Constitutional Reform Bill [Lords]

– in the House of Commons at 7:00 pm on 16th March 2005.

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Lords Reasons for disagreeing to Commons Amendments considered.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker 7:14 pm, 16th March 2005

I must inform the House that a message has been brought from the Lords, as follows. The Lords disagree to certain of their amendments made by the Commons to the Constitutional Reform Bill, for which disagreement they assign their reasons. They agree without amendment to the remaining amendments proposed by the Commons. Copies of the Lords reasons and motions and amendments relating to them are available in the Vote Office. They will be debated as a single group.

Lords reasons: Nos. 1A, 2A, 264A, 265A and 593A

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

I beg to move, That this House
does not insist on its amendments Nos. 1, 2, 264, 265 and 593, and beg to move amendments (a) to (e) in lieu thereof.

Despite the clear decision taken by this House a few weeks ago in February, the House of Lords has yet again insisted that the newly reformed office of Lord Chancellor must for ever be a peer, and must for ever be a lawyer with 12 years' service or a High Court judge with at least two years' service.

So much has now been agreed between both Houses on the Bill—a new judicial appointments commission, a new UK supreme court and the ending of the judicial role of the Lord Chancellor—that it seems bizarre for the Lords to have this continued attachment, first, to a statutory bar on anyone elected in this House from ever becoming Lord Chancellor, and secondly, from anyone with anything less than two years as a senior judge or 12 years in legal practice from holding what in future will be a wholly ministerial post.

Despite hours, days and months of protracted debate, their lordships seem to have suffered a bout of collective amnesia and forgotten that the core, essential nature of the role of Lord Chancellor is changed and reformed fundamentally by this Bill. The Lord Chancellor will no longer be a Law Lord or head of the judiciary, so there is no longer any justification to insist that a Lord Chancellor must never be someone elected to this House of Commons.

Is there any reason why the Lord Chancellor must always be unelected? The answer is no. The Lord Chancellor will deliver public services with a budget of more than £3 billion and there is a strong case that, from time to time, the House of Commons should be able to hold that person directly to account. In our constitution, a Government are formed from the largest party group of elected MPs in this House. With the reformed office of Lord Chancellor no longer a Law Lord nor necessarily tied to the Woolsack in the other place, logic dictates that, in future, any Prime Minister should be able to make appointments from either House of Parliament, and not be fettered from selecting Ministers who can be held democratically accountable.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

This is a minor point, but the Minister said that we would be barring someone from this House from ever becoming Lord Chancellor. That was a slight slip. Although they cannot be Lord Chancellor while they are in this House, they could be if they went to the House of Lords. That has happened in the past.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs) 7:15 pm, 16th March 2005

In which case they would not be able to be Lord Chancellor while they were in this House. My point is quite simple. It would be irrational to pickle for ever the Lord Chancellor in an unelected House when the ministerial post has changed. Although it has the title "Lord Chancellor", it is a different post.

Are there any good reasons why the Lord Chancellor must always be a senior judge for two years or a lawyer for 12 years? No. Enshrining the new "concordat" that we have in the Bill between the Lord Chief Justice and the Lord Chancellor means that, henceforth, the Lord Chancellor will no longer be the head of the judiciary. The Bill removes the judicial functions from the post of Lord Chancellor, which fundamentally changes the nature of that role. There is nothing in the reforms that requires a Prime Minister to pick only a high judicial office holder or similar as one of his or her Ministers. Such a restriction could potentially narrow the field so greatly that perfectly eminent individuals—perhaps senior law academics—would be debarred by statute from appointment.

Photo of David Kidney David Kidney Labour, Stafford

I congratulate my hon. Friend on his deft finesse. Can he confirm that, although we will no longer have to choose a peer or lawyer, none of those qualifications is prevented from being taken into account by a Prime Minister in the future?

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

As usual, my hon. Friend hits the nail on the head. He is completely right to suggest that we will want to appoint the best person for the job. That is quite simply our intention, and part of the reason for our amendments. It may well be that, in practice, an individual with experience as a practising lawyer or, indeed, a Member of the House of Lords is the most appropriate and best person for the job. However, it is not inexorably the case that that will always happen.

Photo of John Bercow John Bercow Conservative, Buckingham

I have said it often enough, but I am happy to repeat it: I am not a lawyer and I say that as a matter of pride. Nevertheless, I can see some merit in the occupant of the office of Lord Chancellor having legal experience. I would not want to cavil for a moment at the motives of the hon. Gentleman or his ministerial colleagues. If, however, what they have in mind is a cunning plan at some stage to make Mr. Blunkett the Lord Chancellor, why not say so?

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

I was wondering which constituency beginning with "Sh" the hon. Gentleman was about to suggest might provide a future occupant for the post. I, too, am not a lawyer, but I agree that it may well be reasonable to assume that a practising lawyer would be a good person to have as Lord Chancellor. I would not want to say for a moment that that might not be a good qualifying criterion. However, I am saying that it would be wrong to enshrine in statute that, absolutely and in all circumstances, the post must be held by a lawyer with 12 years' experience or a senior judge with two years' experience.

Photo of Andrew MacKinlay Andrew MacKinlay Labour, Thurrock

I totally agree with the Minister's propositions and will be glad to support him in the Division Lobby, which will be a great relief to him. Just looking ahead a little, is it not time that this potty Parliament—I do not mean that disparagingly—had Ministers of either House going into either House? That is the real issue. The architects of legislation should see it through all the procedures. They would not have to work off a brief or be parrots for others. If a Lord Chancellor

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

We were just getting into it, Madam Deputy Speaker. Perhaps my hon. Friend will catch your eye later.

My simple point is that we need to find a way through the impasse. Therefore, we have made a suggestion. We are content to say, in the Bill, that

"A person may not be recommended for appointment as Lord Chancellor unless he" or she

"appears to the Prime Minister to be qualified by experience", and that the Prime Minister may take into account any of the following: experience as a Minister of the Crown; experience as a Member of either House of Parliament; experience as a qualifying legal practitioner or as a teacher of law in a university; or any other experience that the Prime Minister considers relevant.

In proposing that compromise, we acknowledge the concern that there may otherwise be nothing to continue the convention that a suitably experienced person should undertake this senior office within the Government.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I know that the Government specialise in meaningless words, but the hon. Gentleman must agree that if he reads the amendment in lieu, it amounts to nothing whatsoever. It is not worth the paper it is written on because the Prime Minister can still do exactly as he pleases.

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

It would have been possible for us simply to rebut the insistence that came from the other place, but we wanted, in the spirit of compromise, to answer those concerns that there was nothing in the Bill to enshrine a sense of convention that we should have suitably experienced individuals for this senior ministerial post. That is why we have put the compromise together in the form of an amendment in lieu.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

Surely, if the Prime Minister wants to, he may do all those things when he appoints any Minister in any Department. Does the hon. Gentleman at least accept what I understand to be the argument in favour of having an experienced senior lawyer? Whereas in the generality of ministerial posts, people like us are appointed to a variety of posts as they get reshuffled, and operate as generalists and politicians in this House, in the case of the Lord Chancellor, we want someone absolutely imbued with a sense of the independence of the judiciary and the supremacy of the rule of law, and who is not just part of the party political cab rank to which he and I are proud to belong.

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

I am sure that the right hon. and learned Gentleman is not ashamed of that fact. My point is simple. The nature of the Lord Chancellorship is changing. It will be a ministerial post. He will no longer be head of the judiciary or a Law Lord. We do not need the unnecessary legal qualificatory bar or the requirement that he must always be unelected. Heaven forfend that an elected person should hold a ministerial post. It is as simple as that, and that is why we have suggested broad criteria that might be desirable for holding the office of Lord Chancellor. It will still, of course, be a senior ministerial post. The right hon. and learned Gentleman is right to suggest that we would not want to fetter the Prime Minister unduly, which is why we hope to strike the compromise that we have produced.

Although we give examples of the sort of experience that might be desirable, we remain of the view that it is wrong to be unduly or rigidly prescriptive, because circumstances can change and we cannot predict entirely who might be the best person for the job in the future. Nevertheless, our amendment is tabled in a spirit which more formally recognises the desirable qualities of the reformed office of Lord Chancellor.

The battles and disagreements about the changes to the nature of the Lord Chancellorship have been had, debated and are largely resolved. It is a different job, with different characteristics, requiring different qualities, and it is time to accept that fact rather than fight the old arguments again by proxy.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

The more the hon. Gentleman talks about the difference and the changed nature of the job, the more he risks putting off those peers who might, at the end of the day, accept that that does not need to be specified in statute. At least some of them are concerned primarily that the person who holds the office should continue one present feature of the job—that its holder has the seniority, standing and view to enable him to challenge other Ministers when they seem to threaten the independence of the judiciary.

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

The right hon. Gentleman makes a worthwhile point: strength of character and integrity cannot simply be legislated for by saying that only people in the House of Lords or with 12 years' legal experience fulfil those criteria. In the compromise that we have proposed, we have tried to highlight the fact that we recognise that experience is required. The sorts of experience required are listed but they are not prescriptive. Our amendment sets out what is desirable, which is why we offer it as we do. It sets out in broad terms the qualities sought in candidates for the new lord chancellorship, and I hope that both Houses can accept that approach.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am sorry that the Minister is prolonging a dispute with the other place when we appear otherwise to be close to reaching an end to an important piece of legislation, which, for various reasons, it is desirable that we see on the statute book if possible. However, the way the Minister is proceeding does not give me confidence that there will be a satisfactory resolution of the outstanding matters.

The Minister starts on a completely false premise. He argued that, because the nature of the Lord Chancellor's job has changed, as provided for in the Bill, it is perfectly appropriate that the post should be held by any other Minister in the Commons. I must assume that he has read the Lords Hansard, where he would have seen that ever since debate on the measure started, one of the central issues that has had to be considered is the aversion voiced in the other place, and indeed by us, to the disappearance of the special role of the Lord Chancellor as a Minister different from other Ministers. The Government have been forced to acknowledge that during the passage of the Bill, even though they did not want to do so, because they have provided that the Lord Chancellor shall take a special oath of office; they have acknowledged that the Lord Chancellor should retain his historic title, marking him out from other Ministers; and most particularly—because they certainly did not intend to do this when they first floated these reforms—they have been forced to concede various guarantees about continued judicial independence that have been enshrined in the concordat. And who is the Minister who will oversee the protection of the concordat? It is the Lord Chancellor.

There really is no point in the Minister telling the House that because the Lord Chancellor will no longer sit as a judge there will no longer be a need for someone to be present who is intimately linked to protecting judicial independence. I have to tell the Minister that I have no faith whatever in the Government when it comes to protecting judicial independence.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Is not my hon. Friend's point further reinforced by the suggestion that a current or future Lord Chancellor, especially if he is a lawyer, should return to private practice having held that office? He cannot be responsible for the appointment of judges either as a tick-the-box man, following the recommendation of the judicial appointments commission, or as a direct appointee, and then go back to private practice to appear in front of the very judges whom he may have appointed.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The issue goes rather further than that. As I understand what the present Lord Chancellor is saying, not only may he himself wish to return to private practice when he comes to the end of his period as Lord Chancellor, but he will actually suggest—I believe, on Monday—that in future judges should be appointed as judges for periods of time and return to practice thereafter. That is something that fills me with enormous disquiet, but we shall have to return to that as and when that extraordinary announcement is made.

There is every reason to keep the Lord Chancellor as a lawyer and a lord. In the debate in the other place, I note that Lord Howe of Aberavon rightly pointed out that as late as 2002, in the Government's submissions to the Council of Europe about the role of Lord Chancellor, they spell out every argument that, even taking account of the changed role of the Lord Chancellor, justifies keeping the Lord Chancellor as lawyer and lord.

The Government say this of the Lord Chancellor:

"At the same time he is removed to the House of Lords, away from the full force of party politics. The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with a full understanding of legal culture and the rule of law. His tripartite role enables him to act as both a link and bulwark between the judiciary and the executive and the legislature. He can explain, defend and interpret each to the other."

The tripartite role may no longer exist, but the Lord Chancellor continues to have a dual role that fully justifies the maintenance of his exceptional status. I simply cannot understand how the Minister can come to the House and argue that the legislation changes that. He can argue that he does not want it, but there is no logic behind the position that he has adopted. As Mr. Beith said, there must be concern that, if the Lord Chancellor does not have that status, he will become prey to party politics.

Let us look at the question as one of logic and forget what party is in government, although I have to say that we have seen plenty of examples in this Parliament of Ministers laying into the judiciary. Mr. Blunkett expressed himself in fairly intemperate terms when he was Home Secretary, and I detect that his intemperance may grow now that he is no longer in that post. I am troubled by the prospect of ending up with a Lord Chancellor who is fairly junior in the hierarchy of Ministers, who is present in this House and who wishes to have a further career in politics; such a person will inevitably be subject to much greater pressure not to uphold the rule of law or to defend the judiciary.

The Attorney-General, although he has an important role in advising the Government, is not present in Cabinet to uphold the rule of law, whereas the Lord Chancellor is, on a permanent basis. The Attorney-General is only present by invitation. All the more reason, therefore, why we should ensure that there is a lawyer of distinction within Government to perform precisely that role. If the Minister had simply suggested that we also consider a distinguished teacher of law in a university as an addition to the provisions on a qualifying practitioner, his argument would have had some force and I would have been prepared to consider it; but to remove the requirement to be a lawyer when the Lord Chancellor will have to perform a series of legal and quasi-judicial functions to maintain the independence of the judiciary is a very foolish—and quite unnecessary—development, which increases our anxiety that the only reason why the Government have done it is that they have already identified a Member of this House whom they wish to appoint to the job as soon as possible. Listening to the right hon. Member for Sheffield, Brightside beginning to encroach on at least one limb of the role of Secretary of State for Constitutional Affairs by talking about Englishness the other day, it struck me that he was lining himself up for that very job. I do not want the right hon. Gentleman to get that job—ever. That possibility is a good reason in itself to ensure that the Lords amendments are maintained.

We shall stand by the Lords amendments and reject the absolutely vacuous amendment in lieu. I can only assume that this fig leaf of an amendment reflects the Government's slight queasiness about what they are doing. I urge the Minister to tell the Prime Minister and others that if they want the Bill, they should be sensible. The Bill contains good things, such as the creation of a judicial appointments commission—

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have always said that we share a view on the desirability of a judicial appointments commission. We can also share a view on the new role of the Lord Chancellor, provided that he remains in the other place as a lawyer, with the protections that that will give him correctly to discharge his functions as an exceptional Minister, serving the Government, but at the same time ensuring that the rule of law in this country is properly maintained.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

I rise briefly to support the Government amendments and to register my astonishment at what Mr. Grieve has just said. When the Government first produced the Constitutional Reform Bill, his predecessor, Mr. Duncan, who is not a lawyer, said that he would oppose it root and branch. However, the hon. Member for Beaconsfield now supports the Bill and has told this House for the first time that it contains good things. That conversion is marvellous, and I congratulate the Minister and the Lord Chancellor on their terrific job in convincing the Opposition of all the good things that the Bill contains.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman is labouring under a delusion. In those debates, we made it clear that the judicial appointments commission to reinforce the independence of the judiciary was an element of the Bill that we wholly support and that we accepted that there were knock-on consequences for the Lord Chancellor's role. However, we also said—we still say it—that setting up a supreme court is a terrible waste of money.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

The hon. Gentleman is cherry-picking. When the proposals were announced, the Conservative Opposition said that the proposals were a shambles and that they would oppose them. To give them their credit, the Liberal Democrats said that they supported the principle behind the proposals, but the official Opposition said that they were against them. I am glad that the official Opposition now support the Bill.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

I will not give way, because time is very short. Is it not sad that we are about to get this modernising Bill through both Houses of Parliament, but the Opposition are picking on that tiny little point, because they think that the next Lord Chancellor will be my right hon. Friend Mr. Blunkett? What nonsense. There is nothing wrong with the post's current incumbent, who is doing a fantastic job, and long may he continue to do so.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

I did not realise that I was so persuasive. A further irony is that the Conservative party is in favour of an 80 per cent. elected second Chamber, but the argument that we have heard this afternoon is that we should protect the Lord Chancellor from any involvement in party politics, by making sure that he sits in the House of Lords.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

My hon. Friend is right, and he has made his point with his usual clarity.

Amendment (a) is reasonable, and it covers all the various points that a Prime Minister might take into consideration in appointing the Lord Chancellor. It makes it clear on the face of the Bill that the Prime Minister of the day will choose a person who has some or all of various types of experience. That person might be a practitioner, and subsection (3) defines a qualifying practitioner in great detail on the face of the Bill. In debates on the Bill, the hon. Member for Beaconsfield and others have consistently asked for provisions to be put on the face of the Bill, because if it is important, it should be there—well, here it is.

I shall give way to any hon. Member who knows of another measure in which a member of the Cabinet's qualifications are defined in statute. That shows the uniqueness of the post and the fact that the Government have bent over backwards to meet the objections put forward by the Lords. They have listened carefully to the views of the House of Lords and of Conservative Members to make sure that those concerns are taken on board, so that we get a Bill that has been debated and carefully scrutinised by this House and of which we can be very proud.

Instead of supporting that approach, the hon. Member for Beaconsfield wants to pick away at every single sentence, dot and comma, because he wants to try to make sure that he gains something out of the whole process. Well, he has not.

The matter was discussed by the Select Committee, of which I am a member, under the great leadership of Mr. Beith. I proposed to table an amendment, suggesting that a lawyer should hold the post. However, I was persuaded by the right hon. Gentleman and Mr. Malins and others that we should consider the post as a whole. Paragraph 30 of the report defines the key roles that the Lord Chancellor will have. It goes on to say:

"The principal responsibility for judicial appointments will be with the Judicial Appointments Commission and for judicial discipline with the Lord Chief Justice."

It recognises that the role has changed out of all recognition even though we are keeping the name Lord Chancellor. The paragraph goes on to say that it may be an advantage for the holder of the post of Lord Chancellor to be a senior lawyer. Not that it should be, but it may be an advantage. Any Prime Minister making this appointment will bear in mind now the clauses that have been tabled. I congratulate those who have done the drafting, the Minister and others. Every consideration should be given: a "Minister of the Crown", a "member of either House", a "qualifying practitioner", a

"teacher of law in a university" and any other relevant experience.

Of course the Prime Minister will consider legal experience. However, if he chooses somebody who is not a lawyer, he will choose the best person for the job. That must be right, given the wide responsibilities that the Lord Chancellor has, having divested himself of all the detail that goes with the original post and handing it over to the Lord Chief Justice through the concordat.

I am pleased with the amendment. The Opposition should now draw stumps. They should recognise that what is proposed is the best way forward. They should enable the Bill to complete its passage through the House.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The measure happens to be a House of Lords Bill. I suppose that we must recognise that the Government wished to carry a majority of the other place to their point of view. They have failed to do so on an important issue. The hon. Gentleman might agree that in those circumstances there would be a good reason to concur with the House of Lords and to get on with getting this legislation on the statute book with the protections and safeguards that it wishes to provide.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

The amendment, which has been carefully drafted by my hon. Friend the Minister and others, deals with the points that the House of Lords has raised. It does not reject what the other place has said. The hon. Gentleman keeps saying, "Put it on the face of the Bill." Whenever I sit in my place, he jumps to the Opposition Dispatch Box and says, "Put it on the face of the Bill." It has been put on the face of the Bill for him so that he can read it at all times.

What really persuades me about the Bill and the amendment is that my hon. Friend Andrew Mackinlay will support the Government in the Lobby. That gives me a great deal of heart. I know that at last we are on the right track.

Photo of Mr Paul Tyler Mr Paul Tyler Shadow Leader of the House of Commons

Unlike the hon. Members for Beaconsfield (Mr. Grieve) and for Leicester, East (Keith Vaz), I am not a lawyer, and I am not intending to stand again at the forthcoming general election, whenever it takes place. I am entirely objective and dispassionate because I could not possibly qualify in either House for the role in question.

I am reminded by the debate that took place in the other place last night that bishops used to hold this responsibility. I believe that commoners have also held the responsibility. There was Sir Thomas More.

Photo of Mr Paul Tyler Mr Paul Tyler Shadow Leader of the House of Commons

The hon. Gentleman and I both think that he was Lord Chancellor, and certainly he was a commoner.

An absurd discussion is taking place. The matter has been discussed at great length. I am not sure that the amendment in lieu takes us much of a step further. The real test is that the Lord Chancellor, whichever House he is in, has the confidence of the House. The real test is also whether he or she is capable of holding their own and capable of defending the Government in terms and Parliament in terms in the context of the defence of the rule of law.

The hon. Member for Leicester, East referred to the Select Committee report. I again pay tribute to that Committee, under the chairmanship of my right hon. Friend Mr. Beith, for producing a very useful report before our previous proceedings in this House. It says at paragraph 28:

"Although it may more be more likely that someone in the House of Lords as at present constituted has the seniority and lack of aspiration towards further office which we considered desirable, it is by no means certain, and there will be suitable candidates for the post in both Houses. There does not, therefore, seem to be a compelling argument for insisting that the Lord Chancellor must be a member of the Upper House."

It is notable that no Conservative Members discussed or opposed that, so I wonder why it has suddenly become the critical issue for them at this stage.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 7:45 pm, 16th March 2005

I should point out to the hon. Gentleman that it has been a critical issue ever since the matter was discussed in the other place at the start of proceedings on the Bill. It was made clear to the Government that the view of Members in the other place was that they wished the highly unusual and special role of the Lord Chancellor to be recognised by his being in the House of Lords, and thereby removed from some of the hurly-burly of politics, and by his being a lawyer to enable him to continue to provide the Government with the advice that they often need in order not to infringe the rule of law.

Photo of Mr Paul Tyler Mr Paul Tyler Shadow Leader of the House of Commons

I have always understood many Conservative Members to think that this House is pre-eminent, but I shall come back to that issue. In the meantime, the hon. Gentleman is factually wrong. The Select Committee's report followed much discussion in the Lords, so this is a latter-day objection.

On the question of whether the post should be held by a leading lawyer, paragraph 29 of the report says:

"The Select Committee of the House of Lords also reported a division of opinion on the question of whether the Minister should be a senior lawyer and those who considered that there was no need for the office-holder to hold a legal qualification. Accordingly, it made no recommendation."

My noble Friend Lord Goodhart said in last night's debate in the other place:

"there is a strong case for saying that the Attorney-General should be in the House of Lords, both on practical and constitutional grounds . . . The Attorney-General should be at least semi-detached from his colleagues, but the Lord Chancellor, as a member of the Cabinet, cannot be semi-detached in the same way."

He went on to say:

"The main role of the Lord Chancellor when this Bill is enacted will be to be a departmental Minister of an important government department. His role as a constitutional watchdog in the Cabinet will be as it always has been—informal."—[Hansard, House of Lords, 15 March 2005; Vol. 670, c. 1234.]

Let us recall that that Department is concurrently spending some £3 billion of taxpayers' money. This House has always had responsibility for holding Ministers to account for the expenditure of public money. That is an important matter that has not been mentioned this evening.

Photo of Mr Paul Tyler Mr Paul Tyler Shadow Leader of the House of Commons

I hope that the hon. Gentleman can respond to that point.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman's argument has little foundation. There is at least one other spending Department in the House of Lords—that of Baroness Amos, who controls a Department that spends sums substantially in excess of the Lord Chancellor's Department. There is no problem in holding her to account, just as we can hold the Lord Chancellor to account through the Minister.

There has been so much anxiety about this partly because of what happened last week. That was a classic example of what happens when the Government start to lose sight of the rule of law, as they did in their anti-terrorist legislation.

Photo of Mr Paul Tyler Mr Paul Tyler Shadow Leader of the House of Commons

I am grateful to the hon. Gentleman for his second speech. I am reminded that lawyers sometimes appear to have a sort of taxi meter that charges in guineas according to the length of their speeches.

I directly reject what the hon. Gentleman says. During last night's debate in the other place, Members on both sides of the House made much reference to the fact that Roy Jenkins, who was a Member of this House, might well have been a much better champion in defending the rule of law than many Lord Chancellors of that time. I find extraordinary the idea that only somebody in that place—"as at present constituted", to repeat the Select Committee's words—can be in a position to rise above party politics.

How can those who continually tell those of us who have been engaged in cross-party consideration of reforms to the second Chamber that we must preserve the pre-eminence of the House of Commons say at the same time that the holder of this great office of state can be answerable only to somebody in the subsidiary House up the Corridor? It is extraordinary that both arguments should be made at the same time. Parliament is changing, hopefully for the best, and I trust that we shall reverse the gradual and debilitating loss of power to the Executive. However, the notion that only the Lords can preserve the rule of law is patent bunk. Both Houses need to co-operate in holding the Executive to account, whoever is in power, but at the very least we need greater flexibility to ensure that the pool of talent for the role is not artificially restricted.

In response to a contribution from my noble Friend Lord Goodhart, Lord Kingsland, the Conservative spokesman, said:

"What possible confidence can the noble Lord, Lord Goodhart, have that a non-lawyer sitting in the House of Commons would do a better job?"—[Hansard, House of Lords, 15 March 2005; Vol. 670, c. 1241.]

Lord Kingsland gave the game away. That is not the question that we are considering. We should be asking what possible confidence can we have that a non-lawyer sitting in the Commons will always do a worse job? That is the real issue. We should not say that the role must always be performed by a Member of the Commons. Flexibility along the lines agreed by our Select Committee remains the best option for an open choice of Lord Chancellor. I hope that the House will stand by its previous decision.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I have always been a believer in convention rather than in writing these things out in words. The Minister has delighted the House with the clarity of his answers, and has always been willing to respond courteously and correctly, so I hope that he will not take it amiss if I say that convention is no longer strong enough to withstand the Government's behaviour. It is therefore important to have in place a number of protections.

The rule of law is the one thing above everything else that this country has given the rest of the world. Of all the constitutional concepts, the rule of law is crucial. The fact that no one is above the law—even our monarch is subject to the law, which is not the case for any other head of state—emphasises the importance that we attach to the rule of law. I am not a lawyer—I never wanted to be one—which is why I wanted to speak on the subject. Members who are not lawyers should speak out and say that the new lord chancellorship ought to be held by a lawyer. The Lord Chancellor does not just look after a Department but performs a particular role in government. He must remind Governments—constantly in some cases and occasionally in others—of their responsibilities towards that great inheritance of the rule of law.

I have no idea whether someone would be designated to perform that role if we changed the law. No one can be certain about that, although some of us have our suspicions. However, I am certain that the definition to which the Prime Minister must adhere when making the appointment means absolutely nothing at all. If definitions do not apply when the Prime Minister chooses the least important parliamentary secretary, he is not doing his job properly. Prime Ministers should choose Ministers who are good at the job and have the responsibilities and experience to discharge it. The present Prime Minister does not seem to have followed that very often, but it is a perfectly reasonable statement of how Prime Ministers are supposed to choose Ministers. There is nothing in the proposal that restricts the Prime Minister's choice.

It is not the Minister's fault that we feel strongly about this. It is the Prime Minister's fault, as he has presided over an Executive who have diminished the powers of the House, who resent the powers of the other House, and who have used their organisation of Government not for the better pursuance of government but for the creation of Ministries ad hominem. They have also shown scant interest in the rule of law. If ever there was a time when the country needed in statute rules that, to some extent, restrict the cavalier manner in which the Prime Minister chooses his Ministers, it is now.

The new Department has a peculiar slogan, which I have mentioned previously. It is incorrectly punctuated and thoroughly dangerous because it states that the Department for Constitutional Affairs stands for, "Justice, rights and democracy". Of course there is no mention of duties, responsibilities or obligations. No—the Department is a specially honed Ministry, designed to present a specific political view of the world. I want the head of that Ministry to be at least sufficiently trained in the law and of sufficient standing to defend what should exist in it and what the slogan denies.

For that reason, I strongly support what their Lordships have done. In any event, I believe that all the rubbish, which is supposed to be a compromise but is a litany of the obvious, should be removed, and I trust that we shall stick to our guns.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

The Select Committee on Constitutional Affairs produced two reports on the Bill. The Government and the House of Lords together have implemented to a considerable extent the changes that we recommended. I welcome that. The Committee's track record is like that on most subjects: when we make recommendations, things tend to happen. That applies to the Bill. The rescue of the title and office of Lord Chancellor is a welcome change because it tries to deal with the genuine concern in many quarters that we might have ended up with a Minister who recognised no special obligation beyond that of running the Department well and delivering what the Prime Minister of the day wanted.

The concept of delivery often appears to be at variance with strong constitutional principles, which are normally maintained by convention, as Mr. Gummer said. The retention of the office and the special Oath has partly allayed such concerns. However, of the two amendments that their Lordships have sent back to us, only one restricts the Prime Minister's ability to choose anyone he likes to be Lord Chancellor, and it also restricts that person to being a lawyer.

The amendment that requires the Lord Chancellor to be a Member of the House of Lords poses no restriction beyond that. Prime Ministers regularly decide that they would like someone to be a Minister who is not in the House of Commons and put that person in the House of Lords. Some rather good Ministers have emerged through that route, but it sits a little strangely with the way in which we do business at this end of the Building. Let us be clear: the amendment that restricts the Lord Chancellor to being a Member of the House of Lords does not restrict the kind of person who could fill that role. The only restriction that their Lordships propose in the other amendment is that the Lord Chancellor should be a senior lawyer.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I accept that the Prime Minister can place whoever he likes in the Lords unless there is a reform of that ability. However, someone in the House of Lords acquires greater independence than he would enjoy in this House because he is freed from the considerable political pressures that he might experience here.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

As it happens, I often observe the House of Lords from relatively close quarters—I declare my interest as the husband of a Member of it. I find a wide range of independence and party loyalty among its Members, who include some good people in all parties and none.

It appeared to the Committee and me that the primary concern was whether the person who exercises the office will have the standing and independence to defend the rule of law in Cabinet.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

No, I am answering the point made by Mr. Grieve, whose concern I understand. However, I do not think that that concern is addressed by placing in the Bill a requirement that the person should be a Member of the House of Lords or a senior lawyer, even though I believe that the Government would be wise to look in both those directions for candidates, certainly in the near future, in seeking to get this position established, so that this matter can be settled in a reasonable way.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Does the right hon. Gentleman appreciate that this Government are careless of the constitution not only in the way in which they create their legislation, but in the way in which they allow us time for debate? He has about 30 seconds left before this debate finishes. Is not that an utter disgrace and a suborning of the parliamentary process—

It being one hour after the commencement of proceedings on the programme motion, Mr. Deputy Speaker put the Question already proposed from the Chair, pursuant to Order [this day].

Question agreed to.

Mr. Deputy Speaker then proceeded to put the remaining Questions required to be put at that hour.


That this House does not insist on its amendments Nos. 2, 264, 265 and 593, to which the Lords have disagreed.—[Mr. Leslie.]

Amendments proposed: (a) to (e).

Question put, That the amendments be made.

The House divided: Ayes 256, Noes 109.

Division number 146

See full list of votes (From The Public Whip)

Question accordingly agreed to.