Clause 3 — Legal qualifications

Part of Orders of the Day — Constitutional Reform Bill [Lords] — 1st Allotted Day – in the House of Commons at 9:45 pm on 31st January 2005.

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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.