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Mr. Gummer: The hon. Member for Crewe and Nantwich (Mrs. Dunwoody) is herself an example of the importance of convention. The attempt to remove her as Chairman of a Select Committee was clearly unacceptable. The Government behaved perfectly legally, but in a way that all convention spoke against. Is it not true that convention is a civilised way of running a Government and a Parliament, and do we not get rid of it at our cost?
Mr. Grieve: I agree entirely with my right hon. Friend. I commend to the Minister the words of a distinguished Labour Minister, Herbert Morrison, who said:
"You cannot play about with the British Constitution in a Committee Upstairs, to put it colloquially."
Mrs. Dunwoody:
On a point of order, Mr. Deputy Speaker. I apologise for interrupting, but earlier
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Mr. Speaker said that the programming of the Bill was a matter for arrangement between the two Front-Bench teams. Am I to take it that that negotiation has not taken place?
Mr. Deputy Speaker (Sir Michael Lord): That is not a point of order for the Chair. I have no knowledge of what has gone on between the usual channels.
Mr. Grieve: I can tell the hon. Lady that the negotiations failed, because our proposal that the matter should be taken on the Floor of the House in the ordinary way was rejected by the Government, who have tabled a motion, on which we shall vote after Second Reading, insisting that large chunks of the Bill should be taken Upstairs. It is of more than abstract significance. It is extraordinary. The Minister spoke earlier about the importance of the new judicial appointments mechanisms in terms of the point at which the Secretary of State for Constitutional Affairs/Lord Chancellor would have a choice to accept or reject a nomination. The hon. Lady may agree that that is an important point. It is in clauses 64 and 71, but those clauses will not be considered on the Floor but Upstairs. Even now, the Minister has time to change his mind and ensure that those clauses are considered on the Floor.
Mr. David Heath (Somerton and Frome) (LD): I will advise my hon. Friends to vote against the programme motion this evening and was not consulted on whether any or all of the Bill should be taken Upstairs.
Mr. Grieve: I am sorry to hear that the hon. Gentleman was not consulted, because he should have been. I understand that a discussion took place with Government representatives and that no meeting of minds occurred. The sensible course of action is for the entirety of the Bill to be considered on the Floor.
Mr. Garnier: The Government's attitude to the question is exposed by motion 3 on the Order Paper, which states:
"No debate" is in heavy type. The Government do not like debate and being held to account. They want to force us to take on everything that they push forward, irrespective of what the public and the House of Commons think.
Mr. Grieve: I agree with my hon. and learned Friend. It is regrettable that we cannot debate the programme motion and, although the situation is still unsatisfactory, that is why we are seeking to touch on the matter here on Second Reading.
Moving on from the question of the Lord Chancellor, if the Minister is prepared to accept the amendments, which were tabled and voted on in the other place, to the effect that the Lord Chancellor should remain in the House of Lords and be a lawyer, a meeting of minds will occur between Conservative Members and the Government on that part of the Bill. The Minister may have great difficulty getting the Bill through Parliament
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unless that concession is made. The Bill started in the House of Lords, which is a good reason why the House of Lords should have some say on how it is finished.
I hope that we can persuade the Minister to make a small but significant change in Committee to ensure that the Lord Chancellor/Secretary of State for Constitutional Affairs is not a politician on the make and not subject to the inevitable political pressures in respect of the judiciary. Such political pressures are generated, often understandably, in this House and they are thoroughly undesirable if they influence the decisions of individual judges. That change would ensure that the independence of the judiciary is maintained. The Minister may argue that the concordat is sufficient, but the concordat is valueless unless good will exists. The best way in which to generate good will is to have the highest standards, which would come from the preservation of a large part of the substance of the office of Lord Chancellor as well as the name.
Vera Baird: Is the hon. Gentleman aware that the qualification in clause 3 that the Lord Chancellor must be a lawyer, which is likely to be met most of the time, also requires that person to be a High Court advocate under the Courts and Legal Services Act 1990? I may be wrong, but that seems to be the requirement. That would exclude, for instance, a senior solicitor who has not bothered to obtain that qualification because they are not engaged in that kind of practice. Is that not an undue restriction on the available pool of post holders?
Mr. Grieve: I am broadly content with the legal qualification in clause 3. If it concerns the hon. and learned Lady, it is precisely the sort of area that can and should be examined in Committee, but it is not the main issue.
In a moment, I shall discuss how the judicial appointments commission will function, but the person who fulfils the ministerial office—I shall be interested to hear the Minister's view in Committee—must take a close interest in the judiciary and its career structures, who is doing well, how the judiciary operates on a day-to-day basis and any problems that the judiciary may have. As the Minister will confirm, one of the key roles of the Lord Chancellor that remains in the Bill is that of initiating the process by which the judicial appointments commission becomes operational, as well as having an ultimate power of veto over certain appointments.
Mr. Hogg : Does my hon. Friend agree that one of the chief functions of our Lord Chancellor is to constitute a source of advice and influence that can be set against the Home Secretary? As that is usually to do with constitutional or criminal law, is it not rather important that the Lord Chancellor should have some professional expertise in that field?
Mr. Grieve: My right hon. and learned Friend pre-empts my next words. He is of course right.
As I said at the outset, having a judge representing the judiciary in the heart of Government is among the principal important functions that the Lord Chancellor has fulfilled. After the events of summer 2003, the judiciary expressed great anxiety about the political pressures on it that were building up. The downgrading,
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in effect, of the office of Lord Chancellor into that of a minor Minister was beginning to have an impact on the judiciary's sense of independence. We saw that when the then Home Secretary told the House that magistrates should go to public meetings to be told how to perform their functions, and when, in extraordinary fashion, he started to usurp the power relating to how the Crown Prosecution Service should operate. As my right hon. and learned Friend may remember, that was the subject of a statement or urgent question in this House. The actions of the Home Office gave rise to great concern about whether judicial independence could and would be maintained. These are not just abstract problems.
The Lord Chancellor is not symbolic and his role should be reinforced. I am convinced that if the Government see sense on this, they will have no cause to regret it. I cannot see any problem for them in keeping the Lord Chancellor in a status that means that further preferment will not be open to him. That is advantageous—but substituting a Minister on the make is an enormous mistake.
Mr. Leslie: The hon. Gentleman disparages all Ministers who are neither lawyers of large significance nor peers as "Ministers on the make." Can he justify having this legal qualification for the new ministerial post by explaining why he, for instance, would be superior to, say, his colleague the right hon. Member for Haltemprice and Howden (David Davis), who does not have such a qualification?
Mr. Grieve: The Minister completely misunderstands my point. There are two separate issues. First, the office holder should be in the House of Lords and should take an oath that disqualifies him from further participation in Government thereafter—that is valuable and has nothing to do with his legal qualifications. Secondly, he should be legally qualified because his role is intimately involved in the selection of the judiciary and the knowledge of how the judicial system works. Thirdly, as my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said, he should provide a lawyer's input into the issues of judicial independence that he is there to maintain. For all those reasons, I would keep the office of Lord Chancellor as provided for by the Bill as amended in the other place.
I told the Minister at the outset that we support the principle that a judicial appointments commission should be set up, so many of the comments that I wish to make can be reserved for Committee. However, it is worth bearing in mind one or two key points. If the commission is to work, it must have sufficient flexibility to be able to respond rapidly to any given situation. For example, it is well known that at the end of the Pinochet case, the then Lord Chancellor realised that the House of Lords faced difficulties. He therefore carried out a musical chairs reshuffle, which worked superbly. He appointed a new senior Law Lord and a new Master of the Rolls and the consequences were widely appreciated. I have a concern—which I hope the Under-Secretary will note, even if he does not respond to it later in the debate—that the commission should have sufficient flexibility to act, if necessary, with similar finesse. That is important, because when one examines the bureaucratic structures that are being set up there must an anxiety
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that, however worthy the aims of the judicial appointments commission, it will not have the ability and flexibility to move in that fashion.
Earlier, my hon. and learned Friend the Member for Harborough (Mr. Garnier) mentioned the appointment of the new president of the family division. I make no criticism of the appointment, which appears to be unusual and, we hope, creative. However, I am bound to say that it was possible because, for better or worse, of the ability to make decisions in a highly flexible manner. I therefore need reassurance that appointments by a judicial appointments commission can have similar flexibility. I hope that the Under-Secretary will accept that as a seriously made and well-intentioned point. There is no point in our ending up with a rather ponderous organisation that fails to deliver the necessary flexibility to ensure that the higher echelons of the judiciary can be so moved around that people are happy in their jobs, that it functions well and that there is public confidence in it.
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