My Lords, I beg to move that the Commons amendments be now considered.
Moved accordingly, and, on Question, Motion agreed to.
[The page and line references are to Bill 18, the Bill as first printed for the Commons.]
The text of all the amendments can be found at: http://www.publications.parliament.uk/pa/ld200405/ldbills/035/05035.1–4.html and subsequent pages.
1 Clause 2, leave out Clause 2
My Lords, I am most grateful to the noble and learned Lord for giving way. Would the noble and learned Lord be prepared to speak now to both the first and second line of amendments; in other words, to deal now with the issue of "Lord" and "lawyer"? Although they are in some senses distinct, in others they are intimately connected.
My Lords, that is a very sensible idea. I am more than happy with that suggestion.
Your Lordships have spent much time considering both the issue of "Lord", if I may call it that, and the issue of "lawyer". I urge noble Lords to reconsider your earlier position; to listen afresh to the arguments that we debated in some detail previously; to note and to listen to the other place and the arguments that were advanced to and fro there; and to note as well the overwhelming support in the other place for removing Clause 2 of the Bill and the restriction that the office holder must be a lawyer who is also in the other place.
In the year since the Bill was first introduced in this place, a huge amount of progress has been made. The concordat, which we debated at length while the Bill was passing through this House, has been referred to as an "historic" agreement, and I would agree. We have agreed in this place to significant reforms in setting up an independent Judicial Appointments Commission, a new United Kingdom Supreme Court and a fundamentally reformed office of Lord Chancellor. I am very grateful to the noble Lord, Lord Kingsland, for his acceptance on behalf of those opposite of, as he described it, the "new architecture of the office of Lord Chancellor". We have also accepted on this side of the House that the office of Lord Chancellor should remain, albeit with "the new architecture"—to use the words of the noble Lord, Lord Kingsland.
Looking back at the debates we have had on this issue, it seems to me that there is also agreement that the purely ministerial nature of the Lord Chancellor's role in the concordat does not lead inexorably to the conclusion that he or she could fulfil that role only by being a Member of this place. Accountability can be provided in either House for those functions. I think that we are also agreed that the use of the word "Lord" in the title of "Lord Chancellor" need not be confined to a Member of this place. We discussed previously the example of the Lord Privy Seal who could be in the other place, albeit described as a Lord.
The agreement in this place goes further. The special roles of the Lord Chancellor, on which we all agree in terms of the rule of law and judicial independence, will require a special person. The holder of that office will need to be strong and independent, with sound judgment and wide experience.
Our differences come down to two issues: whether statutory provisions requiring the Lord Chancellor to be a Member of this place and an experienced lawyer—which is dealt with in the next group—will help or hinder the appointment of the best person for the job in terms of fulfilling that special role. Our argument, which I believe is right, is that such provision can only hinder our efforts to ensure that the best person for the job is appointed to fulfil the role.
I shall set out the many reasons that have led me to the conclusion that the amendment from the other place to remove Clause 2 should be accepted and that we should also remove the requirement for "lawyer" in Clause 3.
The main reasons put forward in support of what was Clause 2 have involved references to making sure that the Lord Chancellor is not in the "hurly-burly" or "political fray" of the other place, or is not—to use another phase used in the debate—"climbing the greasy pole". I believe that the assumption that that will be achieved by preventing the Lord Chancellor being a Member of the other place is fundamentally wrong.
I say in parenthesis that this place in 2005 feels very different from how it felt in 1997. I have no idea how different it feels to those who have been here since a very long time before that. I draw attention to one example. Would it have been normal 30 or 40 years ago to have the political debates that are currently criss-crossing the Dispatch Box, in the widespread belief—accurate or not, I know not—that a general election is coming? Would a Member of the Conservative Front Bench put down a Question, as the noble Baroness, Lady Hanham, did yesterday, on whether the Front Bench on this side of the House were going to purloin the Conservatives' policy on providing council tax relief for old-age pensioners?
I would respectfully suggest that this place has changed fundamentally. The way that this place now operates is based on coalitions between the three parties. Although they are changing coalitions, this is essentially a much more political place than it was five, 10 or 20 years ago.
The other aspect of the argument assumes that all Members of this place are older, towards the end of their careers, not looking for political advancement and very experienced, and that all Members of the other place necessarily are not in that position. That is clearly not the case and does a disservice to your Lordships' House and to Members of the other place.
I cannot understand why Members of this place think that all Members of the other place are so unsuitable for the office and that there should be an absolute statutory bar to exclude all of them unless they are willing to resign their seat and come to this House as though that were the only appropriate solution. What is so wrong with elected representatives that—leaving aside Clause 3 for a moment, which is the lawyer one—any person who becomes a Member of this place should be eligible for an office while an elected representative should not be?
We all know that Secretaries of State in the other place also exercise functions that require impartial decisions to be made on their merits. My right honourable friend the Deputy Prime Minister exercises quasi-judicial functions under the Town and Country Planning Act in determining planning appeals, yet I hear no one questioning whether he and his predecessors who have fulfilled that important role in planning are fit to carry out that work because they are Members of the other place.
My right honourable friend the Secretary of State for Work and Pensions has responsibility for decisions made on awarding benefits—a responsibility that is vital to ensure that those in need get the benefits to which they are entitled. Yet I hear no one question whether the Secretary of State for Work and Pensions should be a Member of this place rather than the other place. Some would argue, although I am not one of them, that the Attorney-General should be a Member of the other place, despite the nature of his role as the ultimate source of legal advice to the Government.
To describe a Lord Chancellor from the other place as a "political appointee" is to forget that all Lord Chancellors have been political appointees in a similar sense. On the whole, the system has served us well. It is also to forget that many Members of this place are political appointees of one kind or another.
As for the other place being a "hurly-burly" of activity, I wonder, as I said earlier, whether your Lordships have reconsidered that, given the attention that proceedings in this place have had in recent months and the changes that have occurred in recent years.
The office of Lord Chancellor has evolved over time. For example, we have escaped the tyranny of having to have a Bishop as Lord Chancellor. It continues to evolve.
I apologise to the Bishops, my Lords.
The department for which the Lord Chancellor is responsible is now responsible for a budget, as I have said on many previous occasions, of £3 billion. It continues to evolve with the magistrates' courts coming within its remit from next month. And this place continues to evolve. A statutory prohibition on the Lord Chancellor being a Member of the other place would, in my view, prevent the office evolving over time in response to the reforms on which we are all agreed.
We cannot legislate to ensure that the best person for the job is appointed; if we could, we would have done so already. Clause 2 may prevent someone whom your Lordships may consider strong and eminently suited to the office from accepting it because he also wants to continue to serve his constituents, and his constituents may continue to want him to be their representative.
I have outlined my strong conviction, but many others share my view that it is the person who holds the office that is important, not where he is a Member. Perhaps I may quote from the recent Constitutional Affairs Select Committee report on this. It stated:
"Although it may be more likely that someone in the House of Lords as at present constituted has the seniority and lack of aspiration towards further office which we considered desirable, it is by no means certain, and there will be suitable candidates for the post in both Houses. There does not, therefore, seem to be a compelling argument for insisting that the Lord Chancellor must be a member of the Upper House".
I move on to the second aspect of the debate, as the noble Lord, Lord Kingsland, suggested. I detected from earlier debates that some of your Lordships have formed the view that legal qualifications or knowledge gained through practice at the Bar, or being a judge, is needed to carry out the functions in the concordat effectively. As I have said, that is plainly not the case. The ministerial role for the Lord Chancellor in the concordat simply does not require that.
The Judicial Appointments Commission will be formed of people who are skilled in determining whether candidates for judicial office possess the relevant skills and experience. The Lord Chancellor will not need a legal qualification or a prescribed period of experience in legal practice to judge the merit of candidates, and the system is set up to ensure that any personal knowledge the Lord Chancellor has of candidates will not prejudice the selection process. Indeed, one purpose in creating a Judicial Appointments Commission is so that it will not be one person's knowledge—which, inevitably, will be intense in some areas but not in others—driving the process of judicial appointments.
The Attorney-General is the legal adviser to the Cabinet. He advises all Ministers and he can advise the Lord Chancellor. Should any legal issues arise about the operation of the process itself, the Department for Constitutional Affairs has a team of legal advisers, like any other government department.
So that leaves us again with the Lord Chancellor's special role in relation to the rule of law and independence of the judiciary. I am convinced that sound judgment in those matters does not depend on the application of forensic legal skills. What is needed is judgment, intellect, courage, stature and independence; an appreciation of our constitution and respect for its principles. It is those characteristics that have served Lord Chancellors, as they have served impressive political Ministers, so well over the ages. While many politicians and Lord Chancellors have had legal qualifications and experience, for Lord Chancellors, that has been as a result of the judicial functions of the office, which are now no longer to be performed by the Lord Chancellor.
In recent times, the Lord Chancellor plainly had to be a lawyer and a Lord because he presided over the Judicial Committee of the House of Lords. That requirement has now gone. The skills needed to be a judge are no longer needed by Lord Chancellors. I am certain that, even without their legal qualifications, Lord Chancellors would still have been able to carry out their special functions, and the rule of law and independence of the judiciary would still have their valued place at the heart of our constitution. The Lord Chancellor would be a guardian of that—lawyer or not.
We have a lot to lose if we reinsert the statutory requirement that was Clause 3. Many eminent people who could uphold the rule of law and independence of the judiciary with exceptional courage and determination may be disqualified. Many excellent legal minds may be disqualified from holding the office because they have pursued an academic career or just miss out on the practising requirement. The last time that we debated this, we identified a significant number of people who were not lawyers who, it was widely regarded throughout the House, would have been excellent defenders of judicial independence and the rule of law. All those people would have been excluded by Clause 3.
Legal experience does not necessarily mean a person will be the right one for the job. Other experience, such as previous experience as a Minister, are equally important. I have already set out how valuable my prior experience of ministerial office has been to me in my role as Lord Chancellor. I do not think that I need to reiterate the points about what the ministerial role should be. The issue is not about whether a lawyer could be a good Lord Chancellor. We all know, looking at history, that that is the case. The issue here is whether only a very senior lawyer can be a good Lord Chancellor based on a record of sustained legal practice.
(10)Those are the arguments. We must try to make it as easy as possible to ensure that the right person gets the job. Neither of these limitations achieves that.
My Lords, I shall speak also to Amendments Nos. 264, 265 and 593 and to Amendments Nos. 2 and 2A. The issue of Lord and lawyer has already been very fully debated in your Lordships' House on two previous occasions: first, in Committee on
Off the Bill went and now it has come back with another place disagreeing with our belief that future Lord Chancellors should continue to be both Lords and lawyers. I do not need this afternoon to argue again the full case that was so beautifully argued by so many of your Lordships. I simply want to remind your Lordships of what I think are the key issues.
Your Lordships will recall that, when the Bill first came to us, the Minister who was to be responsible for its operation was the Secretary of State for Constitutional Affairs. Your Lordships were left in no doubt that future Secretaries of State for Constitutional Affairs would inhabit another place and would, in all likelihood, not be lawyers. We had a flavour of the status of future Secretaries of State by observing the status of the present Secretary of State for Constitutional Affairs, which is rather low in the hierarchy.
Unexpectedly, it proved impossible for the Government to abolish the position of Lord Chancellor in June 2003; so the noble and learned Lord had added to the end of his title, "and Lord Chancellor". I think that he would agree that his main responsibility since appointment has been as a Secretary of State, rather than Lord Chancellor; although I am the first to recognise that he has fulfilled the responsibilities of Lord Chancellor impeccably.
In Committee, there was one crucial omission that has now been rectified and, I am glad to say, accepted by another place. That is the provision in Clause 1 placing a duty on the Lord Chancellor—whom, I am pleased to say, we replaced for the Secretary of State—to observe the rule of law. Clause 1 is headed, "The rule of law" and states:
"This Act does not adversely affect—
(a) the existing constitutional principle of the rule of law, or
(b) the Lord Chancellor's existing constitutional role in relation to that principle".
Later, in Clause 14, we find that future Lord Chancellors will be required to take an oath. Proposed new subsection (2) to Clause 14(1) states that future Lord Chancellors will,
"swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary".
So there have been two important changes since the Bill arrived in your Lordships' House, both of which have been accepted by the noble and learned Lord. The first is that, in future, the Minister will continue to be the Lord Chancellor; the second is that he or she will have a statutory obligation to observe the rule of law and will have taken an oath to that effect. The question before your Lordships, therefore, is whether the office of a future Lord Chancellor—statutorily bound to observe the rule of law and having taken an oath to that effect—is compatible with being a Member of another place.
I, perhaps, might test your Lordships' patience by dilating for a moment on some recent constitutional history. Your Lordships will remember, in particular, that in the asylum legislation proposed in 2004 there was an attempt to introduce an ouster clause. Your Lordships will also remember that, very recently, in the Prevention of Terrorism Bill, there was an attempt to introduce an open-ended suspension of habeas corpus.
If the noble and learned Lord the Lord Chancellor had not been primarily the Secretary of State for Constitutional Affairs, but had been primarily the Lord Chancellor with his traditional and conventional responsibilities for the rule of law, neither the ouster clause nor the suspension of habeas corpus would have emerged from the Cabinet. They would never have seen the light of day.
A traditional Lord Chancellor, charged by convention with his responsibilities for the rule of law, would have stopped his colleagues in their tracks. It was only because the noble and learned Lord was saddled with the primary responsibility of being Secretary of State for Constitutional Affairs that he was unable to do so. Fortunately for the country, your Lordships' House stepped into the shoes of the Lord Chancellor and stopped both the ouster clause and the permanent suspension of habeas corpus.
Now, the mists have cleared; we find ourselves on the verge of an Act which will enshrine in statute the Lord Chancellor's responsibility to uphold the rule of law. It is my contention that that responsibility is incompatible with membership of another place. Membership of another place—
My Lords, I am most grateful to the noble Lord, Lord Kingsland, for giving way. But I put it to the noble Lord that he is, perhaps inadvertently, idealising the historical role of the Lord Chancellor in recent times. I believe that the previous Conservative Lord Chancellor might not have gone as far as suggesting that he, in his role as Lord Chancellor, could either have stopped the Conservative Cabinet in its tracks if it had proposed something contrary to the rule of law or ever denied that, as a Member of a Cabinet, he was bound by collective responsibility for its decisions. The example I put forward is the denial of access to justice—an issue of great constitutional importance—which the noble and learned Lord, Lord Mackay, was unable to resist, when legal aid rules were substantially altered to cut access to the courts.
My Lords, I am most grateful to the noble Lord for his intervention. If he will allow me to continue a little further, I think that he will get the answer to his question. I was about to argue that a Lord Chancellor responsible for upholding the rule of law in statute would find that responsibility incompatible with membership of another place.
Election to another place on a political mandate, which is to be implemented by a parliamentary majority by the mechanism of parliamentary sovereignty, is a reflection of the will of the electorate. By contrast, the rule of law is that part of our constitution which upholds the right of the minority against the majority. It upholds the right of the individual against the state.
How can a politician—elected on a popular mandate and bound by the convention of collective responsibility—when one of his colleagues insists that the popular will demands the ouster of the courts or demands the suspension of habeas corpus be part of that popular majority and, at the same time, uphold the rule of law? There must be a fundamental conflict between the statutory requirement of upholding the rule of law and, at the same time, the electoral requirement of doing the bidding of the majority.
The noble and learned Lord has based the whole Bill on the concept of separation of powers; but what could be a greater confusion of powers than to confuse the principle of parliamentary sovereignty with the principle of the rule of law? If the noble and learned Lord was an elected politician in another place, he would find it impossible to determine to which of the two he owed the greater duty. Therefore, constitutionally, it must be right that the person who defends the rule of law in our constitution is not an elected politician. The doctrine of separation of powers demands that.
I am also astonished to hear the noble and learned Lord suggest that anyone who is asked to do the job of Lord Chancellor could undertake it without being a lawyer. I am sure that your Lordships have had a very careful look at the Bill. For those of your Lordships who have done so, I am convinced that the inevitable conclusion must be that the post of Lord Chancellor could be undertaken only by someone who was not just a qualified lawyer but also someone who was very experienced in the law.
The Lord Chancellor will be asked to take the final decision on who should have a judicial appointment. He will be asked to exercise his judgment about the capacity of someone to be a judge. How can he do that without having the professional understanding of what the judicial task is about? The noble and learned Lord the Lord Chancellor shares also myriad responsibilities with respect to the management of the judicial system, including judicial discipline, together with the Lord Chief Justice. How can he do that unless he is a lawyer of equivalent status and standing to the noble and learned Lord the Lord Chief Justice?
For those reasons alone the Bill demands a lawyer, but there are two additional reasons. First, as the noble and learned Lord is well aware, the noble and learned Lord has removed all the judges from your Lordships' House—not only the judges from the Judicial Committee, but also the Lord Chief Justice, the Master of the Rolls and the Lord President. Without those judges the only lawyer left in the other branches of the political system will be the Lord Chancellor. It will be the Lord Chancellor to whom the judges will wish to talk. They will need to talk to someone for whom they have great jurisprudential respect. For that reason as well, the Lord Chancellor will need to be a lawyer.
Finally, many distinguished non-lawyers made the most compelling speeches in the debate on the Prevention of Terrorism Act. But the detailed analysis of what did or did not comprise the rule of law, in my submission, required legal expertise. The core of the debate about the rule of law in your Lordships' House was a debate about the law; and, indeed, about many extremely sophisticated facets of the law. How can a Minister defend the rule of law unless he has a thorough grasp of its components? In my submission, only a lawyer can do so. So, for those reasons as well, it seems to me inconceivable that your Lordships could come to any other conclusion but that the Lord Chancellor needs to continue to be a lawyer.
I recall in one of the earlier debates the noble and learned Lord the Lord Chancellor saying that there should be no constraint on the qualifications for Lord Chancellor because the Prime Minister should not be inhibited in his choice of the person for that position. I see the noble and learned Lord nodding in assent. In my submission, that is a bad argument.
The basis of the argument is that it is wrong that the Prime Minister, in taking any decision about anything in his political universe, should be constrained by anything. The problem for any Prime Minister about a Lord Chancellor who is a lawyer and Lord is that he is a constraint on executive power. I hope that is not the reason why the noble and learned Lord wants to remove that constraint.
My Lords, in due course, I shall be moving the amendment which stands in my name. However, I understand that it has been agreed for the convenience of the House that we should say all that we have to say now and then move the amendment formally in due course.
Last December, this House saved the office of Lord Chancellor. I hope that does not sound too melodramatic. It is worth saying again because it has been put about—and was, indeed, put about by the Lord Chancellor himself—that all we had saved was the title of Lord Chancellor. That was never true and I am very glad that the Lord Chancellor has accepted today that it is his view that we have saved the office of Lord Chancellor.
Historically, as we know, the office has been held by a senior lawyer who has also been a Member of this House. The noble Lord, Lord Kingsland, has dealt primarily with the many arguments in favour of the Lord Chancellor being a Member of this House. I suggest that that convention is now so strong that it ought not to be broken. It is at least as strong, I would suggest, as the parallel convention that the Prime Minister should not be a Member of this House.
My task is the lesser one of persuading your Lordships that the Lord Chancellor should also be a lawyer, as he has also always been.
Secondly, we agreed that the Lord Chancellor should no longer be the titular head of the judiciary—that title now falls to the Lord Chief Justice. But we intended, at least I believe we intended, that in all other respects the office should continue as before. We intended that the Lord Chancellor should continue to be the head of a great department of state responsible for the administration of justice. We also intended that he should be responsible, as a very senior member of the Cabinet, for representing the views of the judges in Cabinet and defending the rule of law. That is how the great Lord Chancellors of the past have seen their role.
The House of Commons, by their Amendment No. 2, propose that the Lord Chancellor need no longer be a lawyer. That argument, if accepted, is obviously very important; it would bring about a very important change.
The arguments in favour of the change seem to be as follows. First, that as the Lord Chancellor is no longer to be a judge, he need no longer be a lawyer. That argument was, indeed, advanced today by the noble and learned Lord the Lord Chancellor. But it is such an obvious non sequitur that it need detain us no further.
The second argument—the more important argument—is that the Prime Minister should be free to choose the best man for the job. An example that has been given in the past is that if the choice lay between a Roy Jenkins on the one hand and a second-rate lawyer on the other, the Prime Minister should be free to choose Roy Jenkins.
Thirdly, as no one suggests that the Secretary of State for Defence should be a soldier, that the Secretary of State for Health should be a doctor, or that the Secretary of State for the Environment should be—I suppose—a builder, the argument is: why should the Lord Chancellor be a lawyer? To do the noble and learned Lord the Lord Chancellor justice, he did not advance that third argument before your Lordships today.
So I am left with the second argument, which I shall try to answer. I have said already that one of the most important—if not the most important—functions of the Lord Chancellor is to be the representative of the judges in Cabinet and a spokesman for their views. Putting it another way, he is to be the intermediary—or, if you like, the bridge—between the Executive on the one hand and the judiciary on the other hand. One does not need to be a far-seeing prophet to realise that that function will have an increasing importance in the years to come.
To do that job—to act as the intermediary or bridge—effectively, the Lord Chancellor clearly needs not only to have the confidence of the Prime Minister; he also needs to have the confidence of the judges. He will only have that confidence if he knows the legal system inside out before his appointment and if he understands the rule of law, in all its many ramifications, through his long training in the law. Above all, if I may put it this way, he must be a lawyer by instinct; a lawyer with an instinct for justice.
But even all that is not enough if he is not also a very senior lawyer. Nothing would undermine the confidence of the judiciary more than if the Lord Chancellor was still on the look out for another job; if he was still looking for political preferment when his particular job came to an end. That is why, as has been said so often during these debates, the Lord Chancellor needs to be at the end of his career—or at the peak of his career, put it how you will—and not half-way up the greasy pole.
It may be said that all that is so obvious; that the Lord Chancellor must so obviously be a lawyer, that it is hardly necessary to say so in the statute. I am not so sure. There is much in the Bill that to me at any rate hardly needs saying, but we have said it. As the noble Baroness, Lady Scotland, is so fond of saying, we are where we are. At the moment we are in the course of modifying the office of Lord Chancellor, but we must do so in such a way as to make clear the limit of those modifications.
That is why, when the Lord Chief Justice spoke in the debate on
One last point needs to be made. There is a wider question. The Lord Chancellor is no longer to be the head of the judiciary, but he is still the head of the legal profession, which is far wider than the judiciary, important though the judiciary is. It includes barristers, solicitors, magistrates, magistrates' clerks and, perhaps more important than ever, the court staff. They all look to the Lord Chancellor as the head of their profession. That is how he is seen throughout the common law world, and indeed elsewhere. It would be a tragedy if we were to spoil that image.
I want to remind your Lordships—and tell those of your Lordships who did not hear it—of what was said by my noble and learned friend Lord Cooke of Thorndon, formerly president of the Court of Appeal of New Zealand, in this House on
"What is the greatest legal office in the world? Before the Bill was conceived, there could have been little doubt that it was that of the Lord Chancellor. In a non-Gilbertian sense, he embodied the law of England. His—and it could be her—high status has been an enduring symbol of the commitment of the United Kingdom to the rule of law and the independence of the judiciary. That was not primarily because he sometimes sat as a judge—a practice which was falling into desuetude and is now being abandoned. That was incidental. It was because he was a senior Member of the House of Lords and of Cabinet—an illustrious and universally respected lawyer who was able to speak with authority for all that the law represents. He was a kind of guarantor or watchdog of legality at the heart of the constitution".—[Hansard, 11/10/04; col. 38.]
I suggest to your Lordships that that is all that needs be said.
My Lords, will the noble and learned Lord deal with one matter? He mentioned Roy Jenkins; does it count at all with him that my personal experience for two and a half years of the second Wilson government was that it was Roy Jenkins—neither a lawyer nor at that time a Member of this House—who as Home Secretary stood up for the rule of law against the left in cases such as the Shrewsbury Two and the Clay Cross councillors, when the lawyer members of that Government, fine though they were, were not as able to do so?
Does that indicate that an arbitrary exclusionary rule would keep away a fine person of that quality from acting as a Lord Chancellor?
My Lords, having agreed fully with what the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Kingsland said, perhaps I may add a few further factors that arise as a result of my having been in both Houses for nearly 60 years. I should perhaps mention that for all but nine of those years I have been a Queen's Counsel and had at one time a busy practice and a great deal of part-time judicial work.
During my 34 years in another place there were no fewer than 20 Queen's Counsel spread across the House. In those days plenty of Labour Members were Queen's Counsel, but now there are only 10 Queen's Counsel in the House of Commons and eight of them are Conservatives. However, in your Lordships' House there are 34 Queen's Counsel spread across the House. I am glad to say that there are some in each party and on the Cross Benches who are active and successful in practice.
Therefore, I feel that the noble and learned Lord the Lord Chancellor when presenting his case, overlooked the reality of the situation of the profession. That is regrettable and fundamental. It follows that it would be unwise and impractical not to have the Lord Chancellor in your Lordships' House, as has happened for centuries with success. The repeal of Clause 2, which is what the Government are proposing, would be unwise, impracticable and against the public interest.
My Lords, I would like to speak strongly in support of what my noble and learned friend the Lord Chancellor said. I do so with the confidence of a non-lawyer, who tend to be unrepresented in these discussions.
Many of the arguments that we have heard, which were powerfully put and which I respect, are based on the way things have been; that is the way it has been for generation after generation; century after century. We have been spared 1,000 years of history, which we heard in a previous debate, but let us take 1,000 years of history.
The point is that the job of the Lord Chancellor is different: he is fulfilling a different role. He is not head of the legal profession or the judiciary. He—or let us hope, she—cannot be a judge. There is an independent Judicial Appointments Commission to make appointments. He or she will not be in charge of internal discipline; on the contrary, as we have heard, the Lord Chief Justice will have that role, and his role will be enhanced as a result of the Bill.
I see no reason for the Lord Chancellor to be a lawyer. Lawyers do not have a monopoly of the understanding of the principle of the rule of law and of constitutional rights. The rest of us could use our fuddled brains to understand those matters as well. It is a matter of intelligence, not of background. The professional value is not necessary any more than—as we have heard—in other areas. The best Minister of Health we ever had was a Welsh coalminer. He knew nothing about medicine, but he fulfilled a role.
The role of the Lord Chancellor is constitutional. It is not to be a lawyer; it is to act at the interface between the judiciary and the Executive. It is to consider that role and to apply his intelligence and his understanding, which might even be historical understanding, to look at these matters. It is his role to see that the rule of law is preserved. He should have an outlook that is judicious but not necessarily judicial. He need not be a judge; he need not be a lawyer. He should, as we have heard, fulfil some of the other qualities that were fulfilled by the late Lord Jenkins of Hillhead.
We have no reason to confine the choice simply to those who are professional lawyers. On the contrary, I would go even further and agree with the Bar Council, which observed that it was highly desirable that the Lord Chancellor should not be a lawyer because that would give an impression of an incestuous professional expertise whereas the rule of law belongs to everybody, to every citizen, even to those of us who are not lawyers. That is what the Government are upholding; that is what they are doing in the Bill and I very strongly support them.
Secondly, I also see no reason why we should have the Lord Chancellor in your Lordships' House. The House of Lords was at its best last week in protesting, opposing and amending proposals on the Prevention of Terrorism Bill. I played my full part last week and am very proud of my role as a critic. That is what the House of Lords should be doing. It should be revising and amending, acting as a Chamber representing the community in defending civil liberties, located in the real world.
The House of Lords is at its worst in arrogating to itself a monopoly of wisdom and claiming that, for example, parliamentary sovereignty is in essential conflict with the rule of law and that it is for the elected people down the Corridor, not for us. Parliamentary sovereignty is a concept for us, too. We are a part of Parliament and it seems absurd to say that only a part of Parliament should consider that proposal.
Following last week's discussions on the Prevention of Terrorism Bill, it is even more important that the Lord Chancellor should be in the House of Commons because he is considering precisely the interface between the judicial handling of terrorist cases and the view of Ministers who can, as we know, often be arrogant. He should be accountable to the elected Members of the House in areas such as the working of judicial review. We need the strongest possible Minister to do that, whether he be a lawyer or not, drawn from the widest range of talent. As we heard earlier, there are plenty of examples of very strong Ministers who have taken that view in the House of Commons and very weak legal officers who have not taken that view, however great their list of qualifications and however lengthy their entry in Who's Who.
My noble and learned friend the Lord Chancellor made the point that this is an important Minister who will be handling a budget of £3 million or more—probably more—
I meant billion, my Lords—forgive me. I am not numerate, but £3 billion was what I meant to say. That is a very large budget, with lots of noughts at the end—too many for me. It clearly should be defended and justified by an accountable Minister in the House of Commons.
It is very important that somebody like the Lord Chancellor should be an open forum, accountable to Members of Parliament, to the public, to citizenry and not simply to an unelected House. I regret, therefore, that these proposals are challenged. I think that the House of Lords is seen at its very best if it adheres to its traditional role as a defender of freedom and does not emerge so strongly that it adopts an anachronistic and exaggerated posture which does not seem appropriate.
My Lords, I yield to nobody in my admiration for the late Roy Jenkins, but I do not think that one case, however distinguished, really proves that point. I should like to deal with the arguments advanced by the noble and learned Lord the Lord Chancellor to a large extent by quoting some passages for which he was responsible, beginning with that very point.
It is of course clear that one could find some people of great distinction and angelic independence who have qualified as dentists or engineers. But what are the odds? The noble and learned Lord the Lord Chancellor gave us the answer in the debate on
"In many cases one will be much better off having someone in this House . . . it is 'mistrustful' of the other place to say that it could never produce anyone as good as someone from our place to perform that function".—[Hansard, 7/12/04; col. 775.]
We are not going that far. The noble and learned Lord is there asserting what we assert—it is much more likely that this place would produce someone of the right quality and qualifications. I repeat:
"In many cases one will be much better off having someone in this House".
That is the central point, partly for the reasons given by my noble friend Lord Renton.
My Lords, I do not think I said that it would be much more likely to find someone in this House. I think that the noble and learned Lord is confirming that.
My Lords, the noble and learned Lord went on to say that I said such a thing was much more likely. I do not think that I did say that.
Yes, indeed, my Lords. I shall read it again:
"In many cases one will be much better off having someone in this House . . . it is 'mistrustful' of the other place to say that it could never produce anyone as good as someone from our place to perform that function".
It follows from that, as night follows day, that it is much more likely we should get in this House somebody qualified for the task, as we would wish.
I turn to the wider question of the extent to which, in so many different respects, the office of Lord Chancellor requires these dual qualifications. I shall quote from a passage which others will have heard before from a long submission made by this Government in November 2002—less than 12 months before the Prime Minister whimsically decided to abolish the office—to the Parliamentary Assembly of the Council of Europe. It is of some length but all of it is directly relevant. It says:
"The Lord Chancellor provides a counter-balance for the judicial branch against the centralised power of government and Parliament. Under this system, the head of the judiciary"— that is no longer there but it matters not for this purpose—
"is made a Minister, duly accountable to Parliament for the public funds expended on the courts".
That is quite right but on that, too, there are false arguments advanced. The noble and learned Lord has often talked of the department spending £3 billion a year. The noble Lord, Lord Morgan, referred to that too. When the Leader of the House, the noble Baroness, Lady Amos, was appointed to her present position, she was then the Secretary of State for International Development in this House, with a budget of £3.6 billion. Nobody complained then that that was in some way unconstitutional.
Moreover, the Lord Chancellor himself has demonstrated that he is accountable to Parliament—to the other place—because the other place has developed its exercises to study his department and call him as a witness. We are stronger today, in practice, in our surveillance of the Lord Chancellor's Department as far as concerns the House of Commons. So all these arguments fall into place. I return to the quotation:
"At the same time, he is removed to the House of Lords, away from the full force of party politics. The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with full understanding of legal culture and the rule of law. His tripartite role enables him to act as both a link and bulwark between the judiciary and the executive and the legislature. He can explain, defend and interpret each to the other".
Those are the words of this Government only a short time before debate on this issue started. The submission continues in paragraph 7:
"The Lord Chancellor is thus the judges' guardian and representative in the Cabinet and Parliament and, as necessary, vice versa. He exercises his responsibilities for judicial appointments and, where necessary, judicial discipline, as well as the management of the courts, in close and continuous consultation with the professional judges . . . In short, the existence of the Lord Chancellor enables the judiciary to maintain their independence, while ensuring that their legitimate interests and point of view are represented and protected at the highest levels of the other branches of government".
All those propositions are just as true today as when they were written in 1972.
The suggestion that this place has somehow become as crudely political as the other place, as the noble and learned Lord the Lord Chancellor implied, is not true. The noble Lord, Lord Morgan, discussed the role of this House in his interesting speech. It is more than just a revising chamber. It proved itself last week as being governed by anything but party politics; as the last guarantee against constitutional abuse—more than just the longstop, and not a theatre of party politics. The votes last week could have gone against what was being attempted even if not one Conservative Member of this House had voted at all. The Lords was exercising its function in a supremely important way, and to that extent it is much less political than another place. I do not pretend that we are all political virgins—we speak for ourselves—but we are much less political than the other place, and we have a constitutional role, which is why this is the place where the Lord Chancellor should be helping to guide and lead that role.
One asks oneself whether the Lord Chancellor's role has been substantially changed in relation to judicial appointments and discipline. It has been changed, but he is still the Minister through whom all those appointments and recommendations go into action. Clauses 106 and 107, which happen to deal with Northern Ireland, state that the power to remove or suspend a holder of judicial office is exercisable by the Lord Chancellor, and that a tribunal to consider the removal of the Lord Chief Justice may be convened by the Lord Chancellor. More specifically, to my surprise, Clause 105, which deals with High Court judges, says that
"a motion for the presentation of an address to Her Majesty for the removal of a person from any of those offices may be made—
(a) to the House of Commons only by the Prime Minister; and (b) to the House of Lords only by the Lord Chancellor".
That is an astonishing proposition. Does it not imply, as do many other things, that the Lord Chancellor should be a Member of this House? He is the only person authorised to take action of that kind.
The point, as this document sets out in all those ways, is that it is the Lord Chancellor, who is a lawyer in this House, in whom these powers are vested. That ought necessarily to remain the case.
A similar argument can be advanced if one looks at the point that has already been touched on by my noble friend Lord Kingsland. Clause 1 of the Bill relates to the duty of the Lord Chancellor to uphold the rule of law. Again, I refer to a statement made in this House by the noble and learned Lord the Lord Chancellor. On
"Throughout the debates we have had on the rule of law, the contention has been that the Lord Chancellor has always had a role with regard to the rule of law, and that it is important that we do not inadvertently lose or diminish that role. There has also been general, if perhaps not universal, agreement that such a duty was a political one, but it was not a duty to be enforced in the courts. My amendment seeks to give effect to both these lines of argument; it acknowledges that the Lord Chancellor has a duty with regard to the rule of law and it acknowledges that that duty is not one that is cognisable as a matter of law. It will ensure that the rule of law features in the deliberations of the reformed Lord Chancellor in the same way as it does now with the existing Lord Chancellor. But it does so in a way that does not have wider, unintended effects". [Hansard, 7/12/04; col. 740.]
If the Lord Chancellor is endowed with those responsibilities to that extent with the express authority of the present Lord Chancellor, and no-one can look to the courts to enforce those duties in that way, how else are we to have confidence in the ability of the Lord Chancellor to fulfil those functions if he is not a senior lawyer? How else is he to command respect or authority in Cabinet? I have given other reasons in this House. It is fanciful to suggest that the office would not be fundamentally and mistakenly altered if these two propositions were not accepted by your Lordships' House.
My Lords, the noble and learned Lord the Lord Chancellor reminded us that, deep in our history, these Benches had the office of Lord Chancellor. My understanding is that one or two of them fulfilled the office quite well. I assure him, however, that, despite the difficulties of the Church of England, we have no desire to have it back.
Our role is to listen carefully to this debate and not to intrude on the legal argument. There are just three things we have to bear in mind. First, there is the history of this Bill. We began with the Government abolishing the post of Lord Chancellor. That having taken place, it is not surprising that this House is exercising some caution in constructing the Bill to ensure that we hem the Executive in from taking unnecessary action of that sort again without legal defence. There is a history to this that we cannot avoid.
Secondly, the argument this afternoon is about the context, not personal capabilities. Is this House the better context for this office? Having had the privilege of being in this House for nearly six years—despite times such as the present, when political agendas are rather apparent—I have noticed how jealous the House is of its independence, and how important Members find the freedom to make their own judgments and to act accordingly. If we are to have an office whose independence is important—but is a political appointment, and that is a right relationship—we have to ask whether it is the context of the more political agenda that is properly pursued in the other place, and we should not in any way denigrate that, or the context of this House that is appropriate. That is at the heart of the argument.
Thirdly, constitutional reform should be introduced with great care. In this House we have a duty to watch over the constitution of our country. It might be the judgment of the House that even if we are cautious in this matter and restore these clauses, what we have achieved, from a bad start, is an important constitutional reform that does credit to Parliament, and to the Lord Chancellor. I do not think the restoration of these clauses undermines that achievement.
My Lords, I intervene briefly to support Amendment No. 1A, proposed by the noble Lord, Lord Kingsland. On balance, the continuity provided by the presence of the Lord Chancellor in this House and in the Cabinet is of value to Parliament and to government. We took this view before, and I stay with it.
I am sad that our late colleague, Lady Strange—Cherry Strange—who died last week, and who once said that she loved "our" Lord Chancellor, is no longer able to join her voice to ours today. We very much miss her, and her flowers.
I hope this amendment is adopted.
My Lords, I echo the kind words of the noble Lord, Lord Williamson. Lady Strange was indeed a very colourful presence whom we shall all miss very much. She was dedicated to the House of Lords and had a great love for this place and all that it stands for. She entered the House in 1986 and was one of the hereditary Peers to win election to the House in 1999. She will be remembered, as the noble Lord said, for bringing flowers to the House from her home in Perthshire, but of course she will chiefly be remembered for her commitment to the causes that she championed—in particular, foreign affairs and the provision for war widows. She became president of the War Widows' Association in 1990; she was also an author and novelist and continued her passion for writing in her contributions to the House Magazine.
I remember Lady Strange well when she attended the Cenotaph ceremony last November on behalf of the war widows—and my goodness, she was an impressive presence. Her presence here will be greatly missed and I pass on my condolences on behalf of the House to all her family and friends.
My Lords, I am sufficiently an old-fashioned lawyer to think that at any rate in the foreseeable near future the Lord Chancellor would most desirably be in this House and a lawyer of substantial qualification, as set out in the Bill. But I do not believe that there should be a statutory requirement for either of those things. The noble and learned Lord, Lord Howe of Aberavon, has listed quite a number of provisions in this Bill that suggest that a lawyer would be the best person to exercise those powers, which still include important matters of appointment and discipline, and so on—they have not all disappeared into the realm of the Judicial Appointments Commission. As for the more traditional reasons of having someone with a prime responsibility in Cabinet to uphold and promote the rule of law and the independence of the judiciary, I see great value in having a lawyer of substantial experience in that job.
I accept a lot of traditional arguments, with regard to the Lord Chancellor being in this House, that it is desirable to have in charge of the Department for Constitutional Affairs someone who is at any rate just slightly removed from the midst of party politics. Of course, as has already been said, the Lord Chancellor in the past has to some extent been involved in party politics in most cases. As he is here, perhaps I should refer to the noble and learned Lord, Lord Mackay, who I believe was a judge rather than in party politics before he became Lord Chancellor. But Lord Hailsham, for example, was one of the most active politicians, even wishing to attain the leadership of his party at one stage in the 1960s. The situation has varied a great deal.
In recent times, in the main, once the Lord Chancellor has been appointed he has maintained that little bit of distance between himself and the hurly-burly of ordinary politics. In practice, for the reasons to which the noble Lord, Lord Renton, referred, the House of Commons now—compared with when he was first there, 50 years ago—has very few senior lawyers. If you accept, as I do, that it would be best to have a lawyer as Lord Chancellor, it would be difficult to find one in the House of Commons in the present day and age; certainly compared to 50 years ago, and earlier. A Member of Parliament and a senior practitioner are both so busy in their work that it is virtually impossible to combine the two.
So, in practice, I dare say that the Lord Chancellor in the foreseeable future will be from this House or will be created a Peer to sit in this House. That is much more likely than his being a Member of the House of Commons. But I do not see the need for a statutory requirement. Indeed, one can imagine the unlikely event of a senior lawyer being in the House of Commons, such as a former Attorney-General of a certain seniority, who might prefer to remain there and continue to serve his constituents rather than come up here. Well, if he was suitable for being Lord Chancellor, why not let him be appointed?
So let us have flexibility while saying that there should not be a statutory requirement for the Lord Chancellor either to sit in this House or to be a lawyer.
My Lords, I follow the noble Lord, Lord Borrie, in his observations, save in his conclusion. I believe that one must deal with the issue of whether the Lord Chancellor should be a lawyer and whether he should be in this House on the basis of generality. It is no good citing the exception, because it is the exception who proves the rule. Lord Jenkins has been cited on a number of occasions, and he is an exception that would have proved the rule. But it is no more legitimate to say of the Lord Chancellor that the exceptional non-lawyer might fill the post than it is to say that the exceptional private might make a good general, the exceptional nurse a good surgeon or the exceptional draftsman a good engineer. You have minimal qualifications to ensure that in less than perfect circumstances you are not landed, as you could be in this hugely important office, with someone who is plainly unfit to undertake the task.
It is not good enough for the noble and learned Lord, Lord Falconer, to cite the rather tenuous, quasi-judicial function of John Prescott as warranting the position that we have in this Bill. Other noble Lords have mentioned the vast raft of purely legal functions there are in this Bill. I wonder how many of your Lordships have had the stamina to look at Schedule 6, which relates to the protected functions of the Lord Chancellor. There are more than 300 protected functions—and in the past two years we have given the Lord Chancellor a huge number of protected, purely legal, and often complex functions. There were the Criminal Justice Act 2003, the Courts Act 2003 and the Communications Act 2003, as well as the finance, nationality and enterprise Acts, and so on.
In an age when the legislation that we pass is becoming more voluminous—we are up to 14,000 pages a year—and more complicated, to believe that a lay person could satisfactorily undertake all that and the major functions in the Bill to which the noble and learned Lord, Lord Howe, referred, is Cloud-cuckoo-land.
The noble Lord, Lord Kingsland, referred to the oath in which the Lord Chancellor says that he will defend the independence of the judiciary. How can a lay person satisfactorily do that without any knowledge of sitting as a judge and without any inside knowledge of the way in which the judiciary is subject to huge pressure, as it is? The exceptional person might be able to do that, but we deal with the generality.
Briefly, I shall address the question of why the Lord Chancellor should be in this House. I rather agreed with the remarks of the right reverend Prelate the Bishop of Chelmsford. Last week, like other noble Lords, I went down to the other place on three occasions to see how it dealt with our amendments to the Prevention of Terrorism Bill. I had been down there before, but I am bound to say that I was struck, not to say astonished, by the different tenor and feel of the proceedings there. In saying that I do not wish to disparage what Members do in that House; they are men and women elected and in the very heart of partisan politics. But it is unreal to suggest that it is a place suitable for the sort of considered, deliberate and I would hope objective constitutional considerations that are the principal function of the Lord Chancellor when he or she sits on those Benches.
I was struck by the intimidating atmosphere and noted in the three hours during which I sat there that only one woman MP had the confidence to stand up and speak. I noticed the intense partisanship. We should consider carefully whether it would be right to place a Lord Chancellor in that assembly, especially given its increasing anti-lawyer bias, which has been expressed by the present Home Secretary on more than one occasion recently.
I make two short points to close. First, the Lord Chancellor is a twin pillar with the Lord Chief Justice: the two are essential and mutually supportive. I do not believe that you can remove from the Lord Chancellorship his position in this House and attribute of being an experienced judge or senior lawyer without seriously undermining the balance of that relationship.
Finally, this is not our office to give away. The Lord Chancellor is the Lord Chancellor of the people of this country and these islands. It is an ancient office and one of very few offices which resonates with the public at large. It is one of the very, very few offices which still has public respect and trust. I do not see that it is open to us to deal with that office in the way that was originally suggested and is still suggested. I strongly urge noble Lords to support the Motion standing in the name of the noble Lord, Lord Kingsland.
My Lords, I have a couple of mild observations. First, it is not quite right to talk about "the exception proving the rule" in any sense. It is a translation from the Latin and the word is "probat", which is mistranslated as "prove". It means "tries" or "challenges". The exception of Roy Jenkins did indeed challenge the rule.
Secondly, equally mildly, I am rather depressed by the idea that only a lawyer can stand up for the rule of law in Cabinet. It seems to me that the rule of law is actually not a legal principle. Various rules in law are indeed legal principles, but it would be self-referential in the extreme for the rule of law to be primarily only for a lawyer to represent. It is one of the most important—if not the most important—constitutional and democratic principles. Defending it may well normally fall to the Lord Chancellor in Cabinet. He or she will not lack expert advice in the elements of the rule of law, just as his or her counterparts in other departments have their expert advice. I remember from my days in the Civil Service that the task of the adviser to the Minister is to support, with expertise, a ferocious defence of the Minister's departmental values against differing interests. I have no doubt that that capacity would continue.
My Lords, I shall be brief as I do not wish to repeat any of the arguments that have been made and I support the amendment of my noble friend Lord Kingsland. However, I wish to challenge something that the noble and learned Lord the Lord Chancellor said about the idea that the Prime Minister should be free to appoint whom he likes. The noble and learned Lord, Lord Lloyd of Berwick, pointed out that the present status of the Lord Chancellor as Secretary of State for Constitutional Affairs puts him pretty low down the pecking order in Cabinet. I appreciate that Cabinets do not meet very often these days, and that indeed it is not given access—
My Lords, the Cabinet meets once a week, and that is about as often as it met when the noble Lord was in it.
My Lords, it has a meeting, but it does not perform the functions of Cabinets in the old days. Indeed, it is not even given legal opinions when major decisions that affect us all are being made, as the noble and learned Lord the Lord Chancellor knows only too well.
Cabinets seem to be a kind of rubber stamp for a small group within the Government. But in my day—speaking as a relatively junior member of a previous Cabinet—when the noble and learned Lord, Lord Mackay of Clashfern, was Lord Chancellor, he was a huge figure, set apart from the rest of us who were scrabbling our way up the greasy pole, as the noble and learned Lord, Lord Lloyd of Berwick, put it. He did not need to get elected and was not part of the political atmosphere. That is important because when he spoke, he spoke with authority which was detached from the political process. It seems to me that it is a great advantage to have someone in this House who is out of the political fray, and that anyone with any experience of the Cabinet would see that.
I do not wish to repeat the arguments about being a lawyer; they seem to me to stand. But I wish to pick up the point about the Prime Minister being free to choose whom he likes. It is entirely appropriate that the Prime Minister is constrained by having to pick someone who is a Member of this House and a lawyer. Without getting too close to the bone, if I look at some of the appointments that this Prime Minister has made, the old rules and conventions seem to be flouted daily.
The noble Baroness talked about the Civil Service. We have seen information officers, who used to be independent, replaced by political people in the Civil Service. Only yesterday, we saw the appointment of a Cabinet Minister as our Ambassador in South Africa. I do not know whether the Government have already sought agrément from the South African Government, or whether they intend to do so after the general election, but I do not know what qualifications a former Chief Secretary has to be our Ambassador in South Africa.
I could go on at great length and draw the attention of the House to other appointments that have been made by this Prime Minister that seem to be based on friendships and patronage. If ever there were an argument for this House constraining the freedom of the Prime Minister to appoint whoever he likes, it is based on the office of the Lord Chancellor—an appointment which is central to the rule of law and to our constitution as we understand it.
My Lords, I get the impression that the House would like to bring this matter to a conclusion, but I want to make one point. Let there be no doubt that if this House allows Clauses 2 and 3 to be removed from the Bill, it will have abandoned any real attempt to retain the office of Lord Chancellor in any meaningful sense. The name will be retained, but little or nothing else. The point is that the Lord Chancellor should be at the apogee of his career and outside the hope of future preferment so that he can bring a degree of detachment to the roles given to him by the Bill to preserve the rule of law and the independence of the judiciary. It is virtually impossible for him to fulfil that function if he is still in the rat race to gain political promotion and still has the hope of ultimately reaching No. 10.
It is for those purposes that Clauses 2 and/or 3—in the long run, when we get to the final bargaining stage, it might be that one of them is acceptable; but at least one of them, and for the moment essentially both—must be preserved. Otherwise, we may just as well go back, give way to the Government completely, abolish the Lord Chancellor and have a Secretary of State.
My Lords, we on these Benches—with the usual exception of my noble friend Lord Phillips of Sudbury, who may be described as the Helena Kennedy of our party—support Commons Amendments Nos. 1 and 2 and wish to see Clauses 2 and 3 deleted from the Bill.
The insistence that the Lord Chancellor be a Member of your Lordships' House rather than of the other place makes only one difference; that is, that the person appointed to the office will have no prospect of promotion to Prime Minister, Chancellor of the Exchequer or head of another major government department. Why is that thought to be a good thing? It is asserted by a number of noble Lords, including the noble Viscount, Lord Bledisloe, that it is, but it is surely no guarantee whatever of independence. If the Prime Minister wants a compliant Lord Chancellor, he will surely be able to find one. In any event, ambition to retain an office is a powerful incentive to comply with a Prime Minister's wishes. Someone with no prospect of further promotion may well be an extinct volcano who carries little clout with his colleagues.
There is no other government department in which drive and ambition can be regarded as a disqualification for holding office. There is no reason why it should be different for the Department for Constitutional Affairs. The DCA needs a strong and effective Cabinet Minister as much as any other department, someone who will fight for legal aid and access to justice and who has the clout to win that fight against his colleagues.
It is said that the office of Lord Chancellor is different because of his constitutional role as the defender in Cabinet of the rule of law and the independence of the judiciary. In relation to the independence of the judiciary, the role is shared by other Ministers of the Crown. That role is important, but it is amorphous, and it is very hard to pin down what it amounts to. Certainly, my noble friends Lady Williams of Crosby and Lord Rodgers of Quarry Bank, who served in the Labour Cabinets of the 1970s, have no recollection of the then-Lord Chancellor Lord Elwyn-Jones ever having raised constitutional issues in Cabinet, and I doubt that he was unique in that respect.
We are to some extent in danger of confusing the roles of the Lord Chancellor and of the Attorney-General. The Lord Chancellor is not, and never has been, the legal adviser to the government, nor has he been the spokesman for the judiciary in the Cabinet. The role of legal adviser is that of the Attorney-General. It was the Attorney-General, not the Lord Chancellor, who advised the Government on whether the invasion of Iraq would be valid.
Ironically, there is a strong case for saying that the Attorney-General should be in the House of Lords, both on practical and constitutional grounds. On practical grounds, because the Attorney-General plainly has to be a lawyer and needs to be a respected lawyer in recent practice, something that is inconsistent with membership of the other place; and on constitutional grounds because the government and their legal adviser should be at arm's length from each other. The Attorney-General should be at least semi-detached from his colleagues, but the Lord Chancellor, as a member of the Cabinet, cannot be semi-detached in the same way.
In this debate we have over rated the future constitutional role of the Lord Chancellor, particularly since he is no longer the head of the judiciary in England and Wales; and under rated the future constitutional role of both the Attorney-General and, even more so, of the Lord Chief Justice as the head of the English judiciary. In future, it will plainly be the role of the Lord Chief Justice to act as spokesman for the judiciary, and he will be in a stronger position to do so than a Lord Chancellor ever has been. The main role of the Lord Chancellor when this Bill is enacted will be to be a departmental Minister of an important government department. His role as constitutional watchdog in the Cabinet will be as it always has been—informal. That role does not justify excluding the Lord Chancellor from the House of Commons, and thereby frequently excluding the person best qualified for doing the job from doing it.
I must also say that from outside your Lordships' House most people interested in this issue, including lawyers, would regard it as astonishing that your Lordships' House should insist that the office of Lord Chancellor should be restricted to Members of this House, even when the Lord Chancellor's judicial role is extinct and therefore no longer requires it. If we disagree with the Commons amendment, we will be portrayed as looking to the past and not to the future, and that portrayal would be correct.
The question of being a lawyer is a related but distinct issue. I see legal qualifications, unlike membership of your Lordships' House, as a positive factor in making the choice of Lord Chancellor. Other things being equal, it is better to have someone who has a legal qualification than not. I expect, therefore, that most Lord Chancellors will in fact have legal qualifications, but that is not essential, and it is surely more important to have the best person to do the job. As I said already, the main role of the Lord Chancellor will be to act as a departmental Minister.
The role of the Lord Chancellor requires knowledge of general principles of the constitution, rather than strictly legal knowledge. After all, we do not, even now, expect a Lord Chancellor to be an expert in, say, trust law, patent law or commercial law, or any particular branch of the law. Many people who are not lawyers have the kind of knowledge of the constitution that is necessary. I could name from among current Members of your Lordships' House, for example, the noble Lord, Lord Norton of Louth, or my noble friend Lord Holme of Cheltenham.
My Lords, I apologise for not having noticed that. I give way to the noble and learned Lord.
My Lords, I apologise, but I am not sure whether that is an intervention. The noble and learned Lord has the right to address your Lordships' House after I have finished.
As I said, legal qualifications are one thing, but even more important are the competences to run a substantial government department and the ability to win Cabinet battles over funding and over slots for legislation, and the other roles that a proper Cabinet Minister must play. Up to now, and for some centuries past, the Lord Chancellor has inevitably had to be a lawyer, simply because he has been a judge and head of the judiciary in England and Wales. That will no longer be the case, but it would be a great mistake to impose a restriction that would limit the pool from which the Lord Chancellor could be chosen.
My Lords, I am most obliged to the noble Lord. I have been thinking about his propositions as to the past. He offered the proposition that Lord Chancellors never offered legal advice to the government. Does he recall Lord Hailsham, who invariably stated the law for the benefit not merely of the government, but for all of us? Sometimes he stated it wrongly, it is true, but nevertheless he did so very often.
My Lords, I am sure that the late Lord Hailsham was very free in giving his advice broadly, not only to the Cabinet but, as the noble Lord, Lord Wedderburn, said, to your Lordships' House and to the world at large. That is not quite the same function as being the government's official legal adviser, which I think a Lord Chancellor never has been.
It would therefore be wrong to restrict the pool from which the office of Lord Chancellor could be chosen. I hope very much that your Lordships' House will accept the amendments that have been inserted by the other place. If we do not do that, far from strengthening the office of Lord Chancellor we would be weakening it. We would in the public eye be weakening our own position, which has been greatly enhanced by our efforts of last week. We would be seen to be looking backwards rather than to the future.
My Lords, I am very sorry that I was interrupted in the course of paying a compliment to the noble and learned Lord the Lord Chancellor. I have watched his footwork as an advocate with enormous admiration. He has not only been consummate in his gathering together of the entirety of the subject, but like any really skilled advocate he has realised the weakness of his case from time to time and as a result, when obliged, has made concessions.
One of the concessions that he made was in the Second Reading debate, on
"The . . . Lord Chancellor, agreed with the basic proposition that his department—the Department for Constitutional Affairs—had to be strong enough to stand up to not just the Home Office . . . but to any department that might seek to infringe the rule of law".—[Hansard, 7/12/04; col. 761.]
In that debate—there is no doubt, because one can see it marked in the voting list—the noble and learned Lord, Lord Falconer of Thoroton, was acting as the Lord Chancellor.
The point of the noble and learned Lord the Lord Chancellor about being strong enough to stand up to another department places him in difficulty, because the ouster clause, which has been discussed very fully, was designed to stop the rule of law applying. It was designed to stop access to justice, which is the very essence of the rule of law. That particular clause was described by critics, from the Lord Chief Justice downwards, as a constitutional outrage. It should never have seen the light of day. It was the worst area of law in which access to the courts could be stopped, because the consequences in asylum decisions often sent people to their death.
The criticisms were voiced strong and loud on the publication of the Bill, and well before the debate in this House. There has never been any suggestion that the noble and learned Lord the Lord Chancellor was in any way deflected, even though the criticisms came from the Lord Chief Justice downwards, from arguing for that ouster clause as and when it came to this House. He remained quite defiant and wholly consistent: that clause was to stand.
What happened? Something quite dramatic and simple. Before the matter came into this House there was a list of speakers, because it was a Second Reading. On that list was the sacked Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg. He let it be known that he had put his name on that list to speak against the provision. One would have thought that a Lord Chancellor who had resisted criticisms up to that moment would have said, "Well, to hell with this! I shall stand fast, and I will support it in the debate".
It did not happen. Why not? Why did the Lord Chancellor not have sufficient bottle, strength and consistency of purpose not to do what he did: throw in the towel before the debate had started? That shows how important it is to have someone of stature, capable of standing up for the principles that matter. If this result can be achieved by a sacked Lord Chancellor merely putting his name down, does that not underline the need for someone of substance to say, "Do not do this, or there will be constitutional havoc"?
I respectfully suggest that it also underlines the necessity for a senior lawyer—I will deal with the lawyer issue in one moment—to be a senior member of the Cabinet, so that he can say to his colleagues, "Do not embark on this, it can only do harm".
My Lords, does the circumstance that the noble and learned Lord, Lord Ackner, has just outlined not also underline the fact that a cessation of this office in this House would greatly diminish the authority and effectiveness of the House itself? Should we not have that in mind as well?
My Lords, since the noble and learned Lord to whom the noble and learned Lord, Lord Ackner, has just taken such exception is plainly a senior lawyer, does that not suggest, on the logic of his argument, that he should widen the pool of those from whom the Lord Chancellor could be selected?
My Lords, if the noble Lord, Lord Goodhart, is saying that the Lord Chancellor should not be a lawyer, I can deal with that very simply.
The noble and learned Lord, Lord Mackay of Clashfern, who has considerable public relations skill, went around the circuits visiting the court staff in order to understand better what, if anything, was troubling them and to show that they were cared for. This was very successful. It needs doing more nowadays, because the Treasury has acted with such meanness that there is constant change of staff in the county courts and an inadequacy of assistance and training.
It is difficult to understand how a non-lawyer could possibly cope with that situation. It is being overlooked by the Government, and by the noble and learned Lord the Lord Chancellor in particular, that one of the remaining obligations—and it is an enormous obligation—is running the court system. How can a person be expected to run a court system competently if he is not a lawyer with considerable experience?
I accept—this is almost my conclusion—that if the noble and learned Lord the Lord Chancellor does not do as the Prime Minister wishes, he can be fired there and then. It is, however, an expensive business to fire a Lord Chancellor, because they acquire a right to their not inconsiderable pensions immediately on appointment. There would be concern, therefore, that someone had been fired. If the Prime Minister decided that he would appoint someone of a lesser quality—someone who could be clearly relied upon as one of Tony's cronies—in the position of the person he had fired, then there would be an outcry. It would be so embarrassing that he would not embark on that situation.
I think I have said all that I can expect your Lordships sympathetically to listen to. I strongly support both amendments.
My Lords, some of the burdens that any Lord Chancellor has to bear—as did the noble and learned Lord, Lord Mackay of Clashfern, whom I greatly admire—are the bricks and arrows of the noble and learned Lord, Lord Ackner. They were delivered as viciously to all my predecessors as to me. Without doubt, probably the strongest argument for keeping the Lord Chancellor in the House of Lords is that they are kept up to the mark by the noble and learned Lord, Lord Ackner.
There are two essential strands in the argument for the Lord Chancellor being a lawyer and a Lord. The first is that one of his jobs—and I accept this—is to uphold the rule of law and the independence of the judiciary, and that only a lawyer could do it. Secondly, that job requires somebody separate from the hurly-burly of politics, brave enough to stand up to all comers. Somebody at the end of his career, not on the greasy pole, is the person to do it.
First, I shall deal with the rule of law. As the noble Lord, Lord Goodhart, says, the Lord Chancellor is not the legal adviser to the Cabinet. The legal adviser to the Cabinet is the Attorney-General. In years gone by, there probably was friction between the Lord Chancellor and the Attorney-General on who was giving legal advice, but there is absolutely no doubt that the person who gave it should have been the Attorney-General. I can look around the Chamber and see a number of Attorneys-General who, in times gone by, bravely ensured that that was the position. The role of the Lord Chancellor is not to tell the Cabinet what the law is. It is to ensure that the rule of law is upheld. At the heart of the speech of the noble Lord, Lord Kingsland, was the idea that only someone who is not elected can put the rule of law first. I strenuously reject that assertion.
The rule of law is an essential part of our constitution. It is not a question about the detail of the law, but of accepting that the state must comply with the law. If a court makes an order, the state has to accept it. If the Attorney-General advises the Government that an act contrary to the law will occur, it is the Lord Chancellor's duty to ensure that the Government do not act in that way. But the idea that, to comply with that essential tenet of our constitution, you have to be in this House is, with the greatest respect, absurd. What is more, it is an affront to the civil servants, the House of Commons and all other people who have to deal with the consequences of the rule of law. I emphatically reject the proposition that only people in this House know how to comply with the rule of law. That is not the basis for an argument that could be advanced for saying that the Lord Chancellor has to be in this House.
The second argument is that, apart from two minor changes—namely, that the Lord Chancellor will no longer be a judge and the head of the judiciary—the Bill has not fundamentally changed the role of the Lord Chancellor. With respect to the noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, the Bill has fundamentally changed that role. Until the Bill, that role was to be a judge and, as a judge, head of the judiciary. He sat in the Cabinet not only as a Cabinet Minister, but as the head of the judiciary—the leader of the judges, the person at the apex so far as the judiciary is concerned. The Bill will fundamentally change that, by statute.
It is not only that the Lord Chancellor will no longer sit as a judge—he will not; the noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, were right to say that he had rarely done so in the years before I became Lord Chancellor. Much more fundamentally, the Lord Chancellor is no longer a judge. He is no longer the head of the judiciary. The connection between the judges and the Executive is now not contained in the person of one office-holder, but dealt with by the concordat.
The noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, failed completely to see that the concordat represents a fundamental change. The noble and learned Lord the Lord Chief Justice and I have reached an agreement—one that this House and the Commons have endorsed in the Bill—that, from now on, the relations between the judiciary and the Executive should be governed not by the position of the Lord Chancellor, but by the terms of that concordat, with the Lord Chief Justice representing and being the head of the judiciary in England and Wales. To say that there has not been a change is not, I respectfully suggest, to understand what the Bill did and what the effect of the concordat was.
All that does not detract from the need for the Lord Chancellor to protect the rule of law and the independence of the judiciary, but there should be a clear understanding that he is not doing it any more as a judge and as head of the judiciary. He is doing it essentially as a politician. We have debated today whether senior lawyers are better defenders of the constitution than senior politicians. I do not know. I look around the Chamber and see senior politicians who have made very considerable personal sacrifices on points of principle. The noble Lord, Lord Carrington, resigned in 1982 on a point of principle. As it happens, no Lord Chancellor in recent times has resigned on a point of principle, and the noble Lord has resigned twice on points of principle. I do not suggest for a moment that the noble Lord should be the next Lord Chancellor; he looks disappointed.
I am also conscious of the big pay and the large pension that the Lord Chancellor would get if he resigned. However, just as politicians may regard the right thing to do as to act on a point of principle—they do so regularly—it may well be, in the long distant past, that Lord Chancellors wanted to hold on to office come what may, it being the last job in their career. I refer with respect to my predecessor, Lord Birkenhead. When confronted with a letter of resignation signed in blank by the Lord Chief Justice that allowed the government to get rid of the Lord Chief Justice at the flick of a finger—they did so a year later—he protested. It is hard to imagine more of an affront to judicial independence, but he did not resign.
I do not say that to undermine the many great holders of the office of Lord Chancellor. However, I earnestly ask the House to consider very carefully whether the best defender of the rule of law and the independence of the judiciary should not be decided on the merits of who is available to do the job at the time. If your Lordships can think of people who would not have met the criteria in Clause 2 and the former Clause 3—respectively, to be a Lord and a lawyer—who would have the courage, judgment, intellect and stature to uphold the rule of law and defend the independence of the judiciary, and would have made a good Minister, they should agree with the amendment from another place.
If noble Lords cannot imagine people who would not fulfil those criteria, they should vote for the amendments tabled by the noble Lord, Lord Kingsland, and the noble and learned Lord, Lord Lloyd of Berwick. However, I respectfully ask the House to consider what we did and agreed to in the Bill. It should consider the effect of the change, and respect politicians for their ability to recognise the rule of law and do an heroic job in another place.
My Lords, it has been another extremely stimulating debate about "Lord and lawyer", and it is now my task to bring it to a close. I shall do so extremely tersely.
One point of detail that I want to take up before I summarise the arguments is over the role of the Attorney-General. The noble Lord, Lord Goodhart, asked, "What about the Attorney-General?". The noble and learned Lord the Lord Chancellor half-answered that question by saying that it was the duty of the Attorney-General to advise the Government on the law as it is. That is half the point. The other half is that it is the duty of the Lord Chancellor, bound by the doctrine of the rule of law, to defend the law as it ought to be. The Lord Chancellor is in the Cabinet to make sure that draft legislation for the future does not break the rule of law. By convention, the Attorney-General is rightly not in the Cabinet; so there is no possibility that he could in any circumstances ever substitute for the job of a Lord Chancellor.
Last week the noble Lord, Lord Goodhart, and I voted several times in the same Lobby to defend a number of very important constitutional principles. We would not have been put to the trouble if those matters had been killed at birth in the Cabinet. They were not. Sitting in the Cabinet was a Secretary of State for Constitutional Affairs, not bound at that time—as I have already admitted—by the rule-of-law doctrine, because he was appointed as a Secretary of State, not as a Lord Chancellor.
The noble and learned Lord did not prevent those proposals from coming out of the Cabinet. What possible confidence can the noble Lord, Lord Goodhart, have that a non-lawyer sitting in the House of Commons would do a better job? I suggest to the noble Lord, none whatsoever.
The noble and learned Lord sought to ridicule my assertion that there is a fundamental conflict of interest between being a politician in another place, elected on a popular mandate to do what the majority wish, and an individual whose fundamental task is to support the rule of law, which implies protecting the individual against the state and the minority against the majority.
It is plain that someone who holds those two roles would be deeply conflicted. That is absolutely plain. Any Cabinet Minister's local constituency, which sent him to Parliament to fulfil his party's mandate, would be deeply disappointed if that politician put the rule of law before what his electorate wanted. So, I continue to assert, with complete confidence, that there is a conflict between representing the rule of law, as laid down in the statute, and being an elected Member.
Above all, the position of the Lord Chancellor throughout the centuries has been a crucial check on the power of the Executive. There are very few checks left in our constitution on the power of the Executive. One of them is your Lordships' House in its diminished role under the Parliament Act 1949. The other is the presence of a Lord Chancellor in the Cabinet. If that presence and the noble and learned Lord's responsibility for the rule of law are removed, your Lordships' House is the only check left. We need as many checks as we can get against an over-weaning Executive and I wish to test the opinion of the House.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. We have debated this and it is for the noble and learned Lord, Lord Lloyd of Berwick, formally to move his amendment to it.
Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord Falconer of Thoroton.)
rose to move Amendment No. 2A, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 2, leave out "agree" and insert "disagree".
My Lords, I beg to move Amendment No. 2A to leave out "agree" and insert "disagree". I have said all that I need to say on the subject.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 2, leave out "agree" and insert "disagree".—(Lord Lloyd of Berwick.)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3.
The amendments in this group are purely matters of drafting improvement and consistency and do not affect policy. They replace references to "the Minister" with references to "the Lord Chancellor" throughout the Bill.
As noble Lords have already indicated, the Bill as introduced in this House last year sought to abolish the office of Lord Chancellor, and therefore many functions were described in the Bill as being the responsibility of "the Minister". Since then, noble Lords are fully aware of the changes that have been made. To ensure that the Bill is consistent, I am therefore seeking to replace those references with ones to "the Lord Chancellor".
The amendments ensure that it is immediately clear to the public, without the need to cross-refer to another part of the Bill, that the Lord Chancellor is the Minister responsible for exercising these functions. This follows existing precedent that, where functions are vested in the Lord Chancellor in statute, they are vested specifically in that office.
Moved, that the House do agree with the Commons in their Amendment No. 3.—(Baroness Ashton of Upholland.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 to 6.
Amendments Nos. 4 and 5 amend Clause 6 to make provision for qualification of that clause in relation to Northern Ireland on devolution. Clause 6 was introduced in this House by the Lord Chief Justice and was agreed by his counterparts in Scotland and Northern Ireland. It provides that the Chief Justice of any part of the United Kingdom may lay written representations before Parliament on matters relating to the judiciary or the administration of justice within his jurisdiction.
The purpose of the amendments is to ensure that the devolution settlement for Northern Ireland is respected. By convention, this Parliament would legislate on transferred matters only with the agreement of the Northern Ireland Assembly. Therefore, on devolution, the Lord Chief Justice of Northern Ireland will be able to lay written representations before Parliament in relation to transferred matters only if they relate to a Bill before Parliament. This is similar to the provision made for Scotland in subsection (2).
Amendment No. 6 inserts a new clause providing for the Lord Chief Justice of Northern Ireland to lay written representations before the Northern Ireland Assembly on matters which appear to him to be of importance relating to the judiciary or the administration of justice in Northern Ireland and which come within the scope of subsection (2). These are, in essence, matters being legislated on by the Northern Ireland Assembly. Amendment No. 273 amends Clause 119 to provide that this new clause extends only to Northern Ireland.
Moved, That the House do agree with the Commons in their Amendments Nos. 4 to 6.—(Baroness Ashton of Upholland.)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11.
This amendment provides for a new section to be inserted in the Judicature (Northern Ireland) Act 1978, corresponding to Section 1 of the Courts Act 2003. It will place a statutory duty on the Lord Chancellor to ensure there is an efficient and effective system to support the Supreme Court and county, magistrates' and coroners' courts in Northern Ireland, and that appropriate services are provided for those courts. It also requires the Lord Chancellor to lay before Parliament a report on how he has discharged his duty.
This clause will assist in bringing the Lord Chancellor's statutory responsibilities for Northern Ireland in line with his statutory responsibilities for England and Wales. Together with the provision in the Bill relating to the statutory responsibilities of the Lord Chief Justice of Northern Ireland as President of the Courts, it will help to clarify the respective roles of the executive and the judiciary, which is a fundamental objective of the Bill.
Moved, That the House do agree with the Commons in their Amendment No. 11.—(Baroness Ashton of Upholland.)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 12.
The amendment makes provision for a new statutory office and title of President of the Courts of Northern Ireland, which will be assumed by the Lord Chief Justice of Northern Ireland. It sets out the responsibilities of the President of the Courts of Northern Ireland and the courts to which the presidency applies. His responsibilities, which are similar to those already provided for in respect of the Lord Chief Justice of England and Wales, include representing the views of the Northern Ireland judiciary to Parliament, the Lord Chancellor and Ministers of the Crown generally; and when the Northern Ireland Assembly is restored, to the Assembly, the First Minister and the Deputy First Minister and Northern Ireland Ministers.
The amendment also provides that the Lord Chief Justice will be head of the judiciary in Northern Ireland, a post by convention held by the Lord Chancellor. The Lord Chancellor will continue to have ministerial functions for the courts, following the reform of the office, on a similar basis to that for England and Wales—for example, setting the organisational framework for the court system.
Moved, that the House do agree with the Commons in their Amendment No. 12.—(Baroness Ashton of Upholland.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 13 and 14.
The group to which I am speaking is a substantial one—in fact we have called it the "super group". It makes detailed and technical amendments to Schedule 4 in four separate areas. I shall, with reasonable clarity and speed, do a little scene-setting and list the affected areas.
Schedule 4 is one of the key parts of the Bill that gives effect to the concordat agreed between the Lord Chancellor and the Lord Chief Justice. It provides for the Lord Chancellor's current statutory functions relating to the judiciary and the organisation of the courts to be amended—so that they require consultation with or the concurrence of the judiciary—or transferred to the Lord Chief Justice or another senior judicial office holder.
These amendments are designed to complete the schedule and to make sure that it fully reflects concordat principles. They cover a number of individual functions in Northern Ireland under legislation that extends throughout the UK and introduces a new schedule in relation to Northern Ireland which corresponds to Schedule 4; provisions that support arrangements for the ending of the Lord Chancellor's ecclesiastical patronage and—as announced by the Government on
I shall now speak briefly to the first of these areas and to Amendment No. 13 and the amendments grouped with it. These amendments cover a number of individual functions in Northern Ireland where the amendments generally create new roles for the Lord Chief Justice of Northern Ireland; and the introduction of the new schedule to which I have already referred.
Amendments Nos. 13 and 14 amend Clause 13 to provide for the modification and transfer of the Lord Chancellor's functions in Northern Ireland and the introduction of a new schedule.
The amendments in the subgroup are mainly technical in nature. The amendments to Schedule 4 are intended to ensure that the schedule fully reflects the concordat principles. They deal mainly with arrangements for appointments to a number of tribunals established under legislation with UK-wide extent, but where the office holder is either appointed to sit exclusively in Northern Ireland or throughout the UK—but who in practice sits mainly in Northern Ireland—and with arrangements to replicate functions of the Lord Chief Justice of England and Wales already transferred in Schedule 4 for the Lord Chief Justice of Northern Ireland.
The Lord Chancellor's written evidence to the Select Committee, agreed with the Lord Chief Justice of Northern Ireland, laid out in some detail the future arrangements for the Lord Chancellor's court-related functions in Northern Ireland on reform of the office of the Lord Chancellor.
On the second subgroup, as stated to the House on
The amendments to the Pluralities Act 1838, the Ecclesiastical Leasing Act 1842, the Inclosure Act 1859, the City of London (Guild Churches) Act 1952 and the Pastoral Measure 1983 are consequential on that transfer. They will ensure that the ending of the Lord Chancellor's ecclesiastical patronage is satisfactorily completed and that any uncertainty is removed.
Subgroup 3 deals with the Lord Chancellor's powers to appoint people to and remove persons from tribunals with a UK-wide jurisdiction. Amendments Nos. 344 and 394 transfer the Lord Chancellor's duty to consult the Secretary of State for Health or the Chief Medical Officer in relation to certain tribunal appointments to the Judicial Appointments Commission.
The other amendments deal with tribunals with a UK-wide jurisdiction, or jurisdiction covering more than one part of the UK. These require special arrangements in relation to some appointing and delegating functions and removals from office. The power to remove normally lies with the Lord Chancellor, with the agreement of the Lord Chief Justice of England and Wales, but in relation to Scottish members removal should be with the agreement of the Lord President of the Court of Session, and in relation to Northern Ireland members, removal should be with the agreement of the Lord Chief Justice of Northern Ireland. The relevant judge in each case is referred to in the amendments as the "appropriate senior judge".
I turn very briefly to subgroup D. It deals with miscellaneous technical amendments to Schedule 4. So Amendments Nos. 416 to 418, for example, provide for the Lord Chief Justice to appoint someone other than the Master of the Rolls to the head of civil justice. That of course brings the legislation into line with appointment procedures for the heads of criminal and family justice in Clauses 8 and 9 of the Bill. Amendment No. 342 transfers to the Lord Chief Justice the Lord Chancellor's powers to prescribe new business for the central office of the Supreme Court.
The remaining amendments are minor and technical, and I am sure that your Lordships will have read and noted them with care. The most significant change that we have made concerns how recorder appointments are renewed, in Amendment No. 324. The new provisions mirror what has been the practice for some time: automatic renewal of appointments except where there are grounds for non-renewal. That may be of interest to the noble Lord, Lord Kingsland. The amendments also now require the Lord Chief Justice's agreement to grounds for non-renewal or removal from office, as well as any decision that those grounds are fulfilled in a particular case.
The remaining amendments correct how some existing functions of the Lord Chancellor are amended; provide for the Home Secretary to be involved in a new power relating to the making of criminal procedure rules; and ensure that the Lord Chancellor's functions relating to the making of rules are correctly reflected in the relevant provisions. I should add that all those amendments have been discussed with the judiciary, who are content with them.
Moved, That the House do agree with the Commons in their Amendments Nos. 13 and 14.—(Baroness Ashton of Upholland.)
My Lords, I think that I am right in saying that when a consultation document was issued about the subsidiary functions of the Lord Chancellor—for example, in relation to ecclesiastical appointments—it was asked whether it was any longer appropriate that such appointments should be made by a senior Secretary of State. Is the solution to that problem to transfer them to the Prime Minister?
My Lords, I take the noble and learned Lord's point with the degree of jocularity that I think he intended. We have made something even more sensible than it was before.
My Lords, I should like to ask the noble Baroness about Amendment No. 116. At present, the Bill provides that the Master of the Rolls is the head of civil justice and allows the Lord Chief Justice to appoint a deputy for him. The amendment states that the head of civil justice is to be the Master of the Rolls or, if the Lord Chief Justice appoints another person, that person.
I see that it is perfectly sensible to have the power to appoint someone else if the Master of the Rolls does not want to do the job, but it seems rather demeaning to the Master of the Rolls who, until now, has always been regarded as an equivalent of the Lord Chief Justice, that the Lord Chief Justice can take away that function from him in his despite and say, "I am appointing one of your Lord Justices to perform that role, even though you would like to continue doing it". Is it really right that the Lord Chief Justice should now be given the power to treat the Master of the Rolls in that rather peremptory and contemptuous manner?
My Lords, I did not interpret what is proposed in the same way as the noble Viscount. As I understand it—and I checked this point because I had a feeling that he might raise it—that provision returns the Bill to the present position, which is that someone other than the Master of the Rolls could be appointed. As my noble and learned friend would be the first to say, it is important that someone takes the decision and that it is made in accordance with the new relationship between the judiciary and the Lord Chief Justice. So it ensures that the Lord Chief Justice is appropriately positioned with the Lord Chancellor.
I beg to move that the House do agree with the Commons in their Amendment No. 15.
The purpose of the amendment is to ensure continuity if the office of Lord Chief Justice is vacant or if the office holder is unable to exercise his functions. Of course, we hope that those provisions will never be necessary, dealing as they do with circumstances such as unexpected resignation or death. They also deal with ill-health or other possible scenarios where the Lord Chief Justice is incapacitated. In such circumstances, it is essential that procedures are in place to ensure that the functions that fall to the Lord Chief Justice can be exercised on his behalf, to allow the smooth running of the judicial system.
The amendments provide that the functions of the Lord Chief Justice would fall to the next most senior head of division. In such a case, the full powers of the Lord Chief Justice would transfer temporarily to the next most senior member of the judiciary. The amendment provides an important safeguard in that any decision about whether the Lord Chief Justice is incapacitated must be agreed in writing by at least three of the four heads of division. It must be right that such a decision lies in the hands of the judiciary.
This is an important amendment. We hope that it will never have to be used, but we must ensure that proper safeguards are in place to ensure continuity in the judicial system.
Moved, That the House do agree with the Commons in their Amendment No. 15.—(Baroness Ashton of Upholland.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 30 and 31.
Amendment No. 30 is the first in a group of amendments to give effect to the recommendation of the Select Committee on the Bill that,
"The Supreme Court of England and Wales and the Supreme Court of Judicature of Northern Ireland should be renamed and, when necessary to avoid confusion, the short titles of legislation relating to those courts should also be changed".
The Supreme Court of England and Wales is to be renamed "the Senior Courts of England and Wales" and the Supreme Court of Judicature of Northern Ireland as "the Court of Judicature of Northern Ireland". The renaming does not affect the courts in question in any way other than the names by which they will be known. The new names were selected in consultation with the senior judiciary in each jurisdiction, with a view to avoiding confusion not only with the Supreme Court of the United Kingdom, but with other courts.
The new clause introduced by Amendment No. 85 provides for the Supreme Courts of England and Wales and Northern Ireland, and also the Northern Ireland Supreme Court Rules Committee, to be renamed and for references to them in other legislation to have effect as references to them as renamed. In addition, the new schedule introduced by Amendment No. 487 provides for the legislation relating to the renamed courts to be retitled as appropriate, and also carries through direct textual amendments of references in other legislation that might otherwise give rise to confusion.
References at various points in the Bill also require amendment in line with the general renaming, and Amendments Nos. 30 and 31, 299, 341, 485 to 487, 489, 491 and 492, 496 to 499, 550 and 551, 553 and 554, 583 and 644 to 662 change those references as appropriate. Amendment No. 269 amends Clause 115 to make it clear that other references can be amended in line with the renaming. Amendments Nos. 621, 622 and 624 make minor consequential amendments and repeals arising from the renaming.
Moved, That the House do agree with the Commons in their Amendments Nos. 30 and 31.—(Baroness Ashton of Upholland.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 81 to 83. These amendments make provision relating to records of the United Kingdom Supreme Court and for the court's official seal. They were prepared in close consultation with the senior Law Lord.
The provision relating to court records is amended in one very restricted particular. Clause 52 as originally introduced amends the Public Records Act 1958 to provide for records of the Supreme Court to be public records, like those of any other court with United Kingdom jurisdiction or a jurisdiction not limited to Scotland or Northern Ireland. Provisions of the Public Records Act 1958 will apply to the records of the Supreme Court as to any other court within that framework, with an exception for which Amendments Nos. 82 and 83 provide by removing Clause 52 and substituting for it a revised clause. The exception is that the chief executive of the Supreme Court will have custody of the records of the court by virtue of his office as chief executive, rather than by virtue of a determination by the Lord Chancellor to that effect.
In the normal course of events the outcome would be the same: the chief executive would be responsible for and have custody of the records within the terms of the Act because there is no other person whom the Lord Chancellor could rationally designate. But the amendment will mean that the process of determining who is to have custody, which would otherwise apply as for all other English or United Kingdom courts, will be avoided. That will further guarantee the court's independence from any appearance of outside interference.
Amendment No. 81 makes provision in the form of a new clause for the UK Supreme Court to have an official seal and for that seal to be judicially recognised so as not to require further proof of documents emanating from the court. The provision will serve the interests of certainty and transparency, and as a valuable guarantee of authenticity, on the model of provision, which has been made for numerous other courts established or consolidated in statute.
The new clause provides for the Supreme Court to have a seal and follows the model of Section 123 of the Supreme Court Act 1981 as to the effect of the seal. Accordingly, any document sealed with the seal of the court is to be received in evidence without further proof.
Moved, That the House do agree with the Commons in their Amendments Nos. 81 to 83.—(Baroness Ashton of Upholland.)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 84. The aim of this amendment is to provide for the status of the new UK Supreme Court under the Northern Ireland Act 1998. Provision is made for the Supreme Court to be specified as an excepted matter in Schedule 2 to that Act, but for rights of appeal to the UK Supreme Court and legal aid for such appeals to be reserved matters in Schedule 3.
This ensures that the position of the new UK Supreme Court exactly reflects the current status of the judicial function of the House of Lords in relation to the devolution settlement for Northern Ireland. The amendment is intended merely to ensure that the new court is covered and to avoid any ambiguity about what is and is not excepted and reserved. It is not intended to change the status of the final court of appeal.
Moved, That the House do agree with the Commons in their Amendment No. 84.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
87 After Clause 57, insert the following new Clause—
"Encouragement of diversity
(1) The Commission, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection for appointments.
(2) This section is subject to section 57.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 87. Amendment No. 87 was originally the second of two amendments tabled by Mr Vaz, Mr Bottomley and three other members of the Constitutional Affairs Select Committee to give effect to the Select Committee's recommendation that the Judicial Appointments Commission should be under an explicit duty to promote diversity.
The Government had the opportunity to consider the issues raised with Mr Vaz and with the judiciary. In the course of those discussions, we came to the view that the purposes of the second amendment were entirely in line with the Government's thinking about the commission's role in increasing the range of applicants for appointment, yet escaped the possible problems of statutory provision on this topic. When the amendment was not reached in Committee on
It will have been clear in the extensive debates on this question that the Government have had considerable reservations about whether a statutory duty of that kind was the right way forward. That is not because we have any doubts about the importance of that issue to the commission's work. We expect the commission to work with the Government and the legal profession to encourage people who believe that they have the qualities and abilities we expect of our judges to put themselves forward for appointment, whatever their background; and to give them confidence that they will receive fair and open treatment. That is the way towards the wider range of judges that we and the judiciary are so keen to see.
The Government and, indeed, the judiciary were, however, extremely anxious that nothing in the Bill should appear to detract from the main principle in judicial appointments; namely, that all appointments should be made solely on merit. That is why we had originally planned to deal with diversity issues in guidance rather than in the Bill itself.
Careful consideration of this amendment has convinced the Government that it escapes the possible problems of statutory provision. First, the new duty escapes the most substantial problem of diluting the merit principle since it is expressly subject to the overriding duty to select on merit. Moreover, the new clause focuses on the separate topic of efforts to ensure that the widest range of applicants come forward.
There is another risk in provision in the Bill of the new duty being inflexible and insufficiently responsive to changing need. We consider that the new duty is also drafted in sufficiently general terms so as not to hamper the commission and to enable it to respond creatively over the years to changing perceptions of the problems and of their solutions.
I am therefore of the view that the new clause enhances the Bill. Our discussions with the judiciary indicate that it, too, regards this as a positive improvement. Indeed, the Lord Chief Justice and the Judges' Council Working Party on constitutional reform, chaired by Lady Justice Arden, were consulted about the amendment and confirmed their support for this extension of the commission's statutory remit.
They are satisfied that Clause 57 does not dilute the commission's duty to make appointments solely on merit. The Lord Chief Justice has consistently made clear that he hopes the commission will actively seek to widen the field of candidates from which judicial appointments are made. He sees that as an important element of the current drive to increase judicial diversity.
That is why, when it became clear in the circumstances of the final stages of the Bill in the Commons, where the Government were faced with the choice of losing the amendment completely or adopting it by having it formally moved by a Minister, the Government chose the latter. The House authorities and the Opposition spokesmen were, of course, informed of that contingency. But I accept that in the latter case, this might have happened at rather a late stage.
I am therefore happy to commend this amendment to the House. I am satisfied that the amendment, which is expressed to be clearly subject to the clause dealing with selection on merit, runs none of the risks that I identified in relation to the first amendment. In the light of that explanation, I hope that noble Lords will feel able to accept the amendment.
Moved, That the House do agree with the Commons in their Amendment No. 87.—(Baroness Ashton of Upholland.)
My Lords, at the outset, I should like to say that it is not my intention to press this amendment to a vote, in view of what the noble Baroness has just said. The whole question of diversity was dealt with in some detail in the Select Committee of your Lordships' House, and the summary of the debate appears in paragraphs 336 to 346 of the report.
In the outcome, as the noble Baroness has already indicated, the Select Committee recommended that the diversity provision form part of guidance rather than a direct obligation on the commission itself. That was because, on balance, the committee did not want—the noble Baroness has confirmed it—there to be any chance that the merits only requirement would be diluted.
What seems to have happened is that the recommended wording for the guidance has been promoted to the wording of an obligation that ought to be placed on the commission. I have no difficulty with that. The noble Baroness generously informed your Lordships' House that it arose rather late and in somewhat less than ideal circumstances in another place. It also provided evidence of some rethinking from the Government side, which took us rather by surprise.
Nevertheless, on the assumption that what the noble Baroness said about the principle of merits remaining not only the main principle but the exclusive principle—and that the diversity provision relates only to the pool of candidates that come forward—we are not just content with that, but think that it is a useful addition to the Bill. I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 87, leave out "agree" and insert "disagree".—(Lord Kingsland.)
My Lords, I find myself in agreement with the noble Lord, Lord Kingsland, both in his conclusions and in his recollection of the reasoning of the Select Committee. There is no doubt that the Select Committee was concerned to ensure primacy in the requirement that appointments be made according to merit. I think that our caution in our recommendation was justified.
In recognising the desirability of seeking to widen the pool, I think that that should be a duty placed upon the commission—not a duty to displace the merit principle but a duty none the less. The Bill has marked an advance and what happened in another place is understandable and welcome.
My Lords, I have no difficulty with the idea that Clause 57 maintains the principle of merit. However, I have a little difficulty with the wording that has been chosen in regard to diversity. The amendment requires the commission to,
"encourage diversity in the range of persons available for selection for appointments".
The range of persons available for selection for appointments is defined by the statutory requirements that a person must fulfil in order to be appointed as a judge or to one of the other appointments. How can the commission, in the exercise of its powers, alter that range? The answer, I think, is that it cannot.
The commission might be able to help encourage more people to obtain the qualifications that are necessary for an appointment, but the trouble with that is that it would not be an exercise of its functions, which are to nominate people for appointment. It does not have any function in enlarging the professional pool or anything of that kind.
That has always been a difficulty. My noble and learned successor and myself—and, no doubt, the present Lord Chancellor also—have been very anxious to appoint a diversity of people. The difficulty has been that the profile of the profession and the way in which the qualifications are attained—and who attains them—has tended to place a restriction on us. I am sure this is still the experience.
The provision refers to,
"the range of persons available" for appointments in a way that I find difficult to apply to the state of facts. I am sure that I am right in thinking that it is not intended that the commission should have power to alter the statutory qualifications. Therefore, it will have to exercise its power for enlarging the range in some other way. That must mean enlarging the range of those who apply having attained the applicable qualifications. But the amendment does not say that. It refers to,
"the range of persons available for selection".
So "available" refers to the whole range of people who have the qualifications.
I am not clear how the commission will deal with that. I hope the Minister will make that clear.
My Lords, I, too, have some concerns about the new clause. Like everyone else, I remember the endless discussions we had on this aspect of the matter in the Select Committee. I thought we had reached the fairly clear conclusion that we needed to widen the pool but not in any way to touch the test, which was to be solely on merit.
The noble Baroness said that it is all right to include this new clause because it is made subject to Clause 57. But Clause 57 states that it is to be solely on merit. If it is to be solely on merit, I do not understand how there is room to have regard to anything else.
My Lords, very happily, we are all in agreement—which is slightly disturbing at one level. The situation is as the noble and learned Lords, Lord Lloyd of Berwick and Lord Mackay of Clashfern, said: it is absolutely about merit.
It is then a question of how you make sure that applicants who have the right qualifications come forward. This is true in many walks of life—some of which I have been involved in—including, I suspect, the judiciary. This is why we are consulting at the moment on the whole question of diversity. People do not come forward in the numbers one would perhaps expect for a variety of different reasons which are not to do with qualifications.
In some walks of life—this is certainly true in the American experience in the 1960s and 1970s—it has to do with confidence: "This is not about me. I do not look like the people who are doing this and therefore I do not apply". This is also true for women who do not have the confidence to come forward in a world where they do not feel welcome. This is not because of the actions of other people but simply because they do not see themselves there.
So this is about how you make sure that within the qualifications—absolutely appropriately—people who can do the job come forward. Then, of course, the decision is made on merit. That is the way it should be and it is right and proper to include that proposition within the Bill in the way in which it is included. I think everyone agrees with the proposition.
My Lords, in that case, the phrase,
"in the range of persons available", means "in the range of persons who apply". With great respect, that is not exactly what is said. It may be good enough. I do not know.
My Lords, parliamentary counsel would say that is what it says. Not being a lawyer, I am always beholden to parliamentary counsel.
As the noble and learned Lord, Lord Mackay, has said, this is about making sure that the group of people, the range of people and the breadth of people who come forward are properly qualified. Then, if one is thinking about diversity, one looks at that range and considers the diversity of applicants. But the central core issue that noble Lords were concerned about at previous stages of the Bill—with which the Government are absolutely at one with your Lordships' House—is that the appointments are then made on merit.
My Lords, perhaps I may assist the Minister with an answer for the noble and learned Lord, Lord Mackay. Surely the only people available for selection are those who have applied. Many people may be qualified for selection, but they are only available if they apply. So the Minister is surely right to say that if the commission encourages people to apply, that is encouraging them to make themselves available for selection.
My Lords, I hope not to need help, but it is always great to get help from the noble Viscount.
My Lords, is it not in fact a principle that we observe in other areas of life? In academic life, for example, and no doubt in other professional areas, you seek to strike a balance between people who have the ability to do the job and other kinds of circumstances, including the social background, the context and the needs. It is not necessarily so unique a problem.
My Lords, in the course of the debate in the Select Committee, I recall drawing the attention of the noble and learned Lord to Section 3 of the Justice (Northern Ireland) Act 2004, which inserted a similar provision into the Justice (Northern Ireland) Act 2002. There, having set out an exclusive merit test, it went on to say that that test was subject to the commission engaging in a programme of action which is designed to secure, so far as is reasonably practicable, that a range of persons reflective of the community in Northern Ireland is available for consideration by the commission.
The way in which that was interpreted, as I understand it, in the context of the Northern Ireland legislation, was to require the commission to set up a programme whereby certain active steps were taken in the career promotion of those who were less well represented in Northern Ireland society to ensure that, when the moment of judicial appointment came, they would be appropriately qualified.
For example, if you were thinking of making a High Court appointment, you might ensure that a woman who had a family and who necessarily was out of practice for, say, 10 years, would have the opportunity to go into a part-time judicial appointment which she could do for half the time. In that way she would keep up the career momentum, which would mean that 10 years later she would be in a reasonably good position to apply to be a High Court judge.
The way this is dealt with in the Northern Ireland legislation, therefore, is to go beyond simply doing a trawl and saying, "By the way, there's a post coming up, why don't you apply?", to include a structured programme by the commission in Northern Ireland over a considerable period of years actively to assist people who are less well represented to get on the right set of ladders.
The noble Baroness might like to go on the record as saying that what she had in mind was something of that nature rather than something that simply took place immediately before a selection was undertaken.
My Lords, I am grateful to the noble Lord, Lord Kingsland, who knows a great deal about the provisions of the Northern Ireland Act 2000, which came from the Criminal Justice Review and describes a system that is reflective of the community, which is a different language for a different set of purposes.
The consultation that we are conducting at the moment is designed to look at the barriers that prevent people from the legal professions from coming forward to consider entering the judiciary and promotion within the judiciary. It is not in isolation to think about the moment of appointment, as the noble Lord rightly said; it is about a programme that asks how we make sure that people come forward and think about becoming a judge. I would argue that the process whereby one has to think about future progression through the legal profession begins at school as well as at university.
We have no difficulty with placing on the record our desire to see a full programme. It is not yet fully in place because we are in the middle of our consultation, but we want to take steps to make sure that people come forward. Within the principle, as we have already identified, they are appointed on merit.
My Lords, I am most grateful to the noble Baroness. In the light of what the noble Baroness said there may have been some advantages in staying with the solution devised by the Select Committee: if the rules are guidance rules they can be changed much more easily and one could, over a period of time, have endorsed and factored in the programme approach contained in the Northern Ireland legislation. Having said that, on balance I am minded not to press my amendment and beg leave to withdraw it.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 94.
The Bill currently provides that the Lord Chief Justice should be consulted about the content of the guidance to the Judicial Appointments Commission when it is being prepared. That is because much of the material covered by the guidance will be of interest to the judiciary and it is therefore necessary to ensure that the Lord Chief Justice is consulted about it during the course of its preparation.
It is also desirable to ensure that the Lord Chief Justice is consulted if the withdrawal of guidance is being considered. This minor Amendment No. 94 now makes provision for that. Both Houses will have the opportunity to consider guidance because it is subject to affirmative resolution, as is any revocation of the guidance.
Moved, That the House do agree with the Commons in their Amendment No. 94.—(Baroness Ashton of Upholland.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 96 to 100.
This is a large group of amendments to the provisions for appointing judges. Their purposes can, however, be briefly explained. The overall purpose of the changes is to make the processes which the Judicial Appointments Commission and the Lord Chancellor must go through in making judicial appointments as clear as possible; and to make it clear that the commission has the flexibility it will need to meet the range of requests that will be made.
We have often recognised the need for such provision in the continuing discussions with the judiciary on the way in which the Bill gives effect to the concordat, and in the light of debates in your Lordships' House and in another place. I will outline the areas in which the amendments make technical or minor changes of substance to the provisions, in the order in which they appear on the Marshalled List.
Amendments Nos. 98, 126 and 156 create duties on the Lord Chancellor to fill vacancies in the offices of Lord Chief Justice, the senior judicial posts and all offices listed in Schedule 12. Amendment No. 189 enables the Lord Chancellor to give the commission an indication of the number of appointments he expects to make in any particular class of judicial appointments. The commission is then obliged to identify persons that it would consider suitable to fill the expected vacancies. This ensures that current practice in relation to competitions to fill a number of vacancies in a single class of appointments can continue.
This process is preliminary to the selection process for individual posts, and the Lord Chancellor will only consider the merits of the individuals who have been identified by the process. At the end of such an exercise, therefore, the commission will have to give the Lord Chancellor a report which sets out only how far it is confident that it has a sufficient pool to meet the likely need, and any other matters which would enable the Lord Chancellor to decide whether he needs to take additional action.
The report will not identify the individuals who have been identified for the pool from which individual requests will be filled, unless the commission considers it necessary to do so. Names from the reserve list will normally only be put to the Lord Chancellor as he seeks selections for specific posts. Guidance to the commission will make it clear that the names should be released only in exceptional circumstances. There is a sensitivity about the names on the reserve list, as those people have not actually been selected for, and may never be offered, a specific judicial appointment.
The clause which enables the Lord Chancellor to withdraw or modify requests to the commission to select candidates for vacancies replaces Clause 82. An additional safeguard is that it now provides for requests dealing with specific vacancies to be withdrawn or modified only with the agreement of the Lord Chief Justice. Amendment No. 192 makes it possible for the commission to make arrangements for the preferred candidate for an appointment to be subject to health checks.
In the process of drafting these substantive, if somewhat technical amendments, counsel has taken the opportunity to reconsider the structure of all the clauses dealing with selection for appointments. The majority of the amendments are therefore either drafting amendments or amendments designed to incorporate the effect of the new clause that I have just explained. They considerably simplify the clauses which deal with the Lord Chancellor's duty to fill vacancies; the processes through which the Lord Chancellor asks the Judicial Appointments Commission to select candidates; and the Lord Chancellor's powers to select recommended candidates.
Those amendments—some 32 of them—do not affect the substance of the Bill, even though in some cases the clauses have been restructured to make them, I hope, significantly easier to understand.
Amendment No. 174 provides for the Lord Chancellor to consult with Scottish Ministers and other Ministers for certain tribunal appointments either where the person will sit in Scotland or where he is required to do so by legislation. Finally, I should mention that Amendments Nos. 158 and 191 delete Clauses 75 and 82, because these clauses have been replaced by the new clauses in Amendments Nos. 156 and 157 and Amendment No. 190.
Moved, That the House do agree with the Commons in their Amendments Nos. 96 to 100.—(Baroness Ashton of Upholland.)
My Lords, it is obviously sensible that there should be a position where the Lord Chancellor can say to a potential judge, "Before I appoint you I want you to be medically checked". If the medical check is unfavourable and there is any chance that the Lord Chancellor would or might not appoint that person, can we have an assurance that the candidate will be given a copy of that report and an opportunity to go to his own doctor or a doctor of his choosing and to submit a report that might come to a more favourable conclusion and persuade the Lord Chancellor that there was no bar to the appointment?
Indeed, my Lords, I can give the noble Viscount that assurance.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 217 to 222. This is the first of a set of three groups of amendments reflecting work done to ensure that the concordat provisions are clearly and fully expressed and that the involvement of the Scottish and Northern Irish judiciary is properly allowed for in relation to tribunal appointments where most of the sittings will be in those jurisdictions.
In addressing all this, we were advised that the clarity of the provisions in the Bill would be enhanced by some reordering, hence the new clauses in the next two groups. The amendments in the first group are mainly drafting amendments and are all minor, but the provisions they amend are important since Clause 94 puts a judicial disciplinary system on a statutory basis for the very first time.
The judicial disciplinary system will involve the Lord Chancellor and the Lord Chief Justice working together. The Lord Chancellor will have the power to remove judicial office holders below the level of the High Court, with the agreement of the Lord Chief Justice. The Lord Chief Justice will have the power to give formal advice, warnings or reprimands to judicial office holders as a result of the disciplinary process, with the agreement of the Lord Chancellor.
These provisions faithfully reflect the concordat agreed with the judiciary. They build on the system that already exists but involve the Lord Chief Justice more fully in decisions to reflect the fact that he will be head of the judiciary. The Lord Chancellor's continuing role in disciplinary matters reflects the need for a Minister accountable to Parliament and as a representative of the public interest.
The more detailed framework of the disciplinary process will be contained in regulations made by the Lord Chief Justice with the agreement of the Lord Chancellor under Clause 96. The Lord Chief Justice also has the power under Clause 98 to make subordinate rules with the agreement of the Lord Chancellor which must be published but are not subject to parliamentary approval. That is because we envisage that the rules will contain a higher level of detail about how complaints and disciplinary procedures will work and may need to be revised and reissued fairly regularly.
Amendment No. 217 removes the possible problem of the drafting of the existing Clause 94 by making it clear that the provision in Clause 94(2) that the Lord Chief Justice may exercise his disciplinary powers only with the agreement of the Minister and in accordance with prescribed procedures does not affect what the Lord Chief Justice may do informally.
Amendments Nos. 218 and 220 correct references to disciplinary procedures and replace them with references to prescribed procedures. Amendment No. 221 clarifies the effect of suspending a judge. Clause 94 allows the Lord Chief Justice, with the agreement of the Lord Chancellor, to suspend a judge in certain circumstances when the judge is subject to disciplinary procedures. The amendment makes it clear that a judge who is suspended may not exercise the functions of his office but that his other rights are unaffected.
Amendment No. 222 makes it clear that disciplinary regulations made by the Lord Chief Justice will define when someone is subject to prescribed procedures or is under investigation for an offence. That will govern the exercise of the new power in Clause 94(7) which allows the Lord Chief Justice, with the agreement of the Lord Chancellor, to suspend a judicial office holder in those circumstances.
Moved, That the House do agree with the Commons in their Amendments Nos. 217 to 222.—(Baroness Ashton of Upholland.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 223 to 227. This group of amendments consists of changes to the discipline provisions in the Bill to ensure that it is fully consistent with the concordat over changes made in your Lordships' House. The changes concern the discipline regulations to be made by the Lord Chief Justice, the substantive powers of the ombudsman and the application of the disciplinary regime to tribunals with United Kingdom or Great Britain-wide jurisdiction.
The amendments to the regulation-making power are technical, and, most importantly, clarify that the regulations may confer functions on the ombudsman in connection with his functions under the Bill. Generally, it is intended that the concordat will be fully reflected in the detailed regulations.
The amendments also clarify the substance of the ombudsman's functions in line with the concordat. Unusually, the ombudsman will not be limited to the usual power to make recommendations, but will also be able to set aside decisions on disciplinary complaints and require they be investigated further, investigated again or reconsidered. Further changes were needed to distinguish between reports arising from a complaint and those where the Lord Chancellor or Lord Chief Justice had referred a general matter regarding the discipline regime to the ombudsman. Changes to achieve that have led to a significant reordering of the provisions to provide greater clarity and make the terminology more appropriate. They have also identified the need to make some other minor but important improvements. For example, they brought into focus the fact that the ombudsman needed some discretion when it came to time limits for applying to the ombudsman in relation to a complaint. He now has that discretion.
Moved, That the House do agree with the Commons in their Amendments Nos. 223 to 227.—(Baroness Ashton of Upholland.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 243 to 245. This group of amendments is largely concerned with the disciplinary powers of the Lord Chief Justice. As there are likely to be too many disciplinary complaints each year, in too many areas, for the Lord Chief Justice to deal with all of them personally, Amendment No. 243 makes it clear that he can delegate his disciplinary functions and thus share the complaints caseload with other senior judges.
The other two amendments concern the application of the disciplinary regime to tribunals with United Kingdom or Great Britain-wide jurisdiction. They make it clear that where a member of a tribunal with United Kingdom or Great Britain-wide jurisdiction sits wholly or mainly in either Scotland or Northern Ireland, it is not the Lord Chief Justice who will have disciplinary responsibilities in relation to them but the Lord President for the former and the Lord Chief Justice of Northern Ireland for the latter. They, too, may delegate their responsibilities to other senior judges.
Moved, That the House do agree with the Commons in their Amendments Nos. 243 to 245.—(Lord Falconer of Thoroton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 250 to 253. This is a small group of minor and technical amendments to Clause 104, which provides relevant definitions in relation to Part 4 of the Bill dealing with judicial appointments and discipline.
Amendments Nos. 250 and 251 make it clear that references to the High Court and to a Lord Justice of Appeal in Part 4 relate to England and Wales and not to the identically named institutions in Northern Ireland, which will have its own separate Judicial Appointments Commission.
Amendment No. 252 clarifies the definition of "prescribed" by stating that the power of the Lord Chief Justice to prescribe matters by disciplinary rules under Clause 98 is subject to the restriction of those powers in Clause 98(2), which requires certain matters to be dealt with in regulations, subject to parliamentary approval.
Amendment No. 253 defines when a vacancy occurs for the purposes of the provisions in relation to judicial appointments. The Lord Chancellor will have a statutory duty to make appointments to fill any vacancies except where the Lord Chief Justice agrees otherwise.
Moved, That this House do agree with the Commons in their Amendments Nos. 250 to 253.—(Lord Falconer of Thoroton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 254 to 263. I speak to Amendments Nos. 254 to 263 and Amendment No. 589 which amend the Justice (Northern Ireland) Act 2002 to make provision in relation to the new office of the Northern Ireland Judicial Appointments Ombudsman and to provide a statutory power of disclosure of information, held by permitted persons, to the Northern Ireland Judicial Appointments Commission.
Amendment No. 254 inserts a new Section 5A into the 2002 Act to make provision for disclosure of information by permitted persons—for example, the police—to be made to the Northern Ireland Judicial Appointments Commission.
Amendments Nos. 255 to 263 establish the ombudsman's office and provide an interpretation of the different types of complaint which may be made to the ombudsman. They require the Northern Ireland Judicial Appointments Commission and the Lord Chancellor each to make arrangements for handling complaints made to them in relation to judicial appointments and provide the time limits within which the ombudsman may investigate a complaint where he considers an investigation necessary. Such a complaint essentially relates to appointments to a listed judicial office—that is, High Court judge and below. The ombudsman also has discretion whether or not to investigate complaints received at any other time. Any complaint made to the ombudsman must be in a form approved by him.
The amendments also make transitional provision to allow for an ongoing complaint to be transferred from the Northern Ireland commissioner to the Northern Ireland ombudsman upon the commencement of this section. The amendments provide that the ombudsman must prepare a report in relation to any complaint investigated by him, and in his report he may make recommendations for action to be taken by the commission or by the Lord Chancellor, including the payment of compensation. They provide that the ombudsman shall send his report in draft to the Lord Chancellor, and, if the complaint related to the Judicial Appointments Commission, to the commission also.
Before finalising his report, the ombudsman must have regard to any proposals they make for amendment, and if their proposals are not reflected in his final report he must include a statement of those proposals.
In addition to sending the finalised report to the Lord Chancellor and, where appropriate, the commission, the ombudsman shall send a copy to the complainant. The Lord Chancellor may refer to the ombudsman any matters related to the commission's procedure, and the ombudsman must report on his investigation to the Lord Chancellor. The amendments also require the commission and the Lord Chancellor to provide the ombudsman with such information or documentation as he may need to perform his functions.
The amendments also provide that any person who obtains confidential information, or to whom such information is provided, in relation to judicial appointments and discipline, must not disclose that confidential information without lawful authority. In addition, Amendment No. 589 inserts New Clause 3A into the 2002 Act which makes further provision in relation to qualification, tenure of office and powers of the ombudsman. I beg to move.
Moved, That the House do agree with the Commons in their Amendments Nos. 254 to 263.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
264 Clause 105, page 46, leave out from end of line 17 to "unless" in line 19 and insert "or, if the Lord Chancellor is not a member of that House, by another Minister of the Crown at his request.
(4) No motion for the presentation of such an address may be made"
265 Page 46, line 25, leave out from "and" to end of line 26 and insert "a person making such a motion in the House of Lords shall lay a copy of the report before that House before making the motion."
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 266.
This group deals with miscellaneous technical amendments to the general clauses and schedules at the end of the Bill. Examples of what some of these amendments do are as follows. Amendment No. 266 is a technical amendment that provides that the reference to enactment in Clause 18 includes Northern Ireland legislation. Amendment No. 272 provides for the affirmative resolution procedure to apply to orders under Clause 16. Other amendments in this group insert references into, or remove unnecessary references from, Schedule 15, the schedule of appeal. These amendments are purely consequential to the amendments made to Schedules 1, 4 and 14.
Moved, That the House do agree with the Commons in their Amendment No. 266.—(Lord Falconer of Thoroton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 292 and 293.
These amendments introduce a further exception to the general rule of concurrence in the practice direction functions of the Lord Chief Justice and the Lord Chancellor. This will bring the procedures fully into line with the concordat. At present, Schedule 2 to the Bill provides a uniform mechanism for making practice directions across all jurisdictions and at all levels of court. It provides that the Lord Chief Justice make practice directions with the concurrence of the Lord Chancellor, except where those directions relate to the application and interpretation of the law or judicial decision-making.
The exception to this general approach agreed in the concordat is where the practice direction relates to deciding the appropriate level of judge to hear particular classes of case. It was agreed that, for these directions, the Lord Chief Justice would only be required to consult with the Lord Chancellor, rather than seek his concurrence.
Amendments Nos. 292 and 293, and 296 to 298, agreed with the Lord Chief Justice, qualify the existing practice direction, making mechanisms in Schedule 2 to the Bill in relation to this class of practice direction. In cases where directions set out criteria for allocating judges to hear particular categories of case, the Lord Chancellor will be consulted rather than being required to give consent. This is in recognition of the fact that these kinds of directions are essentially matters for the judiciary, taking into account any ministerial view.
Moved, That the House do agree with the Commons in their Amendments Nos. 292 and 293.—(Lord Falconer of Thoroton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 331.
This amendment will alter the Local Land Charges Act 1975 so as to give local authorities in England the power to set local land charge fees, except for personal search fees. Presently, although methods of keeping local land charge records vary considerable between local authorities, I set local land charge fees on a national basis with the concurrence of the Treasury.
For some local authorities these fees do not cover the cost of providing the service, while others may over-recover. Local fees that reflect the circumstances of each local authority will encourage local accountability, efficiency and transparency, and be fairer to local authorities and their customers. The intention to introduce this amendment, which implements an element of the September 2002 White Paper on local government, was announced by my noble friend Lord Rooker during the Committee stage of the Housing Bill last September.
This amendment will allow local authorities to set fees that, taken one year with another, will enable them to recover up to, but not in excess of, their costs of providing local land charge services. In setting and publishing fees, local authorities will have to have regard to such guidance as I may issue. An illustrative version of the type of that guidance has been placed in the Printed Paper Office and in the Library.
The amendment does not change the position in relation to fees for personal searches, where a full review will be undertaken before any decision is made; nor does it change the position in Wales, where, with effect from
Moved, That the House do agree with the Commons in their Amendment No. 331.—(Lord Falconer of Thoroton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 455 to 460.
Schedule 6 to the Bill protects certain functions of the Lord Chancellor that relate to the judiciary, the courts and the Great Seal from transfer by order under Clause 18 of the Bill or by order under Section 1 of the Ministers of the Crown Act 1975. This is essential, given Clause 4 and the Lord Chancellor's particular duties in relation to judicial independence.
Amendments Nos. 456, 458 and 459 provide for the addition to, and deletion from, Schedule 6 of certain functions that the Lord Chancellor exercises in England and Wales.
Amendments No. 455, 457 and 460 amend Schedule 6 to provide for the protection of certain judiciary or court-related functions that the Lord Chancellor exercises in Northern Ireland. They ensure that protection is afforded to those functions on a similar basis to the protection already provided for England and Wales.
Moved, That the House do agree with the Commons in their Amendments Nos. 455 to 460.—(Lord Falconer of Thoroton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 490. The amendment is grouped with Amendments Nos. 494, 508 to 511, 513 and 516. This is a group of minor technical amendments which tidy up Schedule 10.
Moved, That the House do agree with the Commons in their Amendment No. 490.—(Lord Falconer of Thoroton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 549. The amendment is grouped with Amendments Nos. 552, 557 and 577; it is a group of minor amendments designed largely to bring the provisions regarding the appointment of the Judicial Appointments and Conduct Ombudsman into line with the corresponding provisions concerning the appointment of the members of the Judicial Appointments Commission.
Moved, That the House do agree with the Commons in their Amendment No. 549.—(Lord Falconer of Thoroton.)