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Mr. Deputy Speaker: The right hon. and learned Gentleman knows that that is not a point of order. He cannot make a second speech on that basis.
Question put and agreed to.
Resolved,
That this House will immediately resolve itself into a Committee.
The Chairman of Ways and Means (Sir Alan Haselhurst):
I must inform the House that I have not been able to select the amendments tabled in manuscript form.
Motion made and Question proposed, That the clause stand part of the Bill.--[Mr. Hoon.]
Sir Nicholas Lyell:
I will respect your ruling, Sir Alan, and the House must abide by it. When Bills are taken at short notice, it is difficult for the House to obtain the best procedural value from the time available to us. We now have this clause stand part debate, and I intend to use it to focus again on the important questions that the Parliamentary Secretary utterly failed to answer.
There was one point on which the hon. Gentleman gave an answer, but I do not agree with it. I shall make this point to explain why hon. Members are being asked to stay here on a Thursday evening. If the permanent secretary is not a lawyer and does not have five years' experience in the Department, there is a great deal of sense in having somebody else in an acknowledged senior position who does. I hope that the Parliamentary Secretary will address that.
Mr. Hoon:
I said on Second Reading that there is a senior legal adviser who works directly to the permanent secretary. I hope that the right hon. and learned Gentleman will find that such a figure, who is responsible for giving legal advice, is a sufficient satisfaction of his concerns.
Sir Nicholas Lyell:
I am not satisfied with that. The very first point made by the Parliamentary Secretary when he was replying to the earlier debate was that this was simply a gaggle of lawyers articulating concern for a vested interest. I am a lawyer, and I am articulating concern for an interest, but it is not the interest of any private sector lawyer. I am concerned about the interest of 1,000 members of the Government Legal Service who hitherto have held this post for sound constitutional reasons.
We modified it so that, on occasion, somebody who had spent five years in the Department might be able to take their place as permanent secretary. The Government now find that inconvenient, presumably because they do not have anybody who has spent five years in the Department whom they are willing to appoint, or because they wish to go outside Government to find somebody who does not fall within the requirements of the current statute--that may not be wholly stupid, and, as I have said, we are not seeking completely to block this Bill.
However, it is important--the Parliamentary Secretary has not attempted to deal with this--that the Lord Chancellor should have at his right hand somebody with deep and practical experience of the workings of the Department, who has experience of close co-ordination
with the legal system generally, and the legal profession and the courts in particular. There is absolutely no reason why such a person should not be appointed as a deputy secretary.
To say that, in government generally, the post of deputy secretary has been faded out in recent years, is a truism. We have moved towards a more flexible system of senior management. However, this is an exceptional situation, and I would not have thought that the Government were in principle so rigid and hidebound as to be unable to look for a small but exceptional answer to a substantial but exceptional problem.
I shall have to read Hansard to find out the Parliamentary Secretary's exact words about a senior legal adviser to the permanent secretary. We are asking for a senior legal adviser not to the permanent secretary but to the Lord Chancellor; somebody who has right of access to the Lord Chancellor's room in the same way as the permanent secretary. The permanent secretary can enter the Lord Chancellor's room on any occasion--it would be a strange Lord Chancellor who would not let that happen--to alert him to matters that may concern him. A deputy secretary should have that power. Why should he have that power?
Mr. Hoon:
Since we are proceeding in this manner, I hope that the right hon. and learned Gentleman will accept that, for a considerable time, it has not been the responsibility of the permanent secretary in the Lord Chancellor's Department to give legal advice to the Lord Chancellor. That advice is given by a specialist unit within the Department, which is there to give such advice. As I explained at some length earlier, the permanent secretary is no longer required to give advice to the Lord Chancellor.
Sir Nicholas Lyell:
That may be so, but it does not begin to answer the question. Obviously, I have not been the Lord Chancellor and I have not been junior Minister to the Lord Chancellor, although I dare to say that it was partly on my recommendation that such a post was created. I was Solicitor-General for five years, and I did all the Lord Chancellor's business in the House.
Mr. John M. Taylor:
Will my right hon. and learned Friend take note of the fact, although the permanent secretary may not be the mainstream legal adviser to the Lord Chancellor, he has an important role in judicial appointments? When I was junior Minister to the Lord Chancellor it was made perfectly clear that I was excluded from any part of the functions relating to judicial appointments. The permanent secretary has that important role, and it is far from being administrative.
Sir Nicholas Lyell:
I agree with my hon. Friend, and he has anticipated the very point that I was developing.
The Government will not have to be in power for very long before they will find that Ministers who are not lawyers will want to do things which may not be consistent with the law. Civil servants who are "can do" civil servants will be appointed. In our parliamentary democracy, it is the Opposition's duty to point out such things, and I can recall occasions on which the Labour party in opposition pointed out that we had appointed people with too much of a "can do" attitude.
Without revealing too many secrets, I can say that, in my role as a Law Officer over 10 years, I had to make it perfectly clear that the law had to be respected. Having done that, the law was respected. Lady Thatcher, when Prime Minister, was absolutely scrupulous in her adherence to the law. Naturally, she would push the bounds of government as far as possible in the direction that she thought was politically correct, but, once she was advised that that was as far as she could go, she would reign back and find another way to do what she wanted, if it was lawfully doable.
I am sure that that would also be true of the present Prime Minister, and that he would have a deep respect for the law. However, if there is to be a deep respect for the law, the proprieties and the general understanding of how our constitution works, there must be somebody who can advise on that.
The Lord Chancellor has an immensely busy job. He is far busier than earlier Lord Chancellors. There is now an administrative overlay for the management of the courts, which was not the case previously. It is largely because of that administrative overlay that the Government want the opportunity to appoint somebody from outside the ranks of the profession--indeed, if necessary, outside any significant experience in the Lord Chancellor's Department.
The Minister said that the previous Government had already prepared the ground, by changing the requirement for a lawyer of 10 years standing to somebody who had spent at least five years in the Department. He is now trying to sweep that away, so that somebody who has spent little or no time in the Department, and therefore has no feel for matters, can have the Lord Chancellor's ear. It is obvious from the Minister's earlier replies that the senior legal people will have to go through the permanent secretary, who will filter out information before it reaches the Lord Chancellor.
Even more important--as I imagine that the person concerned will be someone of great probity who will listen carefully to his legal adviser--that person will not have on-the-hoof experience. There will not be someone close to him who will hear the bells of propriety ring. Someone with an acknowledged position in the Department should be involved. Surely the Minister agrees that there will still be senior lawyers in high places in the Department.
What is needed is someone with an acknowledged position who has the ear of the Lord Chancellor as of right. Of course, out of courtesy that person would inform the permanent secretary before he went to see the Lord Chancellor--but he would be entitled to insist on going if the permanent secretary happened to say, "I do not think you should do that," or, "I would much rather you didn't do that." That is the sort of remark that tends to be made. It is the sort of remark that is made to lawyers. Of course, what tends to happen is that people do not really want too much legal advice, as it might not be terribly helpful.
The matter is important on two levels. First, there is the immensely practical point that the Lord Chancellor should have immediately available the benefit of the long-standing, consistent experience of the profession, the judicial system and the legalities, in the knowledge that, as holder of the office, it is his duty to act a watchdog.
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