Constitutional Reform Bill [HL]

Part of the debate – in the House of Lords at 5:45 pm on 13th July 2004.

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Photo of Viscount Bledisloe Viscount Bledisloe Crossbench 5:45 pm, 13th July 2004

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.