New Clause 9 — Disqualification from holding further ministerial office

Orders of the Day — Constitutional Reform Bill [Lords] — [3rd Allotted Day] – in the House of Commons at 5:00 pm on 1st March 2005.

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'Once a person has held the post of Lord Chancellor he is disqualified from holding any other ministerial office.'. — [Mr. Grieve.]

Brought up, and read the First time.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move, That the clause be read a Second time.

It is necessary to return to some of the basic issues surrounding the Bill to understand why we tabled the new clause. The old structure of the Lord Chancellor provided, as we have debated peripherally this afternoon, that he was a judge first and foremost. He was a judge with a hybrid role, because as well as sitting as the head of the judiciary and a Law Lord, and being Speaker of the House of Lords, he was a Minister.

As a Minister, one of the Lord Chancellor's duties was to ensure that the administration of justice and the court system operated correctly, so he was a departmental Minister. In addition to that he was—I believe that this expression has been used—the judge at the heart of Government, providing a moderating influence on colleagues in respect of the operation of the judicial system, if necessary, and sometimes legal advice. However, he did so not in a formal sense, as the Attorney-General does, but informally, expressing an opinion if the rule of law was in danger of being undermined.

The Lord Chancellor also had a role in protecting the judiciary when Ministers such as Home Secretaries got irritated that their Executive purposes were being thwarted by judicial decisions. As we know from the recent past with the previous Home Secretary—I have a funny feeling that we are beginning to see this with the current Home Secretary—the phenomenon is not unusual. I might add on a bipartisan basis that there have no doubt been previous Conservative Home Secretaries and others who at times felt equally frustrated by the judiciary's taking views of their decisions that they found unfortunate.

Nevertheless, in a country where the rule of law prevails, it is of great importance that Ministers should accept judicial decisions, and more importantly, as the Minister will have no difficulty accepting, that they should not use their political status to try to undermine the judiciary. It is easy for those who are subject to political pressures—sometimes from an electorate who are irritated by judicial decisions—to move to a position where they covertly or overtly criticise judges and their decisions. If that happens in this country, we shall face a serious situation that we have so far succeeded in consistently avoiding.

To illustrate the point, we could contrast that with the situation in France, a country that featured in yesterday's debate in relation to the merits of its judicial system. I remind the Minister that in a recent trial of a French Minister on serious charges of tax evasion and, I seem to remember, fraud, the situation became so bad that the judges trying the case said that they no longer felt safe to use the computers provided to them by the state to record their daily rendering of the case and their notes, because they were convinced that they were being hacked into. They started using their own laptops. There was a long litany of complaints about political interference in the judicial process. There were protectors of this Minister, or ex-Minister as he was by then. Indeed, he was the leader or chairman of a political party.

I am sorry to say that that is not the only such problem that has arisen in France over the past 30 or 40 years. Mercifully, we have succeeded in avoiding such problems in this country. It may sometimes be said that our system of law is slower than those of other countries, and it can make mistakes; but the reputation for integrity of English and, for that matter, Scottish and Northern Irish judges is remarkably consistent, and has not been called into question. Judges' sagacity may occasionally be called into question, but not their integrity. That is largely owing to the absolutely accepted convention in the Government that judges cannot be criticised, even if Ministers are hopping mad about what they have done.

One of the problems of the changes envisaged in the Bill is the alteration of the Lord Chancellor's status from that of a judge in the Government to that of any other Minister. He loses his judicial status—which we accept, because we recognise that he can no longer sit as a judge—but continues to have a unique role, which we highlighted when we discussed schedule 6: the role of carrying out functions that require him to behave as if he were a judge, and certainly to apply standards of independence and integrity. We also know that one of the reasons for the Government's accepting that the Lord Chancellor should take a particular oath when taking office, albeit not the original oath, is the fact that his role is different from that of every other Minister. We have debated what the terms of the oath should be, but I think there is a community of view throughout the Chamber that the Lord Chancellor has, or should have, a different status and oath.

One question that has been discussed both in the other place and here is whether the Lord Chancellor should be a Minister who can sit in either House of Parliament, or whether he should sit only in the other place. The Government have strongly expressed the view that he should be capable of being a Minister in the House of Commons, whereas we—as I have said, and as the Minister knows—have argued long and hard that he should be a lawyer sitting in the House of Lords. It will be interesting to see, when the Bill returns to the House of Lords, what it will make of the amendments that we have made to the relevant part.

We want the Lord Chancellor to be a lawyer in the House of Lords not because we think it is quite nice for him to be the Speaker in full fig on the Woolsack—although if the Lords wish him to be Speaker that will be possible—but because we think that it will provide at least a measure of further protection from the political interference that is, I fear, inevitable in a democratic Chamber where Members are likely to express, both privately and publicly, a range of sentiments on behalf of their constituents, including criticism of the judiciary. It is vital for the judiciary to be protected.

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

Is it still Conservative party policy to support an elected, or largely elected, second Chamber?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Yes, indeed. Clearly, if there were an elected or largely elected second Chamber, which we are not currently in a position to implement, the question of who apart from elected Members should be in the Lords would require careful consideration. If that were to happen, perhaps that would be the time when the Lord Chancellor would no longer have a role in the Lords. Equally, given that it is perfectly possible to preserve some non-elected functions in the Lords, it would be possible to keep him there.

I am sure that the Minister has had an opportunity to look at the paper on the subject produced by a cross-party group that included Labour Members, which I found fascinating reading. It makes an important contribution to the debate. It is apparent from the paper that the group saw scope for continuing to have non-elected Members in the other place, and for retaining a role for the bishops. I do not see the Lord Chancellor's being part of that arrangement as incompatible with those proposals. Those are all subjects for discussion, but I do not want to stray from the main issue.

Photo of Bill Cash Bill Cash Conservative, Stone 5:15 pm, 1st March 2005

The role of the Lord Chancellor in regard to the rule of law is clearly set out in clause 1, which states:

"This Act does not adversely affect—

(a) the existing constitutional principle of the rule of law, or

(b) the Lord Chancellor's existing constitutional role in relation to that principle."

Does my hon. Friend agree that, having hived off the judicial functions of the Lord Chancellor from that existing role by statute, a vast amount of extremely important functions would still be retained? In the light of that, the Lord Chancellor should not be reduced to the role of Secretary of State, which is an indivisible function. If I have an opportunity to speak later, I shall go into that matter further.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I agree with my hon. Friend. He heard me refer earlier to the powers in schedule 6, and other provisions in the Bill also make it clear that the Lord Chancellor remains a linchpin in terms of ensuring the independence of the judiciary, and the integrity of the judicial system and the dispensation of justice in this country. It is important that we get the right structures in place to ensure that that tradition, which the Lord Chancellor has honoured so well in the past, can continue.

That brings me to the issue surrounding the new clause. Currently, by virtue of taking the judge's oath in the Lords, the Lord Chancellor is effectively disqualified from taking any other ministerial office thereafter. He is a judge, and like any judge, he cannot go back to his professional career at the Bar—if he is a lawyer—when he ceases to be Lord Chancellor. He cannot become any other kind of Government Minister, and he has hitherto been required to remain in the House of Lords. He can continue to sit as a Law Lord, if he so wishes, until he reaches retirement age, and that is it. The great merit of that arrangement is that he has no desire for further preferment, and therefore has some immunity from the political pressures that can easily build up on a politician who feels that he still has a career in front of him.

The problem with the Government's proposals is that, having insisted that the Lord Chancellor need not be in the Lords and could be a Minister in this House—I suspect that if the Government get their way, that will inevitably happen—they will end up appointing quite a junior Minister in the pecking order of the Cabinet hierarchy in this House who is seeking to further his career. It is at that point that a Lord Chancellor could become particularly susceptible to pressure from colleagues trying to influence the system of judicial appointments, for example—an area in which the Lord Chancellor will still have important functions to perform, either with the judicial appointments commission or through his extensive powers under schedule 6—to do what the Prime Minister or other Cabinet colleagues want done.

Given that the Government are insisting on going down that road, and that they have rejected our view that the Lord Chancellor should be in the Lords—an arrangement that already provides that extra protection—the only solution is to have a clause in the Bill to ensure that the Lord Chancellor is disqualified from holding any other ministerial office when his period as Lord Chancellor comes to an end. In my view, that will ensure that he is somebody who is at the end or peak of his career when he is appointed, who has no further desire for preferment—

Photo of Steve Pound Steve Pound Labour, Ealing North

I wonder whether the rest of the House noticed that the hon. Gentleman used the words "at the end of his career". As he is entirely legally qualified to denigrate the independence of the judiciary, being professionally qualified himself, is he aware that he proposes that we elect as Lord Chancellor a man or woman who is, in effect, Eastbourne in ermine—someone at the end of their career? Is that really what we want? Do we want someone at the tail end of their career holding this supremely important position?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

That is not what I said at all. When I referred to the appointee being at the end of his career, I meant someone who sees holding the office of Lord Chancellor as effectively the last thing he wishes to do before retiring from public life. That is a sensible measure. He must be in a position to resist political pressures from those around him. While it is true that the Prime Minister can dismiss a Lord Chancellor at will, it is also the case that if the replacement Lord Chancellor is similarly isolated from desires of political preferment, the position will be reinforced that he will not be able to succeed in getting much better from another Lord Chancellor.

There are compelling reasons for including the new clause. The appointee could be someone in their 30s or 40s who does not wish to continue with a career in politics thereafter—they need not be, as the hon. Gentleman suggested pejoratively, Eastbourne in ermine.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

I was fearful that the hon. Gentleman was under some misunderstanding. My understanding of the new clause is that all that it would preclude is further ministerial office. One could remain in Parliament as a Back Bencher and take other public office. My hon. Friends and I will support the new clause, but it is clear that that is the specific reason, and it seems to me to be a very good one.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am most grateful to the hon. Gentleman for his expression of support, because that is the intention. Given the way that public life works, in reality, the appointee might be someone of maturity, but that is not a bad thing. It is a question not of Eastbourne in ermine but of having a bit of experience of life and of politics and of having a good track record. That is exactly the benefit that past Lord Chancellors have given us, irrespective of which party they have come from. It is precisely to preserve that that we have tabled the new clause. Were the Government to accept it, it would go a long way towards meeting the criticisms that we have otherwise made about the danger of the Lord Chancellor being politicised, which, I think, would provide substantial reassurance. I hope that the Minister will respond positively.

I do not want to see in 10 years' time—if the Government get their way on this Bill—someone who is effectively a junior ministerial appointment in the House suddenly realising that they are in fact at the mercy of the political pressures with which they will inevitably be surrounded. We should be sensible. One of the reasons why our political system has worked well to prevent impropriety is that it is robust. What the Minister is doing, with the changes that he is introducing, is making it much less robust in terms of the Lord Chancellor's independence. I realise that that is theoretical, but theory will usually turn into practice if the safeguards are not there. The new clause provides those safeguards, and I commend it to the House.

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

The reformed office of the Lord Chancellor, as we envisage it, would take away the requirements to be a judge, lawyer or peer, because it is fundamentally a ministerial post that requires political accountability, not least for the £3 billion of public expenditure carried out by the Department for Constitutional Affairs and Lord Chancellor. The Government believe in the simple principle that the person appointed must be the best person for the job, on merit, and that there should not be false constraints that could jeopardise that choice. The assertion that all Lord Chancellors might somehow be corruptible because they could be induced by the prospect of another ministerial job not only is an insult to past Lord Chancellors—incidentally, they have had no such statutory restriction, including during the 18 years of the previous Administration—but provides an intriguing insight into how the Conservatives view ministerial life.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It is absolutely right that Lord Chancellors have no such statutory restriction, but equally, because they are judges they are in fact constrained in what they can do when they cease to hold that office.

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

But not in a ministerial context, and I am surprised that—[Interruption.] Statutorily, there is no such bar on former Lord Chancellors holding other ministerial posts. I shall elaborate on some other perverse consequences of the hon. Gentleman's new clause.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Once again, we confront the question of convention. I should be interested to hear from the Minister whether, during the period to which he referred, a Lord Chancellor held other ministerial office after ceasing to hold that one. The answer, I suspect, is that no one did, because the existing convention makes it completely impossible to do so. Throughout the Bill's passage, it has become clear that the Government loathe convention. They put it in the bin, yet convention has served this country very well. The Government then argue that because a certain practice was only convention, they need do nothing else, but that is precisely how the safeguards in our constitution are eroded.

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

The hon. Gentleman says with complete confidence that no Lord Chancellor has ever held any other ministerial post; my officials and I will look back through the history books to double-check that assertion. [Interruption.] He says that it is impossible for a Lord Chancellor ever to hold another ministerial post, but he is wrong. He talks about convention, but it is he who proposes to put a statutory bar on former Lord Chancellors holding another ministerial post. I am simply discussing the proposal before the House.

There would be other very significant disadvantages to such a statutory bar. For example, it might put the best person for the job off accepting it, if they felt that such a bar would be an artificial constraint on their future ministerial career. It would prevent that person from taking on any ministerial role—in which their skills and expertise might be of great value to the running of the country—even if it were blatantly obvious that they were the right choice for the post in, for example, a time of national emergency or crisis.

There could be other perverse consequences for public affairs. For example, because a post-holder could not hold any other ministerial post or perform any other role in public affairs, they would have a perverse incentive to hang on to their office. They might not resign at the time most others would consider appropriate, or when circumstances would normally suggest that they should. New clause 9 gives rise to all manner of oddities.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

This point may have been dealt with, but my assumption is that, under the new dispensation, a Lord Chancellor could be sacked by the Prime Minister of the day—just as a recent Lord Chancellor allegedly was—or a retirement age could be established. Neither of those ideas is unmanageable: the first happens anyway; and even if the Bill does not provide for a retirement age, it could, and there is no reason why it should not.

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

The hon. Gentleman is introducing other elements such as retirement age and term limits, which are somewhat false constraints on the holding of ministerial posts. We should not have such constraints; rather, we should have the best person for the job. Of course, in normal circumstances it may well be that the best person for the job happens to be at the end of their ministerial career, but that will not always, axiomatically, be the case. Strength of character and political courage cannot be legislated for in the crude way suggested in new clause 9. If a post-holder is likely to be swayed by political patronage, they are as likely to be swayed by all sorts of other "temptations", such as European Union posts, international postings and directorships.

There are all manner of problems with new clause 9. We must keep focused on allowing the best person for the job to be appointed, whoever they may be. I urge Members to reflect on the fact that this is a new and reformed post of Lord Chancellor, which requires the right person. False barriers, age-related criteria and term limits are not typically features of our constitution as it relates to public affairs, nor should they be. We stick with the principle of appointment on merit, and I urge Mr. Grieve to withdraw the motion.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats 5:30 pm, 1st March 2005

As I said a few moments ago, my hon. Friends and I will support new clause 9. The Minister knows that both Houses have supported the notion that the new Chancellor under the new arrangements should not have to be a Member of the House of Lords, should not have to be a judge and can therefore be someone from either House. The Minister also knows that we would have preferred the title "the Minister of Justice", but we accept that the opening up of opportunities is generally a good thing.

The argument that no special characteristics apply to the post does not hold up. For example, the Law Officers of the Crown have always been people who, in theory, could have been chosen from anywhere, but they have, in fact, been chosen from people with appropriate qualifications. The Minister of Justice under the new dispensation is someone who will for the first time be responsible to Parliament only for the justice system in this country—England and Wales in some respects and the whole of the United Kingdom in other respects. That is different from the present role.

I agree with Mr. Grieve that the job needs to be as protected as possible from the normal pressures of political aspiration and from the temptation to be popular with colleagues in order to obtain preferment. I cannot believe that, in future, there will not be people who would view it as a huge honour and privilege to serve for an indefinite term as the Lord Chancellor from either House of Parliament. I cannot believe that only an old person should be considered. I understand, in parenthesis, that Eastbourne has a declining average age rather than a rising one, and it may be a misrepresentation of Eastbourne to suggest that everyone there is old: indeed, many young people live there.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

And we hope that it will be a Lib Dem gain in the offing. I am grateful to the hon. Gentleman for that prompt.

The person we need could be a young person chosen by the Prime Minister of the day because they would bring a different style and character to the job. The key issue is that the person must not seek to carry out the functions of the job in a way that renders them a candidate for another ministerial office which is not responsible for the independence of the courts and the judiciary. We have talked about the oath that the person would be obliged to take. It need not preclude the person from going on to the Back Benches or from becoming a judge of the Court of Justice of the European Communities in Luxembourg or the European Court of Human Rights in Strasbourg. There is no need to preclude the person from sitting on the International Court of Justice, from being Advocate General in Luxembourg or from all sorts of other jobs. They could be chairmen or chairwomen of tribunals or serve in a variety of other public offices. The one thing that has to be renounced is preferment as a Cabinet Minister or Minister of the Crown.

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

I understand the hon. Gentleman's point and I do not wish to denigrate the virtues of the convention of having someone at the end of their ministerial career. However, I earnestly caution him to think very carefully before supporting a statutory bar. Surely he can envisage circumstances that could amount to a fettering of the democratic choice of the country in respect of an individual who could be excellent at being Lord Chancellor and also capable of going on to higher things. I believe that preventing that possibility through statute would be a backward step which would fetter the democratic choice.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

I acknowledge that the issue is debatable, but I have thought about it and I come down very strongly, when it comes to this particular job, on the side of protecting people from the usual pressures to give in to colleagues in order to be seen to be advancing a particular party view.

Let us consider the present circumstances and a Bill such as this coming before Parliament, steered by the future Lord Chancellor, who could be a member of this House rather than the other place. Let us imagine that we are eight or nine weeks away from a general election and that a certain Bill faces the deadline that all its stages must be completed before Parliament is prorogued. Colleagues might exert all sorts of pressure to get the measure pushed through, but the compromises involved might not be in the interests of justice.

The party and political pressures faced by the person who is Minister of justice in all but name must be different from those faced by other office holders. The nature of democracy is that people are subject to such pressures, but the new system should provide protection for the person in that role.

Photo of Bill Cash Bill Cash Conservative, Stone

One aspect of the Lord Chancellor's role has not been debated today but is very important. Traditionally, the Lord Chancellor brings weight and authority to Cabinet discussions of constitutional matters. He is also the Government's conscience, and that is not a light matter. That role goes back to Sir Thomas More, and beyond, and it has an unromantic but practical function. The Lord Chancellor traditionally has qualities that enable him to provide the Cabinet with advice that other Ministers cannot, for the reasons that have been set out. Does the hon. Gentleman agree that that is another reason for supporting new clause 9?

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

I do. The Bill will change the Lord Chancellor's historical role, but the holder of the office has always acted differently in Cabinet from other Ministers.

Finally, there has been growing controversy in recent days—not for the first time in history—about the role played in government and public life by the Attorney-General. I have no reason to impugn the current Attorney-General: I have met him a couple of times and found him to be entirely reputable, decent, honourable and straightforward. However, it would be foolish to deny that a debate is going on outside the House about his independence. The Attorney-General is one of the two Law Officers, and the other is a Member of this House. We must do everything that we can to protect the person who holds the new post that is being created, and his or her successors, from the political criticism that I have described—the task of upholding justice must not be compromised by the political expediency of the day.

Every week, we are asked how we can do more to get people to vote and believe in politics as a good thing. We are expected to raise the public perception of the role of politicians, and one small step in that direction would be to protect the person running the justice system in this country from the normal pressure exerted by party, friends and colleagues. I cannot believe that there will not be plenty of good candidates to choose from in every Parliament.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

The Constitutional Affairs Committee has published two reports on the Government's proposals. In the first, it 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 temptations associated with possible advancement)".

That is a statement of fact, but the report also expresses an aspiration that that should continue. In our second report, the Committee reinforced that approach, although we did not say that the Lord Chancellor had to be a Member of the House of Lords.

New clause 9 is a genuine attempt to achieve that aspiration. One might believe that the convention was well established and that there would be no need for legislation, but the Minister's remarks made me realise that that is not so. He said that people might be reluctant to become Lord Chancellor because that would interfere with their future career prospects—an observation that goes to the heart of the concerns felt by me and by the Committee.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

A story has been going around the Bar for some years that, when the present Lord Chancellor took office, the Lord Chief Justice suggested to him that, as he would not sit as a judge, it might be a mistake to take the judicial oath because it might cause him problems with his future career. I cannot help but think that one of the reasons why the Government resist this proposal so hard is the problem that it would pose to the present Lord Chancellor.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

I make no prediction about the duration in office of the present Lord Chancellor—I will not even quote what the Lord Chief Justice was alleged to have said about his many endearing qualities—but something quite important is at stake. We have probably lost the conventions during the argument. We are considering a Minister with a substantial Department that involves a lot of spending, and there may be a case of his sitting in the House of Commons and it may not be essential for him to be a lawyer. If we start to add all those things together, the convention could go out with the bathwater. It is a valuable convention for all the reasons that have been given—I do not want to repeat them—and I see no other way to safeguard it or to signal that we think it important than by supporting the new clause, so I intend to do so.

Photo of Professor Ross Cranston Professor Ross Cranston Labour, Dudley North

I congratulate the Opposition on raising this serious issue; but, on balance, they are wrong. I accept all that Mr. Grieve has said about the need for my right hon. and hon. Friends to respect the judiciary, but mutual respect is needed. The judiciary itself must respect what Parliament has done and what the Executive do in accordance with our constitution, but there are three reasons why the Opposition are wrong on balance.

First, we are recasting the office of Lord Chancellor in relation to the statutory obligations that we have already considered in clauses 1 and 4, and the obligations to protect the rule of law and respect the independence of the judiciary. We are recasting the office in terms of the concordat, whereby the Lord Chief Justice, for example, has a much enhanced role. So the first reason is that the office has a different character.

The second point is that there is no comparable provision in the other jurisdictions to which we might look. I know the situation in Canada and Australia best of all, and there is no suggestion that their Attorneys-General, who occupy a role that combines that of our Attorney-General and Lord Chancellor, are precluded from going on to other high ministerial office. The best example that I know is Sir Nigel Bowen, who was a Conservative Attorney-General in Australia. I worked with him very closely on an inquiry. He became the Australian equivalent of Foreign Secretary, and there is no suggestion that he in any way pulled his punches, while Attorney-General, in protecting the independence of the judiciary.

The third reason is that convention is important—I agree with Member for Beaconsfield and the Liberal Democrats in that respect—but we should allow such conventions to develop. A convention may develop that the people who occupy the role ought not to go on to accept other ministerial office. The great office of Lord Chancellor has changed over the centuries depending on the historical context. My hon. Friend the Minister is absolutely right to say that we ought not to stifle the development and evolution of that office as it faces new challenges.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am interested to hear the contributions that have been made. I am particularly grateful to Simon Hughes and Mr. Beith for their support. I note entirely what the Minister and Ross Cranston have said, but my view is that the new clause is important and I wish to press it to the vote.

Question put, That the clause be read a Second time:—

The Committee divided: Ayes 167, Noes 283.

Division number 107 Orders of the Day — Constitutional Reform Bill [Lords] — [3rd Allotted Day] — New Clause 9 — Disqualification from holding further ministerial office

Aye: 167 MPs

No: 283 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

It being more than five hours after the commencement of proceedings in Committee, The Second Deputy Chairman, pursuant to Orders [17 and 31 January], put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

New schedule 1 brought up, read the First and Second time, and added to the Bill.

Government amendments Nos. 647 and 648 made.

Clause 22, as amended, ordered to stand part of the Bill.

Government amendment No. 57 made.

Clause 23, as amended, ordered to stand part of the Bill.

Government amendments Nos. 58 to 80 made.

Schedule 7, as amended, agreed to.

Government amendments Nos. 81 and 82 made.

Clause 24, as amended, ordered to stand part of the Bill.

Government amendments Nos. 83 to 87 made.

Clause 25, as amended, ordered to stand part of the Bill.

Government amendments Nos. 88 to 93 made.

Clause 26, as amended, ordered to stand part of the Bill.

Government amendments Nos. 94 to 98 made.

Clause 27, as amended, ordered to stand part of the Bill.

Government amendments Nos. 99 to 102 made.

Clause 28, as amended, ordered to stand part of the Bill.

Clauses 29 and 30 ordered to stand part of the Bill.

Government amendments Nos. 103 and 104 made.

Clause 31, as amended, ordered to stand part of the Bill.

Government amendments Nos. 105 and 106 made.

Clause 32, as amended, ordered to stand part of the Bill.

Government amendments 107 and 108 made.

Clause 33, as amended, ordered to stand part of the Bill.

Clause 34 ordered to stand part of the Bill.

Government amendment No. 109 made.

Clause 35, as amended, ordered to stand part of the Bill.

Government amendments Nos. 110 and 111 made.

Clause 36, as amended, ordered to stand part of the Bill.

Clauses 38 to 41 ordered to stand part of the Bill.

Government amendment No. 112 made.

Clause 42, as amended, ordered to stand part of the Bill.

Government amendments Nos. 113 to 115 made.

Clause 43, as amended, ordered to stand part of the Bill.

Clause 44 ordered to stand part of the Bill.

Government amendment No. 116 made.

Clause 45, as amended, ordered to stand part of the Bill.

Government amendment No. 117 made.

Clause 46, as amended, ordered to stand part of the Bill.

Government amendments Nos. 118 to 122 made.

Clause 47, as amended, ordered to stand part of the Bill.

Clause 48 ordered to stand part of the Bill.

Government amendments Nos. 123 to 125 made.

Clause 49, as amended, ordered to stand part of the Bill.

Government amendment No. 126 made.

Clause 50, as amended, ordered to stand part of the Bill.

Government amendments Nos. 127 and 128 made.

Clause 51, as amended, ordered to stand part of the Bill.

Clause 52 disagreed to.

Clause 53 ordered to stand part of the Bill.

Government amendments Nos. 129, 649 and 650 made.

Schedule 9, as amended, agreed to.

Government amendment No. 130 made.

Clause 54, as amended, ordered to stand part of the Bill.

New clauses 31, 43 and 44 and new schedule 3 agreed to.

Clause 55 ordered to stand part of the Bill.

Government amendments Nos. 131, 651, 574, 652, 653, 132, 575, 133, 654 to 657, 134 to 141, 576 to 579, 142, 580, 143, 144, 581 and 145 to 175 made.

Schedule 10, as amended, agreed to.

Clause 56 ordered to stand part of the Bill.

Government amendments Nos. 176, 582, 658, 659, 583, 660, 661, 177, 178, 640, 179 to 197, 584 and 198 to 202 made.

Schedule 11, as amended, agreed to.

Clause 57 ordered to stand part of the Bill.

Government amendment No. 203 made.

Clause 58, as amended, ordered to stand part of the Bill.

Government amendments Nos. 204 to 208, 585 and 209 made.

Clause 59, as amended, ordered to stand part of the Bill.

Government amendments Nos. 586 and 587 made.

Clause 60, as amended, ordered to stand part of the Bill.

Government amendment No. 588 made

Clause 61, as amended, ordered to stand part of the Bill.

Clause 62 ordered to stand part of the Bill.

Government amendments Nos. 215 to 218 made.

Clause 63, as amended, ordered to stand part of the Bill.

Government amendments Nos. 219, 589, 220, 590, 221, 591, 222, 223 and 592 made

Clause 64, as amended, ordered to stand part of the Bill.

Government amendments Nos. 224 to 228 made.

Clause 65, as amended, ordered to stand part of the Bill.

Government amendments Nos. 229 to 232 and 593 made.

Clause 66, as amended, ordered to stand part of the Bill.

Amendments made: Nos. 594 and 595.

Clause 67, as amended, ordered to stand part of the Bill.

Government amendment No. 596 made.

Clause 68, as amended, ordered to stand part of the Bill.

Clause 69 ordered to stand part of the Bill.

Government amendments Nos. 237 to 240 made.

Clause 70, as amended, ordered to stand part of the Bill.

Government amendments Nos. 241, 597, 242, 598, 243, 599, 244, 245 and 600 made.

Clause 71, as amended, ordered to stand part of the Bill.

Government amendments Nos. 246 to 250 made.

Clause 72, as amended, ordered to stand part of the Bill.

Government amendments Nos. 251 to 254 and 601 made.

Clause 73, as amended, ordered to stand part of the Bill.

Government amendments Nos. 602, 255, 603 and 256 made.

Clause 74, as amended, ordered to stand part of the Bill.

Government amendments Nos. 662, 562, and 622 to 625 made.

Schedule 12, as amended, agreed to.

Clause 75 disagreed to.

Government amendments Nos. 605 and 606 made.

Clause 76, as amended, ordered to stand part of the Bill.

Government amendments Nos. 262 to 265 made.

Clause 77, as amended, ordered to stand part of the Bill.

Government amendments Nos. 266, 607, 267, 608, 268, 609, 269, 270, 610 and 611 made.

Clause 78, as amended, ordered to stand part of the Bill.

Government amendments Nos. 271 to 275 made.

Clause 79, as amended, ordered to stand part of the Bill.

Government amendments Nos. 276, 612, 277, 278, 613, 279 and 614 made.

Clause 80, as amended, ordered to stand part of the Bill.

Government amendments Nos. 280 and 281 made.

Clause 81, as amended, ordered to stand part of the Bill.

Clause 82 disagreed to.

Government amendments Nos. 616 to 618 made.

Clause 83, as amended, ordered to stand part of the Bill.

Government amendments Nos. 285 to 288 made.

Clause 84, as amended, ordered to stand part of the Bill.

Government amendment No. 289 made.

Clause 85, as amended, ordered to stand part of the Bill.

Government amendment No. 290 made.

Clause 86, as amended, ordered to stand part of the Bill.

Government amendments Nos. 291 to 293 made.

Clause 87, as amended, ordered to stand part of the Bill.

Government amendment No. 294 made.

Clause 88, as amended, ordered to stand part of the Bill.

Government amendments Nos. 295 to 298 made.

Clause 89, as amended, ordered to stand part of the Bill.

Government amendments Nos. 299 and 300 made.

Clause 90, as amended, ordered to stand part of the Bill.

Government amendment No. 301 made.

Clause 91, as amended, ordered to stand part of the Bill.

Clause 92 ordered to stand part of the Bill.

Government amendment No. 302 made.

Clause 93, as amended, ordered to stand part of the Bill.

Government amendments Nos. 303, 626 and 627 made.

Clause 96, as amended, ordered to stand part of the Bill.

Government amendments Nos. 628, 304, 305, 629, 630, 307 and 631 made

Clause 97, as amended, ordered to stand part of the Bill.

Government amendments Nos. 308, 632 and 309 made.

Clause 98, as amended, ordered to stand part of the Bill.

Government amendments Nos. 310 and 311 made.

Clause 99, as amended, ordered to stand part of the Bill.

Clauses 100 to 103 disagreed to.

Government amendments Nos. 619, 620, 637 and 621 made.

Clause 104, as amended, ordered to stand part of the Bill.

Motion made, and Question put, That new clauses 11 to 19, 21 to 25, 28 to 30 and 42 be read a Second time:—

The House proceeded to a Division.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

On a point of order, Sir Michael. Leaving aside the fact that hundreds of amendments are being pushed through at the end of the process without their being examined, new clause 42, which the Government have adopted, was tabled not as a Government amendment but as a Back-Bench amendment for consideration by the Committee. It has not been considered. Although it may be desirable, it alters substantially assurances that the Government gave in another place that the only criterion for the appointment of the judiciary would be merit. Is it in order for the Government to act in that way, especially when no notice was given to the Opposition or anyone else until early this afternoon that the Government viewed the new clause with favour? Consequently, it is impossible to consult sensibly on whether it should be supported.

The Second Deputy Chairman:

I understand the hon. Gentleman's point but the Government's actions are clearly laid down in Standing Orders and are not a matter for the Chair. We must proceed with the Division.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

On a point of order, Sir Michael. First, I congratulate you on making probably the longest contribution—

The Second Deputy Chairman:

Order. If the hon. and learned Gentleman wishes to make a point of order, it would be more sensible if we first completed the Division and he raised it subsequently.

The House having divided: Ayes 296, Noes 127.

Division number 108 Orders of the Day — Constitutional Reform Bill [Lords] — [3rd Allotted Day] — New Clause 9 — Disqualification from holding further ministerial office

Aye: 296 MPs

No: 127 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly agreed to.

New Clauses 11 to 19, 21 to 25, 28 to 30 and 42 read a Second time, and added to the Bill.

Clause 110 ordered to stand part of the Bill.

Schedule 13 agreed to.

Clause 111 ordered to stand part of the Bill.

Government amendment No. 466 made.

Clause 112, as amended, ordered to stand part of the Bill.

Clause 113 ordered to stand part of the Bill.

Government amendment No. 319 made.

Clause 114, as amended, ordered to stand part of the Bill.

Government amendments Nos. 320 and 663 made.

Clause 115, as amended, ordered to stand part of the Bill.

Government amendments Nos. 321,638 and 467 made.

Clause 116, as amended, ordered to stand part of the Bill.

Clause 117 ordered to stand part of the Bill.

Government amendments Nos. 468 to 470 and 16 made.

Schedule 14 agreed to.

Clause 118 ordered to stand part of the Bill.

Government amendments Nos. 471, 472, 563 to 565, 473, 566, 474, 567, 475 to 478, 568, 569, 479, 480, 570, 571, 481 to 483, 572, 573, 484, 485, 368, 486, 664, 665, 487 and 666 made.

Schedule 15, as amended, agreed to.

Government amendment No 641 made.

Clause 119, as amended, ordered to stand part of the Bill.

Government amendments Nos. 322, 488, 489, 323 and 324 made.

Clause 120, as amended, ordered to stand part of the Bill.

Government amendment No. 642 made.

Clause 121, as amended, ordered to stand part of the Bill.

New Clauses 32 to 41 agreed to.

New schedule 2 agreed to.

Bill reported, with amendments

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats 6:41 pm, 1st March 2005

On a point of order, Sir Michael. I have a predictable point of order. I do not remember ever having been in the House previously when the proposals from the Chair for amendments, new clauses and new schedules have taken 27 minutes, without the Division. I do not pretend to be 100 per cent. accurate, but by my calculation there were 91 clauses, 8 schedules, 31 Government new clauses, one non-Government new clause, two new schedules and 102 amendments. Apart from asking whether anyone in this place keeps records—as I think that we have broken one—is there anything that we can do, if we anticipate that this is what is likely to happen, other than to ask the Procedure Committee to re-examine this process? This is the second day in a row—I understand that today's context is not as controversial as yesterday's—when a major constitutional Bill, on the Floor of the House, has not been debated. Many perfectly reasonable Government amendments that were made, and one or two new clauses and amendments from the Opposition, have not had a chance of debate. That does not do a service to the legislation or the cause and certainly does not do a service to Parliament.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Further to that point of order, Sir Michael. Simon Hughes completed the point of order that I was intending to make to you during the Division. I fully accept that that was perhaps not the most convenient time to take it. Is there no procedure, however, whereby a Minister who introduces a guillotine motion to curtail debate on a Bill, and on this Bill in particular, can be required to explain himself after the event so that he can justify, after what he has done, what he intended to do beforehand?

I presume that all Ministers come to the House with the good motive of wishing to allow the House ample time to discuss their legislation. Clearly, Sir Michael, you have been on your feet for nearly half an hour, which is probably the longest contribution that you have made on the Floor of the House since becoming a Deputy Speaker. I am delighted for you, but it is an abuse of our constituents and of our role as Members of Parliament, of which you are one, for a Government to deal with constitutional legislation, or any legislation, in this way. You may say that that is no more than a point of frustration, and not a point of order that you can deal with. None the less, the Government are increasingly abusing this place and we increasingly look to the Chair to protect us and the integrity of our procedures.

I appreciate that you, Sir Michael, are as much a servant as a master of this House and that you must do what the House—through the Executive telling Parliament what to do—dictates. We live by the fiction that we in this place are free agents, and that being understood I urge you to apply some pressure to persuade the Government to behave themselves.

The Second Deputy Chairman:

I think that I have understood the hon. and learned Gentleman. On the first of several points that he made, concerning the Minister's providing an explanation, I am afraid that no allowance is made in our proceedings for requiring such an explanation, so there is nothing that the Chair can do about that.

On the original point of order from Simon Hughes, all that I can say is that we have done things this evening absolutely correctly and as the House—until now, at least—decided that we should do them. I am sure that all his remarks will have been noted by everybody in the House; perhaps the House will want to return to this issue on another occasion.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

Further to that point of order, Sir Michael. To be fair to the Government, it is worth recognising that a substantial number of the amendments involved putting back the words "Lord Chancellor", which is what the House desired.

The Second Deputy Chairman:

That is absolutely true. A number of amendments were technical, but the House will be able to decide for itself which were and which were not. That is now a matter for the record.

Order for Third Reading read.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs) 6:46 pm, 1st March 2005

I beg to move, That the Bill be now read the Third time.

The Bill's Second Reading has been debated on the Floor of the House, followed by three full days in Committee on the Floor of the House. That process was agreed through the usual channels following discussion about there being insufficient time. We have had an interesting and long discussion in Committee, but even so a number of amendments, new clauses and schedules were adopted that we did not have time to discuss. Of course, that is always a matter of regret, but I pay tribute to Peter Bottomley, who leapt to my defence—that was unsurprising;
nevertheless, I shall remember it—to point out that many amendments were consequential and drafting amendments that simply replaced the word "Minister" with the phrase "Lord Chancellor." Of course, that was not the Government's original intention;
rather, it was a reflection of the debate and of having listened to concerns expressed here and in the other place. It was unfortunate that we had to go through such amendments one after the other, but they did constitute the bulk of those tabled.

That said, other matters arose as well, and in the light of the earlier request that I deal with them I shall try my best to do so.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

In this spirit of comradeship, does the Minister accept that if the Government had thought before they spoke in creating this constitutional disarray—if they had asked the Lord Chancellor to agree not to sit as a judge and if they had agreed with the senior Law Lords that they should not take part in partisan debates—we would not have needed these provisions?

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

The hon. Gentleman has just spoiled his standing in my eyes with that contribution; if only things could have stayed as they were. I am afraid that I disagree with him on that point.

This significant Bill is driven forward by a number of fundamental principles, the first of which is clarifying the relationship between the three arms of the state—the legislature, the judiciary and the Executive—thereby allowing a Minister with an unambiguous constitutional role to focus on the administration of the courts and the justice system. Another principle is modernising the constitution to make it better fitted to carrying out its vital role in a modern democracy, and a third is providing the public with greater confidence in the clearer shape and nature of each of its branches.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I take the Minister back to what he said to my hon. Friend Peter Bottomley, who was indeed right to say that many of the Government's amendments merely substituted the word "Minister" with the phrase "Lord Chancellor." One thing that has to be assessed when the usual channels negotiate how much time should be allowed for discussing a Bill is which issues will require close debate. In such circumstances, if the Government do not indicate beforehand that they will adopt Back-Bench amendments, there is no opportunity for Members to understand the Government's thinking or to ask for sufficient time to debate those issues.

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

I understand that the hon. Gentleman is talking about new clause 42, proposed by my hon. Friend Keith Vaz. It is a simple new clause, which I can read out now that it has been adopted in the Bill. It states that the judicial appointments commission, in performance of its functions

"must have regard to the need to encourage diversity in the range of persons available for selection for appointments."

The provision is subject to clause 57, according to which selection must be "solely on merit" and the person should be "of good character". It is a simple and, I would have thought, wholly uncontentious new clause.

This admirable and worthy provision has been welcomed by the judiciary and its genesis lies with the Constitutional Affairs Committee. I would have thought that our adoption of it accords with the spirit of responding to debate and to suggestions from the Select Committee. Instead of rebutting these sorts of provisions, Opposition Members should listen and allow a level of dialogue to take place, even if not in this particular debate. I have sought to respond to appropriate suggestions, which is why I accepted the new clause.

New clause 42 has been available for Members to view in the amendment paper and hon. Members have been able to make their judgments about it. I accept that it is buried away in a number of other amendments, but it is there and it was wrong to vote against it. I regard voting against it as extremely regrettable. Perhaps, on further reflection, Opposition Members will accept the provision in the other place.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It is indeed the case that when the provision is subjected to proper scrutiny in the other place, those who follow the Conservative Whip will have had a further opportunity to discuss the matter and may decide that they are content with it. However, it is simply not good enough for the Government to adopt a Back-Bencher's new clause that is not their own without expressing their view on the Select Committee's report, when they know perfectly well that when the issue was extensively debated in the other place they accepted the centrality of basing judicial appointment wholly on merit. I fully accept that what the Government have done may not wholly dilute that aspect, but it nevertheless has an impact on it. The Government should not have behaved in that fashion.

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

I am getting mixed messages from Conservative Members. They say that we should respond to debate and not simply railroad Government amendments through. If sensible amendments are proposed by the Select Committee or by hon. Members, we are encouraged to respond to them. That is precisely what I have done. It is not my fault that we did not have sufficient time to debate that particular part of the Bill in full. It was a matter for hon. Members, some of whom—they are no longer in their places—spoke for considerable periods of time on matters connected with the oath and so forth, which others may feel was excessive. Nevertheless, what happened was all in order; if it were not, we would not have been able to adopt the new clause. I am glad that new clause 42 now stands part of the Bill and I hope that my hon. Friend the Member for Leicester, East will make some further comment on it later.

I return to my overview of why the Bill should have its Third Reading. It reforms the office of Lord Chancellor, removing the bloodlines between Ministers and present judicial roles and removing outdated functions. It ends the Lord Chancellor's judicial functions, ensuring that his responsibilities for the judiciary are exercised under a new transparent statutory arrangement in the form of a concordat with the Lord Chief Justice. Reform will enable that Minister to focus on his and the Government's main priority—the delivery of essential public services. We also recognise the Lord Chancellor's important role in the administration of the courts and in accounting for the appointment of judges.

The Bill gives all Ministers, particularly the Lord Chancellor, a statutory duty to uphold the independence of the judiciary. It creates a free-standing UK supreme court, separating the highest appeal court from the upper House and removing the Lords of Appeal in Ordinary from the legislature—a very important step forward. The Bill ensures that the judiciary's voice can be heard and represented to Parliament and that our highest appeal court will be visibly separated from the legislature by being housed outside the Palace of Westminster, our first preference being Middlesex Guildhall. It also puts beyond any doubt the independence from politics and the legislature of the UK's highest appeal court.

The Bill also sets up the new judicial appointments commission, an independent body responsible for selecting judges in England and Wales. It sets out the process to be followed in appointing judicial office holders and in making complaints to the ombudsman.The Bill defines the limitations of the Lord Chancellor's role in the appointment of judges, and provides real accountability over appointments. It is no longer appropriate for a Minister to have unfettered discretion in the appointment of judges. The Bill also makes provision for a new disciplinary process for the judiciary that is open, transparent and accessible. The JAC will have a positive and beneficial impact on the diversity of appointments, even though all will be made solely on merit.

A further series of amendments was adopted in Committee, largely in relation to enshrining the concordat and making parallel provisions for Northern Ireland. However, the Bill's rationale is clear and simple: it is to provide a modern footing for the relationship between the Government, the judiciary and Parliament.

The Bill restates and strengthens judicial independence and will ensure the better administration of the courts, with a full-time Cabinet Minister overseeing nearly £3 billion of public expenditure. It also makes clear the responsibilities necessary for the vital functions of a modern democracy.

Our constitutional history is one of the longest and most illustrious of any country in the world. It has evolved gradually, but constantly, over the centuries. Change and reform are core features of our system of governance; they are not alien to it. The changes in the Bill will further enhance and improve our constitution so that it is fit for the 21st century.

I commend the Bill to the House.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs) 6:56 pm, 1st March 2005

We now find ourselves at the end of a full day of business on the Constitutional Reform Bill. Hon. Members have covered a certain amount of it as a Committee of the whole House, but more than half the clauses have not been considered today. Hundreds of clauses and amendments remain unconsidered and the Government have adopted amendments tabled by Back-Bench Members that have not even been debated. It may be an academic matter to protest now, but the Government can take no pride in their handling of the timetable for a Bill of such constitutional significance.

This afternoon, some controversial proposals have been pushed through, among them provisions relating to the Lord Chancellor's oath, the speakership of the House of Lords, and the land charges search fees levied by local authorities. Of course, many of the clauses are not fundamentally in dispute as they deal with issues covered by the concordat between the Lord Chancellor and Lord Chief Justice. For example, the Opposition remain generally supportive of the judicial appointments commission—although, despite the wording in the Bill, we still fear the influence of a candidate's politics or crony potential on his or her chances of selection as a judge.

As we have made clear from the outset, Opposition Members are not opposed to those aspects of the Bill that bring into force the sensible redefining of the relationship between the judiciary and the Government. However, the positive measures implementing the concordat do not make up for the serious damage that this Bill, in its entirety, will do to this country's delicate constitutional balance which has protected Britain's people and judiciary so effectively up to now. I maintain the view that I expressed on Second Reading. This Bill represents nothing less than constitutional vandalism in the way it sets out to replace the long-standing Appellate Committee of the House of Lords with an unnecessary supreme court, as well as in its undermining of the historical office of the Lord Chancellor.

Indeed, the situation in relation to the Lord Chancellor has become much worse since Second Reading. The other place rightly saw fit to amend the Bill to require the holder of that position to be a member of the House of Lords and a person who had previously been a senior lawyer or judge. The argument for those requirements was entirely valid. They would ensure that the traditional upholder of the rule of law and the guardian of judicial independence had an understanding of the legal significance of events with which he or she might be confronted. By overturning those requirements, the Government have done nothing to further the rule of law that they purport, in clause 1, to uphold. Presumably, we are supposed to feel grateful that the Government have at least respected the Opposition amendment in another place that ensured that the position of Lord Chancellor remained in existence.

As I said, a new supreme court is being thrust upon us. I make no apology for reiterating the effects of that proposal. The creation of such a court will guarantee only unnecessary upheaval and exorbitant costs. The principle of the separation of powers does not require such a change, and neither does the Human Rights Act 1998, which has not been used successfully to challenge our present position. No lack of integrity and independence on the part of the Law Lords necessitates such action. Contrary to what the Government have previously maintained, we believe that the role of the Law Lords is widely understood by the British public.

A starting estimate of £30 million in set-up costs and an estimated £8.8 million in annual running costs will be required for the new court. By contrast, for a little over £168,000 a year, we already have a final appeal court in the Appellate Committee, which is admired at home and abroad for its authoritative rulings. The Lords of Appeal in Ordinary will be removed from Parliament, reducing the quality of debate and legislation in the other place. The Law Lords will lose the benefit of their existing location at the heart of government.

The many reasons for opposing the Bill have been made quite clear throughout the debates in the House. The Government are modernising for the sake of it, and the Conservative party cannot go along with that. I ask the House to take what may be its final opportunity to vote against the Bill, which is damaging to our constitution and wasteful and unnecessary in practice.

Photo of Keith Vaz Keith Vaz Labour, Leicester East 7:01 pm, 1st March 2005

I want to speak briefly on Third Reading because we have rehearsed the arguments over so many days and, indeed, a number of months since the Government first published their proposals.

I pay tribute to the Minister, who has conducted himself eloquently and tirelessly in ensuring that the House has an opportunity to be provided with as much information as possible, and he has done it all with good humour. I thank him for the work that he has done in ensuring that the Bill passes all its stages.

I want to say how pleased I am that the Lord Chancellor and the Minister have worked so hard with the judiciary. Certainly, when these proposals were announced, some of those in the senior judiciary were concerned about some of them. There was concern in the judicial part of the House of Lords and a number of Law Lords were not consulted about what was happening. Since then, we have agreed the concordat with the Lord Chief Justice. I am glad that we worked with the judiciary because we have the finest judiciary in the world. It is important that the judiciary should be kept fully informed of the developments and properly consulted, and I now think that the judiciary support the reforms. I hope that the Minister will take the message from the House to those in the senior judiciary that we will consult them on matters that concern them and ensure that we consider their views.

What has saddened me tonight, however, is the attitude of Mr. Grieve and the Conservative party's decision to vote against diversity in the House. It is appalling that a party that claims to the black and Asian communities and on the gender issue that it is in favour of diversity should wish to vote against an innocuous clause proposed by the Government—new clause 42.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

Hang on—wait a minute. The hon. Gentleman will attend an Asian function in the House this Saturday. He attended Baisakhi last year. I think that he even put a turban on his head in the middle of Baisakhi. He says to the ethnic minority community that his party is in favour of diversity, yet he comes to the House and votes against diversity. [Interruption.] He has had a lot to say. Let me just say that he should have known about the substance of new clause 42 and we cannot do his homework for him. He is a clever man and I should have thought that he would have established what that clause was intended to do.

First, it was originally proposed by myself, his hon. Friend Peter Bottomley and my hon. and learned Friend Ross Cranston, who is, sadly, to retire from the House, despite his distinguished service in the Government and on the Select Committee on Constitutional Affairs. It is obvious that when the three individuals concerned all signed the same proposal, it is worth reading and considering very carefully.

Secondly, new clause 42 comes straight from Northern Ireland legislation. It reflects exactly what was intended in respect of the Northern Ireland Judicial Appointments Commission.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

I will when I have finished making my point.

The proposal has worked well in Northern Ireland and it was therefore appropriate to suggest it again. The third point is that the clause is specific on merit. No woman and no black or Asian person in this country wants to be appointed to any job on the basis of their colour or gender. The first and overriding consideration is merit, and that is exactly what new clause 42 states. That is why it is written in terms that allow merit to be the overriding consideration.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am sorry to note that the hon. Gentleman's sensible points are, characteristically, marred by the malevolence of tone that he so habitually adopts. He knows that the Conservative party is proud of promoting diversity, but as a parliamentarian I want to ensure that the Government do what they promise. Central to the Bill has been their promise that judicial appointment wholly on merit would be preserved. If the Government wanted to table a sensible amendment, I would have expected them to do so in a way that guaranteed debate and with their views known to the House before they did so.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

That was not an opportunity for the hon. Gentleman to make another speech. He is wrong and the message will go out to the community today that the Conservative party—despite what it said during the Leicestershire, South by-election when the Leader of the Opposition ran from mosque to mosque saying that he was in favour of diversity, despite what the shadow Home Secretary said at the Diwali function at the Dorchester hotel last year when he tucked into his chicken tikka masala and told everyone that he was in favour of diversity, and despite what the hon. Member for Beaconsfield says at ethnic minority community functions—when it came to the crunch, it voted against diversity. That is a shame on the Conservative party and a shame on the hon. Gentleman.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats 7:07 pm, 1st March 2005

May I first thank the Minister? Although the Liberal Democrats did not like the programme motion, nor the fact that we did not debate so much of the Bill, he dealt with matters today with his usual expertise, competence, courtesy and friendliness. We are grateful for that because it helps to alleviate the other criticisms, which we do not lay largely at his door.

My hon. Friend Mr. Heath has had the conduct of the Bill through the House, except today, with the assistance of my hon. Friend Mr. Tyler. My right hon. Friend Mr. Beith, who was in his place for most of the day and chairs the Constitutional Affairs Committee, gave his apologies as he had to be at another event now, but he has been assiduous in ensuring that the Committee and all its members played their full part in contributing to our deliberations. We owe them all our thanks.

Keith Vaz raised, with his usual intensity, new clause 42, which was tabled by Peter Bottomley and others. My colleagues and I supported that new clause and voted for it with enthusiasm. We believe that it should be added to the Bill, but I will not join the hon. Member for Leicester, East in criticising Mr. Grieve and his colleagues for saying that the new clause should have been debated in the House and in Committee. The Government did not say that they would support it. They are entitled to do so, but in the 27 minutes of unbroken recital of new clauses, new schedules and amendments, there was no chance to discuss any of them. It is proper to say that we should debate it.

I accept that no woman or member of a minority ethnic community wants to be promoted within the legal profession on any grounds other than merit. I also accept the huge pool of talent that there was, is and will be from women and black and ethnic minority communities. I have held the strong view for many years that they have been under-represented by miles in judicial appointments at the highest level. Only in the last 12 months has the first woman made it to the most senior court in the land. That delay has done us no credit, but I am pleased that it has happened at last.

None the less, we should have been able to have this debate and the new clause could then have been judged on its merits. That has been our view for a long time, and it is unreasonable to associate a lack of concern for these issues with the way in which the Conservative party voted on the issue.

Turning to the matter of substance, the Bill is important and substantial—all 227 pages of it. I think that it is the last of the Bills envisaged under the Cook-Maclennan agreements made before the 1997 general election by Mr. Cook and my colleague Lord Maclennan of Rogart, as he now is. Our parties put forward a set of constitutional proposals that we said we would want to introduce when either of us were in government. Labour was elected and did good things in its initial period in government, including passing the Human Rights Act 1998. That has been spoilt by the question of derogating, but that is a sad and separate story.

The time has long come for the reforming proposal that lies behind the Bill. I do not think that in any other modern or older democracy throughout the world, the roles of the Speaker of one of the Houses of Parliament, a Minister in the Executive and the most senior judge have been fused and carried out by one person. It is absolutely proper to argue that the roles should be separated.

I support a two-Chamber Parliament, with a principal Chamber and a second revising Chamber. In passing, may I say that I support a predominantly elected second Chamber and hope that we will have one before long? I think that that was on the Prime Minister's agenda at one point, but it has slipped a bit as he has changed his view in a retrograde way. It is self-evident that the two Chambers of Parliament should choose their own Speakers and call them what they want.

Additionally, there should be a Minister of Justice—he will now still be called the Lord Chancellor—who is accountable to parliamentarians, one hopes in the elected House of Commons. That will be the case in the future. There should also be a separate, independent and free-standing supreme court for the United Kingdom. It should be seen as separate from legislative and party pressures and able to do its new job. That is not to say that the Law Lords have not done a good job. We value hugely what they did as recently as December when they found that the Government had acted illegally and that the law of this country was contrary to the European convention on human rights. They thus effectively called on us to repeal the law, which we will inevitably now do. However, in modern democracies, courts and supreme courts are separate from the legislature, and the Bill will allow us to achieve such separation.

It is important that we modernise the way in which we appoint our judges. The system set out in the Bill is not perfect, but it is much better than the existing one. We will have an independent commission and independent scrutiny. I personally would have preferred a structure under which the nomination of the Prime Minister would also require approval by a Select Committee, as is the case in the American Congress, as well as involving the judicial commission process, because that would have provided for extra protection.

The Bill changes ancillary matters to do with such matters as the Privy Council and its appellate functions. Those changes needed to be made, so it is right for us to modernise our judicial process.

We need a judiciary that is modern, but above all independent. When Liberal Democrats have criticised the Bill, it has been because the Government have not adequately ring-fenced that independence—we had one such debate today. However, with a few reservations, we warmly welcome the Bill, so my colleagues and I will support it on Third Reading, as we have done throughout its passage. We hope that it will be on the statute book soon, whatever the date of the general election.

Photo of Edward Garnier Edward Garnier Conservative, Harborough 7:13 pm, 1st March 2005

I am afraid that I cannot echo the enthusiastic praise for the Bill expressed by Simon Hughes. I can, however, join in the general feeling of warmth shown towards the Minister, who has done his best in a difficult job. No doubt he had to comply with some pretty unattractive instructions, not least of which was ramming the Bill through Committee as quickly as possible with minimum inconvenience to the Government or anyone else, save for those who care about the courts, the office of Lord Chancellor and the creation of a judicial appointments commission.

I shall make my next point briefly because I gather from a Government Whip that the Labour party wants to get away early, having done its business. I am sorry that food takes a greater precedence over a debate on an important constitutional issue, but that is the Parliament we now have.

The judicial appointment commission is unnecessary, but it is the least harmful of the measures. The supreme court is an utterly unnecessary and hugely expensive way of so-called reforming the highest appeal court in our land. It is no more than an artificial way of resolving a dispute between the former Home Secretary and the former Lord Chancellor. It has produced a great deal of sadness and upset, and no identifiable benefit. I do not buy the line produced by the hon. Member for Southwark, North and Bermondsey that it is necessary to have the highest court of appeal outside Parliament. No one who has thought about that for more than 30 seconds has ever thought that the Judicial Committee of the House of Lords was anything other than a court and that its judgments were anything other than legal judgments, rather than political speeches, but the majority have had their day and that is the end of that, at least until we know the result of the general election.

On the Bill's contents—this is allied to my remarks on the supreme court—the office of the Lord Chancellor, in every sense of the word as it has been understood for many years, has been destroyed. The description of the pubic office that will be wrapped with the words "Lord Chancellor" is unrecognisable to anyone who has any interest in the history of the office. Indeed, in another guise it is possible that the Government could be sued for passing off the post-Bill Lord Chancellor as the Lord Chancellor. He is nothing of the sort.

There is some importance attached to that position beyond the point about the new role of the Lord Chancellor. He has traditionally been the protector of the rule of law, protector of the judiciary against political interference, and upholder of the independence of the judiciary at the highest levels of government. Of course, that will go because he will not be anything other than a political Secretary of State, and good luck to him. He will not, however, have the authority, either as a politician and still less as the head of the judiciary, to speak for it on such issues. We will have to rely on the Attorney-General who, at the moment, is a Member of the other place.

I am sad to say that we no longer have lawyers on the Labour Benches who appeal to the Prime Minister and are up to doing the important job of the Law Officer in this House. I regret the fact that Ross Cranston is no longer the Solicitor-General. He was extremely good at it. He was not an aggressive "punch you in the face" politician. He made the grave mistake of thinking about what he wanted to say before he said it, which did not necessarily appeal to the Government.

At the moment we are blessed with Ms Harman as our Solicitor-General. No doubt she will long be in that office, and, if not long in that office, long remembered for her tenure of that office. However, I cannot put much faith in the Attorney-General's ability to protect the judiciary and uphold the rule of law when he suggested in the House of Lords today that the so-called précis of his advice on the legality of the invasion of Iraq was not a précis of anything that he ever said or wrote. It is extremely worrying that that is the quality of person who currently holds that office—irrespective of the Attorney-General's other merits—and that that is the state of affairs in which we find ourselves. I am not sure that I want to trust the independence of the judiciary to that sort of muddle.

I have said quite enough about the content of the Bill, and I want briefly to comment on the process by which we have reached its Third Reading. You, Mr. Speaker, will not have been present during the Committee stage, but will no doubt have had reported to you the fact that one of your deputies spoke for about half an hour simply to read out a list of clauses, amendments and other procedural material that we had no opportunity to debate. I congratulated him on making his longest contribution to the House since he became a Deputy Speaker. It is utterly regrettable that the House should allow itself to debate without proper consideration a book that claims to be a Bill and is as long and as thick as it is.

Those points are reinforced by what happened yesterday in this place, when we had to discuss the Prevention of Terrorism Bill in undue haste and when, in my submission, the procedures of this place were roundly abused by the Executive and the majority of Members of Parliament were prepared to let it happen, as they have again today. I do not know, Mr. Speaker, whether there is anything that we can realistically do about this suborning of the proper processes of deliberation in this place.

I am surprised that a Government with a majority of 165 do not have the self-confidence to allow their ideas, policies and legislation to be discussed and tested. It seems to me that a majority of 165 should allow a Government to be generous in their accommodation of other people's arguments, because they always know that they will win—that the compliant majority will deliver—and ought occasionally to do the decent thing and listen to arguments that they find unattractive. [Interruption.] I am hearing sedentary remarks from across the Chamber to the effect that tummies are rumbling, so I shall stop now and allow those Members to go away, enjoy whatever dinner it is that they wish to go to, and think a little more about the possibility that if they are re-elected, either as individuals or collectively, they may be forced to consider whether they have properly fulfilled their functions as Members of Parliament in holding the Executive to account. My view is that they have not, but should, and my concern is that this Bill and these proceedings are evidence of a total thoughtlessness—indeed, reckless disregard—for the people of this country in terms of how this House produces legislation.

I wish the House of Lords every opportunity to think hard about the Bill and to restore some common sense and constitutional propriety to our parliamentary procedures.

Question put, That the Bill be now read the Third time:—

The House divided: Ayes 280, Noes 118.

Division number 109 Orders of the Day — Constitutional Reform Bill [Lords] — [3rd Allotted Day] — New Clause 9 — Disqualification from holding further ministerial office

Aye: 279 MPs

No: 118 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly agreed to.

Bill read the Third time, and passed, with amendments.