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Mr. Forth: I hope that my right hon. and learned Friend will elaborate on his remarks. I was worried when I heard the Minister say that the Lord Chancellor's Department is just the same as any other Department of State and that we should therefore treat the permanent secretary in just the same way in terms of more open recruitment and so on.
But is not the Lord Chancellor's Department unique, in that it deals with important judicial matters? That cannot really be said of any other Department. Does my right hon. and learned Friend agree, from his experience, that the Lord Chancellor's Department cannot be lumped in with all the other Departments for this or any other purpose?
Sir Nicholas Lyell:
I agree with my hon. Friend. I am sure that the Minister would agree that the Lord Chancellor's Department is unique, for the reasons given by my hon. Friend, and by me earlier in my speech. The Lord Chancellor is a unique Minister. When he sits in Cabinet, he has a more independent role than any other member of the Government. He, together with the Attorney-General, has a role in ensuring respect within government for the rule of law.
In a free society, respect for the rule of law is as essential as, and historically much more deep-seated than, democracy itself. This country has believed in the rule of law and has operated it scrupulously from at least the end of the 17th century. We have built up a system of common and statute law by which all abide, and all Governments seek to abide.
If the Government are to abide by the rule of law, they must be well advised on the law. That is why I emphasise the importance of the Government legal service. It is not only that the Government should have 1,000 lawyers, but that they should have 1,000 lawyers who are respected, whose status is comparable with those of other members of the public service, and who can expect, if they have the necessary ability, to rise to the highest points in that service.
One of those highest pinnacles has, until this Bill, been reserved for lawyers who have usually spent a lifetime or a substantial part of a lifetime in law--sometimes in private practice, which has its own value, usually at the Bar, or as a solicitor. What message will go out to the Government legal service if this Bill is just passed on the nod, and the importance of the aspects I have mentioned is not recognised? The message will be that the Government is less interested in cherishing high-quality lawyers in its service.
If the Attorney-General were on the Treasury Bench for this debate, he might be tempted to intervene and say, "The Attorney-General--through the Treasury Solicitor
and Procurator-General--is the Minister responsible for the Government legal service, and he will look after that aspect of the matter." I am sure that the Attorney-General would attempt to look after the matter. He must, however, work hand in glove with the Lord Chancellor.
Mr. Hoon:
There is no suggestion in the Bill that lawyers will be prevented from applying for the position or prevented from being appointed. The right hon. Gentleman has a very distinguished legal background. Surely he is not suggesting that lawyers should be afraid of competition from those who are not lawyers?
Sir Nicholas Lyell:
No, I am not suggesting that. As I said, I am attempting to be helpful in the Bill's passage, but subject to modifications--to which I invite the Minister to give the closest attention.
A week ago, I gave Lord Irvine express notice of the point that I am about to make. Today, I tabled an amendment, which the House may consider. I owe an apology for the late tabling of that amendment. Despite some precedent to the contrary, I hope that the First Deputy Chairman will be able to accept my amendment. I will not, however, anticipate the matter one way or another.
The purpose of my amendment and the substance of the matter--which I shall invite the Parliamentary Secretary to deal with--is that, if the permanent secretary to the Lord Chancellor who is in post for a period of, usually, six or seven years,is not a lawyer, he should have a deputy secretary who is a lawyer. I should say that I have had the honour of knowing a number of permanent secretaries, although I cannot recall exactly how long the very distinguished current permanent secretary has been in post. There are senior members of the Lord Chancellor's Department who could perfectly well serve as deputy secretary.
A properly appointed deputy secretary in the Department--which is, as I said, unique--would, from an acknowledged and senior position, be available to assist the Lord Chancellor in maintaining his close relations with the judiciary. The Lord Chancellor himself will no doubt seek to maintain his daily relations with the judiciary extremely well, but a deputy secretary could assist with long-term relations with the more junior judiciary, with the Bar and in the operation of the current elaborate and very excellent legal framework, thereby providing feedback to the Lord Chancellor from the legal profession and on the operation of the courts. The vital duties of permanent secretary to the Lord Chancellor in these aspects of his work will then be fulfilled thoroughly and carefully by someone who is competent to do so.
I look forward to debating my amendment. The Bill's passage might be assisted if the Parliamentary Secretary were able to give me a fair wind on it. I look forward to Ministers' considering constructively, and, I hope, accepting, either my amendment or one in similar terms. Doing so would facilitate knitting together in the 21st century the two great strains of the Lord Chancellor's Department, and thus avoid an ugly break--from a long-standing tradition in which only a lawyer could fill the position, to one in which no senior and specially demarcated office in the Lord Chancellor's Department is filled by a lawyer.
If the Bill is passed unamended, it will be possible that neither the permanent secretary to the Lord Chancellor nor his most senior assistants are lawyers. It would even
be possible for there to be no lawyers in the Lord Chancellor's Department--although I do not suggest for one moment that that is likely to happen. The House should nevertheless remember that, over the years, Governments of all complexions have thought it right that the Lord Chancellor's right-hand official should be a lawyer. I am simply saying that, if No. 1 is not a lawyer, then, for the time being, No. 2 in the Department should be a lawyer, so as to protect that position. I very much hope that that will be accepted.
I am also surprised that the Government have proved themselves susceptible to agism. I see that the Parliamentary Secretary is frowning. Perhaps he has not read the Bill, but he certainly read out a speech passages of which sought to justify the fact that it would no longer be possible for a permanent secretary to the Lord Chancellor to be kept on beyond the age of 60. What on earth is the argument for making it impossible for the permanent secretary to the Lord Chancellor to be kept on beyond the age of 60?
Personally, I can see no reason why other members of the civil service should not be capable of being kept on beyond that age. To say that that is not in conformity with other Departments is precisely the kind of awful argument that we have all had to suffer since kindergarten--that, because one person does not have something, no one else can have it. I hope that the hon. Gentleman is not going to use that argument, although I strongly suspect that he is.
Mr. Hoon:
I am going to use that argument, because it is important to have consistency across Whitehall. The right hon. and learned Gentleman knows full well from his previous experience that all permanent secretaries, apart from the one that we are debating, retire at 60. Furthermore, I had always assumed that the distinguished profession of lawyer required adherence to precedent.
Mr. John M. Taylor:
That is the hon. Gentleman's best shot.
Sir Nicholas Lyell:
If that is the hon. Gentleman's best shot, as is being said behind me, I do not think that he has thought it through, because the Bill would alter precedent. We would be sympathetic to some modification of precedent, but we should not then instantly leap to a slavish adherence to precedent in the opposite direction. The hon. Gentleman, who is a barrister if I read his biography correctly, has lectured on law, even to the new world, and should be a little more open-minded.
While we are discussing matters ad hominem and discussing agism, my researches have also discovered that the hon. Gentleman and I have one thing very firmly in common--we share a birthday.
Sir Nicholas Lyell:
Indeed, on 6 December. The hon. Gentleman is 15 years younger than I am, but the Lord Chancellor is only 18 months younger.
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