Constitutional Reform Bill [HL]

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

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Photo of Lord Carter Lord Carter Labour 2:30 pm, 13th July 2004

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.