Member for Huntingdon. We believe that the occupant of this important post, responsible for a considerable budget for a very important Department, should be answerable, in the best possible way, to whichever House of Parliament of which he or she is a Member, and through Parliament to the people of this country. It would be absurd to prevent that improvement from being made by the Bill simply because of an assumption that the current Prime Minister will always block real reform of the other place.
We will support the Government in a Division to remove prescription and discrimination that we consider unnecessary and undesirable. We accept the view of the Select Committee, which has thought about the matter very carefully, that on balance it would be best to dispose of this proposal now.
It strikes me as absurd that it should be suggested that in a democratic society in the 21st century we should legislate to ensure that a Minister of the Crown with a budget of £3 billion is never to be answerable to the House of Commons. That is an utter democratic absurdity, completely inconsistent with the democratic state that we have reached.
The hon. and learned Lady appears before judges all the time. The Judges Council says that that would be preferable, because it is looking for someone who is not particularly partisan and party political to do the important job of upholding judges' independence. What is wrong with that?
Let me make two corrections. First, I do not appear before judges all the time. Unlike several of the hon. Gentleman's colleagues, I am a full-time professional Member of Parliament who does not see this as a part-time job to come to in the evenings. Secondly, Lord Woolf may have mentioned that the Judges Council had thought it preferable, but what he eventually said was this:
"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 any particular title to enable him to exercise those functions."
I am sure I have made my point firmly enough, but let me repeat it. What other democratic institution anywhere in this century will legislate to remove from democratic control a Minister of the Crown with a budget of £3 billion? The short answer is none. I want to be able to ask, on behalf of my constituents, questions about the organisation of the courts, questions about the use of the legal aid fund, questions about the quantum of the legal aid fund—and that is exactly the right way for politics to be carried out. I should have the Minister in question answerable to me in the House of Commons. The Opposition would legislate to make that utterly impossible, and to emasculate—I wish there were a feminine term—a Member of Parliament, preventing that Member from performing a very important function. That is a democratic absurdity.
What do the Opposition say? They say that even if a Member of the House of Commons is 60 or 70 years old, intent on retiring at the next election with no wish for further advancement, having already shown himself to be a great statesperson who everyone agrees could do the job, he shall be stopped from doing it unless he gives up his constituency, which he may be very happy to serve and which may be very happy for him to serve it. That applies to Members on both sides of the House. The best person for the job, who all in this House may agree is the best person for the job, will be excluded.
I think it is a moot point. I am very puzzled by the other suggestion, that he should become the Lord Chief Justice; I am not sure where that has come from. I have obviously missed a bit of gossip somewhere along the way. The hon. Gentleman can update me on where he read that.
Shall we stick to the point? Why is it necessary to oust the Lord Chancellor, whoever he may be, from the House of Commons? First, he is no longer to be a judge at all. The Tories were very happy when the Lord Chancellor was a political appointee who appointed the judiciary. That seems to be to be a much more dangerous position than anything currently proposed in the Bill. Indeed, the Bill remedies that. Now, however, the Lord Chancellor will not do that either. He will not appoint the judiciary; as is now, I think, commonly approved, the judiciary will be appointed by a judicial appointments commission, quite separate from the Lord Chancellor. The recommendations will certainly be given to him, but the transparency of the process, and the limitations of his role in that process, make it very clear that he has less potential to intervene in judicial independence and less potential to appoint cronies—not that anyone has ever really suggested that that is what a Lord Chancellor has done. He is not a judge, so why do we need him to be a peer? He does not appoint the judges. Why do we need him not to be in the House of Commons? He is not in charge of discipline for the judges any more. He is not in charge of removal any more, on his own. It is all hedged around with qualifications and limitations. Very little of his role is to be applied to judges. So why is it now necessary to remove him to the House of Lords, when his role in the judiciary is much smaller? It is not necessary to do that to protect the judiciary. If that is why the Opposition say that that should be done, it is incomprehensible in context.
On the concordat with the Lord Chief Justice, he pronounces himself satisfied that there is no threat to judicial independence from anywhere. I have just quoted him. He says that he is perfectly happy that the person should be in either House. He feels that being a peer would make no measurable difference and would not improve the situation. He speaks on behalf of the judiciary. If the judiciary is not concerned that that figure, who will still have an important though much reduced role, should be in the Commons, surely no one has a leg to stand on. Those are the very people whom the Opposition are pretending are likely to be threatened by the presence of the Lord Chancellor in the political hurly-burly.
The Lord Chief Justice himself, who must have been negotiating now for over a year on the issue and gone through it in extraordinary detail, has pronounced himself utterly satisfied that this measure is completely unnecessary. One just gropes around for the reason for the proposal. I cannot find one. It is easily demonstrated that there is much less control over the judiciary now with this official, and therefore less reason to be concerned about his presence in what I call the political hurly-burly without believing that it is worse in here than it is in the other place.
Mr. Djanogly did not do fairly by the two Select Committees that have laboured mightily, reported properly and taken evidence on the issue. He did not say as clearly as he should have done that the House of Lords Select Committee, to which this Bill was, unusually, sent for very careful and long-term consideration, did not say that the Lord Chancellor should be a peer. It was divided on the issue. As has been made clear from the horse's mouth and from the horse's colleague, the Committee of Mr. Beith did not say anything of the sort either. Mr. Heald is talking to me all the time about it being preferable. That is a very different thing from it being compulsory.
Of course, it is a different thing. I have never said anything else, but the point is that we want the best and what is preferable is obviously a lot better than what is not.
It talks not about preference but about "must be". Will my hon. and learned Friend comment?
The preferable position is achievable now without the that measure. Surely that is not beyond the hon. Gentleman. Let me move on because I am satisfied that it is not beyond him. He is starting to have to talk in riddles because he has lost the rational basis for what he is putting forward. The testimony from all the interested parties, Committees of both Houses and the judiciary is that he is wrong and he is completely out of it, so he is starting to talk in riddles.
The purpose of the measure has nothing to do with judicial independence. Its purpose may be to avoid any suggestion of improper influence in the courts system because of too close control over the Lord Chancellor's appointment by the Prime Minister, perhaps—by any Prime Minister—or too much interference by other politicians. Of course, avoiding allegations of cronyism is very important but it must be said that the current Lord Chancellor is both a peer and a lawyer and that has not avoided such allegations against him. Indeed, on Second Reading, Mr. Garnier suggested that there was something wrong with the appointment of Lord Justice Potter as the president of the family division because he had been the pupil master of the Lord Chancellor.
Since the hon. and learned Lady and I had a spat on the last occasion, I checked precisely what I did say. If she looks at the record, I said that there was something illogical about the Government advancing the arguments that they were advancing for a judicial appointments commission when their current Lord Chancellor was prepared to appoint judges in the way that he did. I had no criticism of the individual appointment. Lord Justice Potter will make a very good president of the family division. However, I do not want to get sidetracked. I have some better arguments to put to her in a minute.
I doubt whether the hon. and learned Gentleman is going to muster very good arguments but I wait with bated breath for all of them. What he said was:
"The Minister says that the Government want to modernise the operation of the judicial appointments system and make it transparent. Why then did the Lord Chancellor for the transitional period, as he likes to call himself, appoint his pupil master as president of the family division?"—[Official Report,
If the complaint were about a lack of transparency in the current methodology, which is what I think the hon. and learned Gentleman is now suggesting, he could have mentioned the appointment of any judge over the last period after the institution of the Bill, but he did not choose to mention the appointment of Lady Hale, Mr. Justice Bean or Mrs. Justice Dobbs. He chose to mention the appointment of Lord Justice Potter, the pupil master as the president of the family division. It seems that that was a slur. There would have been no point in mentioning that particular individual if it had not been intended to slur the Lord Chancellor. I regret to say that the consequence was that it became dangerously close to slurring Sir Mark Potter, who is an absolutely excellent appointment.
My hon. and learned Friend Mr. Garnier just said that he was making the point that the present arrangements allowed the Lord Chancellor to pick the new head of the family division. It is a pity that the Committee has had to hear the hon. and learned Lady refer copiously to her notes, which must have been written before my hon. and learned Friend made his intervention, because what she said in the last two or three paragraphs paid no attention to what he said and to what the Committee heard.
First, that is utterly incorrect and secondly I am not reading from my notes. I am reading from the Hansard of what the hon. and learned Gentleman said last time. Would the hon. Gentleman like to borrow it? I am happy to hand it across.
I repeat, my hon. and learned Friend said that he was illustrating the present method of appointment. Everything that the hon. and learned Lady said after that ignored what he said and that may not be regarded as the greatest courtesy to the Committee.
The hon. Gentleman is wrong yet again. I heard what the hon. and. learned Gentleman affected to have said last time. That is what he has tried to put right tonight. I have read what he did say last time and what he said last time was a calculated slur on the current Lord Chancellor for seeking to "appoint his pupil master". Otherwise, as I have said, if the complaint is about the lack of transparency, why not complain about that lack in the other 10 judicial appointments made over the last few months? The position is utterly clear. It does not matter how many times Peter Bottomley rises, he cannot erase what was said in Hansard.
The fact that the current Lord Chancellor is a peer has not stopped him from being slandered on the basis that he is somehow inappropriate and not independent because he was once the flatmate of the Prime Minister. That, too, has been said innumerable times by Conservative Members. Neither has being a peer or, indeed, a lawyer, protected him from the allegation that he is inappropriate because he did not stop the ouster clause from being placed in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, though, of course, that never happened. Scandalous and silly attacks against the current Lord Chancellor have been made and the fact that he is a peer has not protected him from them.
It is ironic that the very party that has tried to use the fact that the current Lord Chancellor is known to the Prime Minister and was appointed to the peerage to become Lord Chancellor by the person who was his flatmate when they were both lawyers as evidence that the system is somehow under threat from the Prime Minister's cronyism is the same party that is now saying that the way to protect the legal system from an inappropriate threat is to ensure that the next Lord Chancellor has exactly the same professional qualifications as a senior lawyer and exactly the same status as a peer as the current Lord Chancellor. Conservative Members repeatedly say the opposite of what they previously said from one week to the other, tying themselves in silly knots. The current Lord Chancellor is, incidentally, an absolutely excellent holder of that office—and he would be if he were in the House of Commons.
What protection are we to derive from the fact that the next Lord Chancellor must, if the Tories have their way, be a peer? Well, we would be so well protected that Lord Archer or anyone else in the peerage who had been convicted of a criminal offence could become Lord Chancellor. Such people are not debarred from holding their peerage. I guess, also, that the son of a son of a son of a son of a son of a notable peer, in whom the strain of high merit has grown a little thin over the years, could equally be appointed Lord Chancellor. By the skin of our teeth, we have just escaped the possibility that the Lord Chancellor could be someone convicted in South Africa of being involved in an attempted coup against the Government of Equatorial Guinea—the son of a former Prime Minister. Happily, he has only a hereditary baronetcy, but it is pretty close. [Interruption.] Some Conservative Members are acknowledged experts in the ranking of the hereditary peerage and have a degree of understanding way beyond my own in that respect.
That shows how much protection there is in ensuring that someone is a peer. It does not make the slightest bit of sense. It is clear that making the Lord Chancellor a peer provides no protection. It is the calibre of the person that matters, and the calibre can be high, irrespective of whether he or she is chosen from the House of Commons or the other place. The overwhelming case for him to be in the Commons centres on the answerability argument.
Let me now deal with the second proposal—that the Lord Chancellor should be a senior lawyer. It is not just a senior lawyer, though, but one with particular qualifications—
I shall not follow the hon. and learned Lady down the somewhat acerbic and personalised route that she took, because doing so advances neither her own arguments nor the general tenor of the debate. She is, of course, perfectly entitled to make her remarks and deliver them in whatever tone she wishes. I would not want to prevent her from doing so.
I would like to concentrate on some of the differences in the two sides of the argument, not because I believe that one side is necessarily right and the other necessarily wrong, but because I merely want to express my opinion. I am not saying that, if either or both of clauses 2 and 3 were removed from the Bill, civilisation as we have known it for the last 3,000 years would cease to exist. It is silly to put such arguments into our minds, but it is important to appoint the best person for the job of Lord Chancellor.
Given how the Bill has been amended and how the functions of the office of Lord Chancellor are to be radically changed, it would be more honest, in the end, to describe the Secretary of State for Constitutional Affairs—the head politician of the £3 billion a year public Department—as the Lord Chancellor. The person who will hold the title of Lord Chancellor after the Bill is enacted will not be a Lord Chancellor as we have all understood it for the past 30, 40, 50 or perhaps 100 years. He will still less be the same sort of Lord Chancellor who existed in the days of Henry II or even Henry VIII. We are dealing with the title "Lord Chancellor" differently from how Lord Irvine, Lord Gardiner, Lord Hailsham, Lord Kilmuir and any other relatively recent, but not extant, Lord Chancellor would have understood it.
I described the Bill and clause 1 as intellectually dishonest, and there is something intellectually dishonest about pretending that the Lord Chancellor will be anything but a politician who heads a spending Department. The title will be continued for political convenience and to prevent people from having hissy fits about its removal, but the job will not.
We must be clear about the situation. I am perfectly prepared to have a Lord Chancellor with functions and a remit that are much more restricted than those of the current holder of the office. In the 1950s, the Lord Chancellor's Department had a tiny number of civil servants and little spending power. Beyond his ceremonial role, the Lord Chancellor did little more than chair the House of Lords and deal with the appointment of the judiciary. The judiciary was taken only from the Bar of England and Wales in the 1950s. There were only between 2,000 and 3,000 barristers in those days—perhaps not even as many as that—so it was perfectly possible for the Lord Chancellor personally to know the candidates from the Bar of England and Wales who would be of suitable quality for high judicial office.
I understand that that is no longer possible. The Bar of England and Wales now numbers between 10,000 and 12,000 people and there are about 70,000 to 80,000 practising solicitors in England and Wales. Those people form the pool from which the judiciary may be selected, so the Lord Chancellor cannot possibly be expected to know all 80,000 to 95,000 lawyers who could be eligible for judicial office. The Lord Chancellor's job and functions are thus completely different from those in the 1950s and the early 1960s, but for all sorts of reasons—good and bad—we want the title to continue. As I said a moment ago, however, we are misleading ourselves if we think that the Lord Chancellor, as head of the Department for Constitutional Affairs, is doing anything like the job of the old Lord Chancellor.
We also fool ourselves and perhaps get into a bit of a muddle if we try to rely on the words of Lord Woolf as being for or against the argument. During the previous Parliament, the then Home Secretary—he is now the Foreign Secretary—thought it appropriate to rely on extracts of correspondence that he had had with the then Lord Chief Justice, Lord Bingham. He made the mistake, as others have done in court and perhaps in the Chamber, of reading only an extract. He cited the extract in support of the Government's policy to curtail jury trials, but if he had read the whole letter, he would have discovered that the then Lord Chief Justice's views on the matter were not as he hoped that the House would understand. Similarly, those who agree with the Government's view on clause 2 should not look for too much support for their position in what Lord Woolf has said, or is reported to have said. There are two reasons for that. First, I suspect that his views, as expressed publicly, are designed to lead to some sort of compromise and are not necessarily the views that he might express in private. I have not discussed the matter with him, so I have no way of proving that one way or the other. I merely caution Members against relying too much on extracts from letters or documents penned by the Lord Chief Justice in support of arguments that they want to make.
On the principle that the hon. and learned Gentleman is advancing, it is quite proper that anyone considering the views of the Lord Chief Justice or anyone else should look at them in their entirety and not misquote them, but to take the view that someone might possibly have said in private something that differs markedly from what they said in public is not a particularly good way of assessing their declared opinions.
I accept that. That is why I said candidly a moment ago that I had no proof one way or the other; I merely caution Members against relying on the written words of Lords Chief Justice, especially when they are quoted out of context.
More to the point, and more interestingly, when people complain that the judiciary, or some members of the judiciary, are members of the House of Lords and thus members of the legislature, and that that confuses those two pillars of the constitution—namely, the legislature and the judiciary—and demand the setting up of a supreme court outside Parliament whose judges are not Members of Parliament, it strikes me as odd that, despite that, they rely on the views of Law Lords, or the Lord Chief Justice in this instance, to support their case. I make that criticism of both sides of the argument.
My hon. Friend Mr. Djanogly quoted at length from the speech of Lord Lloyd of Berwick. He is perfectly entitled to do that, but such quotation does not always assist; it is our arguments and views that are important when we discuss Bills in this place, although we should no doubt pay respect to the views of their lordships. Equally, if it be thought by the purists on the other side of the argument that there should be an obvious and clear separation of the judiciary from Parliament, surely we should not allow ourselves to be influenced in coming to our views by the views of members of the House of Lords who are judges. We should respect the purity of their arguments by not paying too much attention to their views.
The point that I have taken from this is that the word "concordat" means agreement and that the word "compromise", at its best, means agreement. It is clear that in the concordat the present Lord Chancellor has signed up to things with which he disagreed. He was willing to change his views, so the Committee can say that we should not take a single sentence from one part of the concordat to determine which way we would prefer to go ourselves.
My hon. Friend anticipates me, because I do not think that we should legislate by concordat. We should legislate in this and the other place, and I am not sure that it is proper for a judge, no matter how eminent or senior, to reach agreements with a member of the Government, or with the Lord Chancellor, in such a way as to design the legislation that the Government intend to push through the House. I accept that the Government have a vast majority and that all the arguments we make against their legislation will soon be tested in the Lobby. It does not take great powers of anticipation to know what the verdict of the Division will be. None the less, there seems to be a huge inconsistency in the way in which we treat the opinions of members of the House of Lords who are also members of the judiciary.
We should be robust enough to put forward our own arguments. We may disagree; Vera Baird and I have had our disagreements. She is a passionate supporter of the supreme court and of the removal of the Law Lords from the House of Lords and their placement somewhere else. She is a passionate supporter of the reform of the office of Lord Chancellor. I happen to disagree with her, but that need not be a cause of a war or a spat. They are just two separate opinions, which we are entitled to express. If she wishes to express another, I would be delighted to let her.
I am concerned that the hon. and learned Gentleman seems to be suggesting that the Lord Chief Justice has signed up to something with which he does not agree. I do not know on what basis the hon. and learned Gentleman suggests that, nor do I understand on what basis his colleague, Peter Bottomley, expressed a similar view, trying—not for the first time—to expand or explain the point.
Will the hon. and learned Gentleman explain why he says that Lord Woolf may have signed up to a concordat with which he does not agree? Will he explain why he says that it is our views that count and that we should not be influenced by what Lord Woolf says, despite his having a representative role on behalf of the judiciary? Will he explain that particularly in the light of another quotation of Lord Woolf—this is Hansard and not letters from Lord Woolf—in which he says that the Bill is
"a piece of great reforming legislation . . . It will rank in importance with the great constitutional instruments of the past."—[Hansard, House of Lords, 7 December 2004; Vol. 667, c. 759.]
Does the hon. and learned Gentleman think that he meant it, or not?
Before the hon. and learned Gentleman gets to his feet again, I should say that I have not been in the Chair long but I am beginning to worry that we are drifting into matters that may not be sufficiently to do with membership of the House of Lords. I understand that these short clauses are a temptation to us all, and the concordat is relevant, but I would welcome a little more emphasis on the subject of membership of the House of Lords.
There is a perfectly respectable argument for leaving the Lord Chancellor where he is. As I said at the outset, what concerns me is that the Lord Chancellor's functions and job, from the enactment of this Bill, will be entirely different. We need a Lord Chancellor in the House of Lords who, as we shall discuss under clause 3, has a legal qualification or legal experience but deals with a Department that is much restricted and much more like the office of the Lord Chancellor in the 1950s. That would prevent much of the complaint of the purists who want an accountable Cabinet Minister in this House. I am not convinced that Ministers in the other House are unaccountable. The Government ought to be accountable to both Houses of Parliament.
I accept the point about Supply. In the scheme of things, I dare say that £3 billion in the Government's total expenditure is a small amount, but as one academic has recently said, the Department has become a leviathan, consuming taxes much more than it traditionally used to do. I come back to the traditional point that we should return the Lord Chancellor's office to its previous remit and then cut off a large part of its public expenditure aspects for some other Minister. Whether that Minister is in the Commons or in the Lords matters little to me; the ill-tempered arguments that have flowed across the Chamber this evening do not entirely hit the point. The point is that this Government have by stealth and intellectual dishonesty so altered the role of the Lord Chancellor that, effectively, his title, as attached to a Member of the House of Lords, will be meaningless. The decision on whether he is a Member of the House of Lords depends for its validity on the Lord Chancellor's being the office holder that he would have been 40 years ago and not the office holder that he would be next year or the year after.
We will come shortly to deal with clause 3, for which other but similar arguments may apply. However, neither the Prime Minister nor our constitution is disadvantaged by the appointment of a Lord Chancellor who is a Member of the House of Lords, as long his accountability function is dealt with by a Member of the Commons. I urge Members who are in the Chamber—I fear that Members who are not here will not have the benefit either of my argument or of opposing views—to pay attention to what the Opposition have said, because our arguments are not without merit.
I do not find the battle cry of "Let us return to the Lord Chancellors of the 1950s" very appealing. I am not terribly excited about the prospect of resurrecting Sir David Maxwell Fyfe, later Lord Kilmuir, and his like. Indeed, there were more political Lord Chancellors in those days than has been the case in recent years. However, that is the basis on which we should try to resolve this matter.
Before I come on to the position of the Constitutional Affairs Committee, I should like to deal with the issue of making Ministers accountable to either the House of Commons or the House of Lords. Whether the officer holder is a Member of the Lords or the Commons, the other House will have the problem of not holding him accountable. I strongly support my party's long-held view that we should have more mechanisms for holding Ministers to account in the House of which they are not a Member. We already have some mechanisms, including the Select Committee. Indeed, I have tried to encourage Vera Baird to seek membership of that Committee so that she can pose questions to the Lord Chancellor. In general, however, a modern Parliament should have mechanisms allowing Ministers from either House to appear not just in Committee but even on the Floor of the House to answer for themselves.
That, however, is not the core of my argument. The Select Committee rightly recognised that there was a tension between the different functions of the office. The Lord Chancellor has ministerial responsibility for a large Government Department, which has just been accused of becoming a leviathan by Mr. Garnier. If that is the case, it is because of the amount of money that we have to spend on legal aid to give people access to justice. The size of the Department's budget is directly related to that problem, and we must consider how we could contain that expenditure at a manageable level while securing access to justice for people who need it. However, the Department has a very big area of responsibility, which we recently increased by transferring to it, quite rightly, responsibility for tribunals, which should not be controlled by Departments with a direct interest in the outcome of their decision.
Understandably, Members of the Commons may wish to question the man in charge, the Lord Chancellor, about that big Department. We have tried to defuse hostility and uncertainty by arguing that the Lord Chancellor has a responsibility to defend the judiciary, the rule of law and judicial independence, and needs status to do so. That argument has generally been accepted. We expressed the widely held view that we do not want in that position a Minister who is seeking further promotion. We said that the Lord Chancellor
"has a special constitutional importance enjoyed by no other member of the cabinet and . . . is usually at the end of his career (and thus without the temptations associated with possible advancement)".
That principle should be applied so that we find the kind of person we want, but it is not affected by the question of which House the candidate belongs to. I can think of people who do, and do not, fit the category in both Houses. I am not entirely convinced that the present Lord Chancellor has eschewed further political appointment, despite his membership of the Lords. Nor does membership of the House of Lords necessarily imply that one is old, wise and senior.
Notable junior Ministers in the other place have enjoyed significant advancement. Until recently, for example, Baroness Scotland was a Minister in the Department for Constitutional Affairs. A shrewd man might put money on her obtaining further high office under a Government of her own party. A number of able people with aspirations to higher office have been Members of the House of Lords, but the Committee did not believe that they were the sort of people who would reassure the judiciary and other people concerned with the law that they would stand up to Home Secretaries and tell them that they are going too far and that their approach is not consistent with the Government's commitment to the rule of law and judicial independence.
Home Secretaries almost invariably think that their proposals are the only way to deal with the latest security problem and outweigh all civil liberties concerns. It takes someone with some strength and someone who is prepared to stand up to a Prime Minister who may want to back his Home Secretary to take on the post. Those qualities can be found in either House; they need not be sought only in the Lords. In looking at the tension between those considerations, we as a Select Committee certainly felt that there was no compelling argument to insist that the Lord Chancellor should be a member of the upper House.
I congratulate the Select Committee on footnote 21, which deals with the relevant recommendation and states:
"Nothing in the use of the word "Lord" necessarily indicates membership of the House of Lords: eg Lord President of the Council and Lord Privy Seal have frequently been members of the House of Commons."
Clearly, the title is not important. My right hon. Friend's Committee may well recall that, when Mr. Edward Heath was a Minister in this House and Lord Privy Seal, it was said that he was neither a lord, nor a privy—nor a seal.
I think that my hon. Friend was determined that I should not forget to mention the footnotes to my Select Committee's report. Clearly, there are no formal obstacles to the holder of the office of Lord Chancellor being a Member of the House of Commons. Some hon. Members have expressed the belief that it is desirable that he should be a member of the House of Lords. I do not wholly share that belief—candidates can be found in both Houses—but it is in no way appropriate that we should write into legislation a disqualification like the old disqualification that the Lord Chancellor must not be a Roman Catholic. The case for disqualifying all who are not members of the House of Lords from holding the modified office has not been made out in any of the argument that we have heard tonight.
I am glad to speak after Mr. Beith, who has chaired the Select Committee on Constitutional Affairs effectively. It is a matter of record that the only formal votes in the Select Committee's report were on whether the Lord Chancellor had to lead the House of Lords and on the cost of the Government's new proposals.
The issue is whether it is possible for someone who sits in the House of Commons to be the Lord Chancellor. The answer is that it would be possible if clause 2 were taken out. The question is whether it is sufficiently desirable to make that possible or whether, as many hon. Members have argued, it is better, at least for some time in the future, to say that the Lord Chancellor should come from the partly unreformed House of Lords. That comes down to whether we seriously want to have a Lord Chancellor from the House of Commons. If the Lord Chancellor is someone who has been elected to the Commons for some time—let us assume that clause 3 remains as drafted—someone could be selected who is a good, experienced lawyer whose talents are spotted relatively early; but what happens to that person after they have been Lord Chancellor?
We could fall into the trap that was illustrated by the fact that, when there was no Lord Chancellor for a few hours, when the Prime Minister and his cohort—those involved were not cronies but a mistaken cohort—believed that he could abolish the Lord Chancellor by fiat or by administrative action, the changes were proposed to the Law Lords and the idea of establishing a supreme court arose, although it had not been thought through or consulted on and was not in the right form anyway. The concordat's existence confirms that the Government had to recognise their mistakes.
If we want to avoid that kind of thing happening in the future in relation to something rather more serious than where the Law Lords sit, there are good arguments for saying that we should not make all these changes and that we should prohibit the Prime Minister from picking a Lord Chancellor who is in the Commons. There is no difficulty in picking a Lord Chancellor from the Commons and, given some continuity in the unreformed House of Lords procedures, sending that person to the House of Lords. That was one of the reasons why the disqualification of Roman Catholics was changed so that Sir Peter Rawlinson could become Lord Chancellor. There is a lot to be said for saying that, if the person who has the most talent is currently in the Commons, what should happen to them is what happens to someone who has got the most talent and who is neither in the Commons nor the Lords: they get appointed to the Lords to become Lord Chancellor.
In fact, for all the occasional fuss about the previous Lord Chancellor, Derry Irvine, no one would accuse him of not being prepared to stand up to the Prime Minister or fellow Cabinet Ministers. There are times when the person who is fulfilling the functions of Lord Chancellor must say to the rest of the Cabinet, "No; this is wrong. You shouldn't do it. We shouldn't do it. It's not going to happen." I fear that if the Lord Chancellor were in the Commons, they would not say that, because they could and would be overruled.
Although some of the things that Vera Baird has said may be correct, her arguments are not sufficiently great. Although hon. Members on both sides of the House, including the Committee Chairman, have properly quoted the Select Committee's conclusions, it is reasonable for the House to say, "Not now and not in this way—leave clause 2 in the Bill."
As far as Mr. Beith, who chairs the Committee, is concerned, may I join in the tributes to the thorough way in which the Committee went about its business? He said that one must consider the balance of the argument and a decision must be made. When the Judges Council examined the matter, however, it concluded that although the matter is not vital, it is preferable for the Lord Chancellor to sit in the other place.
As my hon. Friend Peter Bottomley said a moment ago, standing up for the independence of the judiciary is not always an easy job, and requires a certain stature and seniority. I agree that, as far as I am aware, the recent incumbents of the office of Lord Chancellor have stood up for that essential independence.
The hon. and learned Member for Redcar feels that the Commons contains excellent candidates for the office—perhaps she is right—and she mentioned the Budget too. In making an overall decision, however, one should reflect on the point that the other place is a less partisan House, and that the sort of person who might be appointed there or who is already there is likely to be the sort of person whom we want—somebody who is coming towards the end of their career, who has sufficient seniority and who is a lawyer. If it is preferable, and I believe that it is, to appoint a Lord Chancellor who is a peer, a lawyer and so on, this House should take the bull by the horns and make a decision—a point reflected in clause 2.
My hon. and learned Friend Mr. Garnier pointed out that once the Bill is passed, the Lord Chancellor will not be the person he was. He will be tied down, regulated and controlled by concordat, because the judges are frightened that somebody who is not committed to judicial independence will be appointed. Such a person might be a young politician on the make, who might have less seniority and less common sense than previous incumbents, and who might not be a lawyer.
We can introduce two extra protections if clauses 2 and 3 remain in the Bill. Having heard the arguments, we should divide in favour of retaining clause 2, if the Government want to leave it out.
We have heard some desperately poor arguments from Conservative Members, and the sound of barrels being scraped. Clause 2 is clearly unjustifiable and should be removed from the Bill, and I urge my hon. Friends to oppose it.
We have heard a number of interesting arguments, including the idea that in reality the Lord Chief Justice does not hold the views that he expresses. Mr. Garnier went on to say that it was intellectually dishonest to keep calling the post Lord Chancellor when the Government have fundamentally changed it by stealth. It is a bit rich to accuse the Government of intellectual dishonesty when the Government wanted to abolish the title of Lord Chancellor in the first place. As far as changes by stealth are concerned, the legislation and the concordat have been debated for more than a year in Parliament, which is hardly stealthy.
Peter Bottomley came up with all sorts of interesting suggestions, including that the Prime Minister could pick a Member of Parliament to be Lord Chancellor, but would then have to turf them out of this place, send them to the House of Lords and cause a by-election, because of the absolute objectionableness of having somebody elected in that post. What a dreadful, horrible concept that would be—I say that, of course, with irony.
There are many reasons why the Lord Chancellor does not have to be a peer—a concept that my hon. and learned Friend Vera Baird eloquently advocated, as did Mr. Beith. Indeed, the main argument of Mr. Heald was that it might be preferable to have a Lord Chancellor who was a peer. I submit again that that is not what the Bill says at present. It says that that individual must be a peer, not "perhaps could be" or that it "might be preferable", so that is not an argument in favour of clause 2.
A peerage is no longer a prerequisite for a Lord Chancellor. The Lord Chancellor would no longer have to be a Law Lord—not least because, with the new supreme court, there will no longer be an Appellate Committee of the House of Lords. Ministerial functions of that reformed office are capable of being undertaken in either House of Parliament. It would be perverse to say that anyone can be Lord Chancellor except those who are elected. It would be ridiculous to prevent for ever the taxpayer from holding a Lord Chancellor to account, via this elected House, for that £3 billion of legal aid expenditure. A peerage is no guarantee that we would get the best person for the job. We should ensure that it is possible for the Prime Minister to pick either an individual who is in the other place or an elected individual if they are the best person for the job. I hope that the House will reject clause 2 as it stands.