Constitutional Reform Bill [HL]

– in the House of Lords at 2:30 pm on 13th July 2004.

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Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor 2:30 pm, 13th July 2004

My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.

Moved, That the House do now resolve itself into Committee (on Recommitment).—(Lord Falconer of Thoroton.)

Photo of Lord Richard Lord Richard Labour

My Lords, before the House agrees to the Motion, perhaps I may say a few words about the work of the Select Committee to which the House committed this Bill on 8 March and which I had the honour of chairing. Noble Lords may recall that the Select Committee procedure is used very rarely in respect of government Bills. The last occasion on which a government Bill was so committed and reported to the House with amendments was as far back as 1917. In 1976 a Select Committee on the Hare Coursing Bill recommended that the Bill should not proceed and it was thereby killed. So it is not a procedure that has been in a great deal of use recently.

A Select Committee on a Bill can hear evidence on the policy of the Bill, report on it like any Select Committee on a policy issue and, if it wishes, amend the Bill. That is the real difference between this type of committee and a normal Select Committee. I have to say to noble Lords that we have indeed made 400 amendments to the Bill, and the legislation now before the House reflects those changes.

Between 24 March and 24 June when we were charged to complete our report, we met twice a week for two to three hours at a time. That placed a considerable load on members of the committee and I should like to thank them for their assiduity and commitment. I thank also our Clerk, Mr Rhodri Walters, and our specialist adviser, Professor Andrew Le Sueur of the University of Birmingham, for their valuable assistance. I do not think that we could have produced a report which distilled so much evidence and so much argument into what I hope is a reasonably comprehensible form without the efforts of the Clerks and the special advisers.

I pay tribute also to the members of the committee. It was a committee divided on party lines, with five Labour members, five Conservatives, three Liberal Democrats and three Cross-Benchers. What I found especially heartening was the extent to which all members of the committee genuinely sought the maximum amount of agreement consonant with their individual views. It is not always the experience of someone in this building serving on a committee to find such a genuine search for consensus. In this case it seemed that there was, and I should like to make that public.

Finally, I thank the House for giving me the opportunity of chairing the committee. It was a stimulating and, as it turned out, very enjoyable task.

Our work was divided into three main phases. First, we met in public to take oral evidence from more than 32 witnesses. We received over 80 written submissions. We considered the views of 14 serving judges, seven retired judges, 14 academics, the lawyers' professional bodies in England and Wales, Scotland and Northern Ireland, as well as campaign groups, individual lawyers and law firms, and members of the public. The evidence is published in Volume 2 of the report.

This collation of the evidence and analysis of the facts and opinions about the reforms proposed in the Bill will, I hope, be of assistance to the House as it now resumes its scrutiny. I hope, too, that it provides a firm evidential basis for future argument, which no doubt will take place.

During our deliberation stage we met in private to consider the central issues that had emerged from the evidence. In total, we identified and examined 44 separate issues. On many of those questions we were able to reach conclusions on the basis of consensus. On some, our report shows that the committee supports the policy of the Bill. On other issues, we agreed to amend the Bill on the basis of amendments tabled by the noble and learned Lord the Lord Chancellor. Alternatively, we have indicated our support for amendments that the Government have undertaken to bring forward at a later stage.

It will be no surprise to noble Lords to learn that there were issues on which we did not reach agreement and consensus. Those included the two major questions of whether the office of Lord Chancellor should be abolished and whether a Supreme Court should be established. The committee was more or less evenly divided on those issues and we have explained the reasons for our disagreement in the report. Not only were we more or less evenly divided, but under the procedures of the committee the chairman had no casting vote. However, I have to say that, even if he had had such a casting vote, he would not have exercised it because it would have defeated the whole object of the committee if we had voted along those lines. These are major constitutional changes and it is right that they are determined by Parliament as a whole.

In the final, formal stages of our work, we amended the Bill and agreed our report. The amendments included those to which I have already alluded—the ones brought forward by the noble and learned Lord the Lord Chancellor in response to our discussions. Here I should say in parenthesis how valuable it was to have the noble and learned Lord there as a member of the committee. He could hear the argument, he had the authority and, in circumstances in which he thought it proper, his flexibility and natural charm allowed him to agree. Not only that, we accepted amendments which we felt would give better effect to the concordat between the Lord Chancellor and the Lord Chief Justice. Finally, we made a large number of minor drafting and technical amendments at the request of the Lord Chancellor. All the amendments were made by agreement.

What of the points of disagreement? As we explain more fully in paragraphs 7 and 8 of the report, we took the view early on that little would be served by seeking to vote. Instead it was better to register the areas of our disagreement in the report itself. I think that some of my colleagues on the committee would also wish me to emphasise that, in those areas of disagreement, the fact that we have stood the clauses and schedules as part of the Bill does not imply that we all acquiesce to them, nor will it inhibit some of our number at least from registering such disagreements at later stages of the Bill.

I turn briefly to some of the chief points we made. Given that the House set up the committee, which then collected evidence and sat for three months, I think it is quite important to put the committee's report in the context of this debate, and perhaps just as important to put the context of this debate in the framework of the report.

In Chapter 2 we considered in detail the issues arising from the policy of the Bill to abolish the office of Lord Chancellor. Like most of our witnesses, we all agreed that change is inevitable. No one suggests turning the clock back to before 12 June last year when the Government announced their proposals for reform. None of us supports the idea that the Minister responsible for the courts should continue to sit as a judge. We all accept that the Lord Chief Justice of England and Wales should be recognised as head of the judiciary.

But what should be the characteristics of the Minister responsible for "judiciary-related matters"? About this we certainly disagreed. Some of us support the Government's policy that the Minister should be a mainstream Secretary of State, and so not necessarily a senior lawyer but possibly an MP rather than a Member of the House of Lords. Some of us believe that the Minister should continue to be called the Lord Chancellor and be a senior lawyer and a Member of the House of Lords. It will now be a matter for the Committee of the Whole House to consider this important issue further.

It is also fair to say that there was, among those who wished to retain the office of Lord Chancellor, no clear agreement on what his precise functions would be. We hope that the analysis of the rival arguments set out in our report will provide a sound basis for this continuing debate.

One of the issues we also examined, which was a fairly controversial one, was the proposal in the Bill to put the constitutional conventions safeguarding the independence of the judiciary, and the rule of law, on a statutory footing. The Government brought forward an amendment to the Bill to put that into statutory form. We all agreed that the Bill should say something about these matters and the report set out various options as to how the Bill could achieve this, but we were unable to reach a consensus about the best way forward.

In the next chapter of our report we considered the proposal to create a Supreme Court for the United Kingdom. We received a wide range of views in evidence: some strongly supporting the idea that there should be a Supreme Court; some strongly supporting keeping the United Kingdom's highest court within the House of Lords. It will come as no surprise to anyone that there was no consensus within the committee on this issue.

Although we made no recommendations on the basic issue of whether there should be a Supreme Court, we did go on to make several important amendments to this part of the Bill. Indeed, this is a very good example of the way in which the committee approached its task. We disagreed on whether there should be a Supreme Court at all. We disagreed on whether commencement of this part of the Bill—the commencement of the Supreme Court assuming its responsibilities—should be delayed, pending a move to permanent premises.

Apart from those major issues, there was very considerable consensus. We agreed on the name of the court, the number of justices and that at least two should be Scottish. We agreed the qualifications for appointment to the Supreme Court. We agreed the composition of the selection commission. We agreed further that the selection commission should provide the name of only one candidate for appointment. We agreed the extent of consultation with senior justices and the devolved administrations.

We agreed that the role of the Prime Minister should solely be to act as a conduit between Ministers and the Queen. We agreed on the provisions for acting justices and the supplementary panel. We agreed that the designation of the Supreme Court as a superior court of record should remain. We agreed that there was no need to change provisions of the Bill in respect of the Scottish civil and criminal appeals or the leave arrangements for Scottish civil appeals. We agreed with the proposal to transfer devolution jurisdiction from the Privy Council to the Supreme Court. We agreed that the court should make its own rules. We agreed—extremely importantly—that the court should be established according to the model of a non-ministerial department, so that it would have greater control over its own financial and administrative agreements. We agreed that it should set its own fees.

We agreed that there should be an amendment to the Bill which safeguards the separate jurisdiction to be examined by the Supreme Court in respect of Scottish, Northern Irish, English and Welsh laws.

The effect of this procedure is that, if the House decides that it wants a Supreme Court to be established, many of the subsidiary issues will already have been considered in the committee and, I hope that the House will come to the conclusion, have been fairly dealt with. Of course, it will be open to the House to arrive at different conclusions, but I hope that the House will at least take the broad view that, having set up the committee and the committee having deliberated in the way that it has, the House should perhaps concentrate on the major issues. The virtue of this report is in the details, and I hope that we managed to give those details a thorough examination.

I apologise for taking some time before we reach the main debate of the day, but it is perhaps important that I spell out how we approached what we did.

Chapter 4 of the report deals with the reform of judicial appointments in England and Wales. We considered whether the Bill is correct to propose a recommending rather than an appointing Judicial Appointments Commission. We agreed—some of us reluctantly—that a recommending commission was a satisfactory system. We agreed that the composition of the 15-person commission struck the right balance between judicial and lay involvement. We accepted amendments proposed by the Government to ensure that every panel of the commission should include at least one judicial and one lay member. Some members of the committee took the view that the arrangements for the appointment of High Court judges needed to be altered. Accordingly, we made no recommendation about that.

We were of one view in supporting the policy of the Bill that judicial appointments should be made on the basis of merit alone, and therefore accepted a government amendment to allow the Judicial Appointments Commission rather than the Minister to define "merit". We also agreed that diversity among the judiciary should be promoted, without diluting the merit principle, to ensure that more women and people from ethnic minorities are able to serve as judges. We therefore made an amendment to the Bill encouraging specific reference in the guidance issued to the commission to the importance of,

"encouraging diversity in the range of persons available for selection".

Chapter 5 of the report deals with two parliamentary matters of extreme importance, certainly to this House. Clause 94 of the Bill proposes to remove the right of senior serving judges to participate in the legislative and scrutiny work of the House of Lords. It will be no surprise to anyone that on this—as on the creation of the Supreme Court—we did not reach a consensus. Whether or not judges are disqualified from Parliament, we considered a second question: should a parliamentary committee be established with general oversight of judicial matters? Our view was that such a committee was indeed desirable and could act as a valuable bridge between the legislature and the judiciary.

As to whether this procedure was a success, I confess that I have mixed views. If a Bill is properly prepared and launched after appropriate consultation, then a Select Committee of this sort should not be necessary; but where, as in this case, the proposed legislation involves major constitutional issues, I think that a gathering of the evidence and an examination of the arguments have proved useful. A great deal of ground has been covered and has been cleared, and the Bill is now in a much better state than it was at Second Reading.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, I should like to endorse what the noble Lord, Lord Richard, has said and to fill in one major omission from his speech today. I refer to the enormous debt owed by members of the committee to the noble Lord for his brilliant chairmanship of the committee.

On Question, Motion agreed to.

House in Committee (on Recommitment) accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 1 [Guarantee of continued judicial independence]:

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

moved Amendment No. 1:

Page 1, line 5, at beginning insert "The Lord Chancellor, other"

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

Before I speak to my amendment, I should like to add my tribute to the noble Lord, Lord Richard. He referred to the noble and learned Lord the Lord Chancellor's flexibility and charm. The noble Lord, Lord Richard, had both those qualities in abundance and, in addition—and I hope that he will take this as a compliment—a good helping of Welsh guile, which helped to get the committee through one or two difficult phases in its work. I should like to thank him very much indeed.

It is my responsibility to begin the Committee stage by moving Amendment No. 1. This amendment is linked with Amendment No. 7 and a number of clause stand part debates, as noble Lords will see from the Marshalled List and the groupings list. Essentially, the issue is this. The Government wish to expunge the office of Lord High Chancellor of Great Britain from our constitution. They wish to do so because they think that the office has now outserved its usefulness. We, the Opposition, disagree. We believe that the office still has a vital role in protecting the rule of law in our country.

When the debate on Amendment No. 1 is ended, it is almost certain that the matter will be put to the test. I would not wish any of your Lordships, therefore, to underestimate the importance of the occasion. But, at the same time, I would not wish your Lordships to oversimplify it. The question of whether or not the office of Lord Chancellor ought to survive has to be seen in the context of the Government's Bill.

There have been several debates on the Bill and many noble Lords will by now be familiar with its content. I should like to say at the outset that not only the Opposition but, I believe, a large number of your Lordships accept many of the provisions in the Bill; and the Select Committee stage has helped to crystallise our thoughts on the issues in detail. We sympathise with the initiative to set up a Judicial Appointments Committee; we support the conclusion of a concordat with the Lord Chief Justice; we accept that it is no longer appropriate for the Lord Chancellor to sit in the Appellate Committee of your Lordships' House.

Taken together, all these initiatives represent perhaps the most dramatic change in the judicial arm of our constitution since the Act of Settlement. The changes will replace decision-making on the work of the judicial arm by one individual—the Lord Chancellor—with a tripartite arrangement divided between the Judicial Appointments Commission, the Lord Chief Justice and the Secretary of State for Constitutional Affairs.

I emphasise at the outset of the debate that it is not the Opposition's intention to unravel, in any way, the architecture of the Bill; we accept the tripartite architecture in full. Our only concern, encapsulated in Amendment No. 1, is whether the position of Secretary of State for Constitutional Affairs is sufficiently powerful to carry out the tasks stipulated in the Bill for that role.

Over the past six months, many noble Lords have speculated long and hard about what it was on 12 June 2003 that led the Government to make their announcement about the position of the Lord Chancellor. Much time has passed and the Select Committee has had a chance to look at the matter dispassionately. In taking our decision today, we have to test, against the new architecture in the Bill, whether the Government's decision on 12 June—or purported decision because they could not put it into effect—was right.

In order to test this, I should like to refer your Lordships to two parts of the evidence. The first part was given in a most imaginative contribution by Professor Robert Hazell, who is the head of the Constitution Unit at University College London. He put the issue in this way. He said that in any modern Cabinet there are two forces—the forces of order and the forces of law—and successful government requires those two forces to be in balance, and he added that there is a real concern in many modern governments that the force of order will prove too strong for the force of justice.

In his response to the consultation by the noble and learned Lord the Lord Chancellor, on the question of the survival of the office, the noble and learned Lord, Lord Bingham, said:

"Fourthly, we do not in this response comment on the proposal to abolish the office of Lord Chancellor. We are, however, very greatly concerned that the important constitutional values which the office of Lord Chancellor protected should continue to be effectively protected".

Will the proposed office of Secretary of State for Constitutional Affairs deliver what the noble and learned Lord, Lord Bingham of Cornhill, wants?

The component parts of the office have been described on several occasions by the noble and learned Lord the Lord Chancellor and others. It is envisaged that the office will normally be occupied by a party politician, who is not a lawyer, in another place and without any special precedence in the Cabinet. It is my view that an office so constituted will prove a deeply inadequate protection for the rule of law in our nation.

I derive some support for saying that from the experience of the noble and learned Lord, Lord Woolf, in respect of the ouster clause in the Asylum and Immigration (Treatment of Claimants, etc.) Bill, now thankfully no longer in the text. In his Squire centennial speech in Cambridge, a few months ago, the noble and learned Lord Woolf, in the heat of contesting the clause, said:

"I am worried about a Department for Constitutional Affairs becoming a subsidiary of the Home Office or unable to compete with the dominance of the Home Office. The result could be the Home Office being in a position to dictate the agenda for the courts, which would not accord with the need for independence".

If that is the judgment of the noble and learned Lord, Lord Woolf, on the present state of the office of the Secretary of State for Constitutional Affairs, what changes are necessary in the Bill to remedy this defect? I shall suggest what changes we believe are necessary.

First, the individual who occupies the office of the Secretary of State for Constitutional Affairs must, in our view, be a senior and experienced lawyer. This follows not only from the stipulations of the relationship between the Secretary of State and the Judicial Appointments Committee and the requirements of the concordat; it is also very hard to see, on a dispassionate reading, how anyone other than an experienced, qualified lawyer could possibly perform his constitutional duties.

Further, the responsibilities of the Secretary of State for Constitutional Affairs are also to the independence of the judiciary and the rule of law. What have been the great challenges to the rule of law over the past three years? The introduction of propensity evidence in the Criminal Justice Act 2003; the purported ouster clause earlier this year in the asylum Bill; and an attempt—which luckily failed—to change the burden of proof in a number of other criminal matters. In order to contest such matters in Cabinet the Secretary of State for Constitutional Affairs will have to have a real, in-depth grasp of the criminal law. I do not see how someone can perform the role without having legal qualifications.

Secondly, in my submission, the Secretary of State will have to be in your Lordships' House. This is not only because there is a poverty of qualified lawyers coming from another place to your Lordships' House; but also because your Lordships' House is able to stand back from the hurly-burly of political life in another place and assess the constitutional implications of Bills that come to it, or decisions that are made about those Bills. Again, Professor Robert Hazell, in his evidence, saw your Lordships' House as the natural guardian of the constitution, a view recently endorsed by the noble Lord, Lord Wakeham, in his report on your Lordships' House.

But would a Secretary of State for Constitutional Affairs—legally qualified and a Member of your Lordships' House—do the job that the noble and learned Lord the Lord Chancellor now does? It seems to me highly unlikely that he would.

It is just imaginable that someone could still emerge from another place. My noble and learned friend Lord Howe served as a Law Officer and held two great offices of state in the 1980s as Chancellor of the Exchequer and Foreign Secretary. If the noble and learned Lord, with all those qualifications, had been made Secretary of State for Constitutional Affairs in your Lordships' House, I have no doubt that he would have carried the same amount of political clout as if he had been made Lord Chancellor.

But in the 21st century, I am afraid, there will be almost no Lord Howes coming off the production line in another place. Sadly, very few lawyers of that quality are able to enter politics in another place. Future Secretaries of State for Constitutional Affairs will come direct from the legal profession into your Lordships' House carrying no political clout at all. Their political clout will derive from the office that they hold. The office of Lord Chancellor will provide them with that clout—its prestige, its status, its weight, its parallel classification with the Home Secretary, the Foreign Secretary and the Chancellor of the Exchequer. That is why maintaining the office of Lord Chancellor is so crucial in our constitutional arrangements. It is the only guarantee that, in the deliberations of the Cabinet, the rule of law will stand up to the predatory ambitions of those who represent the forces of order.

The Government have sought to promote the notion of the separation of powers as being at the heart of our constitution. It is not. It is not the separation of powers but the balance of powers that matters in our constitution. The Lord Chancellor in the Cabinet is a great inconvenience to the executive. That is the reason he should stay there. I beg to move.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

I too would like to add my tribute to the noble Lord, Lord Richard, for chairing the Select Committee in the way he did and for producing a report in record time.

At Second Reading I dared to suggest that it might be possible to produce a report by the end of July. Without wanting to be too controversial at this stage of my speech, I should say that the noble and learned Lord the Lord Chancellor described that as fanciful. In fact we succeeded in doing it by the end of June. For that we owe a deep debt of gratitude to the noble Lord, Lord Richard. What a good report it is; it is a model of clarity. I would particularly like to emphasise the point which the noble Lord, Lord Richard, made at the end of his address—that it will provide a very useful precedent if ever again we are presented with a Bill which ought to have received pre-legislative scrutiny, but which for one reason or another has not had it. We do not know what the reason was in this case; we have not been told. The report will be a very useful precedent for the future.

I see that I have already spoken for 15 minutes—but perhaps the clock has not been changed. One of the advantages of the Select Committee procedure is that some of the issues which seemed to loom so large have now disappeared altogether and all the issues are now in much better focus. The proposed abolition of the Lord Chancellor is a very good example of that. Everybody now agrees that the Lord Chancellor—if the post and office are retained, as I profoundly hope that they are—should no longer sit as a judge. In some ways I regret that, because some recent Lord Chancellors have been very good judges indeed. In the absence of the noble and learned Lord, Lord Mackay, I can say that he is a very good example of how good a judge a Lord Chancellor can be.

But I accept that there are problems with a judge sitting as a member of the Cabinet, particularly, it seems, among the newly joined members of the European Union. So it is now common ground that if the Lord Chancellor is retained, he should be debarred from sitting as a judge. It is also common ground that he should no longer be solely responsible, as he has been in the past, for selecting the judiciary. We all agree that that task will now be performed by the new Judicial Appointments Commission, to which we all look forward.

So what, having got rid of those functions, is left? Sometimes, listening to the Lord Chancellor, one has had the impression that almost nothing would be left. But that of course is quite wrong; there will still be a huge job for the Lord Chancellor. In the first place he will run the courts, including the magistrates' courts, as he has always done. Secondly, he will have his role of defending the independence of the judiciary and the rule of law, and being—as has so often been said—the voice of the judges in Cabinet. Thirdly, he will have his role as Speaker of this House. I will say no more about that because it will be a question for this House whether he should continue as Speaker. So I put that on one side.

As for the other functions, they are exactly the same functions as would be transferred to the new Secretary of State under this Bill. That is a point on which we reached agreement. I hope to quote very little from the report, but I will quote paragraph 43, which stated:

"The Committee agrees that in view of the Concordat the future duties of the Lord Chancellor/Secretary of State office-holder should be responsibility for 'judiciary-related' matters (that is, the provision of systems to support the carrying on of the business of courts and tribunals, judicial appointments, and overseeing judicial discipline); and responsibilities as the 'constitutional conscience' of Government, defending judicial independence and the rule of law in Cabinet".

So there you have it—the Select Committee is agreed that the two jobs will be exactly the same. That prompts the question of what on earth the point is of transferring those functions from the Lord Chancellor, where they will rest under our scheme, to the new Secretary of State. I suggest that that is a question to which we have never heard a convincing answer.

Let me very briefly remind the Committee of the arguments that have been advanced from time to time. There are four in all. First, there is the argument based on separation of powers—that it is wrong for a judge to sit in Cabinet. But once we take away the judicial role, as everybody agrees, that argument falls flat on its face.

Secondly, there is the argument that there is too much for the Lord Chancellor to do. That was an argument that featured very largely in the original consultation paper. It was almost the only argument. But again, once we take away the judicial role and his role in selecting and appointing the judges, we have exactly the same role as that proposed for the Secretary of State. So that argument, too, falls to the ground.

Thirdly, there is the argument—a difficult argument perhaps at first to comprehend—of the so-called inherent tension or conflict in the role of the Lord Chancellor. That is an argument which featured very largely in the speech of the noble and learned Lord the Lord Chancellor on 12 February, and in his written and oral evidence to the Select Committee. The argument is that on the one hand the Lord Chancellor has to uphold the rule of law, and that on the other he has to run a great department. He argues that those roles are in conflict and therefore should be split. Since this is such an important argument, I should again quote the Lord Chancellor's argument in his own words. He said:

"My Lords, the Lord Chancellor must form a view about where the rule of law is being infringed. That will frequently bring him into conflict with his political role. If it does, the rule of law must prevail".

Then the noble Baroness, Lady Kennedy of the Shaws, intervened and asked:

"Can we be confident that a Secretary of State with ambition will not side with the political part of his background, as distinct from that which will protect the rule of law? That is where our anxieties lie".

The noble and learned Lord, the Lord Chancellor, replied:

"My Lords, that point is absolutely rightly and forcefully put. The question that the abolition of the Lord Chancellor's role raises is: can you go on with a £3 billion budget? With these policy responsibilities—a responsibility for being the protector of the judiciary and the upholder of the rule of law—there is an obvious conflict. The conflict has become greater and greater. The separation of powers is not some abstract concept. It is preventing your role as a Minister overtopping your role as the protector of the constitution or preventing your role as a protector of the constitution overtopping your role as a Minister. Eventually, we are getting to the point where that conflict cannot be contained in one office".

At that point, the noble Earl, Lord Onslow, intervened to say:

"That seems a rum old argument from the Lord Chancellor".—[Hansard, 12/2/04; col. 1318.]

Whether it is a rum old argument or not, the problem is that exactly the same argument will apply to the Secretary of State, because he will be running the same department and defending the independence of the judiciary under Clause 1. Therefore, how can the Lord Chancellor rid himself of this inherent tension and conflict simply by changing his name, unless the duty under Clause 1 is not intended to press on him too heavily? I asked the Lord Chancellor that very question—question 29 on page 29—and I did not get a very satisfactory answer.

I therefore come to the fourth and last argument that has been advanced. It is said that the Prime Minister should be free to appoint whoever he wants to run the courts—free to appoint a Member of the other place who is not a lawyer and could be quite junior in Cabinet ranking. That is the real difference between the two sides in this debate. In my view, the task of defending judicial independence in the Cabinet is of such critical importance that it should be given to a senior judge or lawyer who is a Member of this House and not to a politician on his way up the greasy pole.

Why do I say that the Prime Minister's role should be limited in this way but not in others, because after all, nobody would suggest that the Secretary of State for Defence should be a soldier or sailor? The distinction is almost too obvious to state. The Army must do what the Government say: there is no room for conflict or tension. However, the courts do not have to do what the Government say. Indeed, it is the other way round. It is the task of the courts to ensure that the Government do what Parliament says, which is very different. Therefore, there is obvious scope for friction between the judiciary and the executive, which may be getting wider all the time—although I hope that it is not. However, since such scope exists, it is essential to have someone running the courts who has the respect of both sides—the judiciary and the executive.

For similar reasons, it is essential to have someone who is a Member of this House, so that he can, as far as possible, be kept away from the hurly-burly of political conflict in the House of Commons. That would have the incidental advantage, often mentioned by the noble Lord, Lord Elton, of having two Cabinet Ministers in this House instead of one. We all know that our constitution depends on checks and balances, and that is especially important when one party or the other has a huge majority. One such check is the presence of the Lord Chancellor in the Cabinet. Of course, it is possible to exaggerate his influence, but I hope that I do not do that. I accept that he can always be dismissed by the Prime Minister. However, until he is, the check is there and we get rid of it at our peril.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

This group of amendments concerns the future title of the Minister at the head of the Department for Constitutional Affairs. In speaking to Amendments Nos. 1 and 7 in this group, I will have to discuss our own Amendment No. 8, which proposes the alternative name for the office of Secretary of State for Justice. Our position on Amendments Nos. 1 and 7 cannot be explained without reference to that alternative name. I asked to have Amendment No. 8 grouped with Amendments Nos. 1 and 7. That has not been done, so I will have to speak to Amendment No. 8 in this debate and I promise the Committee that I will not speak to it again when we reach the point at which it appears on the list.

As the noble Lord, Lord Richard, said in his very informative introduction to this debate, there was broad consensus in the Select Committee on what the Minister should and should not do. It was agreed that the Minister should not sit as a judge, should not be head of the judiciary in England and Wales and should have only a limited role in the appointment and promotion of the judiciary—a step that would greatly protect the independence of the judiciary. It was agreed that the Minister should continue to be head of his department, which is now a substantial department with a budget of more than £3 billion a year including legal aid. It was agreed that the Minister should have a role as defender of the independence of the judiciary and of the rule of law and that that should be recognised in the Bill, although we have not yet achieved consensus on the text.

The disputes that remain, therefore, are not about the functions of the Minister. They are: first, whether the Minister should have legal qualifications; secondly, whether he—I use the word "he" because of the current convention for using the gender of the present holder of the office—should have to be a Member of your Lordships' House; and thirdly, what he should be called. In a way, I regret that the title of the office has come first in the debate. It might have been better to tackle the other issues first so that we could see what kind of creature we were describing.

Titles are symbolic, but that does not mean that the issue is unimportant. Symbols have potency. However, it is plain that the new office is very different from the old one. In the past, the office had both judicial and political functions. Certainly, at times in the past the judicial functions were the more important of the two—as, for example, in the time of Lord Eldon, who was Lord Chancellor for some 20 years between 1805 and 1825 and spent most of his time sitting as judge of the Chancery Court.

Now, of course, the judicial role, or the vestiges of it, are to be removed. The question is whether the title of Lord Chancellor should go with it. It would be possible to retain the name of Lord Chancellor for the remaining functions of the Minister. There are arguments for that. First, continuity would be maintained. Secondly, it is said that if it is at least coupled with the requirement that the Minister should have legal qualifications and be a Member of your Lordships' House, it would strengthen the standing and independence of the Minister and his ability to stand up to Cabinet colleagues to protect the independence of the judiciary and the rule of law. That argument has been clearly and forcefully put by both the previous speakers.

I am not persuaded. The question of legal qualifications and membership of your Lordships' House does not arise out of this group of amendments. It is a matter for later groups. We can see the advantage of having legal qualifications, but I do not believe that an intelligent and well informed lay person is incapable of understanding and defending the rule of law. Lawyers tend to have somewhat fixed and rigid views on this subject, and it is more than possible that an outsider could have a better understanding of the constitutional implications. However, that is a different issue. We shall be voting not on whether the Minister should have a legal qualification, but simply on whether he should be called Lord Chancellor.

We are certainly opposed to making it the rule that the Minister, as head of a department with a significant budget, should necessarily be a Member of your Lordships' House, whether or not there are suitable candidates for this office in another place. We need a Minister, in your Lordships' House or not, legally qualified or not, called whatever title, who will stand up for the independence of the judiciary and the rule of law. Will retaining the historic office or title of Lord Chancellor strengthen the hand of the Minister in defending judicial independence and the rule of law? The answer is no. The standing and authority of the Minister depends on the character and quality of the person who holds the office, the willingness of the Prime Minister to choose a person who has the character and quality to do the job, and the willingness of the Prime Minister to heed that person's advice.

We have had a series of strong and effective Lord Chancellors in recent years. The late Lord Hailsham and the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg, all fall into that category. They were strong and effective not because they were called Lord Chancellor but because they were strong and effective people appointed by Prime Ministers who were willing to appoint such people.

Not all Lord Chancellors have been strong and effective. It would be invidious to name names, but there is no magic about the title. As shown on 12 June 2003, the Lord Chancellor, however strong, is a Cabinet Minister who can be sacked by the Prime Minister like any other Minister. A future Prime Minister who wants a compliant Lord Chancellor will find one. The mystique attached to the office of Lord Chancellor was shattered by the events of June last year and I do not believe that it can be reconstructed.

That was a concern expressed by the noble and learned Lord, Lord Woolf, in his speech at which I was present in Cambridge on 3 March this year, when he said:

"I also have doubts whether it would be possible now to restore the special culture that needs to exist if the Lord Chancellor is to successfully combine his different and conflicting responsibilties".

Professor Robert Hazell, head of the constitution unit at University College, London, as someone who regretted the announcement that the office was to be abolished, said in evidence to the committee:

"The damage may well have been done. The Government, having decided to abolish the office, in a way have broken the vase and it may be too late to put the pieces together again".

We do not see the retention of the office of Lord Chancellor as being a necessary or even valuable addition to that role. We also have to say, however, that we are not happy with the title of Secretary of State for Constitutional Affairs, which is an inaccurate description of the office. We have long advocated the title of Minister of Justice or Secretary of State for Justice.

Justice is the core role of the department and the Minister. The department has some constitutional roles that cannot be described as justice matters. For example, it is an umbrella department for devolution and it is responsible for the conduct of elections. Those are fringe activities that should probably go elsewhere. But the administration of the court system, the role in judicial appointments and discipline of the judiciary, responsibility for legal aid, and for civil law and procedure are central to the department. What it lacks—and should get—is responsibility for criminal law and procedure, which would leave responsibility for prisons and police with the Home Secretary. That would leave us with a Ministry of Justice responsible for law and a Home Office responsible for order. That is a logical division of responsibility, which has been adopted in most other democratic countries, and which should be adopted here.

We cannot expect the transfer of criminal law from the Home Office to the Ministry of Justice while the present Home Secretary remains in office. The "Secretary of State for Justice" accurately describes the present functions of the Minister and the department and points out the direction in which the department should move to become a fully fledged Department of Justice. A move in that direction as soon as possible is essential to give the Minister equal standing with the Home Secretary, which cannot be achieved by retaining the historic title.

If we cannot have the title of Secretary of State for Justice, although I hope that it is possible, we are faced with an unattractive choice. Do we support the retention of the historic title when the office to which it was attached has been transformed into something completely different, or do we support the introduction of a new title, which is an incomplete and inaccurate description of the duties of the office?

The movement to our objectives—the Ministry of Justice and the Minister of Justice—will be easier if we can move to a new name now, even if it is not one that we ultimately want. That name recognises rather than conceals the change of function of the Minister. While I am entirely sympathetic to the motives of those who wish to retain the title of Lord Chancellor, they are misguided in believing that it will have that effect. We do not believe that the retention of an outdated title will assist the protection of judicial independence and the rule of law. We shall therefore vote against the amendment.

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative

I fancy that this is the first occasion after 12 years in your Lordships' House that I have taken part in a Committee stage debate, so I apologise for any procedural infelicity. I am also conscious of the fact that it is now some 32 years since I last wore a wig in anger, so I am to some extent disqualified in that respect as well.

During the intervening years, I have had the opportunity of presenting and discussing the reputation of our legal system in this country in many other parts of the world as Foreign Secretary and, in the decade or so following that, as an adviser to one of the world's largest American law firms. Throughout the world, our legal system, because of its structure and shape, commands universal respect which we put at peril with great unwisdom.

It is interesting that that was clearly recognised by Her Majesty's Government only a very short time before the events of 12 June—to be compared almost with 9/11 in their folly. When the Council of Europe pressed the Government to explain the extraordinary anomaly of the Lord Chancellor's role, emphasising the separation of powers and so on, the Lord Chancellor's Department submitted a long paper in response to Mr Eric Jurgens's motion in the Parliamentary Assembly of the Council of Europe, which explained the position as follows:

"The Lord Chancellor provides a counter-balance for the judicial branch against the centralised power of government and Parliament . . . 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 full understanding of legal culture and the rule of law".

He is thus,

"both a link and bulwark between the judiciary and the executive and the legislature".

The phrase,

"imbued with full understanding of legal culture and the rule of law", goes a long way to answering the point most recently made by the noble Lord, Lord Goodhart. That is the position as it was until June last year.

We are all agreed, as the noble Lord, Lord Richard, has pointed out—and I join in paying tribute to his chairmanship—on the acceptability of discarding the judicial role of the Lord Chancellor, and of saying a sad farewell to his sitting on the Woolsack in this House. As the noble and learned Lord, Lord Bingham of Cornhill, said, and we recorded in our report, the old days when the Lord Chancellor spent the first half of the day sitting judicially and the second half sitting as Speaker have, for better or for worse, gone for ever. We know that his sitting in this House was short-lived; the late Lord Chancellor, the noble and learned Lord, Lord Irvine, actually sat as a judge during his three years on only two cases. The nature of the job is therefore not substantially changed by that alteration, and the case that the Government were making remains exactly as strong as it was when they made it to the Council of Europe.

My noble friend Lord Kingsland has already quoted from the judges' response to the initial decision explaining why the Law Lords wished the office to continue with its present strength and reputation. But that support for the present state of affairs is also supported very powerfully and clearly by the report of the Constitutional Affairs Committee in the other place from 10 February this year. The committee said, referring to Lord Chancellors of recent times, that all have been distinguished within the legal profession, to which they have professed great loyalty. It went on:

"There is a radical difference between on the one hand a Lord Chancellor . . . who has a special constitutional importance enjoyed by no other member of the Cabinet and who is usually at the end of his career (and thus without temptations associated with possible advancement) and on the other hand a Minister who is a full-time politician, who is not bound by any judicial oath and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion".

That is the second essential distinction. That general argument is, interestingly, robustly supported by a noble friend in familiar disguise—the noble Lord, Lord Lester, under the heading of the Odysseus Trust. Under the heading,

"Arrangements to replace office of Lord Chancellor", the evidence that the Select Committee received from that quarter said:

"We strongly favour the creation of a powerful Minister of Justice, with the legal stature and qualifications of a traditional Lord Chancellor, and a specific duty to uphold the rule of law and the independence and integrity of the judicial system".

There we have, from the Liberal Democrat Benches, support for the proposition that the office holder needs to have,

"the legal stature and qualifications of a traditional Lord Chancellor".

That is no doubt a recognition that that is the right way of securing, more surely, in the phrase of the noble Lord, Lord Goodhart, a "strong and effective" holder of this important office—someone qualified in that way.

Three things follow from that analysis, which are quite familiar. First, we need to have in that office a distinguished senior figure at the end of his career. Paragraph 36 of our report sums it up in the following words. The holder must have,

"reached the pinnacle as well as the culmination of his political and legal career".

That plainly means a senior lawyer. I am grateful to my noble friend Lord Kingsland for his generous tribute to the expiring breed that I appear to represent. He will also remember that in the course of our committee's deliberations, the original phraseology was not,

"culmination of his political and legal career", but "terminal". That was kindly altered to a happier word.

The second proposition, which is again familiar to the Committee, is that the holder of the office should be in this House. There are good practical reasons for that. First, as my noble friend Lord Kingsland, said, sadly there are almost no leading lawyers left in the other place. When I was fortunate enough to be appointed Solicitor General, there were at least half a dozen Members of my own party clamouring and competing for that job, and I counted myself extremely lucky to get it. There were at least as many on the other side of the House, many of them of real distinction.

Alas, if one goes to the other place now, one looks not quite in vain, but one finds people with that kind of qualification only with difficulty. The evidence for that is that the two Attorney-Generals under this Government have both been Members of this House. For the first time for many centuries, that office has had to be held in this House. So the idea that there may be spare lawyers of the distinction and quality to be appointed to holder of this office simply lying around on the Benches of the House of Commons is certainly a myth. I must say with some sadness that the decline was demonstrated by the fact that for a short time the shadow Attorney-General was not a practising lawyer of any kind but a parliamentary agent. That illustrates the extent to which the holder of this office, if he is to be a senior lawyer, must be in this House.

Another important point relating to why the holder should be in this House comes from remarks by Professor Robert Hazell. Paragraph 65 of our report said:

"The House of Lords has a particularly important role to play as a guardian of the constitution".

That was rightly endorsed, as my noble friend Lord Kingsland pointed out, by the Wakeham Royal Commission. Professor Hazell went on by saying:

"If . . . one important function of the Lord Chancellor or Secretary of State is to be a guardian of the constitution, then in that respect it is entirely appropriate for that Minister to be a Member of this House".

The third conclusion relates to the title of the office. If the office holder is to have the qualifications of a senior lawyer and Member of this House, with the duties imposed on him as we are all agreed, one comes back to that old phrase that if it looks like a duck and if it walks like a duck, it probably is a duck. If this creature's qualifications are going to be equivalent to those of the present Lord Chancellor, why on earth should we not call it Lord Chancellor?

The name matters not just because of the nomenclature of the office but because of the historic authority attached to that title. I noted the rather light-hearted way in which the noble Lord, Lord Goodhart, was happy to dismiss that antique title. I understand the thinking behind the notion of a Minister of Justice but, frankly, we do not have a Ministry of Justice and we do have a hugely important and long-respected office of Lord Chancellor. It is not sensible to say that the title has been so badly damaged by the way in which the Government have handled it that we should simply shed a few tears over the broken vase and let it lie.

This will be the last time I quote from Professor Robert Hazell, but it is interesting to read his description of his understanding of the question, which was in the very first evidence before the committee. He said that he could understand why the Government were ready to discard the judicial role of the Lord Chancellor and his role as Speaker of this House. But he said:

"I do not understand why the Government wanted also to throw away his first hat and abolish the title for the function as a Cabinet Minister. No convincing reason was advanced in the consultation paper and I am not sure that any has been subsequently. It seemed almost as if the Government were casting down the title of Lord Chancellor in an act of mindless modernisation and it certainly put the judiciary in a fright. It raised unnecessary fears that the independence of the judiciary was under threat and that in casting aside the office the Government were also casting aside the values which the Lord Chancellor upheld as the constitutional conscience of the Government and as the protector of the judiciary".

That is the head of the constitution unit at University College, London, describing his impression of the impact made by the reckless decision to discard the office of Lord Chancellor. We cannot respond to that by saying, "Well, it's too bad chaps—it's gone so let it go". If we are going to maintain the authority of the office holder, we need to do what we can to repair the damage that has been recklessly committed. It shows the damage done to the vase and I am not prepared to accept it.

That impression is powerfully reinforced by some observations made from time to time by the noble and learned Lord the Lord Chancellor himself. In last week's edition of the House Magazine, that immensely influential organ, he said:

"Why should any Prime Minister be constrained in the person he chooses to do that job—constrained by it having to be a lawyer, constrained by it having to be a member of the House of Lords? The key thing is quality of the individual, and the Prime Minister should have the widest possible choice".

I see no wisdom in that whatever. If so many people on all sides of our society, and certainly in the world outside, attach great importance to the legal qualifications—senior lawyer qualifications—and membership of this House, surely we should respect those views. As I look at that observation by the noble and learned Lord the Lord Chancellor and the insight that it gives one into his thinking, I am reminded of the cynical legal comment that even in an affidavit the truth will out.

The Lord Chancellorship is the most remarkable and important aspect of our constitution. Yet the shape of that office depends not on statute but on what our constitution depends—that is, conventions. If one looks up constitutional law and human rights in the relevant volume of Halsbury's Laws of England, as I did, to find the qualifications of the Lord Chancellor, one finds that there are no statutory qualifications for the office of Lord Chancellor although it has,

"long been the practice to appoint a member or a former member of the Bar, often but by no means always from among the Bench or someone who has been Attorney General or Solicitor General".

That is the foundation of this cornerstone of our constitution. Over centuries, the quality, qualifications and authority have been defined and upheld by constitutional convention and by convention alone—convention that this Government have been recklessly disposed to overthrow, with possibly far-reaching consequences.

I do not want to use the phraseology of the noble and learned Lord the Lord Chief Justice, but the noble and learned Lord the Lord Chancellor is personally a most engaging colleague. For that reason, I do not relish having to make my next remark. But I have to say that I do not find it easy to respect someone, however personally agreeable, who has the privilege of being appointed to such an historic and constitutionally vital office and is then disposed, at little more than a moment's notice, to set about its demolition. In order to prevent such constitutional vandalism—I make no apology for repeating the phrase—that office now has to be recreated, preserved and strengthened. It is no longer a convention rightly respected over centuries. It now has to be restored by Act of Parliament. It has to be restored by the will of this House.

Photo of Lord Brennan Lord Brennan Labour

The Bill provides a new and fundamentally different framework for the constitutional position of our judiciary that does not involve a Lord Chancellor. Those who propose these amendments assert that the role of Lord Chancellor should continue, and they essentially rely on its antiquity and the supposed scope of its functions to justify its retention. They particularly rely, as did the noble and learned Lord, Lord Lloyd of Berwick, on the role of the Lord Chancellor in protecting the independence of the judiciary. I will henceforth call that "the role".

That approach confuses the office with the functions. I strongly disagree with the approach and I regret to say, but will say, I hope forcefully, that the contention does not survive objective analysis. The Bill is intended to reform. It will preserve the best of the past to advance the future but will not be trapped by the past in making that future constitutionally good.

Let me start with history. Before this debate, I had occasion to look at each of the major textbooks on constitutional law and history, in particular, Dicey. In none of them did I find any significant reference to the role of protecting the independence of the judiciary. It simply was not there. Indeed, when I looked at the history, what was there was the predilection of Lords Chancellor up to the Second World War to appoint judges, up to and including the Lord Chief Justice, by dint of political patronage and not merit. In my research, I found that it was only in 1975 that the Lord Chancellor— Lord Hailsham—first explicitly expressed the role of defending the independence of the judiciary inside the Cabinet and in Parliament as important.

But on what basis can it be defended? We are fortunate in Lords Chancellor such as the noble and learned Lords, Lord Mackay and Lord Irvine, but do we know if they ever had occasion to defend the independence of the judiciary in the Cabinet? If so, on what principle did they defend it? It is not written; it is not even mentioned in the textbooks. Perhaps that might indicate to us that this is exaggerating a problem. The independence of the judiciary of this nation is protected not by the Cabinet and not by the Lord Chancellor, but ultimately by us in Parliament. I shall now develop that contention.

As to the functions of the Lord Chancellor as judge or senior judge, nobody can plausibly argue that he should sit. It is better that he does not. The Bill does away with that. As to his function as Speaker of this House, is it acceptable that a senior Cabinet Minister should spend so much time here as is required when his main function is to serve the public interest in his own ministry? Perhaps we should change our procedures.

The only area in which this debate is significant is in the administration of justice. Within that, the only issue that is seriously raised for the retention of the Lord Chancellor is the role in protecting the independence of the judiciary. I disagree with that emphasis. The independence of our judiciary as to security of tenure, appointment and discipline rests with Parliament. For 300 years, the judges of this country have been independent and have had security of tenure; that is since the Act of Settlement. Politicians respect that independence. Judges, realising that they have it, show its importance by the integrity with which they bear office. It does not and did not need a Lord Chancellor to produce that constitutional position.

The system of appointment by the Lord Chancellor—not in terms of personalities, but as a system—has been heavily criticised. The Bill changes it to an independent commission, the assessment and recommendation of which will have to be decided on by a Minister. If he disagrees, he must explain in a reasoned—in which I include that it would be rational—explanation why he did not accept a recommendation. That is very different from times past. It does not involve a Lord Chancellor.

Lastly, there is discipline. The Bill creates a new system of discipline, effectively exercisable by the Lord Chief Justice on behalf of Ministers, with prescribed procedures and an overview by an ombudsman. That is better than before, and it does not need a Lord Chancellor. Those functions—security of tenure, appointment, discipline—are all developed in the Bill for the better. They do not depend upon a Minister.

What of the role, the critical question of whether the Lord Chancellor must be there to protect the judges? That is the ultimate and only question arising in the amendments. Of the three branches of power in a democracy, the judiciary is the weakest—the least able to protect itself, because of its independence and its inability to enter public debate. It is therefore everybody's democratic duty to ensure that it is properly protected. A constitutional principle is needed to do it, and that is what the Bill creates. It makes for new and better protection of the judiciary, for the following reasons.

First, the concordat agreed in January of this year is an historic and unique document. It is the first time in our history when the judges and the Government have agreed together on the best way to manage the judiciary. It is founded on a welcome concept of,

"real and effective partnership between the Government and the judiciary", which is seen as being "paramount". That is an advance. It does not need a Lord Chancellor.

The concordat is substantially embodied in the Bill. However, it includes a new, enhanced and much more powerful role for the Lord Chief Justice. By Clause 2, he becomes the president of the courts of England and Wales. In that role, he has a statutory duty to represent the judges. He must manage their administration and he must deal with Ministers and Parliament in all of those duties. This is new, different and important, and it does not involve a Lord Chancellor—far from it.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

I am grateful to the noble Lord for giving way. Will he bear in mind that the noble and learned Lord, Lord Woolf, said in his evidence that he saw no reason why the concordat, to which everybody attaches importance, should not work with a Lord Chancellor or a Secretary of State? He could see no difference.

Photo of Lord Brennan Lord Brennan Labour

I thank the noble and learned Lord for reminding me of that fact, but I should like to concentrate, before I return to answer that point, on the question of what the Lord Chief Justice is to do.

The new role appears to be little understood. It is assumed that the Lord Chancellor is the only person who can represent the judiciary. The Bill says different. The Lord Chief Justice, as well as the Minister for Constitutional Affairs, will represent the judges and their independence. He will do so with Ministers and Parliament and if necessary do so by public debate, if he feels that that independence is under threat. He will not be trammelled by political constraint where a Lord Chancellor would be.

My next point will enable me to deal with the point raised by the noble and learned Lord, Lord Lloyd. The role of the Lord Chief Justice fits in with and is fortified by the constitutional guarantee in Clause 1 of the continued independence of the judiciary. That involves all Ministers involved in justice and every Minister, whether in justice or not, is forbidden from interfering with judicial decision making. The noble and learned Lord, Lord Lloyd, reminded me of what the noble and learned Lord, Lord Woolf, said. What he said was that it may be the Lord Chancellor, or it may not. He did not say that it has to be the Lord Chancellor. Prudence on his part would surely lead him not to overstate at this stage the new role that the Bill gives to him. The role of the Lord Chief Justice and the constitutional guarantee work together.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

I thank the noble Lord for giving way. Will he not accept that there is no guarantee whatever in Clause 1 and that it is wholly unacceptable to suggest that there is a guarantee? Does he not appreciate that in paragraphs 75 to 79 of the committee's report reservations were expressed by noble and learned Lords and by Lady Justice Arden about enforcement? The black-type guarantee of judicial independence, as the noble Lord must know, is a marginal gloss. It is not part of the statute or the Bill. It cannot be amended and it cannot be referred to as an aid to interpretation; and in any event it is totally misleading and wrong.

Photo of Lord Brennan Lord Brennan Labour

It is embarrassing to remind ourselves that in 2002, we in Parliament enacted a guarantee similar to this to protect the judges of Northern Ireland. Did we then, in doing so, consider that it was of no effect, that it was a gloss? Of course we did not. We wrote it then as we write it now in the Bill—as a constitutional provision. We may be little accustomed to dealing with written constitutions in this country, but it is time that we started to learn to use them with the intended effect that they are intended to have.

How is the guarantee to be honoured? That is the question implicit in the intervention of the noble Lord, Lord Campbell. It will be honoured in many different ways. The Secretary of the Cabinet, in his proper constitutional position, properly exercised, could not for a moment permit Cabinet discussion to occur in which political interest was threatening the independence of the judiciary, if this clause is law. It is unthinkable that that could occur.

Secondly, if there is difficulty about the independence of the judiciary in Cabinet, the Attorney-General can attend. It was only in 1992 that the Attorney-General stopped representing the Lord Chancellor in the House of Commons on all of these questions. Thirdly, and in any event under the Bill, the Lord Chief Justice himself will have the right to make representations, in public if necessary, to ensure that the guarantee is honoured.

Last and most important of all, when a constitution is written it is not Ministers or judges who give it the final protection—it is this Parliament. Would we be so supine as to allow this guarantee to have no effect? Are we not prepared to use the Select Committee on Constitutional Affairs and give it strength to make it an effective guarantee? Are we not prepared to debate in this House whether or not the guarantee has been observed? It seems to me that in this debate the parliamentary duty to preserve the constitution is fundamental.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

I am grateful to the noble Lord for giving way. How supine was the House on 12 June last year, when the role of Lord Chancellor was de facto abolished? How effective were we then?

Photo of Lord Brennan Lord Brennan Labour

That is a matter for our own consciences. How effective were we when we debated the ouster clause in the Asylum and Immigration (Treatment of Claimants, etc.) Bill? It was changed. It was far more important that that happened than that we did not debate adequately or fully at the time the provenance of these changes.

I want to finish. Having discussed how this guarantee can be honoured, the ultimate guarantor in parliamentary terms is us, but in terms of government it is the Minister. What kind of cheapskate politics do we anticipate will occur when a Minister with a constitutional duty will ignore his duty? It is difficult to accept that we should approach our constitution in such a way.

Lastly, if the Bill is given its full reforming effect, the Lord Chancellor's office has come to an end—an honourable end—but the new start is a better start. A combination of constitutional guarantees, roles of the Lord Chief Justice and so on make it better. To continue the role would be to preserve a name. It would be confusing and unhelpful. It would certainly be undemocratic to require such a Minister to be a lawyer and from this House. It would certainly anticipate a lack of calibre that I do not accept in politics: Roy Jenkins, not being a lawyer, presented the first Prevention of Terrorism Bill in the other place with distinction, as many other non-lawyer Ministers have done with complex litigation. Above all, it is unnecessary.

The concordat indicates at paragraph 5 that the new arrangements should reinforce the independence of the judiciary. In the previous debate in this House, the noble and learned Lord the Lord Chief Justice himself said that the Bill had his firm support in implementing the concordat because it would ensure the continued independence of the judiciary.

The noble Lord, Lord Kingsland, is right. This is a dramatic change in constitutional life. But what is the choice? Is it to be a practice vague to discern, dependent upon the strength and personality of a Lord Chancellor to make it effective; and to be effective in circumstances about which we know next to nothing? Or should it be a principle writ large in a constitutional chapter; plain to read; readily understood; and thereby much more enforceable?

The chapter of our constitution that the Bill represents is an occasion for necessary change. It is an occasion when this House should support this Bill, whether it sadly leads to the end of the Lord Chancellor or not.

Photo of Lord Crickhowell Lord Crickhowell Conservative

My Lords, I want to address two of the principal points made by the noble Lord, Lord Brennan; the role of this House and the particular position of Clause 1.

Members of the Select Committee very soon learnt that my King Charles's head, my obsession, was the question of the enforceability of Clause 1, an issue that had been raised at Second Reading by, among others, the noble and learned Lords, Lord Mackay of Clashfern and Lord Lloyd of Berwick. I raise it again now, partly because it has just been raised by the noble Lord and partly because the alleged "guarantee of continued judicial independence"—that is the heading to Clause 1—has been placed right at the front of the Bill. The worth of that guarantee should be evaluated and fully understood by noble Lords before they decide that the proposed abolition of the office of Lord Chancellor is to be supported or rejected.

The Judges' Council Working Party on the Bill, in its written evidence to be found on page 213 of the evidence volume, stated:

"The protection of the judicial independence is the keystone of the new constitutional arrangements".

Another working party of greatly respected Members of this House, chaired by my noble friend Lord Alexander of Weedon, whose important memorandum to the Select Committee can be found on page 465 of the evidence volume, drew attention to the attempt made in Clause 1 to impose a statutory duty to protect the independence of the judiciary and commented:

"We have the strongest doubts about the effectiveness of those provisions. Their existence demonstrates the dangers that arise from these reforms. We do not understand how such duties can be enforced".

The noble and learned Lord the Lord Chief Justice, giving oral evidence in response to my question on the subject (question 527), said that it was not intended that a clause of this sort should be enforced in the courts. He compared it to the declaratory provisions to be found in education and National Health Service legislation and told the committee that a Minister failing to fulfil the responsibilities set out in the clause,

"will be answerable to Parliament and the public for failure to do so".

With great respect to the Lord Chief Justice, I believe that this clause, which seeks to impose very specific highly important duties, is intended to be of much greater significance than clauses which impose general duties to promote education or to establish a comprehensive health service. And as the Alexander of Weedon working party pointed out in paragraph 61,

"if the proposed statutory duty proves ineffective, it is likely the Lord Chief Justice will be drawn further into political and media controversy in order to defend individual judges".

It identified other equally unfortunate consequences of the same failure.

When Lady Justice Arden, who chaired the Judges' Council Working Party, gave evidence (question 745), I pursued the subject again and asked a number of questions about this

"keystone of the new constitutional arrangements", which is supposed to protect judicial independence and, it is hoped, the rule of law. I argued that the House of Commons, with a large government majority, is not likely to be an effective body to challenge executive action and that this House may not find it easy.

I suggested that if the clause is extended to cover the rule of law and, even more, if Clause 1 is given enhanced status by imposing an interpretive obligation along the lines of Section 3 of the Human Rights Act 1998, as proposed by the Judges' Council,

"surely there will be citizens outside who perhaps do not feel that Parliament is doing its job effectively who will want to take the matter to the courts and to judicial review".

We have got into a sort of circular position because we started with an unenforceable clause, and then we are told that it is okay because Parliament will deal with it; but if Parliament fails to do something about it for the people, the people's only remedy is to go to the courts.

When I put this proposition to Lady Justice Arden, she said that if it was required it should be possible to draft a clause that was enforceable; but that, understandably, she did not wish,

"to express a view either way on whether clause 1 would be capable of being relied upon by the citizen who wishes to take the matter to the courts by judicial review".

It seems to me wildly unlikely that the clause will be redrafted to make it legally enforceable. The last thing that Ministers want is to be pursued in the courts for their failures. And as Professor Jolowicz argued in his written evidence (page 365), although the clause is a fine example of what he called lex imperfecta, it may not be wise to open the door to an application for judicial review. That, he said,

"conjures up a vision to delight the enthusiastic lawyer, but may not be entirely sensible".

So we are left with a declaratory clause unenforceable in the courts and the concordat which, apart from the bland and unsubstantiated statement quoted by the noble Lord, Lord Brennan, that,

"The new arrangements should reinforce the independence of the judiciary", gives little comfort. Like Professor Jolowicz, I believe that there is no adequate substitute for a Lord Chancellor and that it is,

"seriously misguided deliberately to destroy an office whose traditions have succeeded in creating for its holders a remarkable and deserved reputation for trustworthiness".

The Alexander Weedon working party gets to the heart of the question in paragraph 56, when it says:

"we consider that the Lord Chancellor presently holds a strong role in protecting the independence of the judiciary within Government . . . First, he acts as their spokesman in arguing for resources to enable them to do their work properly and to ensure that their position is protected. Secondly, he can remind other members of the cabinet of their role within the justice system. As such, he acts as a counter-balance to the equally important role of the Home Secretary in looking after the interests of public security".

Equally telling is the working party's earlier quotation of Lord Birkenhead's defence of the office, written in 1922, to be found on page 467 of the evidence volume. It firmly deals with the argument of the noble Lord, Lord Goodhart, that all we are talking about is a name. Lord Chancellor Birkenhead wrote:

"it provides a link between two sets of institutions"— the judiciary and the executive—

"if they are totally severed there will disappear with them any controlling or suggestive force exterior to the Judges themselves, and it is difficult to believe that there is no necessity for the existence of such a personality, imbued on the one hand with legal ideas and habits of thought, and aware on the other of the problems which engage the attention of the executive Government. In the absence of such a person the judiciary and executive are likely enough to drift asunder to the point of violent separation, followed by a still more violent and disastrous collision".

We live in a moment of history when that warning seems prescient and apposite.

My final reference is to the Law Lords, who told the Select Committee, as reported at page 116, that they are,

"very greatly concerned that the important constitutional values which the office of Lord Chancellor protected should continue to be effectively protected. In the past the Lord Chancellor's role was to uphold constitutional propriety and champion judicial independence. The constitution would be gravely weakened if that safeguard were removed and not replaced".

The Prime Minister decided to remove that historic safeguard without consultation and, astonishingly, without reference to the Cabinet—so much for the idea that the Cabinet Secretary is to be the proper defender of the independence of the judiciary. It seems unarguable that an unenforceable declaratory clause cannot be an adequate substitute for the historic role of the Lord Chancellor. Furthermore, the authority and influence of the role does not stem simply from his responsibility for what were described in our report as "judicially related matters". The special responsibility as the "constitutional conscience" of government, defending judicial independence and the rule of law in Cabinet goes much wider and springs from the historic character and seniority of the office. That must not be casually put on one side, which is why I strongly support the amendment and the other clauses that go with it.

Photo of Lord Carter Lord Carter Labour

My Lords, I wish to add to the encomiums addressed to my noble friend Lord Richard, the chairman of the Select Committee, who did a brilliant job in guiding us. As some noble Lords will remember, I was opposed to the appointment of the Select Committee on the grounds that the procedure of such a committee was not appropriate. We proved that to be the case. In the first part of our work, we treated the Bill as draft legislation and produced extremely good evidence. If we had stopped there, it would have been very helpful. But we then ignored the procedure in the Companion, decided to take no votes and dealt with amendments to the whole Bill in one day, with the exception of Clause 1, on which there was another short session. Until halfway through the process—the taking of evidence and the report—the procedure was extremely good. However, the procedure that we then adopted showed that, if we had followed the procedure that should have applied, the appointment of a Select Committee on a substantive Bill would not have worked at all.

We have heard a great deal about the historic role of the Lord Chancellor. I understand the history and great dignity of the office. However, let us look at what Lord Chancellors do in practice. They emerge from highly charged political discussions with the Prime Minister and ministerial colleagues involving personalities, issues and policy; they revert to acting as head of the judiciary; they help to draft the party manifesto for the general election; at the same time, they are extremely busy as a departmental Minister with a very large budget and some 20,000 civil servants; then, in their spare time, they serve as the Speaker of the House of Lords.

We all have our views about what happened on 12 June, but without this Bill, the situation would have continued. We now agree that the Lord Chancellor should not be the head of the judiciary and perhaps should not be the Speaker of the House of Lords in the new role that we are now defining and agreeing. All that would have continued. None of the noble Lords who have tabled amendments proposed to change that situation; it was a complete anomaly, with the role involving a mixture of politician, judge and the other aspects about which we all know. The Bill has put that right; without it there would have been no concordat between the judiciary and the executive for the first time.

I have described the role of the Lord Chancellor. In practice he would not so much need Chinese walls between his various roles as the Great Wall of China. It seems generally agreed that the Lord Chancellor should not sit as a judge and should therefore not be the head of the judiciary. As a non-lawyer—I think that I am the first to speak in this debate—I have always thought it odd that the head of the judiciary need never sit as a judge, would very rarely sit as one and was appointed by the Prime Minister.

Any dispassionate examination of the role of the Lord Chancellor would conclude that the Speaker of this House should no longer be appointed by the Prime Minister but should be elected by the House. The noble and learned Lord, Lord Mackay of Clashfern, agrees with that view in an article in today's Times. As the noble and learned Lord, Lord Lloyd of Berwick, said, that is a matter for the House that need not concern us now.

If the roles of head of the judiciary and the Speakership are removed, it leaves the central question: what should the new role of the Lord Chancellor be? We agree that the Lord Chancellor should at least relinquish his role as head of the judiciary and Speaker of this House. Even if those functions are removed, all the amendments in this group are intended to ensure that there is a senior lawyer and a Member of the House of Lords in the Cabinet to protect the independence of the judiciary and the rule of law.

I have listened carefully to the arguments in favour of a senior, experienced lawyer; I understand where they come from. If I were a very unkind non-lawyer, I would say that it was special pleading in spades. I was reminded of the famous remark by Jo Grimond on "Any Questions" 30 or more years ago, when there was much discussion of restricted practices in the trade union. He said:

"If you really want to see restricted practices, put on your hat and walk down to the Temple".

If we were to require that the Lord Chancellor must be a senior experienced lawyer and a Member of the House of Lords, it would be a unique prescription on the power of the Prime Minister in the construction of the Cabinet. Any noble Lord who has spoken has dealt with the point that this House does not control supply. However, those who support the amendment suggest that a senior departmental Minister—I see that there are two former Chancellors of the Exchequer sitting opposite—with a budget of £3 billion should be a Member of this House and not the House that controls supply.

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative

My Lords, perhaps I may pick up on the noble Lord's use of the words "unique prescription". The unique prescription that the Lord Chancellor should be a senior lawyer and a Member of this House has prevailed for 100 or 200 years, but by convention and not by statute. But the unique prescription has been there; Prime Ministers and the nation have managed to live with it quite well.

Photo of Lord Carter Lord Carter Labour

I am describing the prescription as a matter of law, not convention. It would now, I assume, be a matter of law that the Lord Chancellor should be a senior lawyer and a member of the Cabinet. That would be a unique prescription in law of the power of the Prime Minister and the appointment of the Cabinet. There is the major point that a departmental Minister with a budget of £3 billion—

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

Your Lordships will no doubt be aware that at paragraph 35 of the report, the view that the office of the Lord Chancellor should be retained in some way was expressed, putting it briefly, by noble and learned Lords, noble Lords and academics. In that context, it is wholly relevant—

Photo of Lord Carter Lord Carter Labour

I have not finished.

Photo of Lord Carter Lord Carter Labour

I was just pausing for breath. In the report, we deal with the evidence against the Lord Chancellor being a senior lawyer. Evidence was received from Justice, where witnesses agreed with the Government's view that it was not essential for the Minister to be a lawyer in order to carry out his functions under the Bill. That was evidence from Roger Smith of Justice.

In the Scottish Executive, there is no requirement that the Minister for Justice be a lawyer. The Committee was told by Roy Martin QC, vice-dean of the Faculty of Advocates, that his assessment of the experience in Scotland—where of the two Ministers for Justice since devolution one was a lawyer and one was not—is that it does not make a particular difference. On the final question—

Photo of Lord Carter Lord Carter Labour

Are you intervening? I just bent down to put down my papers. If noble Lords are patient, when I have finished I will say, "I am finished". Then I am sure that noble Lords opposite will all get to their feet.

I conclude on the point of the rule of law. Seven members of the committee either were members of the Cabinet or had attended Cabinet, as I did for five years. We asked if any of us could remember from our time when the rule of law had specifically been discussed as the rule of law in Cabinet. Now, I am sure that there were many discussions with Lord Chancellors on points of law. No one could actually remember the rule of law being discussed as such in Cabinet. The evidence of the Lord Chancellor says it all:

"The rule of law in the questions that we are talking about is not has the Government complied with the law . . . we are talking about big constitutional issues which are identifiable to all members of the Cabinet. The question boils down very often to is it only a lawyer who can identify these sorts of rule of law issues? I do not believe it is, I believe that all constitutional politicians can spot them".

For the help of the noble Lord, Lord Campbell of Alloway, I should say that I have now finished.

Noble Lords:

Cross Benches!

Photo of Lord Skidelsky Lord Skidelsky Crossbench

I support Amendments Nos. 1 and 7 to Clause 1. I do so as a member of the working party of Members of your Lordships' House chaired by the noble Lord, Lord Alexander, set up on the initiative of the Bar Council to consider the implications of the changes proposed in the Constitutional Reform Bill.

The reason that your Lordships' House took the unusual step of setting up a Select Committee at Second Reading was because we objected to the way in which the reform had been introduced. The Prime Minister's announcement on 12 June 2003, without consultation and as a kind of add-on to a Cabinet reshuffle, typified the extraordinarily cavalier way in which the Government have embarked on the process of constitutional change, perhaps more appropriately called the unravelling of our constitution.

It is for that reason that I cannot accept the argument of the noble Lord, Lord Brennan, that the rule of law and independence of the judiciary are adequately protected by Parliament. That may have been true in the past; I am not confident that it will be in the future. The noble Lord referred to Lord Hailsham. It was Lord Hailsham who warned of the dangers of "elective dictatorship". That is the permanent danger of a unitary constitution. That is why we should not abandon such defences as we have erected over time, however inadequate such defences may be, against a wilful Prime Minister who has an enormous Commons majority at his back.

I believe, as did our committee, that the Lord Chancellor is an essential counterweight to the supremacy of the executive and particularly to the power of the Home Office in our constitution. There is no need to remind your Lordships that ours is a fused constitution with a balance of powers and not a separation of powers. In this constitutional scheme, the Lord Chancellor is the main link between the legal profession and the government, representing the judges' views to the executive and the executive's views to the judges. He is thus an important element in the protection of the judiciary and the legal profession from political pressure. Such an office, and such an office holder, would be unnecessary and otiose if we had a formal separation of powers between the executive, legislature and judiciary, as in the United States, for example. That is not what the Government are proposing. There is to be no breach in the sovereignty of Parliament. What is proposed is simply to replace the Lord Chancellor with the Secretary of State for Constitutional Affairs.

Four essential functions are fulfilled by the Lord Chancellor in our constitutional system, which cannot be replicated by a Secretary of State for Constitutional Affairs. All these four functions flow not just from the name of the Lord Chancellor, as pointed out by the noble Lord, Lord Goodhart, with all the conventions attached to that name, but to the qualities that inhere in that name, whose connection with the name "Secretary of State for Constitutional Affairs" would be purely fortuitous.

The first function is to protect the independence of the judiciary. The noble and learned Lord, Lord Howe, has already quoted words from the Constitutional Affairs Committee of the House of Commons, pointing to the radical difference between the Lord Chancellor who is bound by judicial oath, and who is usually at the end of his political career, and a Minister who is a full-time politician not bound by judicial oath, and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion. Our own evidence at paragraph 21 adds that,

"there is no guarantee that the Minister will be a lawyer and so may lack the understanding of successive Lord Chancellors of the role that the legal system, the judges and the profession play in achieving a balanced constitution".

The second function is to protect the self-regulation of the legal profession. The noble Lord, Lord Carter, talked of restrictive practices. Restrictive practices can play a constructive role, if they protect the professional competence and integrity of the profession. The self-regulation of the legal profession ensures that. While the Secretary of State for Constitutional Affairs is to inherit the Lord Chancellor's power to improve or amend the ethical rules of the profession, our committee, at paragraph 51, was concerned that someone who is not imbued with legal habits of thought may interfere with the profession's rules,

"in ways that might assist the Government's own agenda, but which might be inimical to the wider public interest in the administration of justice".

Thirdly, we believe that the Lord Chancellor has an essential part to play in protecting the principle of appointment by merit. That is, he should continue to be responsible for appointing senior judges on the nomination of the Judicial Appointments Commission. As our evidence noted at paragraph 33,

"dangers inherent in [the powers of the Secretary of State for Constitutional Affairs to reject candidates for senior judges proposed by the Commission] could be very much lessened if the Lord Chancellor were to remain the appointing officer".

Finally, we believe that the Lord Chancellor is the best person to protect the running of the courts—particularly with respect to the function of listing cases—from executive interference. In our evidence at paragraph 44 we wrote that the administration of the courts,

"should be in the hands of a minister of the appropriate seniority to understand the needs of the judiciary and the position of the staff supporting them".

That is why I strongly support the amendments to enable the Lord Chancellor to retain his essential place in our fused constitution. Whether he continues to be our Speaker is for your Lordships to decide.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

As regards the Select Committee, perhaps I should confess—

Photo of The Bishop of Worcester The Bishop of Worcester Bishop

I am grateful to Members of the Committee for allowing me to speak now. First, it has been an extraordinarily valuable education to read the Select Committee's report. Whatever else is accomplished, a volume has been produced that young people and people with an interest in the way our constitution works will profit greatly from reading, to which I pay tribute.

I came to this debate on the whole—and I think that I still am—in support of the instincts that lie behind the amendments. The analysis of the situation made by the noble Lord, Lord Brennan, was, again, a tremendous education in all the different factors that are at stake and it is largely to his arguments that I think we should address ourselves.

One way of characterising the noble Lord's speech is to say that he analysed the Lord Chancellor's role in terms of functions and examined the ways in which they would be discharged after the enactment of the statute. He considered that the functions would be at least as well discharged and that therefore there is no case for continuing the post of Lord Chancellor.

On these Benches, we may feel inexpert in some of these matters, but we know quite a bit about what it is like to have one's role dealt with in terms of functions. One learns a bit about what a bishop is by what a bishop does, but one does not learn very much. In this debate, it is quite important that we use the words "role" and "function" in a somewhat distinguished way from each other. Indeed, there are functions that a person in the role of Lord Chancellor discharges.

The question concerns what the Lord Chancellorship represents to the heart of our society, which I shall look at under the heading of the separation of powers. This House is essentially a unitary place that brings into the common life of the nation a variety of perspectives. Our daily prayers express the desire for the unity and the knitting together of all estates and persons in this realm. They are an expression of what we seek in a society where different functions can be discharged but in which we actually bring those functions together in a single, deliberative council.

Much as I enjoyed my time in the United States and hugely admired the architecture of its constitution, I am not terribly persuaded—certainly not at present—that the separation of powers guarantees very much. It guarantees that those who wish to exert power resort to all kinds of means in order to bring the other branches of government on their side. Some of the spectacles are not particularly edifying.

If I have to choose between a vocational understanding of politics and office—that is, the Lord Chancellor has a role to which he or she is called—and one that rests on keeping things separate, I would have more faith in the vocational understanding. It seems to provide something to which a person who holds such an office can be, and historically has been, held to account. I do not really trust the possibility that that will simply happen by the interplay of different branches of government.

The separation of powers idea, which I have no doubt lies at the root of these proposals—apart from the changes of detail which, for the most part, are excellent—does not offer what is claimed for it, as well as not being the experience of the constitution of our society. Therefore, for that reason alone, I think that we are going down the wrong track. I feel confirmed in that view by the context in which this discussion is taking place.

I could imagine this House having had this debate before the famous 12 June 2003 and before the debate on the asylum Bill ouster clause. Perhaps, if we had had that debate in a more abstract and calmer frame, I should have been more likely to be persuaded of the course of action on which the Government are embarked. But I cannot state too strongly the undermining of confidence that both those episodes created in me, and I am not alone.

The 12 June episode underlines the fact that we do not seem to have any operative conventions about how the fragile, nuanced, unwritten constitution of our society evolves and changes. It seems to me that if it can be changed by simply a fiat or announcement, that is very serious because it says that we have not expressed the conventions to ourselves clearly enough. If we have not, we are in considerable danger. That is confirmed by repeated statements made in this debate that we cannot go back to before 12 June. It tells us that if an announcement of that kind is made, we have no choice but to accept that we go along with it.

With great respect to the riposte made by the noble Lord, Lord Brennan, to the noble Lord, Lord Phillips, as regards the asylum Bill ouster clause, it is not my recollection of that event that it was this House's debate that caused the clause to be changed. We came to the debate with an announcement that the clause would be changed. I think that was because of the intervention of some notable persons who, as it happens, but not just as it happens, had held the office of Lord Chancellor.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

I am grateful to the right reverend Prelate for giving way. First, does not the row over the ouster clause show that one cannot necessarily rely on someone who holds the office of Lord Chancellor? Secondly, if this Bill goes through, the Lord Chief Justice would be in a much stronger position as the head of the judiciary in England and Wales. It is he who would be in the best position, rather than the Lord Chancellor, to act as the defender of these rights.

Photo of The Bishop of Worcester The Bishop of Worcester Bishop

I appreciate the noble Lord's intervention. With all due respect to the noble and learned Lord, Lord Falconer, although he is of course the holder of the office of Lord Chancellor, he is the holder of that office post-12 June. That makes a profound difference to how his interventions can be regarded. The powers given to the Lord Chief Justice are very important. But what concerns me most about the ouster clause is that it was ever proposed. That is the serious matter to which I draw attention.

My final point relates to the process of this discussion. We need some conventions about how our constitution is to be changed. Although I know that many noble Lords will disagree, I think that it is very strange that the Government should make an announcement; that they should not present it to the elected representatives of the people for the first expression of their will; and that they should then process it through this House. I realise that the Committee brings formidable expertise to the task of scrutinising and revising a Bill which emerges from another place. That is how it is supposed to work. It is not going to be able to work in quite that way because the Bill will go from here to another place and we shall not have the kind of scrutiny functions to deploy as regards any amendments made there.

It is because of the fundamental questions of substance, the processes by which we are dealing with them and the context in which we have been placed, that at the moment I am persuaded to support the amendments.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

I have listened and it is desired—

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip

I believe that we should hear from the noble Lord, Lord Campbell of Alloway, who has risen to his feet five times.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

I shall be very brief. I sought to make the point that paragraph 35 of the report states "in some way" the office must be retained.

The other point I want to make relates to the speeches of the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Kingsland, which concern functions. It arises because of the recommendation at paragraph 45 of the report, which makes it relevant to this amendment to consider whether the scope of the retained functions justifies retention of the office.

On the basis on which this was dealt with by the noble and learned Lord, the scope is wholly sufficient to justify retention of the office. That is particularly so if one adds to those functions the prime importance of the constitutional role, which has been dealt with by other Members of the Committee, the retention of the Great Seal, which confers authority, and the exercise of the parliamentary role spoken to by noble and learned Lords, including the Speakership, which stands as the guarantee for self-regulation undertaken according to our extant regime. There appears no reason or justification for change, and no one elected or appointed would have the same authority as the Lord Chancellor.

The other matter is that the office was established before the Conquest and the keepership of the Great Seal was conferred, I believe, when the king was otherwise engaged during the 30 Years' War. That seal is kept in the Purse of the Lord Chancellor at the State Opening of Parliament with the gracious Speech. Is it the idea that Clause 12 is to abolish that ceremony which takes place in your Lordships' House, with the Lord Chancellor attendant on the sovereign?

On two occasions this great office has been abolished by decree—by Cromwell pending the restoration of the monarchy, and by the Prime Minister today pending immediate restoration to enable this House to sit.

The circumstances of that occasion are all well known to Members of the Committee now and have been aptly described by my noble friend Lord Kingsland on another occasion. Those circumstances cannot yet again justify abolition. As regards the interest of the body politic from the speeches which Members of the Committee have heard, do not those circumstances cry out for the retention of the office? It is accepted by all Members of the Committee to whom I have referred, and I totally agree, that there must and shall be substantive reforms. Reforms, yes, but not abolition.

At all events, the Great Seal has to be retained in order to confer proximity with the monarch and the precedents, rank and status which is required to discharge the functions to which I have referred. Members of the Committee may remember the point made by the noble and learned Lord, Lord Lloyd of Berwick, of checks and balances as to the use of power. It is reminiscent of Darwin's Mathematical Bridge over the Cam by Queens', which held itself up by the forces of gravity. Once dismantled, no one could put it together again.

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip 5:45 pm, 13th July 2004

I suggest that the noble Lord, Lord Lester, speaks next, followed by the noble Lord, Lord Peyton and my noble friend Lord Richard.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

I shall not follow the noble Lord, Lord Campbell of Alloway, into the tangled undergrowth and thickets of the ancient British constitution through the ages. Instead I shall make one point only and a point in support of the speeches made by my noble friend Lord Goodhart and the noble Lord, Lord Brennan.

I wish to give a short piece of evidence to the Committee. I am one of the few Members of this House who has served in a government in which rule-of-law questions came up frequently in Cabinet. The conduct of Ministers at the time persuaded me that the present system was not quite as perfect as suggested by those with a conservative disposition.

I had the privilege of serving in the second Wilson government—

A noble Lord:

As a special adviser.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

I was coming to that. It was a government who contained, among others, the noble Baroness, Lady Williams of Crosby, as a distinguished Minister. I served as Roy Jenkins's special adviser. In that capacity I was given responsibility for looking at the constitutional issues as they came before the Wilson Cabinet. I was a great admirer of the Lord Chancellor, Lord Elwyn-Jones, and of the Attorney-General, Sam Silkin. As I travelled back from Morocco I said to Elwyn Jones, on the eve of the Labour government's election, "What would you do if you were Lord Chancellor?". I remember that charming, genial and fine lawyer saying, "I would not be the last Lord Chancellor". I said, "Apart from that, Elwyn, what else would you do?". It was not clear to me that he had a clear idea. He served with great geniality.

The issues which arose in that Cabinet included what should be done about the Shrewsbury pickets. What should be done about the Clay Cross councillors? What should be done about the fact that the Scottish devolution proposals made no allowance at all for judicial review which, as contemplated at the time, would have given the judges no proper autonomy or power?

I have to say that, time and time again in Cabinet, the person who stood up for the rule of law was not the Lord Chancellor. It was not even the Attorney-General when he was allowed to be there. It was Roy Jenkins. I do not say that because I believe that a lay person who is not a lawyer would necessarily have the qualities of Roy Jenkins any more than would a lawyer. But I do say from my own observations of Cabinet proceedings—I hope that the noble Lord, Lord Wilson, will agree that I am not in breach of the Official Secrets Act in saying this after more than 30 years—that it is an innocent illusion to suppose that the label of "Lord Chancellor" or the office of Lord Chancellor matters. As the noble Lord, Lord Brennan, said so effectively, what matters is the structure within which the senior office holder operates, the individual personality of that office holder, and whether he or she is a person of strong and robust independence, integrity and understanding of the rule of law.

All I can say from my personal experience is that to carry on romanticising about 1,000 years of history and so forth is beside the point.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

I listened with rapt attention and considerable admiration to the opening of this debate by my noble friend Lord Kingsland. I listened with similar respect and attention to the noble and learned Lord, Lord Lloyd of Berwick. However, I wonder whether their generosity had not led them to forget rather too soon the events which preceded 12 June. Those events sowed some widespread seeds of deep mistrust both of the Government and of the noble and learned Lord the Lord Chancellor himself. I must briefly remind noble Lords of why that was so.

In my view, since they came into office the Government have handled your Lordships' House in a thoroughly hamfisted way. They were cavalier in their dismissal of a promise which persuaded hereditary Peers to agree to depart from the House on the basis that a reasonable settlement would be made before anything further was done. As far as I can recall, the noble and learned Lord who now sits on the Woolsack dismissed it in a rather lighthearted manner by saying that it was a temporary arrangement which no one could really expect to last. But that was a very different standpoint from that adopted by the noble and learned Lord, Lord Irvine of Lairg, whose name, surprisingly, has not been mentioned in the debate so far. The noble and learned Lord, Lord Irvine, considered that a promise was a promise, and so he stood in the way of the Government.

My other charge against the Government is that they have been singularly na-ve in their attempt to wrap all this up in the garments of respectability, saying that it is a well thought out plan of constitutional reform. I do not really think that it was anything of the kind. Moreover, a shock was administered to the Government when they found that neither the Prime Minister nor the noble and learned Lord himself could wave a wand and cause his office to disappear. To get out of the situation created by the honourable conduct of the noble and learned Lord, Lord Irvine, the Government called back the Lord Chancellor from the Dome—where, incidentally, he was winning very few laurels—because he had just those qualifications for the job of the present post that the noble and learned Lord, Lord Irvine, lacked. The obedience and flexibility of the noble and learned Lord the Lord Chancellor commended him to the Prime Minister.

I question the idea that a Secretary of State would be able to resist the pressures of the Home Office. As I said the other day, although the noble and learned Lord did not take my words seriously, I believe that he and his department would make a very easy meal for the Home Secretary.

I cannot forget the cavalier treatment of a certain binding promise which was made. The noble and learned Lord affected to treat it as if it was time-expired.

We have now had the experience of seeing the noble and learned Lord sitting happily on the Woolsack, still determined, at the end of his term, to destroy the office. I agree with what was said about this by my noble and learned friend Lord Howe. He expressed surprise that the noble and learned Lord, having enjoyed the office, could so easily then destroy it. If the noble Lord, Lord Goodhart, was right in what he said—that we are simply arguing about the name and title of the office—I cannot see why the Government should not accept that.

I do not think that the noble and learned Lord can be all that surprised at the chilly reception given to this Bill and which, indeed, has been accorded to him for his part in it. He is perhaps the first holder of his office who has thoroughly enjoyed eating his cake, and now relishes destroying it.

As I have said, I find it quite impossible to dismiss from my mind all the events which preceded 12 June. My one fear is that, when the Bill goes back to the House of Commons, the calm attitude and reasoned compromise displayed by my noble friend Lord Kingsland and the noble and learned Lord, Lord Lloyd of Berwick, will not in any way be echoed by the Members and Ministers who sit in that House. I do not share the hopes expressed by my noble friend and I am very sorry for it.

Photo of Lord Richard Lord Richard Labour

Having spent a modest 15 years in this House listening to the noble Lord, Lord Peyton, and 10 years in the other place listening to him, I have always been struck by the thought that beneath that curmudgeonly exterior, of which the noble Lord is very proud, there is a very gentle man; indeed, a humorist trying to get out. It is a great pity that he spoils it by being overly acid. It is like putting too much vinegar in the stew. You end up tasting only the vinegar and not tasting the meat. I have to say to him, in all candour and in great friendship, that the speech he has just made was frankly disgraceful in the context of this debate.

Perhaps I may try to bring this down to reality. We have been up in the realms of the constitutional stratosphere. Everybody has been telling me what a great office the Lord Chancellor is, as are the duties he performs, and how the constitution will be, if not destroyed, at least rocked if the Lord Chancellor goes.

Let us look at the alternatives. In our report we set out four possible ways in which, if one wanted to preserve the office of Lord Chancellor, it could be preserved. First, we could retain, preserve and enhance several crucial features of the office, including that he has to be a senior lawyer and a Member of this House.

Secondly, the office of Lord Chancellor could be redefined so that the office became more a judicial than a political one, and legal aid could be transferred to other departments. Indeed, that was the argument put by the noble and learned Lord, Lord Mackay.

Thirdly, the title Lord Chancellor could be used for the Secretary of State for Constitutional Affairs. In other words, there is the Secretary State, and the person who is performing that function does what the Bill requires of him, but he is called the Lord Chancellor. That, as I understand it, has been the position taken up by the noble and learned Lord, Lord Howe.

Fourthly, the title Lord Chancellor could be used for the Speaker of the House, and indeed that is what the noble Lord, Lord Campbell of Alloway, seems to be advocating. One noble Lord who gave evidence to us said that the Lord Chancellor was Speaker of the House and, when asked what else he could do, said that he could "hold himself at the disposal of the House". I was not quite sure what that meant at the time, nor indeed am I sure now.

It is therefore important to start this argument by looking at the four main elements of what the Lord Chancellor is supposed to do and to ask ourselves is he doing them, in this day and age should he be doing them, or should they be done in some other way?

What are they? First, he is the senior judge in the United Kingdom, recognised as such as head of the judiciary. Secondly, he is responsible for the administration of the courts, legal aid, and some other administrative matters. Thirdly, he appoints the judges. Fourthly, he sits as Speaker of the Lords.

Let us look at each of them. First, it seems to me to be absolutely basic that if he cannot sit as a judge he cannot sit as head of the judiciary. We heard very strong evidence that it is not possible at the moment for the Lord Chancellor to sit. Reference was made in parenthesis by the noble and learned Lord, Lord Howe, to what the noble and learned Lord, Lord Bingham, told us about the efforts made to try to find work for the noble and learned Lord, Lord Irvine, to do.

I will read to the House what the noble and learned Lord, Lord Bingham said.

"In the three years until Lord Irvine retired when I was here he sat on two cases. It was agreed between us that he could not do anything with crime because that affected his colleague, the Home Secretary, he could not deal with human rights because he had piloted that Bill through the House, he could not deal with judicial review because it was of government interest and he could not deal with commercial cases because they always went on for much longer than he could possibly sit. That left him in that period of three years with two cases, one about whether premises could be a dwelling for the purposes of the Rent Act if they did not have a kitchen and one about the construction of a mortgage deed".

The conclusion of the noble and learned Lord, Lord Bingham, was quite firm:

"This was the result of both of us trying to find cases on which he could sit. I came to form the view that really no useful purpose was served".

That seems to me to explode the idea that the Lord Chancellor should continue to be a judge or be regarded as head of the judiciary; and, if he is not going to be the head of the judiciary, who is? The answer to that is the Lord Chief Justice. The question that then has to be asked is whether he is in a better position to safeguard the independence of the judiciary than is the Lord Chancellor—this emasculated Lord Chancellor—who is no longer a judge and no longer head of the judiciary itself.

It seems to me that the one thing the concordat does—and I very much agree with what my noble friend Lord Brennan said on this—is to establish a firm relationship, as far as I know for the first time in British constitutional history, between the judges and the executive. That is a much greater protection for the judges than they have ever had in the past, other than merely relying upon the efforts, unseen, of a Lord Chancellor. Therefore, that first function of the Lord Chancellor's office goes.

Secondly, he is the Minister now responsible for the administration of the courts and legal aid. Noble Lords may not like this, but the change in the Lord Chancellor's Department over the last 10 or 15 years has been dramatic. It is bound to cause changes in the role of the Lord Chancellor and in the office that any possible Lord Chancellor may occupy.

What is it? He now administers a budget of £3 billion a year. The manpower of the department is now 23,000 and will soon be 30,000-strong. If one were approached, objectively and cold, and asked, "My department has a budget of £3 billion and employs 30,000 staff. Where should the Minister sit?", the automatic reaction of anyone who has been connected with politics would be, "Down the other end". I am not saying that the Lord Chancellor has to sit down the other end, but I am saying that you cannot rule it out. For a senior Secretary of State of a major spending department of that sort, under our constitution, supply is determined down the other end of the corridor, not up here. It seems to me that a situation in which he was sitting up here and there was a junior answering for him on matters in the House of Commons would not be satisfactory.

If those responsibilities are removed from the Lord Chancellor's brief, which is the suggestion, and they go to a Secretary of State and the Lord Chancellor does other things, what is left? At the moment, judicial appointments are very much within the discretion of the Lord Chancellor. The existing process is arcane and shrouded. In recent years, since 1945, there has been very little criticism of the process on political grounds. By and large, judges are no longer appointed because of their political allegiances. It was not always so. Those attached to the 1,000 year-old institution, its mystique and its tradition, should perhaps recognise this.

There is a famous story told of Lord Halsbury when he was Lord Chancellor. There was a vacancy in the High Court and someone approached him and said, "Lord Chancellor, ceteris paribus, you will of course appoint the best man for the job", to which he said, "Ceteris paribus be damned! I shall appoint my nephew"—and he did.

The history of Lord Chancellors until the end of the Second World War is not the mystical one that we have heard about today—as the guardian of the constitution, the guardian of the rule of law. All too often, Lord Chancellors of the past have not been interpreting the views of judges to the Cabinet. What they have been doing is taking the views of the Cabinet and enforcing them on the judges and on the judiciary. By and large, the process has been in the opposite direction to that which noble Lords opposite seem to think.

I come back to the point I made a little earlier. In terms of the independence of the judiciary and the rule of law, the concordat is a greater safeguard than the existing position of the Lord Chancellor.

The consensus on the Committee, and I think now generally, is that the time has come to establish a Judicial Appointments Commission. That proposal may need fine-tuning, but I think that the Government's approach is inescapable and right.

Finally, there is the fourth function of the Lord Chancellor—sitting on the Woolsack as the Speaker of this House. I ask those who support the office of Lord Chancellor on the basis of the 1,000 years of history, tradition and greatness behind him, do they really think that the office should be so diminished as to be confined to somebody who sits on the Woolsack of the House of Lords for two hours a day when the House is sitting and, indeed, when the House is self-regulating? Is that what it comes down to? With great respect, we are arguing about a name and shell. We are not arguing about a post. We are not arguing about anything particularly concrete. We are arguing about whether, after 1,000 years of history, we take this terribly dramatic step of removing the name "Lord Chancellor" from the British constitution. The way in which the office of Lord Chancellor is going—his functions are going to go; his powers are going to go—you will be left with only a name.

Photo of Lord Richard Lord Richard Labour

Perhaps I may finish this sentence and then I shall of course give way. The noble Lord having risen, perhaps I should say that the name and the Great Seal will be left. I had forgotten the Great Seal.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

The noble Lord referred to "name and shell"; what about the Monarch and the State Opening of Parliament? It is not a name and a shell.

Photo of Lord Richard Lord Richard Labour

I am very much attached to the State Opening of Parliament. I enjoy it; it is colourful. It gives great fun and enjoyment to all those concerned. However, it does not have to be the Lord Chancellor who goes down on his knee and hands up the Queen's Speech. I am sure that anyone who sits on the Woolsack at any given moment could do that. Indeed, even perhaps one of the other Ministers in the House of Lords could do that. I do not think that the nature of the ceremony of the opening of Parliament is a justification, one way or another, for retaining the Lord Chancellor.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

I am grateful to the noble Lord for giving way. In order that there should be no misunderstanding, when I introduced the amendment I made it absolutely clear that we accept the new architecture of the Bill. The issue is not whether the Lord Chancellor should or should not remain in status quo; the issue is whether in the new architecture of the Bill, the Lord Chancellor should fulfil the function of the Secretary of State for Constitutional Affairs. To say other is to misrepresent our position.

Photo of Lord Richard Lord Richard Labour

It is not your position; there is not one position on the matter. That is the unreality of the debate. Everyone is saying they want to retain the Lord Chancellor, but there are different versions of the kind of Lord Chancellor they want to retain. The noble Lord, Lord Kingsland, is clear and the noble Lord, Lord Campbell of Alloway, is clear—but the two certainly do not agree. The noble and learned Lord, Lord Mackay, if he was in his place, would not agree.

Before people attack the Bill in a slightly virulent way, it is incumbent upon the Opposition to say what kind of Lord Chancellor they want. I have heard it from the noble Lord, Lord Kingsland, and, with respect, I do not need to hear it again. I heard it in Committee; I have heard it twice today; I understand it.

Perhaps I may now briefly finish what I was going to say. The only argument that seems to me to be left for some individual called the Lord Chancellor is that he should be a kind of constitutional nanny in the Cabinet, where he could pass on to the rest of the Cabinet and the Government his preoccupations about whether the Government are doing something which interferes with the independence of the judiciary and the rule of law. History does not lead us to believe that the function of many Lord Chancellors in the past has been in that direction. As I said earlier, too often it has been in the other direction.

If the post goes and there is very little left of it except the name and shell, should we keep the name? The noble and learned Lord, Lord Woolf, was quoted earlier and perhaps I may be allowed to quote him. He was very firm that continued use of the title would create confusion. He said:

"because of an accumulation of events, including the fact that the role of the Government Minister envisaged in the Concordat is very different from the historic role of the Lord Chancellor, I have real reservations as to whether it is possible to retain the title".

Change is inevitable. The only real question now is how does one effect it. It seems to me that the time has come for this particular bullet to be bitten.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

I detect that the feeling of the House is reaching the stage of wishing to hear from the noble and learned Lord the Lord Chancellor and then bringing the matter to a conclusion. But perhaps, as someone whose name is attached to the amendments, I may be allowed to postpone that for one—but only one—speech further.

The first thing I was going to say has just been said in the intervention of the noble Lord, Lord Kingsland. After hearing the speeches of the noble Lords, Lord Brennan, Lord Carter and Lord Richard, and the question put by the noble Lord, Lord Goodhart, to the right reverend Prelate, one would have thought that none of them had heard the various concessions and points made by the noble Lord, Lord Kingsland, at the beginning as to what these amendments do not seek to change. It is no good noble Lords on the Government Benches knocking down cock-shies that do not exist.

The noble Lord, Lord Richard, said that there are various models of Lord Chancellor that might be kept. That may be so, but the model we are debating is the one contained in these amendments—and it is quite clear what that model does and does not seek to do. Under the government proposals in the Bill, there is a substantial role for a Government Minister. Obviously that is right; there has to be a considerable ministerial involvement in processes such as being responsible for the courts and judicial resources and the administration of those services; being responsible for setting up the Judicial Appointments Commission and recommending judicial appointments on its selection; and for implementing the concordat.

Various people have spoken about the concordat but have forgotten—or perhaps some have not read every word of Schedule 1 and so have not known—what it actually involves. The concordat involves an enormous number of decisions, made either by the Lord Chief Justice in concurrence with the Minister, or by the Minister in concurrence with the Lord Chief Justice, or by one having consulted the other. There is a very large ministerial role. The question is: who is to perform it?

The noble Lord, Lord Brennan, quite rightly said that under the Bill the Lord Chief Justice is to represent the views of the judges. But the noble Lord seems to have forgotten that under the Bill also the Lord Chief Justice will be deprived of his voice in this place and will not be able to comment in advance, or speak in Cabinet or to Ministers, about proposals that have not yet emerged. We all know that the word that gets out early and prevents someone announcing a detrimental course of action is infinitely more influential; it is easier than trying to turn someone from a policy that they have announced.

Under Clause 1, the Minister will have a special responsibility for guarding judicial independence and the rule of law. That is a role which inherently involves tension. There is inevitably and rightly a conflict between the demands of order and efficiency and the demands of justice and the rule of law. Those whose duty it is to protect the latter—the demands of justice and the rule of law—must be willing and able to stand up for their cause notwithstanding that inherent tension.

The Government say that one of the purposes of their proposals is to remove that inherent tension. If that is what the effect of the Bill will be, then the defence of constitutional propriety will have gone by the board. If the tension is not there, the role is not being fulfilled.

The question before the House is not one of name or how you preserve the Lord Chancellor. We do not start from the premise, "Oh, we must have a Lord Chancellor doing something; now let's find him something to do", as the noble Lord, Lord Richard, seems to think. We are saying—to use the words of the right reverend Prelate—that there are functions under this Bill; what kind of person do you want to discharge them?

The Government say that we are to have an ordinary, run-of-the-mill House of Commons politician in the middle of his career looking for promotion, with no particular knowledge of the law and its workings, hoping to keep the Prime Minister's good will and get promotion and move upwards, sideways or perhaps, if he is difficult, outwards, in a very short time.

Contrariwise, we say that there should be somebody in the traditional mould of a Lord Chancellor who has served the British constitution in an evolving way for many centuries. It should be a senior lawyer in this House, bound by an oath to the duties imposed on him by Clause 1. It should be somebody—and this is the key perhaps—at the ceiling of his career, who has nothing to hope for by way of promotion and who therefore is in a stronger—I only say stronger—position.

The noble Lord, Lord Carter, said that it is surprising that we are seeking to encapsulate that in the statute. It has been the practice and convention for centuries. The only reason why it has to be encapsulated in statute now is because the Government have sought to tear up that convention.

The advantages of having such a person are that he is in a much better—I only say better—position to fulfil the vital role of protecting the rule of law and judicial independence. What is fascinating is that that is a view expressed by the House of Commons constitutional committee. Surely, therefore, it is not very surprising if your Lordships' House takes the same view. Such a person is more likely to see the rule-of-law implications, and is in a better position to insist on them.

Of course that person can be sacked. Any Minister can be sacked. But that is a very drastic tack for a Prime Minister to take. Everyone will be aware that he has been sacked, and he will be around to make his displeasure or his reasons for dissenting known, whereas an ordinary Minister can be moved with no trouble without ruffling the waters. He can be "promoted" or moved sideways. Nobody will know that that is because he was putting his foot down or seeking to say, "Oi, look, the rule of law and the independence of the judiciary are offended by your proposal".

We are not saying that a Lord Chancellor will always succeed in standing up for the rule of law sufficiently strongly, or that he will succeed. No mechanism in a constitution—certainly no mechanism depending on a person—will always be successful. But we are saying that on average he will be more likely to be successful in that role than a run-of-the-mill politician hoping for promotion. It does not avail us for the noble Lord, Lord Lester, to tell us how wonderfully Lord Jenkins no doubt would have done that job, or for the noble Lord, Lord Kingsland, to tell us how wonderfully the noble and learned Lord, Lord Howe, would have done that job. Of course there are always exceptions. But what we are looking for is what in general will be better. I would suggest that there is no doubt that that is somebody in the mould and with the qualifications of a judicial Lord Chancellor.

I entirely agree with the right reverend Prelate the Bishop of Worcester that it is totally defeatist to suggest that, because the Government have sought to smash the mould, that mould is irretrievable. There have always been bad holders of particular offices, or periods when offices did not do particularly well, but that does not mean that those offices were ruined. That is no more the case now.

There is one other point which I do not think has been made. If there is a person with the qualifications of a Lord Chancellor, it will be infinitely easier for the partnership between the Lord Chief Justice and the Government to function properly, and for them to handle judiciary-related matters. There are hundreds of different matters in Schedule 1 alone. If there is a new Minister from outside with no relevant background, and the Lord Chief Justice has to get his concurrence or consult him or vice versa on myriad issues, the Lord Chief Justice—poor man—will spend the first six months of that man's time in office teaching him the basics of what is going on. He will have to explain to him who the difficult personalities are, and explain the problems. Just when they are beginning to talk the same language, he will be moved on to another department, whereas Lord Chancellors have on the whole been relatively permanent, certainly by the relevant standards.

That raises a very important point on which the noble and learned Lords, Lord Bingham and Lord Mackay, expressed great concern. It is on whether, if under the Bill an enormous amount of administrative work is loaded on to the Lord Chief Justice, top lawyers and the best judges will want to take that role if they have those administrative burdens made infinitely more difficult by having to deal with a series of new Ministers coming in and having to be taught.

It is said that one does not have a doctor as Minister of Health, or a soldier as Minister of Defence, so why does one need a special qualification for this role? The answer is another question: is the administration of justice simply a department of government, or is it a separate and vital strand of our constitution? As the very distinguished working party chaired by the noble Lord, Lord Alexander of Weedon, and including Members from all parts of the House, made absolutely plain, the administration of justice is different and therefore cannot be equated with the Minister of Health.

I sought to explain why there are enormous advantages to the course proposed by the amendment. Are there any disadvantages? I can see only one, but I fear that it will weigh with the Government's Front Bench very strongly. It is that the proposed amendment is not the scheme devised by the Prime Minister on the back of an envelope after long minutes of thought, research and consultation during the afternoon of 12 June.

Photo of Earl Ferrers Earl Ferrers Conservative

This afternoon we have had a debate which has consisted mostly of speeches by legal and noble and learned Lords. Some of them have been learned and some are just legal, but most of them have fallen into that category. I do not fall into either category.

I have listened with a certain degree of surprise to what has been said. We have heard everyone saying what a Lord Chancellor should do, what the independence of the judiciary means, how it ought to be achieved, what the lawyers ought to do and how justice can be properly performed in this country. I listened to this with amazement because I had never thought that we had done this before. We had a Lord Chancellor for a thousand years; they may have all been different, years and years ago, but recently we have looked back on them with admiration and have thought that they conducted their work well. It is surprising that one then has people saying, "We ought to adjust this and adjust that", as if we were trying to devise a system for a new country that was starting up.

When a government come along with the intention of disposing of the office of Lord Chancellor, frankly, I wince in a great way. What was the first reaction of your Lordships' House? It was, "What are we going to do without a Lord Chancellor? We will have to have a Speaker". So, like all good authoritative bodies, we set up a committee to find out what kind of Speaker we should have. It was chaired by the noble and learned Lord, Lord Lloyd of Berwick, and it was decided that we would have to have a Speaker and pay him £100,000 a year. Then, surprise of all surprises, we will have to find something for him to do.

It never occurred to us to consider such things when we had a noble and learned Lord sitting on the Woolsack. He fitted in all the responsibilities that he was given. The noble Lord, Lord Richard, said that his office has increased enormously. I daresay that it has; so has the Prime Minister's office. In some people's minds the Prime Minister seems to manage all right with his greatly inflated office and I have no doubt that the noble and learned Lord the Lord Chancellor can too. However, that is not an argument for doing away with that which we have had and that which has been run well.

Other countries do not have a Lord Chancellor and people come to this country to see what we do and how we do it. I spoke to someone from South Africa the other day. He said, "We are engaged in building a new country and are trying to find out what to do. We come to your country and what do we find? You abolish everything and do away with it all".

I am not at all impressed by the idea of having a Speaker in your Lordships' House. We had one in the noble and learned Lord the Lord Chancellor and despite being able to ridicule that, it worked well. However, we will obviously have to do something if this office is abolished.

No noble Lord has yet referred today to what the Government are doing to the constitution. They are going around rather like Boadicea in her chariot chopping off everything that they can, particularly in your Lordships' House. First, they did away with hereditary Peers. Then they said that they must have 100 of them back, so 100 came back. Just for the sake of embarrassment, I remind your Lordships that we are the only Peers who are elected—none of the others is. Then they said, "Now we will do away with the Law Lords"—vaporise them—so the Law Lords went. Then the Lord Chancellor came along and said, "I want the Lord Chancellor's head off"—which used to be treason, but I suppose that it is not nowadays.

When we have got rid of the hereditary Peers, the Law Lords and the Lord Chancellor, what is left but the life Peers. Let nobody think that they will not be the next to go. Of course they will. We cannot have a House made up of a lot of life Peers packed in by the Government. We have recently seen and are continuing to see new Peers admitted day after day and good luck to them. We welcome them broadly. However, let us not pretend that that is the right way to fill a Second Chamber, when all the other participating bits have been removed.

I suppose that even the right reverend Prelates' chances are numbered. Certainly, their numbers are numbered. That is a great pity because the right reverend Prelate the Bishop of Worcester made a significant contribution when he asked why anything should be sacrosanct about 12 June 2003 just because the Prime Minister, however important he is, makes a judgment. That does not mean to say that nobody can then go down that path afterwards.

What the Government are doing to the constitution is of tremendous effect. They are wrong and it is wrong to encourage the Government to destroy the constitution, even if it means that there should be some way of changing slightly the work or the duties of the noble and learned Lord the Lord Chancellor. He ought to stay in his place as it is.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

May I join other noble Lords and express my gratitude to the work done by my noble friend Lord Richard for successfully chairing the Select Committee? The committee made real progress in improving the Bill. In two significant areas we failed to reach agreement—the future of the Lord Chancellor, and the Supreme Court. Even in those areas we heard evidence which illuminated our discussions. We are not nearly so far apart in our views as this debate might suggest.

I am glad that we had the Select Committee. I opposed it at the time, fearful that the most recent precedent prior to this Select Committee would be followed and the Bill would be killed. That has not happened. As my noble friend Lord Carter said, it has allowed for something akin to pre-legislative scrutiny in the course of the Bill going through Parliament. It has allowed the pace of reform to be more deliberate, so that proper consideration has been given to the principles and the details. That is to the good. The circumstances surrounding the birth of these proposals have led to them being attended by suspicion. They deserve to be considered on their merits. The Select Committee has given us time to do that. As the noble Lord, Lord Kingsland, said, there has been an emerging degree of agreement on what he described as the architecture of the new arrangements.

The role of the Lord Chancellor as it has developed over the past century until the beginning of the 1970s has the following elements. He is: the Speaker of this House; a judge; the head of the judiciary appointing, deploying and disciplining judges; the voice of the rule of law and the independence of the judiciary within government; and the head of a major government department responsible for the courts, legal aid and a number of other constitutional policy responsibilities.

Until the 1970s, as the noble and learned Lord, Lord Bingham, said in evidence to us, the predominant aspects of the Lord Chancellor's job and day were as judge and head of the judiciary, and Speaker of the House of Lords—the morning in the Judicial Committee of the House of Lords and the afternoon on the Woolsack. His ministerial responsibilities were not onerous. Indeed, in 1885, the Lord Chancellor's Office comprised only a Permanent Secretary and seven other officials, the vast majority of whom were lawyers. Following the Courts Act 1971, his office grew to 10,000 staff, with a budget to match. As has been stated often in the course of this debate and in Select Committee, that budget now stands at over £3 billion, over half of which is devoted to legal aid.

The expenditure of such large sums has increasingly become, quite legitimately, the object of political controversy. Questions are rightly asked about how well criminal courts handle the management of criminal cases, how the legal aid budget should be spent and how quickly and fairly the magistrates' courts deal with public law children cases. The regulation of the legal profession is a matter of legitimate political debate and there are questions about the extent to which the vulnerable and the socially excluded have proper access to advice and justice. Those are matters of political debate throughout the country.

The increase in both the size of the ministerial function and the political attention that it has attracted have been accompanied, although for different reasons, by a reduction of two other parts of his responsibilities—those of Speaker of this House and those of sitting as a judge. Since Lord Hailsham's tenure, the Lord Chancellor has had to be supported by a significant number of Deputy Speakers with whom to share the workload of the Woolsack. Although it is ultimately a matter for your Lordships' House to decide, the continuing role as Speaker is uneasy and difficult to reconcile with the changing demands of the office. By that, I do not refer to the burden of work, but to the nature of the work. A significant ministerial job is not easy to reconcile with being the Speaker of this House. As your Lordships have heard, the sittings of the Lord Chancellor as a member of the Appellate Committee of your Lordships' House have become fewer and fewer. As the noble and learned Lord, Lord Bingham, made clear in the extract of his evidence read by my noble friend Lord Richard, it has become increasingly difficult to find cases in which the Lord Chancellor can participate.

Practical difficulties aside, it has appeared increasingly inappropriate for the Lord Chancellor to sit judicially. There is now little if any support for that role. The Select Committee's first area of broad agreement was,

"that it has long been impracticable for the Lord Chancellor to sit as a judge".

At the same time, the Lord Chancellor's workload in other areas has increased, but in respect of significant responsibilities of his role as head of the judiciary—the appointment, deployment and disciplining of judges—there is a growing sense that the time for significant change has arrived. As Committee members have been told in the course of this debate, members of the Select Committee were unanimous that the time had come to set up a Judicial Appointments Commission. It is neither sensible nor defensible to leave the appointment of judges to one person.

Whereas 50 years ago, he would be making about 25 appointments a year from a pool of barristers who would be largely known to him personally, now he makes over 700 appointments. The majority of those are not from the Bar but from a pool that is substantially unknown to him.

There is also acceptance of the need for the explicit involvement of the executive, albeit constrained, in the appointment system. The concordat negotiated with the judiciary, of which we have heard much in the debate, and for which there is considerable support, represents the view of the executive and the judiciary about what their relationship should be. It is possible to have different views about the precise involvement, but it is important to point out that the concordat envisages that the Minister fulfilling the role of the appointer—or the giver of advice—under the concordat is no longer either the head of the judiciary or a judge. There is acceptance that the role of the Lord Chancellor as a judge and head of the judiciary has gone.

On the matter of discipline, change has already occurred. Both my predecessor and I have regarded it as wholly inappropriate to consider disciplining a judge without consulting the Lord Chief Justice. In relation to any serious step against a judge, we would seek his concurrence. A protocol to that effect already existed between us. The concordat sets out in detail how the discipline process would work in the future. Again the role envisaged by the Minister in the concordat is not that of a judge but a Minister.

Finally, in respect of deployment, the judiciary and I agree that, both as a matter of practicability and constitutional principle, it is wholly wrong for the Lord Chancellor to determine which individual judge should sit in which court. That is patently a matter for the judges. The view of the vast majority of those who gave evidence was that the time had come for the Lord Chancellor to cease to be the head of the judiciary. Instead, the Lord Chief Justice—the chief professional judge in England and Wales—should take that role.

There remains the Lord Chancellor's function as the person in government who protects the independence of the judiciary and the rule of law. This is a critical function. It must and will be preserved. It is the expression of key values on which our constitution rests: justice, the independence of the judiciary and the rule of law, aside from party politics. That role goes beyond the mere identification of the law and the need to adhere to it. It goes further than simply ensuring that the Government take proper legal advice before doing something.

In the context of a democracy, which is based on parliamentary sovereignty, it involves speaking out privately, and if necessary publicly, where the rule of law may be threatened. But the role is as part of government, not separate. It involves speaking for justice, the rule of law and the independence of the judiciary within the Cabinet and the Government. It is one aspect of a number of protections that exist. The Attorney-General, the courts, the police and lawyers all have a role. But the Minister, given his responsibilities for the justice system and the judiciary, has an important role to play.

The holder of the office needs to be a respected and trusted member of the Government, able to put the requirements of justice and the rule of law above daily considerations. The role—critical in our constitution—must be performed by someone who is no longer a judge. The effect of our deliberations in the Select Committee, and as we believed the position to be before that committee, was that the role of judge and head of judiciary had effectively gone. A judge in Cabinet, increasingly perceived to be outside the mainstream by his colleagues and the public, will not be as effective in protecting those interests of the judicary and the rule of law as a strong, respected member of Cabinet, with a clear and unequivocal responsibility to uphold justice and the law.

Photo of The Earl of Onslow The Earl of Onslow Conservative

Will the Lord Chancellor give us some evidence of that fact? The idea that Lords Chancellors Hailsham, Mackay, Jowitt or Gardiner could not do that is incomprehensible. The noble and learned Lord's assertion that, because he is not a judge, a Secretary of State can is incomprehensible. There is no basis in fact for that.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

The point that I am making is that there is widespread acceptance of the view that the person currently fulfilling the role of Lord Chancellor should no longer sit as a judge. There is also widespread acceptance of the view that a member of the Cabinet cannot discipline judges, cannot deploy individual judges and should not appoint judges on his own. Indeed, the Select Committee was unanimous on those three points.

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative

I apologise for interrupting the noble and learned Lord the Lord Chancellor, but we should make it absolutely clear that there is no difference between us on that point. It is entirely common ground that the Lord Chancellor in Cabinet should not be a judge but that he should be a senior lawyer in this House. The Lord Chancellor has articulated a strong case for exactly that conclusion without any question of the man being a judge.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

I am grateful to the noble and learned Lord, Lord Howe, for making that point. There is complete agreement that a judge will no longer be head of the judiciary. The particular authority that came, and comes, to the Lord Chancellor in Cabinet is because he is a judge—the senior judge.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

In response to that point, will the noble and learned Lord the Lord Chancellor accept that when he was in Birmingham court on Saturday last before 350 young people and an equal number of parents and teachers, his magnetism revolved solely and exclusively round his personal qualities and the fact that he was the Lord Chancellor of England—not because he was Secretary of State for the Department of Constitutional Affairs?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

The 300 or so 13 to 14-year-olds were unaware that my personal magnetism was based on the fact that I was the Lord Chancellor.

Just as the Leader of the other place and the Leader of this place have roles requiring them on occasions to put the interests of the Chambers they lead before their political affiliations, so must this Minister when it comes to justice and the protection of the rule of law. Of course, in every case it will depend on the quality and timbre of the holder of the office. He cannot expect his views always to prevail, but his voice must be heard, and the strength of the office depends on its relevance and its defensibility.

In the place of the Lord Chancellor the Bill provides the right combination to provide an office of appropriate certainty. It clearly sets out the responsibilities of the executive and the judiciary. It is unique in that the justice functions given to the Minister by the Bill cannot be removed save by primary legislation. For the first time, it provides for judicial independence with a defined role for the Minister. We shall place on the Minister a clear, statutorily defined role to protect the rule of law. We will debate in later groups the terms of that role but there will be no doubt that such a role will be placed in the Bill.

The job description—this reflects where the process has got to, not because of 12 June, but the position that already existed—is, therefore, of a Minister with a substantial budget performing a role within government that puts him in a mainstream position in terms of political issues, with a special obligation in respect of justice and the rule of law.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Leader In the House of Lords, Leader, House of Lords

The noble and learned Lord the Lord Chancellor is aware of the relative pattern of powers among departments in government. Does he agree that to have the singular effect that he is now claiming for the future Secretary of State, it would be better to have a department that is as powerful as the Home Office? That would mean switching the criminal justice system from the Home Office to that of the new Secretary of State for Constitutional Affairs?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

I do not think that it would be necessary to do that, but I agree with the basic proposition that the office we describe has to be strong enough to stand up not just to the department to which the noble Baroness referred, but to any department that may seek to do something that infringes the rule of law. It is also important to remember that the holder of this office has to be someone who is capable of being a Minister expending £3 billion of government money in respect of issues of legitimate public concern. Therefore, the rule of law and the ministerial role must go together.

Photo of Lord Mackie of Benshie Lord Mackie of Benshie Liberal Democrat

Would this Minister's position be protected, and its independence enhanced, by the automatic right to a substantial pension?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

Anybody's position would be enhanced by access to a substantial pension. I do not put forward substantial pension and large salary as the basis of status—rather, it is the position and the requirements of that position set out in statute; the irremovability of certain functions from him as a result of statute; and the fact that he or she is going to perform a very important role.

Some suggest that incremental change is all that is required; they say, "Don't abolish—simply change". The temptation of that course will be great, particularly to this House, but I urge the House to resist. The basis on which the Bill is drafted and the assumption on which the concordat was agreed is that the new office holder should be a Minister. While his responsibilities will involve working closely with the judiciary, it is not as a judge that he will be doing this; it is as a Minister. That is the inescapable consequence of his no longer sitting as a judge or being the head of the judiciary.

The time has come to accept this fundamental change. This is not something that has come out of the blue.

Noble Lords:

Oh!

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

The organisation Justice raised these issues back in the 1970s. The noble and learned Lord the Lord Chief Justice said in giving evidence to the Select Committee that the concordat,

"reflects an inevitable development brought about by gradual changes in the office of Lord Chancellor and his department over the past half century".

We may debate how this change should be achieved. We need to craft, very carefully, the role and standing of the new job to ensure that the proper balance exists. But let us no longer doubt that the change must be made. Some appear to have accepted that argument. I include the noble Lord, Lord Kingsland, and the noble and learned Lord, Lord Howe, in that. But they suggest that there may be some benefit in calling the new office holder the Lord Chancellor. Again, I believe that the answer is no. He is not doing the same job. We should recognise that and not suggest that he is. We should also recognise that the job requires the rule of law element—to use shorthand—and the ministerial role. Both those roles must be balanced in the appointment that the Prime Minister makes at a particular time. Furthermore, we do not want there to be any confusion with the new role of the Lord Chief Justice.

Others argue that additional restrictions are required: that the office holder should be a lawyer or a judge, or take a special oath or be a Member of this House. We shall come to those amendments later. I can certainly see that on occasion it would be an attraction to a Prime Minister to have a senior lawyer in the post. I can see the attraction of the holder of this office being in this House. But the question is, should the Prime Minister be constrained to have a senior lawyer in the House of Lords?

Noble Lords:

Yes!

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

Should he, when confronted with the choice of, say, Mr Michael Howard QC or Viscount Whitelaw as the holder of this office, be forced to have Mr Howard on the basis that he is a senior lawyer? Is it not possible to conceive that making a choice between competing skills, the right conclusion for the Prime Minister of the day to come to is that the best man or woman for the job would be someone in another place who was not a qualified lawyer?

Photo of The Earl of Erroll The Earl of Erroll Crossbench

I believed that one of the objects of Parliament was to constrain the powers of the Prime Minister. The Prime Minister is arrogating to himself the powers of the monarch, so we now have the monarch's powers sitting within Parliament. We must at some point constrain those powers, or we shall go back about 800 years in history.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

This Bill and the debate in relation to it gives Parliament the opportunity to determine whether the changes should take place. I submit that the right course to take is to accept that change should occur. It is welcome change and, rather than seeking to cling to the historical aspects of the argument, we should see what is best to get the protections that I believe we all want.

Returning to the heart of the debate, the only grounds on which the amendments in this group can be supported is either that the office of Lord Chancellor is not abolished, or, if it is, that the name is retained. I believe that neither of those propositions, in the light of the acceptance of the new architecture, is sustainable. It is not right, and it does not protect either the citizen or the interests of justice, that we continue with the current arrangements.

I believe that we agree about more than we perhaps think. We know what we want the office holder to do. We do not achieve that by refusing to face up to the difference between the job of the Lord Chancellor, as I have described it, and the widely supported functions of the new Secretary of State. I invite the movers of Amendments Nos. 1 and 7 to consider very carefully, in the light of what I have said, whether the best protection for the public and for justice, is to withdraw the amendment and accept the changes that have occurred.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

I am going to say this to the government Benches only once more. In tabling the amendment, we are not seeking to defend the status quo. We accept the architecture of the Bill. We simply believe that its foundations would be so much deeper if the role granted to the Secretary of State was played instead by the Lord Chancellor. The issue is simple: what sort of person should perform the role of the Secretary of State as defined in the Bill?

Whatever the Government's motives for opposing the amendment, I have no doubt about the consequences. The effect of operating these new arrangements with a Secretary of State for Constitutional Affairs will profoundly and needlessly undermine the rule of law.

The Government are risking our future by their uncontrollable obsession with obliterating our past.

I wish to test the opinion of the Committee.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 240; Not-Contents, 208.

Division number 1 Private Parking: Ports and Trading Estates — Constitutional Reform Bill [HL]

Aye: 238 Members of the House of Lords

No: 206 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip

I beg to move that the House do now resume. In moving this Motion I suggest that the Committee stage begin again not before 8.15 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.