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Mr. Grieve: I accept that the hon. and learned Lady makes an arguable point. We continue to have judges in this legislature. We have recorders who sit in the Crown court. That is a point to be borne in mind. Indeed, we have deputy district judges sitting in the House, quite apart from the other place. I do not believe that that presented a problem. I was sufficiently happy, as I shall explain, with the existing system, not to have wished to see it tinkered with.

Mr. Garnier: I intervene as a Member, not as a recorder who happens to be a Member.

Before my hon. Friend allows himself to be too far seduced by the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) and his arguments, he will
 
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remind himself of the European Court of Human Rights case dealing with the Bailiff of Guernsey. He will remember that, while the case led to the change in the arrangements in this country over assistant recorders and so forth, that Court did not criticise the British system of having a Lord Chancellor who happened to be a member of the political class.

It strikes me that we are getting into this groove because we are different and because it is thought that we should conform with everybody else's constitution. I hope that the Conservative party, above all, will ensure that it sticks up for what is good in this country and not allow the Labour party to wash all over us the slack intellectual guff that it seems to be seduced by.

Mr. Grieve: I agree entirely with my hon. and learned Friend. I want to reassure him. I am proud of our constitution and of the fact that it has stood the test of time, worked well and evolved pragmatically.

I say to the Minister that I could not give a fig about the separation of powers. It is an 18th-century concept that was put together by a French philosopher who came over to this country and misunderstood the way in which the system worked. Particularly, he was amazed that members of the judiciary, even then, exercised their powers independently and concluded that they were separate. What is of concern to me and to others is that the independence of the judiciary should be preserved. The separation of powers has nothing to do with it. Indeed, it is a concept that, on the whole, we have ignored and I think that we have been right to do so.

Sir Patrick Cormack: My hon. Friend is making a robust and intellectually impeccable case. Is not the natural conclusion of everything that he says that the next Conservative Government would be exceptionally unwise to proceed to a second House that was 80 per cent. elected, which would, in effect, abolish the House of Lords?

Mr. Grieve: I agree that any step by any Government in respect of the constitution of the House of Lords that erodes its independence, its independence of thought and independence of action would be massively undesirable.

I return to the slightly more restricted area of the judiciary and specifically to the office of Lord Chancellor. The Government proposed its entire abolition. They were then willing to listen to the representations made in the other place on the preservation of the name as the title of the Minister who fulfils the functions, but that is to all intents and purposes a valueless concession. I am interested not in symbols, but in practical reality. The practical reality is that, by a mixture of accident of history and the development of convention, we have succeeded—or had succeeded, until summer 2003—in creating an exceptional institution and one that ensured that, at the very heart of Government and of the operation of the Executive, there was a permanent champion of the independence of the judiciary capable of standing up for its independence and its rights, and it worked.

It did not matter whether Lord Hailsham rang his bell on the beach—I think it was actually on the podium—when he was a party chairman. It did not matter that
 
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Lord Gardiner had been an active member of the Labour party prior to his appointment. When somebody was appointed Lord Chancellor, went to the royal courts of justice and took the judicial oath, he was effectively transformed and became in his attitude and outlook quite different, commanding respect to such an extent that every time one asks the question, which the Minister answered earlier, whether actions by previous Lord Chancellors over the past 25 to 30 years in the appointment of the judiciary or their dealings with them have been faulted, the answer comes back entirely in the negative. To take that institution and smash it to pieces, which is what the Government proposed to do at the outset, without providing for an adequate replacement—as I shall explain in a moment, the replacement is in many of its aspects seriously flawed—strikes me as extraordinary.

Mr. Hogg: My hon. Friend has been referring to the office of Lord Chancellor. He made some very kind remarks about my right hon. Friend, my father. Does he accept that one of the reasons why the Lord Chancellors were always effective in the role that they performed was, first, because being in the House of Lords, they could not look to preferment in this place and therefore were not the subject of patronage in that sense, and secondly, because as a general rule they had come to the end of their political or their legal career and did not give two hoots?

Mr. Grieve: My right hon. and learned Friend is right. Having taken the judges' oath, Lord Chancellors had nowhere else to go. There was no further appointment in Government that they could fulfil that would be of an active political kind, or, short of sitting as a Member of the Committee in the House of Lords, any other function in their profession as lawyer to which they could return. I am convinced that it was a powerful and effective tool in promoting their independent viewpoint. Of course it was always possible that they could be sacked by the Prime Minister and replaced, but their replacement underwent exactly the same metamorphosis when he went down the road to the royal courts of justice to take the judicial oath. This is not just an abstract matter. It worked in practice, as the Minister acknowledged.

When we consider the office of Lord Chancellor and whether it is worth preserving, I point out to the Minister, first, that if it worked well but there were flaws in it—the particular flaw identified by the Minister and some others is that the Lord Chancellor sat actively as a judge, as opposed to just appointing judges—that is a matter that can be remedied. Secondly, as I made clear to the Minister at the outset, if the needs of transparency merit a judicial appointments commission, there was no reason why the Government could not go ahead and create that commission while preserving the office of Lord Chancellor, sitting in the House of Lords, taking an oath of office, not sitting as a judge and remaining legally qualified.

Mr. Bercow: Whether my hon. Friend noticed it or not, the Under-Secretary of State for Constitutional Affairs, the hon. the Member for Shipley (Mr. Leslie) looked genuinely quizzical and even disbelieving at the idea that someone who had once been a party politician
 
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and became Lord Chancellor could change in attitude and outlook according to the new post he occupied. Does my hon. Friend agree that it is curious that the Minister should be so disbelieving, for there is an obvious precedent much closer to home? I refer to the fact that in our parliamentary process someone who has long been a party politician subsequently becomes Speaker of the House.

Mr. Grieve: I agree entirely with my hon. Friend.

It is a curious feature of this Government that they distrust and dislike convention. Convention is a system by which people behave in particular ways or do particular things, not because any rule is laid down that they should do it, but because they know that it is expected of them and believe that they would face massive public disapproval, and, quite apart from anything else, a lowering of their self-esteem, if they did not. I happen to believe that that is one of the really remarkable things that we have in this country. It is one of the things that make me proud of being British. I compare that with the situation in other countries, including one with which I am closely linked, where I do not think that such a system prevails. Therefore, it is something to be nurtured, enhanced and celebrated, yet the Government have shown themselves consistently incapable of doing that. We have an example of that today, because it is the convention that a Bill of this importance should be taken on the Floor of the House, but the Government, in so far as they are concerned with convention, could not care less, so we will not do that.

Mrs. Dunwoody: This is an important point. Will the hon. Gentleman therefore tell me why the Conservative party accepted the fact that a major constitutional Bill of this kind, which is very important, should be dealt with in the way that has been proposed by Her Majesty's Government? They must have had talks with the Ministers concerned.

Mr. Grieve: I can reassure the hon. Lady that we have not. We shall vote against the programme motion and if in the course of this afternoon I can persuade the Government by my arguments to revise their proposals, I assure her that I shall be delighted. The entire Bill should be taken on the Floor of the House. It would need about four days, no more. It could be done simply and straightforwardly, and that would allow for the maximum participation by right hon. and hon. Members .

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