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Mr. David Heath (Somerton and Frome) (LD): It is important for Members who are not lawyers to contribute to the debate; otherwise, there is a danger that it will become a dialogue between hon. and learned Members, and the measure is far too important for that to happen.
At the outset, I should say that the Liberal Democrats support the Billbut, my goodness, the Government have made it difficult for us to do so during its genesis. I do not accept the enormity of the problems portrayed by the Conservatives, and I do not believe that the supposed furore extends far beyond people with a particular and special interest in the proposals. Indeed, although excellent points were made in the debates in another place and by the Committees that considered the Bill, there was a great deal of trade unionismpeople protecting their own interests rather than looking at the wider aspirations of the proposals.
The Bill is an important measure in anyone's book. The Lord Chief Justice, Lord Woolf, has been cited a couple of times already, but it is worth underlining what he said on 7 December in the House of Lords:
"if we value an independent judiciary and its task in protecting our personal freedoms, we should ensure that this Bill reaches the statute book."[Official Report, House of Lords, 7 December 2004: Vol. 667, c. 759.]
That does not display the doubts which, it was intimated earlier, the Lord Chief Justice entertained. Of course he had doubts in the initial stages, but they have been resolved by patient consideration of the Bill in another place.
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Mr. Grieve: Does the hon. Gentleman agree that the Lord Chief Justice was concerned that there was a serious risk that there would be no end to the legislation? A hiatus was created when the Prime Minister tried to strike off or delete the post of Lord Chancellor in summer 2003. That was, and is, one of the major concerns of the Lord Chief Justice, and it may be one reason why he wanted to bring the matter to a conclusion.
Mr. Heath: I do not think it is for the hon. Gentleman or me to ascribe any further motivation to the Lord Chief Justice, and it would be unwise to do so. I am quite sure, however, that he shared the widespread concern about the way in which the proposal was introduced. The hon. Member for Nottingham, North (Mr. Allen) said in an intervention on the Minister that the Government had been urged to introduce the proposal for a long timeit had been subject to undue delay, but it was not a back of the envelope job. The sad news, however, is that it was both. Yes, the proposal was long overdue, but equally, it was produced on the back of an envelope, because the Prime Minister chose to make fundamental changes to the structure of government on the basis of poor or non-existent advice.
In my capacity as Liberal Democrat spokesman on constitutional affairs, I often ask people two questions. First, what is the link between the highest levels of the judiciary and my constituency? The answer is that the statue of justice on top of the Old Bailey was made in Frome. Secondly, who was Lord Chancellor in 1075? I am relying on various websites for the answer, as I cannot find any historical details about the brief occupancy of the Lord Chancellorship in 1075 by Baldrick. Everything about the introduction of the proposals smacks of the character of Baldrick in "Blackadder". As hon. Members will remember, he always had a cunning plan. This was the Prime Minister's cunning little plan, but it was rather a bad one, as it involved announcing the abolition of the post of Lord Chancellor without, apparently, a single thought about what would happen next. Indeed, the announcement was made on 12 June 2003, but it was not until 14 July 2003 that we finally had a White Paper that gave substance to the Prime Minister's spurious suggestions.
Mr. Gummer: Has the hon. Gentleman not underestimated the difficulty? When Baldrick had a cunning plan, he usually gave some evidence of thinking it out. The problem with this cunning plan is that when it was announced, there was no evidence that anyone had given it any thought at all.
Not only did the proposals lack any substance other than a relabelling, which was palpably inadequate to deal with substantial constitutional change but, even worse, people who should have been consulted were not aware that an announcement was about to be made. The Lord Chief Justice had clearly not been consulted, and neither had the senior judiciary. No one in Scotland was consulted at all, despite the fact that the proposals had
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implications for Scottish constitutional arrangements. That is a serious criticism both of the way in which the machinery of Government operated under the Prime Minister's edict and of the readiness to put into effect a fundamental change to our constitutional arrangements.
Consultation has now taken place, and it has been extraordinarily productive. We should give credit to everyone who has been involved in the discussions. In particular, the senior judiciary have been remarkably sensitive to the intentions of the Government, who have made a sensible response to those concerns. The concordat, which has been mentioned several times, is crucial, and it underlies our position on the Bill.
I do not wish to speak at inordinate length in a debate that has already taken up considerable time, but I shall look briefly at the proposals. The first does not concern the Bill itself, but the Department for Constitutional Affairs, which we christened "Decaff". People in the Department do not particularly like that abbreviationwhich only encourages me to use itbut it is apt, because of its "justice lite" brand, as opposed to the full-bodied equivalent . We have argued for a long time that we need a proper Ministry for Justice, which would encompass the responsibilities of the Department for Constitutional Affairs but would also go much further, taking a large chunk out of that monolithic bailiwick, the Home Office. Responsibilities that are not appropriate for a Minister with executive responsibility for the police and investigative services would be removed to a protected area, where the proper concerns of justice and the relationship between the citizen and the Executive could be taken into account. Our principal criticism, therefore, is not about the establishment of a new Department but about the fact that it does not have the scope to do the job that we would like it to do.
Secondly, we are anxious about the constitutional position of the Lord Chancellora post that was abolished in a day, but is now to be restored and maintained in perpetuity. There has been a great deal of debate about the doctrine of the separation of powers and, as hon. Members on both sides of the House are aware, such a doctrine is not current in our political philosophy, although it is in other countries. Surely, however, we have a concept in our political affairs of the de facto separation of matters that are properly the province of the judiciary and those that are properly the province of the Executive and the legislature.
It was an anomaly of staggering proportions to have in one person a Cabinet Minister with executive powera member of the Executiveas both the head of the judiciary and the Speaker of a House of the legislature. We only have to imagine for one moment arguing in a newly formed democracy that that was the right way for it to organise its affairs to realise what a constitutional anomaly it was. I am personally glad that the anomaly has at last, partially, been resolved. That is something that I have called for over many years, and I shed no tears for the judicial role of the Lord Chancellor, which I think was largely illusory in any case.
I part company with those who say that Lord Chancellors have never exercised their powers in a partisan way. The hon. Member for Beaconsfield (Mr. Grieve) was right to say that over the past 25 to 30 years we have had excellent Lord Chancellors who
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have not exercised their powers inappropriately. However, I am sure that he would agree that in the early part of the 20th century there were Lord Chancellors who were anything but entirely open and transparent in the way in which they exercised their powers.
Mr. Grieve: I entirely agree with the hon. Gentleman. Until after the second world war it was considered perfectly proper for a Lord Chancellor to exercise a degree of political patronage in judicial appointments. Times have moved on. That shows how evolution can take place within existing structures in our constitution by convention that subsequently become irreversible.
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