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Mr. Hawkins: My hon. Friend refers to the lack of consultation, which tends to support the concern expressed in The Guardian--to which I have referred--that there is a distinct whiff of this matter being pushed through on the blind side by the Government in the hope that no one will notice. A suggestion for the Government's motivation was made by my hon. Friend the Member for Bury St. Edmunds (Mr. Ruffley) in an intervention. Is there not some truth in what he said?
Mr. Grieve: I am grateful to my hon. Friend, and I agree. I have no comment as to the capacity or otherwise of any individual to fulfil the responsibilities of the office. I would not wish to do so. I reiterate, however, that simply to introduce such legislation because of a one-off difficulty without considering the totality of the picture is a mistake.
Before concluding, I must say one or two words about the agism. I do not want to go into it in great detail, as I have already intervened on the matter and do not intend to repeat myself. I would say, however, that, if one accepts that the nature of judicial and quasi-judicial offices is somewhat different from that of the other offices fulfilled in the civil service, and if one differentiates them from that service--which I believe the Government would be at pains to do--one immediately confronts the fact that the retirement ages are entirely different. That was for a good reason because it was considered that experience was of such importance in such offices that it overcame the need for the normal retirement age.
I have expressed the view that, as time goes by in the next decade, we will be confronted increasingly with the fact that we are forcing people to retire too early. That in itself is an argument why the present proposal is not a good one. Even if I were not dealing with that wider issue, however, I would still be concerned as to why it should be thought that the retirement age of the permanent secretary, who fulfils a completely individual role, should be tied to that of the rest of the civil service.
Everything that emphasises the somewhat different nature of the Lord Chancellor's Department from that of other offices of government is an important reinforcement of the independence of its role. I hope that the Minister will take on board the points that have been made. I shall certainly defer to what my right hon. and learned Friend the Member for North-East Bedfordshire wants to do at the conclusion of the Second Reading debate.
Mr. John M. Taylor (Solihull):
I have ever suffered from the debilitating weakness of being able to see both sides of an argument, something that never troubled the last Prime Minister but two. On the one hand, in dealing with judges and the Bar, not least silks and the Law Society, one is dealing, dare I say, with a client group that can occasionally show a slight tendency to believe that no one but one of its own understands its business. On the other hand, it can in theory at least be a distortion to career progress in the Lord Chancellor's Department for senior civil servants in the Department to know that some of them could become permanent secretary and some, by statute no less, could never do so.
The question of a Department of State having a client group can incidentally, in certain circumstances, lead to false expectations on the part of that group. On seeing one of its own in place in a Ministry, the client group can half believe that he or she will represent it in government. To the contrary, he or she is most likely to be the bringer of denial on behalf of the Department to his or her fellow professionals in the client group. I experienced that as a solicitor and junior Minister in the Lord Chancellor's Department--I was the first person to hold that office--and, indeed, as a member of the Law Society. To some extent, I think that I was a disappointment to my client group.
One wonders how far one might extend the provision. My hon. Friend the Member for Beaconsfield (Mr. Grieve) referred to a senior medical post--overtly medical in qualification--being occupied by someone who did not possess that qualification. What would happen to a Ministry of Defence whose permanent secretary was a retired general? Would it work? What about a large landowning, proprietor farmer as permanent secretary at the Ministry of Agriculture, Fisheries and Food, a senior policeman at the Home Office, a diplomat at the Foreign Office--perhaps that happens, as there is a read-across between the permanent secretary at the Foreign Office and the diplomatic service--a consultant at health and an airline pilot at transport? The better view is that such appointments are not always happy.
That brings me to an analogy drawn from an exchange of correspondence that I had with the British Legion, which urged on me with highly responsible reason and argument that there should be a Minister for veterans. I was doubtful if such an appointment would bring them the advantages that they worthily desired, because such a Minister would inevitably represent the Government to them, not them to the Government.
At this point, I will not digress on what I consider to be the anomalous position of the Attorney-General, who is a very senior member of the Government and also head of the Bar [Hon. Members: "Go on."] I am tempted, but not that tempted. The House will be interested, as always, in an historical insight.
In the 1590s--400 years ago--the House of Commons debated the role of the Clerk of the Crown in Chancery for four solid days, coming to the conclusion--I have this faithfully--that the Clerk of the Crown is our own particular officer. You may think, Mr. Deputy Speaker, that there is a sort of mystery in all that. On the other hand, you may think that that is not a very heroic piece of definition. Four hundred years later, we still do not seem to have the measure of this man. That may not be entirely surprising, since he has been around since at least 1331 as Clerk of the Crown in Chancery certainly. I think Parliament may be a little frightened of him. He has the endurance of a Hapsburg and also has important duties relating to writs of summons to Members of this honourable House.
Finally, I agree with all that has been said about age discrimination, and I cannot understand why the measure was not introduced in the House of Lords. I feel that the Lord Chancellor's Department is particularly interesting. The office of Lord Chancellor has endured for about 1,360 years--it is almost as old as the monarchy and certainly far older than Parliament.
In an earlier time, not least in the time of the Tudors, the Lord High Chancellor of England was easily the most powerful man in the country. He usually combined his judicial duties with one of the two archbishoprics and was chief executive as no Prime Minister these days is. Many hon. Members on both sides of the House will be familiar with the great 18th-century nostrum. Searching for reasons to explain why England was stable, the great jurists of the day, such as Montesquieu and others, came to the conclusion that England was stable because it separated the three fundamental functions of the state--the judicial, the executive and the legislative. It was a very elegant conclusion.
Mr. Hawkins:
Does my hon. Friend agree that one of the dangers of the proposal, introduced by the Minister with so little scrutiny, is that it may be part of the slippery slope to merging those three pillars of state? That accords with much that we used to hear from Labour Members in opposition--the hon. Member for Brent, South (Mr. Boateng) often used to argue this--about lay people with no legal qualifications becoming not only magistrates but judges.
Mr. Taylor:
Yes, one might as well have a vote on an aircraft to choose which passenger should be the pilot.
The 18th-century conclusion that England was stable because of the separation of powers was one that the examiners seemed to want to arrive at irrespective of the evidence. There was precious little separation of powers then, and to this day the Lord Chancellor has in his person the presidency of the Supreme Court, the speakership of the House of Lords, the helm of an important Department of State and a very senior place in the Cabinet.
The nostrums of 200 years ago were completely mistaken, but they had a mightily important consequence: the form and framework of the constitution of the United States of America, a country that is extremely difficult to govern because it has separation of powers and the Government cannot control spending.
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