Clause 3 — Legal qualifications

Orders of the Day — Constitutional Reform Bill [Lords] — 1st Allotted Day – in the House of Commons at 9:06 pm on 31st January 2005.

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Votes in this debate

Question proposed, That the clause stand part of the Bill.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am hoping that the Committee will also reject and remove clause 3 from the Bill, for reasons similar to those that we discussed in the previous debate, and also for additional reasons.

The clause insists that the Lord Chancellor must have at least two years' experience of holding high judicial office, or 12 years' experience as a qualifying practitioner of the law, as set out in clause 22—in other words, as a lawyer. The new role of the Lord Chancellor in the Bill means that it is no longer necessary to have specific legal qualifications or experience in practice, and there is no reason why this ministerial post should require particular qualifications when other ministerial posts do not. The Lord Chancellor no more needs to be a lawyer than the Secretary of State for Health needs to be a doctor, the Chancellor of the Exchequer a qualified accountant or the Secretary of State for Education and Skills a university lecturer.

Hon. Members may well think that it is desirable for the Lord Chancellor to have legal qualifications, but that is entirely different from saying that the office holder must in all circumstances have had 12 years' practice as a lawyer or be a judge. The concordat with the Lord Chief Justice, which was debated earlier in today's proceedings, was negotiated explicitly on the basis that the reformed ministerial role requires no special qualification, and that was reflected in the comments made by the Lord Chief Justice that I, and my hon. and learned Friend Vera Baird, quoted earlier.

With the transfer of the judicial selection process to a new independent judicial appointments commission and the consequent limiting of the Lord Chancellor's discretion, there is no continuing requirement for him to have legal qualifications, as he will be acting on the recommendations of the commission and will hence be accountable to Parliament. It will be the job of the commission to weigh up the precise legal abilities of candidates.In respect of the Lord Chancellor's duty to uphold judicial independence and the rule of law, the key qualities are not legal qualifications, but more the character and judgment of the person holding the office. Legal qualifications do not guarantee that the Lord Chancellor will have the strength of character to fulfil those particular duties.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

But is it not the case that the Minister responsible will have to have knowledge of the candidates? Although only one candidate will be put forward, it will be possible, will it not, for the Lord Chancellor—the Secretary of State for Constitutional Affairs—to reject and send back a candidate for the supreme court, for example? Surely it would be an advantage if the person who held the office had knowledge of the Bar, in particular, because that is where the judiciary is drawn from initially, and they would then have knowledge of the personalities involved.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

That may be an advantage and it may be desirable, but it is not fundamentally necessary for the conduct of this particular office. It is not essential for Ministers in other ministerial roles to have knowledge of the candidates whom they wish to appoint to posts of a non-judicial nature.

Photo of Siôn Simon Siôn Simon Labour, Birmingham, Erdington

Does my hon. Friend agree that it might be undesirable for the Minister to be a lawyer selecting from a group that people outside might view as a bunch of his pals? These days, we have such a thing as equal opportunities. The notion of a Minister selecting from a pool of people whom he or she knows and grew up with professionally might, in some circumstances, be considered a negative and a bad thing.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

There is equal virtue in that point as in the point made earlier. That may well be undesirable in the view of those who believe that the holder of the post must have a certain degree of objectivity in making appointments without fear or favour from the body of potential candidates and ensuring that there is a certain amount of distance and fairness in the appointment process. We wish to create a judicial appointments commission partly in order to move away from even the suggestion that appointments are made from among people who are perhaps closest to the appointer, and to ensure that they are made solely on merit according to the commission's assessment.

My hon. Friend Mr. Simon makes a reasonable point. I am not saying that it is or is not desirable that the Lord Chancellor should or should not be a lawyer—I am saying that such a qualification is not an essential prerequisite, and a non-lawyer is not incapable of undertaking this fundamentally ministerial office.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

I declare that I am a barrister—not practising, although I got more than 12 years in.

Given the role of the Lord Chancellor in sticking up for judicial independence and dealing with complicated points on the rule of the law of the sort that we have debated, will it not be a huge disadvantage if he is not a lawyer?

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

No. As I say, I do not regard the fact that one might have reached a certain number of years of practice in a particular profession as an absolute requirement for having the strength of character to guard the independence of the judiciary or stand up for the rule of law. Those are characteristics of an individual with strength of character and good sound judgment. Those are the qualifications necessary in the person who is best for the job; someone's being a lawyer does not fundamentally guarantee that they do or do not have them. It may be an advantage to have a certain knowledge of the law, but it is not a fundamental requirement.

In fact, we should be very cautious of any notion that power should reside exclusively with one body or one group of individuals. The law does not belong to lawyers, and the office of Lord Chancellor should not belong to any particular profession or class of people. The Prime Minister of the day should be able to pick the best person for the job from the widest pool of candidates, not just from judicial office holders or senior lawyers. A senior lawyer may be the best person to perform the role, but we have no good reason to constrain that choice with statutory limitations in the rigid manner proposed in clause 3, and I strongly urge the Committee to resist it.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs) 9:30 pm, 31st January 2005

Lord Kingsland, the shadow Lord Chancellor, successfully moved an amendment on Report in the House of Lords to require the Lord Chancellor either to have held high judicial office for at least two years, have practised as a qualifying practitioner for at least 12 years—I should like to declare that I am a practising solicitor—or be serving as Law Officer of the Crown.

The Constitutional Affairs Committee report concluded that it

"may be an advantage for the holder of the post of Lord Chancellor to be a senior lawyer".

I admit that that is hardly the most decisive of recommendations, but it just about constitutes one. Our core argument is that the Lord Chancellor plays a central role in administering justice, including being involved in appointing, disciplining and protecting the judiciary, and that there is therefore a need for legal understanding.

Let me briefly explain some of the functions that will remain with the Lord Chancellor. They include: functions that relate to the framework for organising the courts system; setting the jurisdictional boundaries in England and Wales; providing and allocating financial material and human resources for the administration of justice; matters regarding the pay, pensions and terms and conditions of the judiciary, and providing staff and resources for judicial training. They also include determining the overall number of judges and the distribution of business between the different levels of the varying courts.

Photo of Siôn Simon Siôn Simon Labour, Birmingham, Erdington

I could do that, and I am not a lawyer.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs)

The hon. Gentleman may believe that he has a good understanding of jurisdictional boundaries in England and Wales, but that would have to be seen. If he will hear me out, the jobs get even more complicated.

We should note that the Bill has been complicated because the functions of the Lord Chancellor that do not require consultation with the Lord Chief Justice or his concurrence have been removed by the decision of the other place to retain the office of Lord Chancellor. Furthermore, many aspects remain on which the Lord Chancellor and the Lord Chief Justice need to work together regularly and closely. Although the Lord Chief Justice is to take over the Lord Chancellor's rule-making powers that are not exercised by rule committees in order to mirror the Lord Chancellor's existing statutory powers to allow or disallow the rules made by rule committees, the Lord Chancellor's agreement to any rules that the Lord Chief Justice makes will be required. I should like Mr. Simon to try that one. We must note that the Lord Chief Justice will assume the Lord Chancellor's functions on making practice directions. Again, that will be with the Lord Chancellor's concurrence.

Earlier, the Under-Secretary said that the number of years that a lawyer has practised does not by itself lead to qualification for the job. I agree to some extent. However, a non-senior lawyer, let alone a non-lawyer, would have a hard if not impossible time as Lord Chancellor, given the requirements of the role. A specific number of years of practice does not make someone eligible, but the job specification makes it unlikely that anyone other than a lawyer could do the job.

When he moved his amendment, Lord Kingsland said that he understood that the Lord Chief Justice supported it. Earlier in the debate, Lord Woolf, Lord Chief Justice and chairman of the Judges Council, summarised the council's position thus:

"At a meeting on 24 November last, the Judges' Council unanimously approved the Bill, subject to the concerns on which I must now address your Lordships. The first concern is that there should be a clear statement on the face of the Bill that the holder of my office will be the head of the judiciary. Without this amendment to the Bill, the Judges' Council is concerned that the retention of the title of Lord Chancellor could send a confusing message as to the role of the holder of my office in the future. The noble and learned Lord the Lord Chancellor recognises the validity of that point and is proposing Amendment No. 11 to Clause 3, which of course I support.

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 . . . there is a proposal for a different form of oath in one of the groups of amendments."—[Hansard, House of Lords, 7 December 2004; Vol. 667, c. 757–8.]

The Bill delivered to us from another place provides a balanced approach to the role of the Lord Chancellor, and plays an important part in guaranteeing the continued independence of the judiciary. We consider a requirement for the Lord Chancellor to be a Member of the House of Lords and a senior lawyer to be part of that balance. That balance was carefully struck in the other place and it is the best formula for us to retain in this place.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

I should like to declare an interest, Mr. Stevenson. I am a non-practising barrister and my wife holds a part-time judicial appointment.

I am troubled by what the Minister said this evening, not because I do not have enormous respect for him— I do. This issue occupied the Select Committee for a while, and the reason why there was not a decisive outcome to those discussions—although Mr. Djanogly thinks that there was, this is the first time that I have heard the word "may" being used to describe a decisive outcome—was that there was a genuine division among members of the Committee on the issue. It was only thanks to the avuncular and consensual chairing by Mr. Beith that we managed to arrive at the words in our report.

I am of the view that the holder of the office ought to be a lawyer, although I was happy to go along with the recommendations of the Select Committee, because they represent a firm indication of the kind of person who we think should occupy the position. The Minister's argument—he put it forward very eloquently again this evening—is that if the Secretary of State for Health is not a doctor, why should the Secretary of State for Constitutional Affairs be a lawyer? That is correct, although the Secretary of State for Health probably has to be a non-smoker these days to be able to retain the position—

Photo of Keith Vaz Keith Vaz Labour, Leicester East

Not by statute, but by convention and by policy. I note that my hon. Friend Mr. Simon put in a bid for the job of Lord Chancellor on the ground that he thought he could do it. His wonderful hairstyle would mean that he would not need to purchase a wig. His suggestion opens up the possibility that anyone could be appointed to the position, which deals with the important areas that have been dealt with by the hon. Member for Huntingdon.

Photo of Siôn Simon Siôn Simon Labour, Birmingham, Erdington

Is my hon. Friend saying that if I could do the job, anyone could do it? I was saying that a person would not have to be a lawyer to do it, therefore I could do it.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

I am sure that the Whips will have noticed my hon. Friend's second bid for the post.

The fact remains that of course the Prime Minister is going to appoint whoever he wants to this position, assuming that people are appointed on the basis of merit in politics. He will get the best man or woman for the job, irrespective of whether that person is a lawyer or not. The way in which the Select Committee has moved with regard to its recommendations signifies the desire that the person ought to be a lawyer, and a senior lawyer at that. Where the Minister has got me is with regard to the very restrictive nature of the clause as it has been drafted—and that is why I shall support the Government in the vote.

I am not clear why there would be any doubt that the person serving as a Law Officer of the Crown should have

"practised as a qualifying practitioner", although I note that the Solicitor-General did not practise as a qualified practitioner—nor, I think, did her predecessor. Perhaps the Minister will tell us why this provision has been put into the Bill, because I did not follow the deliberations on it in another place. I would have thought that it was pretty obvious that the Law Officers should be members of the Bar, or members of the solicitors' profession, as is the case with the present Solicitor-General. I know that she was made a Queen's Counsel, as was her predecessor, my hon. and learned Friend Ross Cranston, just before they assumed office. I did not think there was any doubt that the Attorney-General and the Solicitor-General ought to be members of the profession, although both are senior members of the profession.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

I do not disagree with the hon. Gentleman, except in the context of the way in which we will vote, but I think the answer to the "qualified practitioner" question is tied to clause 22, which allows Scottish lawyers to be considered as well. It is a way of embracing all qualified lawyers.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

We now have a Law Officer on the Front Bench who happens to be a Scottish Law Officer, and I am grateful to the hon. Gentleman for correcting my misinterpretation of what is going on.

The concordat is only part of what concerns us. Someone who is asked to consider the merits of candidates for the supreme court and can reject a candidate whom he does not want—which the Secretary of State, the Lord Chancellor, will be able to do—must have a knowledge of the law and the personalities within it. That cannot be acquired over a short period; it must be acquired over a number of years.

Any Prime Minister, bearing in mind the nature of the office and the deliberations that have taken place here and in the other place—and, no doubt, reading the report of deliberations in the Select Committee with great care—will know how important it is for that office to be held by a senior member of the profession. I think it entirely unreasonable to restrict it to those who have held high judicial office for two years, which is another reason why I cannot support clause 3. I cannot recall in recent history the appointment of a Lord Chancellor who had first been a judge. I know that senior QCs have been appointed, but we have certainly not had any judges while I have been a Member of Parliament.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Lord Mackay of Clashfern was a Scottish judge before becoming a United Kingdom Law Lord, and subsequently Lord Chancellor.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

He is one of three who have occupied that position over the past 15 years or so.

I think the Minister should understand our concern in the House of Commons about the type of figure who could occupy this post. This is not to do with an age qualification; it is not necessarily to do with the fact that someone should have been a Member of this House for a number of years. It is to do with the fact that this is a very important office in the land, and even the office of Secretary of State—without the judicial functions and the Speakership of the Lords, which will go—remains a very important post in Government.

I had the privilege of serving the two most recent Lord Chancellors, as Parliamentary Private Secretary to the current one and, in the case of the last one, as a member of the Government. They were—Lord Falconer, of course, is still there—big figures in the legal establishment. Before the current Lord Chancellor became a Member of the House of Lords he was a very senior and highly successful member of the Bar, and I believe he commands enormous respect in the professions and among the judiciary. The same applied to his predecessor, Lord Irvine, and to Lord Mackay. They are big figures, who have occupied big positions in Government.

I hope that when the Prime Minister comes to make this appointment, he will not choose anyone for the job just because he or she meets the minimum criteria and qualification requirements. I hope that he will choose someone with the seniority that would be expected for the post. I think that he will choose a lawyer, because it is an obvious post for a lawyer—and let us face it: there are an awful lot of lawyers for him to choose from. Of course he can choose someone else if he wants.

However, given the views of the Committee and given the need for that person to interact on a constant and continuing basis with the high judiciary, it is important to have a lawyer in that position. That is why I was happy to go along with the consensual words of the Chairman of the Select Committee. They are not absolutely decisive, as I said at the start. They are not saying, "As this clause says, it must be this, that or the other," but they indicate what we hope will be the case, and that is good enough for me.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee 9:45 pm, 31st January 2005

It is obvious from the carefully argued contribution of Keith Vaz that there was a range of views in the Select Committee, but they were not impossible to reconcile, as the words that we have used show. I am persuaded to some extent by his arguments, but I would not rest my case on the view that familiarity with the Bar is a good argument for having a lawyer in this position. As Mr. Simon pointed out, before he got around to announcing his own claims for office, knowledge of some of the candidates is not necessarily a good position from which to secure dispassionate analysis of a wide range of candidates. Indeed, the last person I would expect to argue that particular view is the hon. Member for Leicester, East, who rightly focused the Select Committee's attention, on a number of occasions, on the need to widen the pool from which candidates for senior judicial office—indeed, junior judicial office—are chosen.

As we found when we looked at the changes in the Scottish system, familiarity with a certain part of the legal profession is sometimes a barrier. In Scotland, the Edinburgh establishment seemed long to dominate judicial appointments. That was one of the motives for creating an appointments commission. Therefore, in England there are dangers not simply of cronyism, but of being too aware of a particular part of the profession to take a dispassionate view. However, the whole nature of judicial appointments will change under the Bill.

If a Lord Chancellor comes to consider a judicial appointment and contemplates rejecting it, he would have to have advice before him. Indeed, he would not be discharging his duty properly if he did not ensure that he had appropriate advice on the reasons for rejecting the candidate or for accepting the nomination.

A Minister dealing with a complicated medical issue has to take advice before reaching a decision. The difference between the Secretary of State for Health in taking advice on a difficult medical decision and the Lord Chancellor is that, in the Lord Chancellor's case, the presumed mechanism is that he accepts the recommendation of the appointments commission and only departs from it if he has found compelling reasons to do so. In those circumstances, he must surely have had to take appropriate advice and to ensure that he had a range of dispassionate advice before him. It is possible to do the job without the familiarity with the profession that experience of serving as a judge or at the Bar for 12 years would give.

It can still be argued that the legal profession and the judiciary may be a lot more comfortable, certainly in the early years of the new system, with someone who they recognise as having authority in their field. That is an advantage that the Prime Minister ought to weigh when considering the making of an appointment. It probably would be considered carefully.

It is not the same with the Law Officers as we usually understand the term, whether the Advocate-General or the Solicitor-General, who are in principle expected to take cases on behalf of the Government and to appear, as the Attorney-General did only the other day, in court representing the Government. Active participation and qualification in the profession are requirements for carrying out that job. Appointments to that post have changed in recent years and there has been a much greater tendency, particularly with the Attorney-General, to appoint someone from outside active politics, who may be politically sympathetic but whose essential qualification is that he is able to give the Government high quality legal advice and to appear for the Government in some of the more important cases to which they are a party. That is a different situation from being the Minister who both runs a large Department and exercises certain functions where he confirms or concurs with decisions that come up through a process, at the head of which is the Lord Chief Justice. All those provisions were included to ensure that too much did not rest upon the shoulders of a politician in an area where the Government were, rightly, trying to ensure that appointments were not made on anything like political grounds.

It seems to me that the job could be done by someone who is not a lawyer. He would have more homework to do, just as being Chairman of a Select Committee requires extra homework, but I am very glad that the post will not be confined to lawyers. It would be a bad principle to follow that line. Again, as in the case of a Chairman of a Select Committee, any area where someone has to tangle with the law, for whatever reason, requires looking carefully into a wide range of matters, but that is not a reason for formally excluding from the Lord Chancellorship for ever, or for as long as the legislation stands, someone who does not have the legal qualifications specified in the clause. Some people who do not meet that requirement might well do the job to a very high standard.

I stand by the consensus viewpoint that the Select Committee reached—that, while it may be an advantage for the holder of the post of Lord Chancellor to be a senior lawyer, it does not and should not need to be written into the Bill. Some of my colleagues from the Select Committee have already explained why.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I largely agree with the thrust of what my constituency neighbour, Keith Vaz, said a few moments ago. The reasons that he gently put forward reinforced what I said at the outset of our debate this afternoon—that there is a growing gap between the law in its wider sense and Parliament, which is much to be regretted.

The closer the understanding between the law and Parliament—those who make the law and those who have to apply and interpret it—the better it is for the people of our country. Too often, the House passes laws that make very little legal sense when they come to be applied in the courts in particular cases, whether civil or criminal, and particularly in the field of criminal law. If the Government have their way today and remove clause 3 as they did clause 2—the two clauses are very much of a piece—the greater will be the distance between the two institutions and it will grow to our mutual disbenefit.

Under the new regime, the Lord Chancellor will not really be a Lord Chancellor—he will be no more than another head of a public Department. Just as the Secretaries of State for Health, for Transport or for Defence do not have to be qualified doctors, lorry drivers or soldiers, so it will be perfectly possible under the modern regime for the next so-called Lord Chancellor—whether he or she is, as I hope, in the House of Lords or in the Commons—to carry out the work of arranging the divisions of various circuits, for example. However, that rather misses the point of the value of the Lord Chancellor's office, which is being wholly undermined and destroyed by the Bill.

I believe that it is important for the Lord Chancellor not to be just another jobbing Secretary of State. I happen to believe that the office of Lord Chancellor has traditionally been accorded rather greater importance than that, and that we are devaluing it and the work that the office holder does by the arrangements that the Government are implementing through the Bill. It is a regrettable step that we are having to witness.

As I said when we debated clause 2, I am aware that I do not have at my disposal the necessary power in numbers to defeat the Government's intentions, so I shall have to await another opportunity to put this right, but it is not right for the Government to inflict this wrong without Opposition Members expressing their concerns about the damage that will be inflicted.

I fully accept that my argument will not appeal to many, if any, Labour Members, and still less to the Chairman of the Constitutional Affairs Committee. He is an eminent parliamentarian and Chairman of his Committee, and not a member of either of the two legal professions in this country. However, I am less worried about that argument than about the downgrading and diminution of the office of the Lord Chancellor. I am concerned that the office is being turned into something else. The Government are trying to fool us into thinking that the office of Lord Chancellor will be maintained in its previous state simply because the name will be retained. However, that is rather like unscrewing the name plate from a Rolls-Royce, sticking it on a lesser vehicle and claiming that the lesser vehicle is none the less a Rolls-Royce—that was perhaps not the best example, but I hope that it made the point that I wished to get across.

I regret that I am powerless to persuade the Committee, due not so much to the Government's arguments, but to their numbers. I repeat my worry that there is a growing gap between the institutions of Parliament and the law. Despite what has been said one way or another, I think that the judiciary look to someone with authority whom they respect to speak up for them in the councils of Government. The Lord Chief Justice will take over that role, and under clause 6, which we were not able to discuss because of the guillotine, he will be able to present a written representation to Parliament. However, that is not quite the same as having a Lord Chancellor who is well versed in the eccentric, yet none the less valuable, traditions of the legal establishment and able to speak up for the law, the rule of law and the independence of the judiciary at the Cabinet table and in the Chamber of the House of Lords because of his professional and political upbringing.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

It has widely been accepted here and in the other place that the Lord Chancellor will have the role of speaking up in the Cabinet on important matters to which the rule of law may be relevant, such as detaining terrorist suspects and the like. Does my hon. and learned Friend agree that if the Lord Chancellor is not a lawyer and does not understand the issues, he will be poorer in that role?

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I have no doubt that anyone who is capable of being a good Secretary of State will have the energy and intellect to understand basic ethics and learn about the requirements of the rule of law. However, that person would be at a disadvantage because he would have to learn about it, whereas it was second nature for Lord Irvine, Lord Mackay and Lord Falconer. I am decrying not the intellectual abilities of a non-legal Lord Chancellor, but the downgrading of the office and the growing distance between the two institutions.

A consequence of the situation will be the increasing importance of the Attorney-General as the defender of the law's institutions in Parliament. Although I disagree with the current Attorney-General's politics, he is an extremely fine lawyer. Perhaps because he sits in the House of Lords, he has had the time to appear as the Government's chief advocate in the courts.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

The hon. and learned Gentleman wants them all to be in the House of Lords.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I am talking about the Attorney-General, not the Lord Chancellor. The Advocate-General for Scotland is in the Chamber. I think that she has appeared for the Government several times in the European Court of Justice and perhaps she has appeared in the House of Lords acting for the Scottish Executive.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Whatever the hon. and learned Lady does, she knows rather more about it than I. The simple point is that the Law Officers will increasingly be taking over the protective role of the Lord Chancellor, because the Government are giving up the Lord Chancellor's role as protector of the judiciary and the interests of the rule of law.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I see that the Minister disagrees. I know that the Bill contains guarantees and so forth, but that merely underlines the point that I made about the growing gap. Lord Chancellors did not need to have that set down because they understood what their job was, but the job is changing. The job of the Lord Chancellor under the Labour Government will not be the job of the Lord Chancellor in the days of Lord Mackay, Lord Irvine or any of their recent predecessors. I regret that; it is a retrograde move, but there is sweet Fanny Adams I can do about it.

Photo of Vera Baird Vera Baird Labour, Redcar 10:00 pm, 31st January 2005

I am concerned about the precise nature of the clause, which requires a person either to be a High Court judge,

"to have held judicial office for at least two years", or—and it is either/or so obviously one does not have to be a High Court judge—to have

"practised as a qualifying practitioner . . . for at least 12 years".

Under clause 22, a qualifying practitioner must have "a Supreme Court qualification" under section 71 of the Courts and Legal Services Act 1990, which states that a person must have rights of audience in all the proceedings of the Supreme Court. That is of course not the new supreme court, but the old one, which is the Court of Appeal and the High Court.

I am right about the meaning because the next tier of qualification in the 1990 Act is a person who has a "High Court qualification", who is only a High Court advocate and not a Court of Appeal one. It is thus definitely a requirement under the clause that a person must for at least 12 years have been a person with rights of audience in the Court of Appeal and the High Court. That excludes an enormous number of senior and good lawyers.

Many, many solicitors are not High Court advocates because that does not enter into their way of being. They may prepare, and know a great deal about, High Court proceedings, because they are the solicitors who back up senior High Court advocates with their preparation, but they are not themselves High Court advocates. One could imagine that commercial solicitors, family solicitors or senior partners in a number of types of solicitor's practices might be admirably qualified in every way and would fit the mould that even Opposition Members are hankering for, but they will be excluded by the clause. It is a bad idea because it could exclude many good people.

On the other hand, the clause gives little protection from anything in the context of the Bar, because every member of the practising Bar is a Supreme Court advocate from day one as long as they remain a practising member of the Bar. Consequently, that does not require someone to be a senior lawyer; it requires them only to have been called for 12 years, which, as most Members who are lawyers will realise, is a calibre they will have attained by the age of about 33, 34 or 35. It does not require a barrister to be a senior lawyer and quite a few solicitors are likely to qualify. For instance, there is no protection in requiring a barrister of 12 years' call: someone might have undertaken magistrates court advocacy or industrial tribunal cases, or they might—being in private practice—do Chancery paperwork and never ever go to court, because they retain their status as a Supreme Court advocate by virtue of being in independent private practice. There is no protection of the kind that members of the Committee are seeking from that qualification. It is the wrong test. What is the point of it?

The clause would exclude—would it not?—a senior professor of law who might be ideal but who had never become a High Court advocate. He may have been a solicitor, but he may not even have done that; he may have been a law commissioner for several years. He might be an admirable person to take up the post, yet under the clause he would be excluded.

Equally, it seems to me that a professor of accountancy, who might have been seconded to the Court Service or have advised in detail about how the Court Service should organise its accounting procedures and finances, will understand its administration in far more detail than a barrister of 12 years' call possibly could, popping in and out of court to do a case or never going there at all. It seems to me that such a person could admirably understand the way the courts and their financing work and would be an admirable choice for that role.

Somebody from social sciences who might have been called in to try to turn the courts into what we all want them to be—an institution that puts the public participants first—may also have looked in huge detail at the way in which courts function, in order to try to guarantee that witnesses, victims and so on are looked after properly. They will know extremely well from start to finish, from A to Z, far better than a barrister of 12 years' call, how the courts work—and they will have known for many years. All such people will be excluded by the requirement of being a Supreme Court advocate, a High Court judge or a lawyer.

The provision is quite unnecessary. It gives no protection and does the damage of excluding people from other than the legal profession who could be just as good as a lawyer. Insisting on such a provision in legislation has the additional danger of making the job look like it is there for the protection and promotion of lawyers. In fact, it is not; it is about administering a public service. As such, it can be done by anyone who has any of the range of qualifications that I have mentioned and many many more that I have not thought about. I urge Members not to vote for this silly clause.

Photo of John Redwood John Redwood Shadow Secretary of State for Deregulation

The Minister has argued two very different positions. Before we vote, it would be good to have a little clarification of which the Government believe in. On one hand, the Minister wishes to agree with Vera Baird and Mr. Simon, who argue that more or less anybody can be Lord Chancellor, as slimmed down, redefined and modernised by this legislation. On the other hand, Keith Vaz made a cogent case for the proposition that even the slimmed down, modernised and damaged version of the Lord Chancellor that we have before us in the Bill should be someone of legal distinction and knowledge, for the obvious reasons that he and my hon. Friends have set out.

I have a simple question for the Minister, the answer to which would help Members decide how to vote: were this Government to stay in office through another change of Lord Chancellor, would the Prime Minister want to appoint someone who was a good lawyer, because he accepts the argument of the hon. Member for Leicester, East, or does the Prime Minister think that modernisation would be advanced by definitely not having a lawyer and by taking advantage of the greater freedom for which the Minister is urging the Committee to vote?

Photo of Siôn Simon Siôn Simon Labour, Birmingham, Erdington

I had no intention of speaking in this debate. I wandered into the Chamber and thought that I would listen and learn from more learned hon. Friends and colleagues, but I feel as if I have wandered into some bizarre little world of its own. People keep sidling up to me and asking, "What are you doing here? You aren't a lawyer." I think that I am quite unusual in this Chamber in not being a lawyer. [Interruption.] I know that there are others present who are not lawyers.

Photo of Siôn Simon Siôn Simon Labour, Birmingham, Erdington

The Minister notes that he is not a lawyer, which is indeed a relief. Nevertheless, there is a preponderance of lawyers present, particularly on the Conservative Benches. [Interruption.] They have cheated a little—

Photo of Mr George Stevenson Mr George Stevenson Labour, Stoke-on-Trent South

Order. We can dissect different professions—I for one am not a lawyer, but that is irrelevant—but will the hon. Gentleman get back to the business before the Committee?

Photo of Siôn Simon Siôn Simon Labour, Birmingham, Erdington

Regardless of whether Opposition Members are preponderantly lawyers, their argument that in order to be Lord Chancellor one needs to be a lawyer is absurd. Mr. Redwood characterised my hon. and learned Friend Vera Baird and me as having argued that anybody can be Lord Chancellor. I am arguing that anybody can be anything. Anybody can be Prime Minister; anybody can be Home Secretary. One does not have to have specialist knowledge or professional expertise to run a Government Department. That much ought to be obvious. I cannot imagine what people in the real world think when they see Benches stuffed full of lawyers arguing that the only people who can head a law Department are lawyers. One does not have to be a teacher to run the Department for Education and Skills, one does not have to be a doctor to run the Department of Health, and one does not have to have been to Prime Minister school and gained 12 years' experience to be Prime Minister. It is self-evidently not the case, therefore, that one must be a lawyer to run the Department for Constitutional Affairs.

Mr. Garnier keeps telling us that the Government are intellectually dishonest, because they have changed the nature of the job while keeping the name of Lord Chancellor. There can be few constitutional jobs that have changed more while keeping their name. It is ridiculous to argue that the difference between the next Lord Chancellor and Lord Mackay of Clashfern is greater than the difference between the present incumbent and the Lord Chancellor who, 500 years ago, did a completely different job in a completely different environment.

The Lord Chancellor does not need to be a lawyer nor, as the Minister said, do we need to put such a requirement into statute. Indeed, it could be argued that it would be better if the Lord Chancellor were not a lawyer. As my hon. and learned Friend the Member for Redcar argued, if the holder of the post is a lawyer, it may, heaven forfend, make the Lord Chancellor look like a "producerist", defensive protector of the interests of the legal profession. Lawyers are not necessarily interested in the impartial, efficient and admirable administration of justice—some of them may be interested in their own enrichment and vainglory. The notion that we should legislate to guarantee that they have one of their own to speak for and defend them is not just wrong but ridiculous.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

It has been useful to hear the arguments adduced in favour of clause 3, because, as with clause 2, they are thin and threadbare. Indeed, clause 3 is a step backwards in time. There is no statutory requirement at present for the Lord Chancellor to be a lawyer. That is simply a convention. Enshrining in statute a requirement for 12 years of senior legal practice or two years' experience as a judge makes the process of appointment more rigid and less flexible. It is strange that none of the Members who spoke in favour of clause 3 could suggest why the reformed office of Lord Chancellor, even if they do not like the way in which will be shaped, should be different from the post of Health Secretary or Education Secretary. The shadow Health Secretary, Mr. Lansley, has no medical qualifications, yet he would make health inspector appointments. The shadow Education Secretary, Mr. Collins, has no teaching qualifications, yet he hopes to make school inspector appointments. It is not axiomatic that the person holding the ministerial job of Lord Chancellor should have legal qualifications.

My hon. Friend Keith Vaz said that it is desirable that the Lord Chancellor is a lawyer, but he accepted that clause 3 is too rigid. Conversely, my hon. Friend Mr. Simon argued that it might even be better if that individual were not a lawyer so we do not have what he characterised as a producer interest in the post. I do not seek to say whether it is, or is not, a good thing, but I dislike the mandatory requirement for the post to be held by an individual with a particular qualification.

My hon. Friend the Member for Birmingham, Erdington argued that anyone could become Prime Minister or Home Secretary. It is almost like the famous American dream: "One day, even you, young fellow my lad, could grow up to be President of the United States." What that individual needs is character, integrity, strength of judgment and so forth. We should recognise the fact that the ministerial post of Lord Chancellor belongs not to a certain profession, but to all the people. Legislation should not set in stone such unnecessary exclusivity. We know what the qualifications for that ministerial office need to be: competence, judgment, character and accountability.

Mr. Redwood asked whether the Prime Minister would appoint lawyers in future. My answer is that he must ask him at Prime Minister's Question Time, but the Prime Minister will certainly be held accountable for any appointment that was deemed to be irrational or illogical, or involved not appointing the right person for the job.

Given the reformed status of the office of the Lord Chancellor and the fact that that individual will no longer be head of the judiciary or a Law Lord who sits as a judge, the post holder can sit in either House of Parliament. There is no longer a rational requirement for any legal qualification, and I hope that the Committee will reject clause 3.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons 10:15 pm, 31st January 2005

I agree with one thing that the Minister said: the shadow Secretary of State for Health will be making appointments after the general election—and the sooner, the better.

I shall comment on the speeches of Vera Baird and her partner in crime, Mr. Simon. Of course almost anyone could be appointed to the job if someone chose to do so, but given that it is an important job with particular responsibilities—including standing up for the rule of law in Cabinet and ensuring that judicial independence continues, the residual role of making appointments to the judiciary and the other important roles that relate to the jurisdiction of the courts—it would be a help if the person concerned were a lawyer. Indeed, the Select Committee on Constitutional Affairs said that that may be a help.

The Judges Council, which knows a thing or two about this, particularly wants the post holder to be a lawyer, ideally with qualifications similar to those required before a person can be appointed a High Court judge. Those on the council wanted that requirement not to enrich themselves or to be vainglorious, or anything of that sort, as described by the hon. Member for Birmingham, Erdington but because the Lord Chancellor's role is important and such knowledge is extremely helpful in the role.

It is all very well—this is a bit like another point that I have made—saying that it is preferable to have a lawyer in the role of Lord Chancellor, but if it is preferable, why should we take second best? That is why I continue to argue that clause 3 is vital and that such a requirement would be helpful to the person in that role, so we wish to divide the House on the issue.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 126, Noes 272.

Division number 58 Orders of the Day — Constitutional Reform Bill [Lords] — 1st Allotted Day — Clause 3 — Legal qualifications

Aye: 120 MPs

No: 272 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Clause 3 disagreed to.

To report progress and ask leave to sit again.—[Gillian Merron.]

Committee report progress; to sit again tomorrow.