Constitutional Reform Bill [HL]

– in the House of Lords at 3:06 pm on 21st March 2005.

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

:TITLE3:COMMONS NON-INSISTENCE AND AMENDMENTS IN LIEU OF CERTAIN COMMONS AMENDMENTS DISAGREED TO, AND COMMONS CONSEQUENTIAL AMENDMENTS TO THE BILL

[The page and line references are to Bill 18 as first printed for the Commons.]

The Commons do not insist on their Amendments Nos. 1, 2, 264, 265 and 593 but propose Amendments Nos. 1B and 1C in lieu of Commons Amendments Nos. 1 and 2 and Amendments Nos. 1D to 1F as consequential amendments to the Bill—

1B Leave out Clause 2 and insert the following new Clause— "Lord Chancellor to be qualified by experience

(1) A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.

(2) The Prime Minister may take into account any of these—

(a) experience as a Minister of the Crown;

(b) experience as a member of either House of Parliament;

(c) experience as a qualifying practitioner;

(d) experience as a teacher of law in a university;

(e) other experience that the Prime Minister considers relevant.

(3) In this section "qualifying practitioner" means any of these—

(a) a person who has a Senior Courts qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990;

(b) an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary;

(c) a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland."

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

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1B.

We return to the debate—the characteristics of the Lord Chancellor. This debate is essentially on one issue. Should future Lord Chancellors always, and without any possibility of an exception, be by law both lawyer and Lord?

We have, by this Bill, transformed the role of the Lord Chancellor, created a new method of appointing judges, created a Supreme Court, and given effect to a new relationship between the judges and the Executive, with the Lord Chief Justice, and not the Lord Chancellor, becoming the head and leader of the judges in England and Wales.

These changes are, as most people would accept, both far-reaching and overdue. The manner of their introduction should not obscure both the need for them and the fact that they have now been the subject of the most widespread consultation, and parliamentary scrutiny and have received widespread support. The noble and learned Lord the Lord Chief Justice said at Second Reading:

"If it is given life, it [this Bill] will rank in importance with the great constitutional instruments of the past. We must ensure that that happens".—[Hansard, 7/12/04; col. 759.]

In legislating for these changes, we have listened very carefully to the proposals for change made both before the Bill went through Parliament, and as the Bill has gone through its parliamentary stages. By far the most important part of the pre-parliamentary process was the agreeing of the concordat with the judges. They have accepted and, indeed, strongly support the new relationship between the judges and the Executive. As the noble and learned Lord the Lord Chief Justice stated in his speech at The Lord Mayor's dinner for Her Majesty's Judges:

"What was previously uncertain becomes clearly defined, so both sides know what their respective rights and obligations are . . . The Concordat is universally endorsed by the judiciary as providing essential protection for the independence of the judiciary into the future".

Let us also be clear as to the Lord Chief Justice's views regarding the nature of the Minister as set out in the Concordat. He said in his evidence to the Select Committee:

"My firm support for the concordat reflects the fact that I see no difficulty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional Affairs by the concordat. I do not consider that such a Minister requires any enhanced status or particular title to enable him or her to exercise those functions. There is benefit in that Minister being a lawyer. However, the Minister's ability to defend the independence of the judiciary and the rule of law and ensure that the courts are adequately resourced will, to an extent, depend upon his or her standing within the cabinet. This is a matter about which it is impossible to legislate, since it is in the hands of the Prime Minister of the day".

The judges also recognise fully that the new arrangements involve the leadership of the judges moving from the Lord Chancellor to the Lord Chief Justice for England and Wales. Our policy involves that shift being clear. Neither we nor the judges want two heads of the judiciary—we want one, and the Bill reflects that.

Those who see the change as being no more than the acceptance of the trend that the Lord Chancellor will no longer sit as a judge, such as the noble and learned Lords, Lord Howe of Aberavon and Lord Lloyd of Berwick, have not properly understood the scale of the change which this House and another place have voted for.

In the light of those new arrangements, it is important to identify the nature of the job that the Lord Chancellor will perform in the new arrangements. First, he will be the Minister in charge of a department spending in excess of £3 billion on courts and legal aid. There are other things as well, but those are the two areas of biggest expenditure. Secondly, he will be the member of the Executive who acts jointly either with the new Judicial Appointments Commission or the judiciary in appointing judges and in acting with them to ensure a well run justice system. Thirdly, he will be the guardian in the Executive of the independence of the judiciary and, by extension, the rule of law.

Currently, the Lord Chancellor is also Speaker of this House. As this House knows, we do not think it is appropriate any longer for the Lord Chancellor to continue as Speaker. After the proceedings on the Bill are concluded, we hope that the House will find an opportunity—taking into account the report of the committee chaired by the noble and learned Lord, Lord Lloyd—to debate the future of the Speakership.

The old requirement for the Lord Chancellor to be a judge sitting in the Judicial Committee of the House of Lords made it beyond doubt that the Lord Chancellor had to be a Lord and a senior lawyer. Once that practical requirement goes, the issue needs to be looked at afresh in the context of the new job. The first two requirements of the new job—being a Minister and being the Executive's part of the relationship with the judges—probably tend in favour of someone in the other place, although not necessarily and not conclusively. There will always be scope for Cabinet Ministers beyond the Leader to sit in this House, but it is obvious that responsibility for large amounts of public expenditure and for delivering important services to citizens throughout the country more easily sits in the other place. Equally, to be the representative of the Executive who works in partnership with the judiciary may more effectively be achieved by someone who reflects the currents within the Commons. That many of the functions must be performed in an objective, independent, non-party way does not detract from that.

The third function—protecting the independence of the judges and being the guardian of the rule of law in the government—is a critical role, but it needs to be properly understood. The Lord Chancellor is but part of the protection of those two important parts of our constitution. The noble and learned Lord, Lord Bingham of Cornhill, told the Constitutional Affairs Select Committee:

"What protects (judicial independence) most is the tradition and the culture. I could say, and I feel quite sure we would all agree, that in over 20 years of holding judicial office none of us would ever have experienced any attempt whatever by anyone in any official position to influence any decision which any of us was about to make no matter how sensitive the case might be. The general public have no conception of the degree of fastidiousness which on the whole governments and officials show in this particular respect and sometimes go to almost unnecessary lengths to avoid anything which could even be construed as an attempt to influence the thing".

The idea that the principle of the independence of the judiciary is not understood by those in the other place is fanciful. The idea that an ambitious politician of integrity in the Commons might not be the best person to defend the judges is wrong. Would a Tebbit, or a Merlyn-Rees, or a Whitelaw, or a Jenkins, or a Shirley Williams, or a Nigel Lawson, be inadequate champions of the judges? They would be excellent if given that job, and they could have been better than very many of the pool of lawyer Lords available at the time. I exclude from consideration, of course, all the Lord Chancellors of the time.

You do not need to be a lawyer to know when judicial independence is being attacked. The powerful speeches made in this House attacking the undermining of the judiciary in Zimbabwe have seldom been made by the lawyers in this House. The principle of the defence of the rule of law underpins our constitution. All of us are subject to the law and equal before the law. The government of the day must obey the law, and they must not do anything that they know breaches the law. We are a parliamentary democracy; we want our laws to be made by our Parliament. The noble Lord, Lord Kingsland, suggested last week that there was a fundamental inconsistency in subscribing to the rule of law and being accountable to your constituents as a Member of the other place. He said:

"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".—[Hansard, 15/3/05; col. 1218.]

Photo of Lord Lawson of Blaby Lord Lawson of Blaby Conservative 3:15 pm, 21st March 2005

My Lords, will the noble and learned Lord the Lord Chancellor allow me to intervene, since he was kind enough to mention me among many others?

The first argument that he used for maybe having the Lord Chancellor in the other place was the responsibility for a considerable amount of public expenditure. Surely he is aware that public expenditure decisions are collective Cabinet decisions. If any one Minister has a particular responsibility it is the Chancellor of the Exchequer, who is always in the other place. Therefore, that argument has no merit whatever.

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

No, my Lords, that is wrong. Perhaps I was wrong to suggest that the noble Lord would make a great defender of the judges—it certainly did not have the desired effect.

Noble Lords:

Oh!

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

My Lords, as far as the expenditure is concerned, money is allocated to each individual Minister, and then that individual Secretary of State is responsible for the expenditure of that money. That Secretary of State will take responsibility for it, particularly if the expenditure is poor. With great respect, it is wrong to say that there is not a particular responsibility on Secretaries of State in the way that the money is spent.

I go back to the point that I was making. I quoted the noble Lord, Lord Kingsland. With respect—what rubbish. His view of democracy is wholly inconsistent with our constitution, and it has no basis in fact. The assumption that Members of the other place will press issues irrespective of the commitment to the rule of law is not reflected in our history. Our people want the rule of law and do not want to be ruled by lawyers. All too often, some lawyers dress up what is, in truth, a political debate as if it were a legal discussion. It is also noteworthy that those non-lawyers who have spoken in debates on this Bill have often done so in a manner that was almost apologetic for intruding on a private discussion. The rule of law is too important for its consideration to be reserved to lawyers.

The noble and learned Lord, Lord Ackner, and the noble Lord, Lord Kingsland, made similar attacks in debating the Prevention of Terrorism Bill. They said that had there been a Lord Chancellor of the traditional sort, the Bill would not have emerged in the form that it did. The Bill, in the form that it emerged, complied with the European Convention on Human Rights. There were legitimate issues about whether it was sufficient judicial involvement for judges to be involved before or shortly after an order was made. For the noble Lord, Lord Kingsland, or the noble and learned Lord, Lord Ackner, to suggest there was only one answer that complied with the rule of law, and that they knew what it was, revealed an imperviousness to respecting the views of others that so often lets the lawyer down.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

My Lords, I am most grateful to the noble and learned Lord for giving way. I submit that the standard set by the European Convention on Human Rights and the standard set by the rule of law in this country are not the same thing. That is particularly true in the area of criminal law, where all our continental colleagues have inquisitorial, rather than jury, systems, and they set much lower standards about protecting the defendant than we do. I do not accept that the standards set by the European Convention on Human Rights in some areas are as high as our own rule of law standards.

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

My Lords, I accept that they would not always be the answer, but they are a pretty strong guide that the rule of law is not being breached.

Regarding the prevention of terrorism, the current judges rightly took the view that it was an issue that Parliament must resolve, and in respect of which they should be silent. Another example is the admission of bad character evidence. The noble Lord, Lord Kingsland, said that our changes were "contrary to the rule of law". They most certainly were not, and no one else suggested that they were. They were plainly an issue to be determined by the politicians.

The noble Lord, Lord Kingsland, referred to the ouster of the judicial review clauses—completely failing, in the course of his account, to see the significance of the role played by the Lord Chief Justice with regard to that issue. The Lord Chief Justice held out against the clause. He made proposals about how the use of the High Court would be just as quick as a scheme that did not use it. We listened and, eventually, agreed.

Our Bill recognises the need for a new role for the Lord Chief Justice and defines what it should be. The effect of the changes already voted for by this House in the Bill has been to shift the judicial power and standing from the Lord Chancellor to the Lord Chief Justice. We should not think that a substitute for that aspect of the change is to force the Lord Chancellor into this House as a lawyer, come what may. Far from strengthening the office, it will, over time, weaken it.

To place the Lord Chancellor in the Lords and reduce the pool from which he or she can be selected, having rightly deprived him of his judicial status, is a mistake. We should be doing all we can to entrench and strengthen the office. Allowing the holder to be from either House, allowing a strong and committed politician to hold the office, and allowing someone with a drive for change and improvement, both in the substance of our criminal law and procedure, and in the way the courts and their administration deal with cases, is a good thing and is entirely consistent with judicial independence and the rule of law. Sometimes a lawyer and a Lord will be best, but sometimes not. To place those constraints on the job when its holder is no longer head of the judiciary is permanently to undermine the office.

Political drive does change things. It is what has changed the way much of criminal justice is done. Justice and legal aid need both political drive and independence—internally within government, to ensure that the values of our constitution are properly protected, and externally, to ensure that legitimate change occurs. Political strength should be allowed to be a factor in the decision, but it must be recognised that the independent element needs to be there as well.

The other place has listened to your Lordships' concerns. It approached the views of this House in a spirit of compromise. The amendment in lieu from the other place acknowledges that experience as a Minister and a parliamentarian is desirable, as are legal skills gained through experience. It also ensures that distinguished legal academics are not excluded, and that experience of legal practice can be judged with more accuracy than a crude and arbitrary measure of years served. It allows experience to be measured by quality as well as quantity. However, it acknowledges the value of all these factors in a way that does not exclude potentially exceptional candidates for this vital office.

The other place has twice expressed its view clearly and unequivocally. It has done so after full debate, and with no dissenting voices in the government party. Indeed, in the debate last week in the other place, it was only Members of the official Opposition who dissented from the Government's compromise amendment. Even the Scottish Nationalists supported the Government. The view of the other place had the support of the Labour and Liberal Democrat Benches here. The Tories oppose as do some, but far from all, Cross-Benchers.

This is an issue of significance. Even the Opposition's Front Bench spokesman in the other place was forced to concede in last week's debate on the Government's compromise amendment that this is important legislation, which it is desirable that we see on the statute book.

After proper debate on these remaining issues, the views of the other place should prevail.

Moved, That the House do agree with the Commons in their Amendment No. 1B.—(Lord Falconer of Thoroton.)

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

rose to move Amendment No. 1BA, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1B, leave out "agree" and insert "disagree".

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

My Lords, I shall be speaking to all the amendments on the first line of the groupings' list; and to the question of whether the Lord Chancellor should be a lawyer, which is raised in the second line of amendments. The votes will deal with the issues separately. There will be one vote on whether the Lord Chancellor should be a Lord, and a second vote on whether he should be a lawyer.

The noble and learned Lord the Lord Chancellor has made a number of remarks with which I would wish to take issue if I thought it appropriate to re-run arguments that have been run before your Lordships' House on several occasions in the past months. I think, however, that your Lordships are familiar by now with the crucial ingredients of this debate, and so I can be relatively succinct.

What we wish to do in these amendments is simply enshrine in statute what has been a constitutional convention in this country for hundreds of years—that is, that the Lord Chancellor should be both a lawyer and a Member of your Lordships' House.

Although changes have been made to the Lord Chancellor's role in the Bill, his fundamental responsibility remains the same; that is, to defend the rule of law in Cabinet against the depredations of his political colleagues. To do that successfully, we believe that future Lord Chancellors, like past Lord Chancellors, should be both lawyers and Members of your Lordships' House.

They should be lawyers because, often, the threat to the rule of law is not immediately obvious in political terms. Rather, it is contained in the often arcane details of criminal evidence. Such, for example, is true about the rules of propensity, to which the noble and learned Lord referred earlier. The propensity provisions introduced two years ago by the Government are plainly a fundamental threat to the presumption of innocence, and raise the question of the rule of law—a question that was never answered in Cabinet.

In our view, there are two crucial components of the argument for retaining the Lord Chancellor in your Lordships' House. The first is that, unlike in another place, there are no alternative great offices in this House to which a Lord Chancellor can aspire. Consequently, he will be a political personality yet above ambition. Secondly, he is not elected on an electoral mandate. He has no conflicting responsibilities either to his party, in the context of what it was elected to do at the previous election, or to his constituents, with regard to what they wish him to do as their local Member.

As the noble and learned Lord, Lord Lloyd of Berwick, reminded us during the previous debate, a Lord Chancellor who is both Lord and lawyer will be someone steeped in the culture of the law and the judiciary—a branch of the constitution that is independent of the Executive.

That is the kernel of the issue, is it not? Underneath the question of lawyer and Lord lies the question of the appropriate checks in our constitution on the untrammelled powers of a powerful Executive dominating another place.

There are two checks against the legislative proposals that emerge from another place. The first is the delaying powers of your Lordships' House. Your Lordships have recently had the opportunity to demonstrate how important those powers are, in relation both to the ouster clause and to the Prevention of Terrorism Act. Indeed, so successful have your Lordships been that one reads in the newspapers of the possibility that, in the highly unlikely event that the Government are re-elected, there could be threats to the length of delay under those powers.

The other check on the Executive is a strong, independent Lord Chancellor sitting in the Cabinet. That check is under threat in this House this afternoon. The Government have tabled an amendment in another place, which reads as follows:

"Lord Chancellor to be qualified by experience

(1) A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.

(2) The Prime Minister may take into account any of these—

(a) experience as a Minister of the Crown;

(b) experience as a member of either House of Parliament;

(c) experience as a qualifying practitioner;

(d) experience as a teacher of law in a university;"— and most crucially—

"(e) other experience that the Prime Minister considers relevant".

Well, really. That means that the Prime Minister can choose anybody he wants.

The noble Lord, Lord Goodhart, and many of his Liberal Democrat colleagues have said, "Oh, but it's important to keep the door open for great men in another place such as Roy Jenkins". I would be the first to acknowledge that Roy Jenkins was a great man; but the provision would equally allow Mr Blunkett to become Lord Chancellor when the post next became vacant—a politician who, whatever his other merits, will not go down in history as someone who defended the rule of law. One must be very careful when one names great names to recall that many other people would have been or would be highly unsuitable.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour 3:30 pm, 21st March 2005

My Lords, is the noble Lord's argument that every Lord Chancellor has been a pinnacle of virtue? I can name some who have certainly not attained that distinction.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

My Lords, I do not think that virtue is one of the criteria that I would have in mind when selecting the Lord Chancellor, but I cannot think of a Lord Chancellor who has not been energetically independent of the government in exercising his judgment. That is what we are looking for.

Photo of Lord Desai Lord Desai Labour

My Lords, the noble Lord argued in a discussion on the schedule to the then Prevention of Terrorism Bill that the Lord Chancellor was not a good person to design the rules of court. He said that the Lord Chancellor was merely a politician and that the Lord Chief Justice was the real guardian of the law. Has he changed his mind or is the context different?

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

My Lords, I would not have advanced that argument in your Lordships' House had our proposals been the law of the land; but they were not. At the time that I argued the point, two weeks ago, the noble and learned Lord the Lord Chancellor sat—as he still sits—in this House as Secretary of State for Constitutional Affairs. He is only Lord Chancellor because, owing to a slight oversight on 12 June 2003, the Government failed to realise that they could not abolish the Lord Chancellor overnight. The noble and learned Lord has made it clear that his primary responsibility is as Secretary of State for Constitutional Affairs. Had we had a traditional Lord Chancellor two weeks ago, I would never have advanced that argument.

I mentioned 12 June. Your Lordships will recall that that was when the noble and learned Lord, Lord Irvine, left office; and that it was also when the Prime Minister decided to abolish the office of Lord Chancellor altogether. The Prime Minister had a disagreement with the noble and learned Lord, who departed. But the Prime Minister realised that, if the conventions of the job were to be respected, the noble and learned Lord's successor was likely to conduct himself precisely like the noble and learned Lord. Therefore, the post had to go as well as the man. That is the best reason for keeping the post the same. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1B, leave out "agree" and insert "disagree".—(Lord Kingsland.)

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

My Lords, in due course I will move my amendment, but I believe that it will be for the convenience of the House that we address both amendments together. There will then be votes on each amendment separately, the one following immediately after the other.

This is the fourth occasion on which we in this House have expressed our views on the future of the office of Lord Chancellor. On 13 July last year, we voted by a large majority of 240 to 208—the noble Lord, Lord Goodhart, does not regard that as a large majority—to retain the existing office of Lord Chancellor. I emphasise "office", because we did more than merely save the name "Lord Chancellor", as the noble and learned Lord the Lord Chancellor has now properly accepted. On 7 December last year, the House confirmed what many of us thought had already been agreed—that the Lord Chancellor should continue as a very senior lawyer and a Member of this House. Last week, on 15 March, we reached the same conclusion.

One would have thought that, by now, the Government would have learnt that this was a matter on which this House felt very strongly. We are right to do so, not only because the Lord Chancellor is, one might say, part of our scene in this House, but because he has a special constitutional role to fulfil—different from that of any other Minister of the Crown—as protector of the rule of law and defender of the independence of the judiciary. It may be worth reminding ourselves that that special position is now amply confirmed in the Bill itself by Clause 1, which states:

"This Act does not adversely affect . . . the existing constitutional principle of the rule of law, or"— importantly—

"the Lord Chancellor's existing constitutional role in relation to that principle".

Later in the Bill, we find the new oath to be sworn by the Lord Chancellor. Clause 14(1) states that it is:

"I ... do 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 and discharge my duty to ensure the provision of resources", and so on; I need read no further. That is an oath sworn by no other Minister of the Crown. It will be sworn by the Lord Chancellor, because it is to him that it specifically relates.

One wonders what would have been the position if the Government had not decided, as they did on that June day two years ago, to abolish peremptorily the office of Lord Chancellor—a course in which they have now failed. It is difficult to believe that we should be arguing, as we are, that the Lord Chancellor should continue to be a lawyer and a Member of this House. That surely would have gone without saying.

In his address to your Lordships this afternoon, the noble and learned Lord the Lord Chancellor referred—more than once, I think—to the views of the noble and learned Lord the Lord Chief Justice. I remind the Lord Chancellor and other Members of the House that it was the Lord Chief Justice himself who, in this House on 7 December, said that it should be a requirement of the Bill that the Lord Chancellor be a senior lawyer. By that, I understood him to mean a requirement written into the Bill, which is what there was until the amendment in the House of Commons. That view was expressed as not only the personal view of the Lord Chief Justice; he said that he also expressed it on behalf of the Judges' Council. We should pay very great heed to those views.

The Government have got a great deal of what they wanted from the Bill; indeed, they have got almost all that they wanted. They have got the possibility of creating the Supreme Court, when a building can be found. They have got the Commission for Judicial Appointments, the concordat, and much else besides. The Government are now insisting on quite unnecessary and damaging changes to the historic office of the Lord Chancellor. Yet it is suggested that the view of the other place should prevail over ours. I read the debate there, as I suspect a number of your Lordships have, and I did not find the reasons in favour of the amendment convincing. I find the new amendments in lieu read by the noble Lord, Lord Kingsland, completely vacuous. They mean nothing whatever, and would apply to every appointment made by the Prime Minister. They have nothing to do with the particular appointment about which we are concerned.

In many cases, it would be right for this House to defer to the views of the other place, and to give them great weight as being the views of the elected Chamber. That point was strongly made during the passage of the counter-terrorism Bill. Members argued that Members of the House of Commons would have to answer for an explosion taking place in their constituency. They were clearly right to take that point. However, one wonders to what extent Members of the other place are currently troubled in their constituencies by whether the Lord Chancellor should be a Member of the House of Lords. It cannot be high on the agenda of things they worry about.

By contrast, the future of the office of Lord Chancellor is peculiarly a matter within the province of this House. The fact is that the Lord Chancellor plays an important role here, as we all saw during the passage of counter-terrorism Bill. He is, as the noble Lord, Lord Elton, has often told us, our "second voice" in the Cabinet—I hope we may hear from him later in the course of this debate. The Lord Chancellor is that, but he is much more, too. It is his constitutional role, standing back from the political fray, which concerns me. To quote the noble and learned Lord, Lord Cooke of Thorndon, it is his role as,

"an illustrious and universally respected lawyer who was able to speak with authority for all that the law represents".

We all know that, for our constitution to work effectively, it depends on subtle checks and balances. One such check is the presence of a very senior Lord Chancellor in the Cabinet. Again,

"he was a kind of guarantor or watchdog of legality at the heart of the constitution".—[Hansard, 11/10/04; col. 38.]

We would do well to keep him there, and that is why I hope we will vote once more against the Commons amendments. I hope more fervently that we may not have to do so again.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities 3:45 pm, 21st March 2005

My Lords, imagine drawing up a job description for the new office of Lord Chancellor. What skills are needed? First, the competence to run an important government department, with a budget of some £3 billion per year, 25,000 staff, and the obligation for running the courts system in the whole of England and Wales. Secondly, the toughness to fight for the department in the annual battle with the Treasury to ensure that the DCA gets the funding that is needed for legal aid, for the courts system and for access to justice. Thirdly, the ability to work with the Commission for Judicial Appointments and with the Lord Chief Justice on the residual duties of the Lord Chancellor in judicial selection and discipline. Finally, the ability to act as the constitutional watchdog in the Cabinet.

Imagine then drawing up a shortlist of candidates for this job. What sort of person do you need? Legal qualifications are certainly an advantage, but not a necessity—not even for the role of constitutional watchdog, where what is needed is not a detailed knowledge of the law, but a nose for what is constitutionally acceptable. Legal qualifications are less important than political skills, energy, independence and strength of character. These are not necessarily features of someone at the end of their career. Sometimes someone who comes from outside the narrow ranks of the legal profession may see the big issues more clearly, and may see the wood rather than the trees, where professionals cannot. After all, we have an Attorney-General as the Government's legal adviser, and the Lord Chief Justice to speak for the judiciary of England and Wales. We have no need for the Lord Chancellor to duplicate those roles.

When drawing up the shortlist, what about membership of your Lordships' House? In this context, membership of this House seems to be a matter of total irrelevance. Two restrictions, the need to be both a lawyer and a Lord, will greatly reduce the pool of suitable candidates. What they will not do is ensure that we get a good person to do the job. I cannot say too often that any Prime Minister who wants a compliant and complacent Lord Chancellor will find one, with or without legal qualifications or membership of your Lordships' House. To take a possible scenario, admittedly a highly implausible one, let us assume that a future Prime Minister wishes to repeal the Human Rights Act. That is surely a proposal that would set a proper watchdog not only barking but howling. Yet I believe that any such future Prime Minister would have no difficulty whatever in finding a Lord Chancellor with legal qualifications and membership of your Lordships' House who, as a watchdog, would not utter even a growl. These restrictions cannot prevent the Prime Minister making a bad appointment, but they can prevent him making a good one. The effect of these restrictions is to ensure that today's job will be done by yesterday's man.

Photo of Lord Barnett Lord Barnett Labour

My Lords, I am sorry to intervene on this occasion as a non-lawyer, but I will not apologise as my noble and learned friend the Lord Chancellor told us not to. It is my first intervention on this Bill, and I want to make it clear that I have a lot of regard and respect for lawyers, and particularly for those in your Lordships' House. The noble Lord, Lord Kingsland, particularly impressed me during the debates on the then counter-terrorism Bill. He did not convince me to vote for the sunshine or sunset clause, because I had already decided to do so—but he did not convince me to change my mind.

I only want to make two brief points, and neither will be on the rule of law. First, on whether the Lord Chancellor should be a lawyer and a Lord, I ask my noble and learned friend the Lord Chancellor whether, under this Bill or any amended one, there is any reason why the Lord Chancellor should not be either a junior Minister or a non-Minister, leaving the role of Secretary of State for Constitutional Affairs anywhere—in either House.

On the management of a budget of over £3 billion a year, I have had a little experience—it was a long time ago—in the amount of public expenditure that would go to particular departments. The management of that money was left, as my noble and learned friend said, in the hands of the departmental Secretary of State—although I tried to prevent them spending too much on most occasions.

Speaking as an accountant, if I had to choose someone to manage £3 billion or more, I would not necessarily choose an accountant because not all of them are good managers of funds. But if there was anyone I certainly would not appoint, it would be a lawyer—with great respect, even to my noble and learned friend the Lord Chancellor. That would not be my first choice. My first choice would be someone who I thought could manage a budget of £3 billion or more. However, under these amendments, which the Official Opposition and some Cross-Benchers appear to want, that apparently would not be the case. The hands of any Prime Minister would be tied if the job had to be filled by a lawyer—a senior lawyer, it has been said—and a Member of your Lordships' House.

My noble and learned friend has pointed out that substantial changes, which have generally been accepted, have been made to the Bill regarding the role of the Lord Chancellor. In those circumstances, I am bound to say that the person appointed should have suitable ability in managing those sorts of funds. That is my first point.

My second point concerns the question of opposing the other place. On 15 March, the noble Lord, Lord Kingsland, said:

"We need as many checks as we can get against an over-weaning Executive".—[Hansard, 15/3/05; col. 1241.]

I very much agree with that. I am not sure that all noble and learned Lords or any other noble Lords opposite always agreed with it, but personally I agree. We must retain the right to ask the other place to think again. But how often should we, the unelected House, ask the elected House to think again? That serious question will be presented to your Lordships both now and in the future when we discuss the future powers of this House. I fear that, if we press ahead with this kind of amendment, it could result in bad decisions being taken about the powers of your Lordships' House. I am concerned to ensure that the powers of your Lordships' House are continued, certainly with regard to asking another place to think again, but I ask noble Lords also to think again about how often they ask the other place to do that.

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, subject to interruptions, I can assure your Lordships that I shall not detain the House for more than three minutes. I also assure noble Lords that I shall not repeat any of the observations that I made on the previous occasion.

In a lecture entitled "The Office of Lord Chancellor" given a year after he retired, Lord Hailsham, who had wide parliamentary experience in both Houses, stressed how vital it was to protect the independence of the judiciary. He then said:

"But surely, it will be asked, everyone supports judicial independence".

He went on to say: "Oh, do they?". He continued by reflecting on the House of Commons:

"Certainly not . . . the back-benchers in the House of Commons, who constantly revile, frequently from inconsistent standpoints, individual judges or particular decisions, or what they imagine to be judicial qualities, and daily demand that individual judges be directed or rebuked (presumably by the Executive Government) to move in this direction or that or even that they should be removed from office".

I suggest to your Lordships that that situation has in no way changed; if anything, it has got worse. The present Home Secretary and his predecessor made it quite clear that lawyers were their bête noir. It is clear that the present Home Secretary and his predecessor do not understand the fundamentals of the rule of law.

It would be quite wrong for the Lord Chancellor, with his obligations—I leave aside running the law courts and providing the court services—to have to carry out his functions, particularly defending the independence of the judiciary and the rule of law, in the hostile environment that I have just described.

Photo of Lord Morgan Lord Morgan Labour

My Lords, I want briefly to support, as I did last week, what the noble and learned Lord the Lord Chancellor has said, and I hope that your Lordships' House will not insist on its amendments. It was quite different in the case of the Prevention of Terrorism Bill. Then, a very large majority against the Bill was drawn from all our Benches, including myself, and I think that it was appropriate to challenge the House of Commons on that. Last week, this Bill was passed by a majority of about 14, drawn almost entirely from the Conservatives, and I do not think that it would give the right impression to challenge the Commons.

The belief is that the Lord Chancellor considers the rule of law. The opposition Benches appear to believe that the rule of law can be understood and articulated only by a lawyer—someone who has a professional background. I think that that is profoundly mistaken. The rule of law is a function of citizenship; it is not confined to a particular innate group of professionals.

Furthermore, the assumption seems to be that the person appointed should be an elderly lawyer—someone who is near the end of his career. In other words, we are saying that it should be part of the law and custom of the constitution that the Lord Chancellor is an old man. I do not think that that is an appropriate view. It follows that, as there are very few lawyers in the House of Commons—

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, would the noble Lord say that 12 years in practice as a lawyer makes one an old man?

Photo of Lord Morgan Lord Morgan Labour

My Lords, I am not familiar with what I am sure is the noble Viscount's extremely distinguished legal background, but it has been said repeatedly in this debate that the Lord Chancellor should be someone at the end of his career. That is the point that I was addressing, and I think appropriately so.

Further, it has been said that, because there are very few lawyers in the House of Commons—there are virtually none on the Labour Benches—the Lord Chancellor must be a Member of the House of Lords. In any case, this afternoon and last week many suggested that the House of Commons is rather a disorderly and partisan place and that the quality of debate in this House is far superior, which frequently it is. I do not see why the Lord Chancellor has to be a lawyer. It is a matter not of professional expertise but of judgment—a matter of understanding and of our awareness not as lawyers but as citizens. I hope that the idea of citizenship is increasingly taking hold.

Last week, the noble Lord, Lord Kingsland, made a remark with which I very much agreed. He observed that the Lord Chancellor should be a lawyer by instinct. I go with that. I think that that is a very good way of putting it. But being a lawyer by instinct is not the same as being a lawyer by background, and I would draw a distinction between the two.

I also think that, while there should be the widest choice, in many ways it would be highly appropriate to have the Lord Chancellor in the House of Commons, particularly—as I said last week; I will not repeat myself—in the light of the Prevention of Terrorism Bill. The judicial review in cases involving the actions of the Executive in relation to alleged terrorists should be considered in front of the elected representatives of the people rather than anything more enclosed.

It is extraordinarily patronising to say that people in the House of Commons are unable to produce appropriate representatives—or people as appropriate as us—in dealing with these matters. It is also erroneous to say that they are liable to confuse parliamentary sovereignty with the rule of law. As a historian I take my stand on the distant past: the Act of Settlement 1701 enshrined both what was then called parliamentary supremacy and an independent judiciary. It was perfectly possible to combine the two concepts and to see the House of Commons as the main body concerned with them both. I am happy to take my stand on 1701 rather than on some of the arguments that we have had this afternoon.

I do not think that one should make broad assumptions about the qualities of people in either House of Parliament. The Lord Chancellor deals with constitutional principles, with intellectual, ideological and philosophical issues, and there is no reason why such a person should not be in the House of Commons. Indeed, such a person should be in the House of Commons; he should face the elected Members and be ensconced in what a famous little Welsh attorney called,

"the great assize of the people".

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative 4:00 pm, 21st March 2005

My Lords, I had not intended to intervene yet again on this topic, but I feel compelled to do so, driven logically by a phrase used by the noble Lord, Lord Barnett, when he said that we should be careful to allow the Commons to have the casting voice on such an amendment.

I have been thinking about what kind of amendment this is. If one looks at it in the context of the Bill as a whole, the Bill contains a substantial number of measures that have been long debated and on which there has been a large amount of agreement across the professions and across the body politic.

The establishment of a Supreme Court is a well argued case that we have examined carefully. Some of us still do not accept the necessity for it, but it is a respectable proposition. The appointment of a Judicial Appointments Commission likewise has the same quality. Those are the Bill's core measures.

But what about this amendment? Where is the intellectual analysis and careful thought that has led to the emergence of this proposition? It emerged like a flash of lightening as a result of some still undisclosed controversy in No. 10 Downing Street on 11 June two years ago. If anyone until that moment had suggested that the nation's stability and the progress of the new Labour revolution, or anything else, had depended on the sweeping away of the office of the Lord Chancellor, the world would have been astonished.

So indeed was everyone when that puff of decision-making emerged on our political stage. Everyone in the Lord Chancellor's Department was amazed and aghast. Ever since, it has fallen to the hapless but increasingly unhapless and confident noble and learned Lord the Lord Chancellor to defend what looked at the time indefensible. He has not made a bad job of it, but it is a case for which the burden of proof rested fairly and squarely on those who had to justify the eccentricity and unexpectedness of the Prime Minister's original decision.

Everything else can be sensibly presented, but here is a provision that we seek arguments to justify. We find ourselves living in a world in which, until the moment before the announcement was made, the Government were defending robustly and confidently in this country to every committee of both Houses and to the Council of Europe the legitimacy, the importance and the crucial nature of the Lord Chancellor's unique office.

We have come a long way since then; semi-respectable arguments have been advanced, but I have yet to see any argument that says that by making this change and throwing aside a historic office that has been of great importance in government after government we are getting any improvement. Attempts have been made. The noble Lord, Lord Barnett, used it as an excuse to launch a modest attack on my profession, saying that lawyers are not particularly well qualified to manage money.

Neither are accountants, farmers, engine drivers, doctors or trade union leaders, but people from all those groups have been appointed Ministers of the Crown and for better or for worse we have struggled to do the job as well as we can, often with the benefit of surveyance from someone as robust and fierce as the noble Lord, Lord Barnett. We have all had to make our best of that job.

The argument advanced on that narrow front is that this is a huge department with a budget of £3.5 billion per year; it cannot possibly be managed by anyone from this House and it is ridiculous to impose it on this House. But no one uttered a squeak when the noble Baroness, Lady Amos, was appointed in this House as Minister in charge of the Department for International Development, which has a budget of £3.5 billion-plus. No one said that that was a constitutional affront, so there is no substance in that case.

We are driven back to counsels of despair, saying that on a good day it is possible to identify some remarkably outstanding political leaders, like Roy Jenkins, who is the case always cited—no doubt there are others, even my noble friend Lord Lawson on a good day—who might have been well qualified for the job. That case was made by the noble Lord, Lord Goodhart, rather in the way in which one drafts an advertisement for the Guardian public sector pages: with all the strange preoccupations and qualifications necessary for the job, and one can make a respectable job of doing it.

However, none of this amounts to the beginning of a case for making a decision, in order to legitimise the will of an eccentric Prime Minister, to sweep away an office that has served us well with a senior lawyer and Member of this House in the job. If one looks back at all the documentation produced since that decision was initially taken, one finds almost everyone—and the House of Commons Public Administration Select Committee—saying that ideally the job is a job for a senior legal figure towards the end of his career.

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative

I will come to the noble Lord in a moment. Even the Runnymede Trust—or some such name—which is the disguise under which the noble Lord, Lord Lester, gave evidence to our Joint Committee on the future of the House of Lords, said that the job was best held by a senior substantial legal figure.

The case for changing that has simply not been made. If this House is not entitled to stand on the proposition that it is for the Government to produce the evidence to justify the legitimisation of a Prime Ministerial whim, then this House is of no value. It is this House's function to resist such whimsical eccentricity and such constitutional vandalism.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, the noble and learned Lord has a distinguished reputation going back to Harry Street's committee as being in favour of the merit principle. He has always been a staunch supporter. What is the justification for an absolute and complete exclusion of anyone except a Member of this House and a lawyer? Why should one have an absolute rule in the Bill? That is what I do not understand about his position.

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative

My Lords, the simple answer is because that has been a convention of the constitution for a long time; it has been proven to work very well for a long time; and the burden of proof on this matter above almost anything else is to make the case for change. That case has not been made.

Photo of Lord Elton Lord Elton Conservative

My Lords, before my noble and learned friend sits down, would he not concede that anyone within reason can be made a Member of the House of Lords at the Prime Minister's whim, so there is no exclusion whatever, as the noble Lord, Lord Lester, argued?

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative

My Lords, I hope that I may be allowed to reach my seat again. The answer to that question is yes, certainly.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, the speech of the noble Lord, Lord Morgan, made it plain—

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I am obliged to the noble Viscount and, in gratitude, I shall be very brief. My point relates to the point made by the noble Lord, Lord Barnett, which was, with respect, in error. He referred to the powers of this House. The acknowledged function of this House, ever since Bryce, is to be, and to remain, the sole guardian of the constitution, as there is no constitutional court. As constituted today, that remains our acknowledged function. It is wholly distinct from the function of the other place.

When the noble and learned Lord the Lord Chancellor repeats, "We defer to the other place. They are the elected Chamber. They have the sovereign right", he is quite right, but we have this cardinal, vital, constitutional duty to discharge. We are asked to discharge it today by delaying the enactment of Clauses 2 and 3 in the interests of the nation, because the case has not been made out. The nation is about to go to an election and it is substantially divided. It would be quite wrong for this House, if so advised, to stand by and do nothing.

Like the noble and learned Lord, Lord Lloyd of Berwick, I thought that the Lord Chancellor's constitutional role in Cabinet—the other linchpin to which my noble friend referred—had been preserved in Clause 1. This clause reads in conflict with Clause 1. Removing the status, authority and position of the Lord Chancellor, so that he cannot discharge his functions, is another way of going back to square one and doing what the Prime Minister always intended to do, that is, in effect, to slight the office of Lord Chancellor and all its functions in so far as he could. This is a constitutional problem of vast importance that lies within the legitimate remit of this House. I shall vote to try to retain the position, pending the election.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, the noble Lord, Lord Morgan, exemplified very clearly that those who speak on behalf of the Government, or in support of them, have wholly misunderstood the argument. The case for the Lord Chancellor being a Member of this House and a lawyer has nothing to do with finding a nice little job for decayed lawyers in the fullness of their time. The point is that the role of Lord Chancellor should be set apart from other roles in government by the fact that he is at the pinnacle of his political career. Being a member of this House and a lawyer, he is not looking for promotion up the slippery slope to become Prime Minister or to hold one of the other high offices of state. He has reached his pinnacle and therefore can give his advice with freedom, without thinking that something might put up the backs of some of his colleagues and prevent him getting promotion at the next reshuffle.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, I am most grateful to the noble Viscount. The person he has in mind would, no doubt, make a marvellous Lord Chancellor, but what compels the Prime Minister to appoint him?

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench 4:15 pm, 21st March 2005

My Lords, nothing compels the Prime Minister to appoint any individual. People keep on saying that "X" or "Y" might have made a wonderful Lord Chancellor, even though he was not a lawyer. We are seeking to ensure that the general run of Lord Chancellors is better than it otherwise might have been. It does not seem to be a surprising proposition to say that a man is more likely to stand up for the necessary principles if he has no hope of further promotion than if he is busily trying to ascend the slippery slope of politics. For that reason, I suggest that this issue remains as important as it was on the other occasions on which we have voted on it.

That is surely demonstrated by the incredible impotence and irrelevance of the amendment offered to us in lieu. It merely states that the Lord Chancellor ought to be somebody who,

"appears to the Prime Minister to be qualified by experience".

That is experience of any kind whatever. That gives us nothing. I would also have thought that—in accordance with all the principles that the Government are always enunciating about legislation—this is a remarkable principle to put on the face of a Bill. Saying that the Lord Chancellor, uniquely, must be somebody whom the Prime Minister thinks is qualified by experience is saying that all other Ministers can be people who he does not think are at all qualified by experience. Some of us think that point can be made against certain Ministers from either party. I would hope that before the Prime Minister makes appointments to ministerial office he would, on the whole, ask himself whether a person is qualified to do the job. To write this on the face of the Bill is not only totally impotent and irrelevant, but is also very dangerous.

I urge noble Lords to maintain the position they took in the previous votes. As noble Lords have said, this Government have almost everything they want in the Bill. They have provisions for a Supreme Court and the concordat. They are not going to lose them. We know that, if we stand firm, they will concede on at least one, if not both, of the clauses we are now debating. There is no risk of those being lost. Your Lordships have only to stand fast to get what we want.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, I shall add a few words. I hesitated to do so, as the debate has been inundated with lawyers, but I took encouragement from the noble Lord, Lord Barnett, who said that he did not mind taking part even though he is not a lawyer. I can draw a comparison with him.

I am deeply hesitant about the Bill. The noble and learned Lord the Lord Chancellor said that this is a significant issue that will transform the role of the Lord Chancellor. So it is. But my noble and learned friend Lord Howe of Aberavon pointed out that various parts of the Bill, such as the Supreme Court and the appointment of judges, were justifiably considered, and we lost over them. That was very generous of him.

I find it quite alarming that there will be a new Supreme Court, at a cost of £50 million, and that the Members of the Judicial Committee of the House of Lords will be transferred to it so that they will no longer be Members of this House and able to advise your Lordships. It was interesting that today, and on previous occasions, the noble and learned Lord the Lord Chancellor quoted the words of the noble and learned Lord the Lord Chief Justice. How could he quote those words? It was because the noble and learned Lord the Lord Chief Justice has the right to be here and to speak. In future, of course, he will not be here. Those are pretty staggering changes.

Now the noble and learned Lord wants to do away with, if not the office of Lord Chancellor, then its role as we know it. In so doing, he will oblige your Lordships to have a Speaker. These are very significant changes. It is all very fine for the noble and learned Lord to say that the House of Commons has considered them and that we ought to agree to them, but I take great exception to these fundamental constitutional changes.

By this Bill, the noble and learned Lord has savaged the role of the Lord Chancellor; he has savaged the House of Lords by denying the attendance of the Law Lords in your Lordships' House; and he is forcing on your Lordships' House the office of a Speaker—as yet untried, and largely unwelcome.

The noble and learned Lord is very competent and agreeable, and he is also a thunderingly fine advocate. But the trouble with being a very good advocate is that people do not necessarily know when the cause you are justifying is good or bad. The noble and learned Lord has the ability to put a very bad case very well.

I can only offer this bit of advice, which I may already have given to your Lordships, but as it would be impertinent—indeed arrogant—to think that your Lordships would remember anything that I have ever said before, I am happy to repeat it. I am referring to what the late Lord Fisher of Canterbury said, which was that there was no unreasonable argument that could not be proved reasonable by reason.

I suggest that this is a very unreasonable argument, even though reason has been deployed.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I have not taken part in such debates for some time, but I feel that I ought to say something at this juncture in view of the fact that, thankfully, I have had some experience of the office.

It is fundamental in dealing with these matters in this House that we should have respect for the views of the other place, which should be reciprocated. I was a little stunned that it was said that this House was guilty of concerted amnesia, or something of that sort. I remember very well the changes that have been made to the role of the Lord Chancellor.

I always find the views of the noble Lord, Lord Barnett, extremely interesting—and, usually, influential. He said that he would not wish to give the management of a budget of £3 billion to a lawyer. For the past eight years or so, our country has been managed by someone whose qualifications are that of a lawyer. He had other qualifications as well, of course.

I shall deal first with the question of whether it is desirable for the Lord Chancellor to be a lawyer—in other words, whether it is a proper part of his qualifications. The noble Lord, Lord Goodhart, has made much of the fact that there are qualified people who are bad and qualified people who are good. That is not a reason for dispensing with qualifications.

One of the important roles of the Lord Chancellor in our Cabinet government is to see that legal advice is taken when necessary. He is not the government's legal adviser. That is plain, and a good Lord Chancellor respects that. Apart from anything else, if any difficulties arise, he does not have to shoulder the responsibility. He is responsible for legal advice being taken when required, so that the government do not land themselves in difficulties. You need to be a lawyer, otherwise, unless you are superhuman, you cannot detect whether legal advice is required. It is often obvious, but sometimes it is not. For very good constitutional reasons, the Attorney-General is not a member of the Cabinet.

Discussions can produce a requirement for legal advice, which is one of the most important functions of the Lord Chancellor. It is a subsidiary to his general responsibility for maintaining the rule of law to see that the government take legal advice when necessary to ensure that their actions are lawful.

A good example of what can happen when that position is not obtained was shown on 12 July 2003.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, it must be old age creeping in. It was June 2002.

I do not know the inner secrets of these matters, but the then Lord Chancellor was leaving office and something was to be done. Those in responsible positions in the Government thought that the office of the Lord Chancellor could be abolished overnight by Prime Ministerial fiat. People recognise that I had a role in those matters in the past, and many people who are neither politicians nor particularly interested in politics, have wondered how that could happen. How could it come about that the head of the Executive of this country should have been so mistaken? It shows how vital it is to have at the centre of government and part of the Cabinet someone who is responsible to see that the Cabinet do not make fools of themselves by seeking to take action that is manifestly absurd in law.

I hope that that does not happen often, but it is a pretty prominent illustration of when it did happen. To include a reference to "legal expertise" would be a wise insertion in the clause. I wonder what other relevant experience there could be. It is essential for a Lord Chancellor properly to give effect to his responsibilities in relation to the rule of law. I do not mean only in general terms, which anyone with sufficient judgment and quality could do. A number of such qualities have been mentioned today, and I would not wish to challenge them. But when it comes to advising in detail on the legal issues, the Lord Chancellor needs to have a legal background.

How old he should be is a matter of judgment. The noble and learned Lord, Lord Irvine of Lairg, was considerably younger than me when he took office, and the present Lord Chancellor is even younger. I am not absolutely certain about that, but I have that feeling. He certainly has all the vitality of youth.

With regard to being a Member of this House, I think that there is an advantage in being somewhat detached from the central assize of our nation's politics. To be at the centre is a difficult place for a Lord Chancellor to carry out his functions. I have no experience of being in the other place, but I have listened to the arguments of those who were there at the time. I have a feeling, which I put to your Lordships for what it is worth, that it will be easier and more likely for the Lord Chancellor effectively to exercise his office in protecting the independence of the judiciary and the rule of law if he is away from the white heat of political debate in the slightly less political atmosphere of this House. The noble and learned Lord the Lord Chancellor said that this House is changing. I have no doubt that that is so, but there is still a difference. Anyone who studies the two Houses will agree that there is a difference between them and that difference is quite important.

I am glad to see that the noble Baroness, Lady Ramsay of Cartvale, has returned to her place, which reminds me that lawyers are not necessarily founts of wisdom. They make mistakes. I can say the same of elected people. Election is not a guarantee of infallibility; neither does nomination, which applies to most noble Lords, come with a certificate of infallibility. Sometimes the experience of those who have been properly nominated in this House may be valuable in a constitutional matter, which this undoubtedly is.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour 4:30 pm, 21st March 2005

My Lords, after the speech of the noble and learned Lord, I can be even briefer than I intended to be. As usual, as this is such a funny place, I am hopelessly ill-prepared. Some of your Lordships might have thought I would take advantage of the very first proposal to put into constitutional law the special place of teachers of law in universities. I can assure your Lordships that I am not beguiled by that formula into putting aside everything else. I bow to the wisdom of my noble friend Lord Morgan about 1701—that is not a debating point—but I am more concerned with where we shall be in 2007.

I do not agree—if this is what the noble and learned Lord, Lord Lloyd, meant—that working people do not have a feeling for what we grandly talk about as the rule of law. I think there is a feeling in what Sir Ivor Jennings used to call "the man from Hoxton", which comes very close to it. I shall be corrected by Hansard if I am wrong, but I did not hear the phrase "rule of law" in the speech of the noble Lord, Lord Goodhart, today. He spoke of the European convention, but they are not necessarily exactly the same. That has been mentioned to your Lordships before.

We have to simplify what we are looking for. Surely, we are looking not merely for someone who can manage millions of pounds. I have no experience of that, but if I had to do it as a Minister I would expect to be advised by people in the Cabinet—the Chancellor of the Exchequer, who is one of the best Chancellors of the Exchequer there has been in recent and probably not so recent times. The Prime Minister would no doubt have a word with me and the Whips would have my interests at heart if I tended to stray. I shall return to that remark. It is extraordinary that someone should say—I honestly do not remember who it was—that we want someone of suitable ability. I would have thought that any debating and wise Chamber would know that that was, a priori, a requirement.

A special kind of ability is required. Everyone agrees that not everyone could be Lord Chancellor and intervene when he should on the rule of law. I believe that I am a democratic socialist because I have understood some elements of the rule of law; otherwise, I would quite likely be a very autocratic socialist indeed—they exist, as the world knows to its pain.

Surely, the Lord Chancellor, call him what you will, needs, in the realities of 2006, two things to intervene in defence of the rule of law, quite apart from suitable intelligence, which I take, again, to be common ground. First, he needs spine to stand up to people against whom it is very difficult to argue a case when they know, by the word from on high, what is to be done. He needs exceptional understanding of his own need for courage. He will not be disturbed by the House of Commons.

I hear people say that the House of Commons is always criticising the judges. No one has criticised the judges on their law more than I have. I am always criticising judges; that was how I acquired my chair. It is absurd to put that forward as though it were a difficulty. However, he needs spine. The people with whom he has to contend are not so much the majority of voters and electors in the constituencies, but he has to stand up to the party machine which will support those on high.

He also needs to be able to intervene at the right moment. He needs to spot the point, if possible before anyone else. That point was effectively made by the noble and learned Lord who has just spoken. For that, one probably needs a lawyer of experience. I am not saying that others cannot spot such points, but that needs to be done quickly. The noble Lord, Lord Barnett, with his experience, may be able to spot points, although I usually find I am unable to agree with accountants. That was the cause of the trouble that kept everyone up all night: people had not spotted the problems quickly enough.

Such a person requires spine plus speed. We need someone who will not be broken by conventional wisdom even from his own party Whips. He does not need to be very old but he needs to be slightly out of the political maelstrom.

Those are my reasons, although I freely admit that constitutionally my preference is to see Ministers in the House of Commons, which is the democratically elected House, whatever system of election the Liberal Democrats will one day impose on us. It is vital to have someone like that in the Cabinet.

Those are my grounds for not wishing to agree with the amendments proposed by my comrades in the democratic House, but putting aside all those reasons, I would never, ever vote for a constitutional provision such as that contained in paragraph (e), on which I believe my noble and learned friend on the Front Bench said nothing. It reads:

"other experience that the Prime Minister considers relevant".

It is only in the interests of propriety that I do not suggest all kinds of improper experience that might legally and lawfully be taken into account. That is a preposterous constitutional provision. Therefore, sadly—I am sad because we must have a compromise on this—I shall not vote for these provisions tonight.

Photo of Lord Elton Lord Elton Conservative

My Lords, perhaps in one minute I can draw one matter to your Lordships' attention, and particularly to the attention of the noble Lord, Lord Barnett. Clause 2 of the European Union Bill, at present going through the House of Commons, deals with parliamentary approval for treaty changes, and subsection (4) thereof gives the House of Commons the duty to ask this House what its opinion is and reserves absolutely to the House of Commons alone the right to agree or not to agree to the treaty provisions.

That is part of a sequence of changes affecting this House, of which the present amendment is one, and which goes back to before 1999, in which government after government have sought to sap the powers of Parliament and now they are concentrating on this House. The noble Lord, Lord Goodhart, said that what is needed in the Lord Chancellor is something that I believe is needed now: a nose for what is constitutionally unacceptable. This is constitutionally unacceptable. I support my noble friend.

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

My Lords, we have had a good debate. The critical three points are as follows. In this House we have agreed to a fundamental change in the role of the Lord Chancellor: that he is no longer the head of the judiciary. Unlike in the past, he no longer sits in the Cabinet as the person who is actively head of the judiciary appointing all the judges and disciplining those judges who require disciplining. We should recognise that this represents a fundamental change—one that we, as a House, agreed to. Yet we also agree that we want the Lord Chancellor to be as strong as possible in the Government in the future, so that he discharges his ministerial functions properly and effectively, and is an effective defender of the independence of the judiciary and the rule of law.

In order to achieve that, I earnestly ask Members of this House to consider whether restricting the pool from which the Lord Chancellor can be chosen, and restricting him or her to this House, makes him or her a stronger or weaker voice in the Cabinet for the rule of law and independence of the judiciary. Of course, it will depend upon the individual chosen. We have all heard about the personal characteristics that may be required for that. To say that the job must always be done from the Lords and always by a lawyer, however, when that Lord and lawyer is no longer the head of the judiciary will, looking forward, inevitably undermine and weaken that great office. We all need the office to be as strong as possible from the point of view of the constitution.

There is much to be said for the detachment that comes from being in this House. Yes, this House is a bit more detached than the other place. I would respectfully suggest to noble Lords, however, that there are Members of the other place who have spine, who are not lawyers and who understand what is meant by the rule of law and the independence of the judiciary. The rule of law is a fundament of our constitution. The idea that only somebody with an arcane understanding of the provisions of the Criminal Justice Act—as the noble Lord, Lord Kingsland, said—could understand whether the rule of law was being infringed is, with the greatest of respect, wrong.

We must look at this as an important constitutional issue. We must look forward to determine whether placing the Lord Chancellor forever in the Lords, making him or her forever a lawyer—because no exceptions are permitted—will strengthen or weaken the importance of the role. I put it to you that it would weaken it.

The noble and learned Lord, Lord Howe of Aberavon, says that we have to make out the case. That is absolutely right. The noble and learned Lord is, however, completely wrong to ignore the other changes that have been made in the constitutional reform settlement that this Bill represents. In those circumstances, I suggest that noble Lords consider what the effects of those changes already agreed have been to this great office.

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

My Lords, there is an important point that neither the noble and learned Lord the Lord Chancellor nor anyone else has commented on. Will the pension arrangements for the new Lord Chancellor be the same as they are at present? I understand they are generous and can be taken whether he retires or is sacked.

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

My Lords, as the noble and learned Lord, Lord Lloyd of Berwick, made clear, it was not just the title that remained. It was also the comfortable arrangements for pension and pay. As far as that is concerned, despite these generous arrangements—which are made in order to make the resignation of the Lord Chancellor on principle an easier matter—no Lord Chancellor has resigned on principle in recent times, as I said on the last occasion. Perhaps, therefore, their effect is neutral in that respect.

My basic point is to consider the effect of the fundamental changes that have been made. We all agree that we want to strengthen the office as much as possible. The other issue is the extent to which we pay regard to what the other place has said. This Bill has been going through Parliament for 13 months. It was referred to in the Queen's Speech in 2003. It was a significant part of the Government's programme for 2003. We have given it detailed scrutiny and consideration. Of course our power is to make the other place think again. They have thought again. They have debated it on two separate occasions. It is a significant issue. It is not for us to determine those issues where we are the more powerful of the two Houses. Our job is to make the other place think again. Once we are satisfied that they have done so, then we should pay proper regard to their views.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

My Lords, I shall be extremely brief. The noble Lord, Lord Barnett, questioned whether it would be proper to send the Bill back. I say to the noble Lord: yes, it would be.

First, this is a constitutional Bill. Secondly, it originated in your Lordships' House, not the other place. Thirdly, as a number of your Lordships have said, the vast majority of the Bill is agreed. Huge changes are going to be made to the judicial arm of the constitution. This is, indeed, the biggest change to that branch since the Act of Settlement 1701. It has been brought about by—if I may say so to the noble and learned Lord the Lord Chancellor—an impressive process of successive iteration, compromise thinking, rethinking and reformulation. It is a remarkable Bill. We are only talking about one small ingredient, taking up no more than three lines though very important to constitutional fundamentals.

The noble Lord, Lord Goodhart, questioned whether it was necessary to have a grasp of the detail of legal issues to defend the rule of law. The answer was very effectively given by the noble and learned Lord, Lord Mackay of Clashfern. The vast majority of rule of law issues between ourselves and the Government Benches—when I say "ourselves", I mean not only Her Majesty's Opposition, but also, usually, in harmony with the Liberal Democrats—have concerned extremely detailed matters of criminal evidence. The noble and learned Lord the Lord Chancellor sought to lampoon me in saying that I wanted to define the rule of law as simply the interstices of the law of criminal evidence. That, with great respect, was uncharacteristically unfair of the noble and learned Lord. One cannot protect the rule of law without having a good grasp of the detail.

The office of Lord Chancellor, lawyer and Lord, has been with us for over 1,000 years. Every generation has tested those qualities and found them desirable. What is so special about this generation? We have not had the answer to that, and that is why I intend to test the opinion of the House.

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

Their Lordships divided: Contents, 191; Not-Contents, 203.

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

Aye: 189 Members of the House of Lords

No: 201 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENT

1C Leave out Clause 3

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor 5:00 pm, 21st March 2005

My Lords, we have already spoken to this issue. I beg to move that the House do agree with the Commons in their Amendment No. 1C.

Moved, That the House do agree with the Commons in their Amendment No. 1C.—(Lord Falconer of Thoroton.)

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

rose to move Amendment No. 1CA, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1C, leave out "agree" and insert "disagree".

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

My Lords, there is nothing further that I wish to add to what I said in the earlier debate. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1C, leave out "agree" and insert "disagree".—(Lord Lloyd of Berwick.)

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

Their Lordships divided: Contents, 189; Not-Contents, 201.

Division number 2 Private Parking: Ports and Trading Estates — Constitutional Reform Bill [HL]

Aye: 187 Members of the House of Lords

No: 199 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENTS

The Commons have made the following consequential Amendments to the Bill—

1D 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"

1E 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."

1F Page 221, line 18, at end insert—