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Mr. Gerald Bermingham (St. Helens, South): I hope that I understand the Minister correctly. He is saying that, because the Lord Chancellor's Department now controls a budget of £2 billion or more, it wants the widest possible choice in the appointment of a permanent secretary and the ability to go outside the civil service and the law, perhaps into industry and other such places, to get the most efficient and able man or woman for the job.
Mr. Hoon: We are certainly proposing that the present restrictions should be eliminated. They severely limit the availability of candidates.
The present permanent secretary has restructured the Department around an administrative and policy-making core of officials, who get legal advice, when they need it, from a separately managed group comprising legally qualified civil servants headed by a legal adviser answering directly to the permanent secretary. Therefore, the old arrangement under which a small number of legally qualified staff undertook all duties, whether legal or administrative, has disappeared.
With the ending of the old structure went the justification for requiring the permanent secretary to be a lawyer. This was recognised in part by changes made by the Courts and Legal Services Act 1990, which allowed a non-lawyer with at least five years' experience in the Department to be considered for the post.
Some concern was expressed during the passage of that legislation in another place that it might presage some kind of downgrading of this important position. In case there are similar concerns about this Bill, I assure the House that the intention is quite the opposite. It is precisely because of the importance of the post and the qualities that it requires that its future holders should be the most able and experienced candidates available, selected from the widest possible field.
Successive Lord Chancellors have been well served by a distinguished line of permanent secretaries, who have ably managed the organisation throughout the changes
that I have described. However, the existing restriction has no parallel for any other Department, and is no longer appropriate to what has, over the years, become a major Department of State, with a large budget and staff and a wide range of responsibilities.
Furthermore, in addition to the expansion of functions and changes in the structure of the Lord Chancellor's Department, the Lord Chancellor's responsibilities as a member of the Government have greatly expanded.
The Lord Chancellor now chairs the Queen's Speeches and Future Legislation Committee, responsible for the Government's legislative programme, and all the Cabinet Sub-Committees concerned with the Government's programme for constitutional change, as well as serving on numerous other committees. Together with the more specifically legal and departmental concerns, these additional responsibilities emphasise the necessity for the Lord Chancellor to have the advice and assistance of a permanent secretary of the highest quality and experience, selected from the widest possible field of candidates.
The effect of the existing restrictions, however, is to limit the field to such an extent that there is available across the entire senior civil service only a handful of officials who are of the seniority and experience ordinarily required of a permanent secretary and who also fulfil the existing statutory criteria for the office of permanent secretary to the Lord Chancellor. It is therefore imperative that those restrictions be removed.
The Bill therefore simply removes from schedule 2 of the Supreme Court Act 1981 the reference to the permanent secretary to the Lord Chancellor and Clerk of the Crown in Chancery. That has the effect of removing from that office special provisions which are, by virtue of sections 88 and 92 of the 1981 Act, applied to certain offices of the Supreme Court set out in schedule 2.
As well as removing the restriction on appointment to the office, that will result in provisions concerning tenure of the office no longer applying to it, so that the provisions governing the retirement age of the Lord Chancellor's permanent secretary will be brought into line with those applicable to other permanent secretaries.
The Bill does not affect the office of permanent secretary to the Lord Chancellor in any other way. In particular, the permanent secretary will continue to hold the office of Clerk of the Crown in Chancery, and to be the head of the permanent staff of the Crown Office, which supports the Lord Chancellor in his capacity as Keeper of the Great Seal. No other office is affected.
The present permanent secretary, who has already been persuaded to remain in office longer than originally planned, is to retire in April 1998. To give time for his successor to be properly selected, the existing statutory restrictions must be removed by the end of the year.
Mr. John M. Taylor (Solihull):
Will the Minister assist me with this point, which I may have missed in his explanation? Is he saying that, if the legislation that he now proposes becomes law, the permanent secretary to the Lord Chancellor's Department will continue to be Clerk to the Crown in Chancery; and if so, does not that second office have a requirement that its holder be a lawyer?
Mr. Hoon:
The answers to the hon. Member's questions are yes and no. It is anticipated that the
Mr. Hoon:
To meet the timetable that I have set out, the Bill must make rapid progress, and it is for that reason that I ask the House to give it a fair wind, and allow it, if appropriate, not only to be read a second time but to pass through its remaining stages in the House today, so that it may be considered in another place with the necessary dispatch.
Mr. Deputy Speaker (Sir Alan Haselhurst):
I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:
Ministerial and Other Salaries Act 1997.
Local Government Finance (Supplementary Credit Approvals) Act 1997.
Sir Nicholas Lyell (North-East Bedfordshire):
I listened with care to what the Parliamentary Secretary said in opening the case for the Bill, and we are anxious to give the Bill a fair wind, up to a point. He pointed out that the office of permanent secretary to the Lord Chancellor is one of great importance. I entirely agree, and I am sure that he intended to say that it had been an office of great importance throughout the decades and, indeed, the centuries that it has existed.
Sir Nicholas Lyell:
I am glad that the hon. Gentleman is nodding to that. He added that the Lord Chancellor's Department has grown greatly in recent years. It has taken on an active role and responsibility for the court services in a way that makes it a Department of State in a late-20th-century manner, which to a considerable extent in earlier years it was not.
That means, however, that the Department has two important functions. It has the important function of being the right-hand man or woman to the Lord Chancellor in his ancient office--and his office is almost unique to this country, and extremely important to our constitution. Montesquieu might be turning in his grave, but I am sure that the Parliamentary Secretary and I would stand up firmly for our constitution. His office is unique in that it is there to protect the separation of powers, not to overturn it.
What is said against us by those from other countries is that, because we have a senior Minister--one of the four most senior Ministers in any Government--who is a member of the legislature, the Executive and the judiciary, we do not respect the separation of powers. We do. In our pyramidal form of constitution, the Lord Chancellor is answerable to Parliament--the highest court in the land--and therefore is answerable to every Member of this House and of the other place for the proper performance of his duties, which include the protection of the true separation of the powers of the judiciary.
We are willing and very ready to assist the passage of this Bill, subject to some modifications, because, with the added administrative functions of the Lord Chancellor, there will from time to time be a perfectly good case for the permanent secretary to the Lord Chancellor being other than a lawyer. It is highly desirable that, if he is to be somebody other than a lawyer, he should have had substantial departmental experience. The present law enables him to be permanent secretary and Clerk to the Crown in Chancery if he has had five years' experience in the Department.
I think that that should be long enough for the present Government. The Bill seeks to sweep that away, and to say, in effect, that somebody with no experience of the Department can become permanent secretary.
There are dangers in that, on which I will dwell shortly. The great importance of that ancient office means that the Lord Chancellor needs help in relation to his responsibility for the judiciary. One of his major roles is to appoint the judiciary. It is a role that Lord Chancellors of every political colour have carried out scrupulously over the centuries, with the assistance of their Department. It is immensely valuable to the Lord Chancellor in that responsibility and in his role as a link with the judicial process and the legal structure and legal establishment of our country that the permanent secretary should have long and profound experience of the legal profession.
A second aspect is the importance of the Government legal service. That service is 1,000 members strong. As the Attorney-General for five years, and Solicitor-General before that, I had the privilege of being responsible for that service, and I know that it consists of many people of high calibre. Some of them move within and across Departments.
There has been a trend in recent years for them to move more into the Lord Chancellor's Department than in the past. It is highly healthy that Government lawyers should move in and out of that Department and spend a period, from time to time, advising the Lord Chancellor, the Attorney-General or one of the great Departments of State--and spend time in an administrative role running, for example, the Court Service.
There are dangers here. I know that the Parliamentary Secretary and the Lord Chancellor have introduced this Bill in good faith. This is not a party political matter, and I am not making party political points. I am making important constitutional points, because the Bill does not stand alone in the Government's legislation. We must look at it alongside the Bill introduced earlier this week to change the system of justices' clerks in magistrates courts. Following the Home Secretary's announcement, the role of the justices' clerk as the legal adviser to the magistrates is to be divorced from the role of the justices' clerk as the administrative controller of the magistrates court service.
I have anxieties about that move. I only hope--I say this not to stray from the Bill, but to illustrate my point--that the Government will think again about that Bill. In practice--it is at a much more lowly level--I hope that we shall continue to find justices' clerks who have sat week in, week out, year in, year out, in service in court also moving up the administrative ladder.
Likewise, I hope that the lawyers in the Government legal service will move from advice-giving and legal roles to an administrative role--I think that the Minister has some sympathy with my argument--so that the administrators will know what they are talking about. Then, when they help to organise the list--we must remember that listing of court cases is a judicial function, and must remain so--and assist in the judicial running of the service, they will know what they are talking about. They will have sat in court and seen how cases are operated.
We need that sort of cross-fertilisation in the Department--
4.17 pm
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