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Mr. Edward Garnier (Harborough) (Con): Will the Minister give way?
Mr. Leslie: I wanted to turn to the detail of the Bill, but I shall give way to the hon. and learned Gentleman before doing so.
Mr. Garnier: The Minister says that the Government want to modernise the operation of the judicial appointments system and make it transparent. Why then did the Lord Chancellor for the transitional period, as he likes to call himself, appoint his pupil master as president of the family division?
Mr. Leslie: We have to operate under the law as it stands, but we want to reform it. The hon. and learned Gentleman argues rather perversely that he does not like the existing system yet wants to retain it. I am not sure that he is striking the right chord.
Keith Vaz (Leicester, East) (Lab): I congratulate the Minister and the Lord Chancellor on listening to many people's concerns about the initial package that was put before both Houses last year and on adopting several of the changes. How can he ensure that the Government's commitment to equal opportunities—the Lord Chancellor is of course very committed to equal opportunities—will be transferred to the new judicial appointments commission, since the commission is under no obligation to accept what the Lord Chancellor has said?
Mr. Leslie: As a broader, wider and more diverse body, a judicial appointments commission for England and Wales will have a positive and beneficial impact on the diversity of the appointments that it makes and the range of persons from whom it can select, notwithstanding that all appointments are obviously made solely on the basis of merit. I shall come to some specific points on diversity later.
Vera Baird: Will my hon. Friend give way?
Mr. Leslie:
I want to make a little progress first.
17 Jan 2005 : Column 558
Part 1 concerns the rule of law and was added in the other place. The provisions ensure that nothing in the Bill adversely affects the constitutional principle of the rule of law. In making these changes, it is important that we do not lose the principles that have served us well in the past. The rule of law is one such area, and the new provisions improve and enhance the Bill.
Part 2 relates to reform of the office of Lord Chancellor. Throughout the Bill's passage in the other place, peers felt extremely strongly about the retention of the title of Lord Chancellor. Amendments were therefore made to facilitate that. As I said, although we believe that our original intention to abolish the office was well founded, we accept that many attach a symbolic value to the title. The Government do not feel that retaining the office and title of Lord Chancellor significantly affects the substance of our reform objectives, so we can accept that change.
Let me deal with the question about the insistence of the other place that the person who holds the office of Lord Chancellor must be a Member of the House of Lords and must have either held high judicial office or been a practising lawyer for at least 12 years. Given the substantially reformed nature of the post, we firmly believe that there is no longer any fixed requirement for the Lord Chancellor always to be a peer and a lawyer.
A Prime Minister should be able to appoint the best person for the job, whether they sit in the House of Lords or the House of Commons, rather than having a restricted choice. It would be perverse deliberately to prevent a person from holding a purely ministerial post simply because they were an elected representative. There will no longer be a need for the office holder to be a peer. Given that the Lord Chancellor is responsible for nearly £3 billion of public expenditure, it is surely reasonable that in future a Prime Minister can appoint a candidate who is capable of being held accountable to either House of Parliament, not just one House.
Chris Bryant (Rhondda) (Lab): Historically, one of the requirements for the Lord Chancellor is that he is not a member of the Roman Catholic Church. Will that requirement remain or change? Why is the Lord Chancellor's oath, unlike the oath in this House, given in only a theistic way? Perhaps a future office holder might not have a religious faith.
Mr. Leslie: On the detailed second point, I understand that the Oaths Acts allow for affirmation and so on. Although the Bill does not deal with that, other legislation does. On the first point, the Bill does not make the change about which my hon. Friend asked, but perhaps he can raise the matter at a later stage of its passage.
Sir Patrick Cormack : If the Government insist on removing the amendment that the House of Lords has inserted, how can they guarantee getting the measure through before the election?
Mr. Leslie:
As the hon. Gentleman's party knows, there are no guarantees in politics. If the House of Commons decides to overturn the amendment, it would not be wise for the House of Lords to insist on it, but that is a natural part of the to-ing and fro-ing of the legislative process.
17 Jan 2005 : Column 559
On whether there should be a condition such as being a peer or a senior lawyer, the Lord Chief Justice, speaking for the judiciary as a whole, has made it clear that a Minister from either House could perform the functions of the new Lord Chancellor post. The Lord Chancellor will not be a judge and no more needs to be a lawyer than the Secretary of State for Health needs to be a doctor or the Chancellor of the Exchequer needs to be a qualified accountant.
Legal qualifications are not an essential requirement for a ministerial post that will in future act on recommendations from an independent judicial appointments commission, whose job will be to weigh up candidates' precise legal abilities. The Government will also have the Attorney-General to call upon for any advice on legal questions.
Mr. Grieve: I accept that there will be a judicial appointments commission. Indeed, it is the one aspect of the Bill that I am broadly happy to welcome. If the Bill had been confined to that, I would welcome it even more. However, the Under-Secretary will acknowledge that it retains important powers for the new Minister both in making a final selection and in maintaining links with the judiciary to initiate work by the judicial appointments commission in selecting new judges. In those circumstances, is not the other place correct to insist that the Lord Chancellor should be a unique Minister and not simply any Minister?
Mr. Leslie: The Lord Chancellor will be a unique Minister and will have several protections, as set out in the Bill. However, I am not convinced that that extends to the absolute requirement that the Lord Chancellor must be a senior lawyer and a peer. There are no especially strong arguments given the new nature of the ministerial post. The Government will therefore seek to remove the requirements so that the Prime Minister's choice of office holder will not be so restricted.
The time has come for a more appropriate senior structure for our judiciary. The Bill establishes the Lord Chief Justice rather than the Lord Chancellor as the head of the judiciary in England and Wales. We will introduce amendments to provide similar provisions for the Lord Chief Justice in Northern Ireland.
Mrs. Gwyneth Dunwoody (Crewe and Nantwich) (Lab): I hesitate to get involved in this, because I must be one of the few non-lawyers in this place—[Hon. Members: "No!"] Oh, I am glad that some other peasants have got in by accident. Is my hon. Friend the Minister using the theory behind private finance initiatives, which works on the assumption that because someone knows nothing about a particular profession, they should automatically be put in charge of it? Or am I misinterpreting what he is doing?
Mr. Leslie:
I am not a lawyer either, but I think that having a fresh perspective on a particular responsibility is sometimes a benefit, rather than a disadvantage. There are pros and cons on both sides of this argument, but we do not feel that the post-holder should be tied to one particular qualification. That would not be justified by the nature of the new ministerial post.
17 Jan 2005 : Column 560
The Bill also makes new arrangements for many of the statutory functions of the Lord Chancellor that relate to the judiciary. These will either be transferred to the Lord Chief Justice completely, or be exercised jointly with the Lord Chief Justice, with requirements for consultation or concurrence between them and their counterparts in Scotland and Northern Ireland as appropriate. This division of responsibilities was agreed between the Lord Chancellor and the Lord Chief Justice and is known as the concordat. Reflecting on this historic agreement, the Lord Chief Justice has commented that:
"The judiciary considers that the parts of the Bill that reflect the concordat are a highly desirable package of measures designed to ensure the continued independence of the judiciary."
The concordat was presented to Parliament on 26 January last year, and amendments to the Bill were tabled by the Government in the other place to reflect that agreement.
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