I have difficulties with the notion that the Lord Chancellor has to remain as the Secretary of State in charge of a major Department of State, in the House of Lords. I have problems with that on a number of fronts. I think that as a matter of principle, Secretaries of State should be answerable to this House. I am sorry that not everyone agrees with that, but I think that that should be the position. With all due respect to the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy), who is sitting on the Government Front Bench, I do not think it is right that this major Department of State can answer to this House only through the person of a junior Minister. The Secretary of State should be available to us for questioning.
I find it difficult to countenance any Secretary of State being in the upper House. That is my personal view. I cannot understand the position of those who criticise the present Lord Chancellor by saying that he is one of the Prime Minister's cronies and used to be his flatmate, which played a part in his appointment. I think that the present holder of the position often does a very good job, but that is a common criticism. Why, then, would he want to institutionalise that arrangement, so that every future Lord Chancellorevery future Secretary of State for Constitutional Affairshad to be a crony of the Prime Minister of the day, because only by that patronage does anyone appear in the other place?
That is an extraordinary anomaly. There is a further anomaly, and I have to say that the hon. Member for Beaconsfield rather ducked it when he was intervened on by one of his hon. Friends. If the Conservatives wish to see an upper Chamber that is 80 per cent. elected, why is it all right to have a Secretary of Statea Lord Chancellorwho is elected and sits in the upper House, but not all right to have a Secretary of State who is elected but sits in the lower House? Where is the constitutional logic of that position? I do not think that there is any logic.
I leave to one side the composition of the upper House after any reform that a Conservative Government might carry out, but the hon. Gentleman is
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missing the point. By virtue of taking the oath, irrespective of whether the Lord Chancellor is elected or not, he will not be able to have a further career in politics thereafter. That is the central point: the Government do not wish to see that happen. It is a question about the career of the person who holds the office, and the sensible place for him to be is in the House of Lords.
Mr. Heath: I am much more content to ensure that the Lord Chief Justice is genuinely independent of the Executive, is genuinely independent of the legislature and carries out many of the functions that give rise to concern in the hon. Gentleman's scenario, rather than being Secretary of State for what I would wish to be a Ministry of Justice. Under the present arrangements it will be a Department for Constitutional Affairs.
Mr. Hogg: I do not want to disparage the Lord Chief Justice or other holders of that office. I am sure that the hon. Gentleman will recognise that much of the debate is essentially of a political character, as between the holder of the office of Lord Chancellor and the Home Secretary. The problem is that the Home Secretary's office is extremely powerful. What we need to set against that office is the authority of somebody else who is in a position to bear down on the Home Secretary, and persuade his Cabinet colleagues to disagree with him. There are advantages, therefore, in adopting the suggestion of my hon. Friend the Member for Beaconsfield.
Mr. Heath: I am grateful to the right hon. and learned Gentleman for his comments. I listened to him with a great deal of respect. It is precisely for that reason that I do not want to see a Lord Chancellor without any great status within the pecking order of the Cabinet because of the relatively junior status that has been accorded to the Department for Constitutional Affairsand without the merits of an electoral mandate, toobeing bullied by a Home Secretary. I take exactly the point that the right hon. and learned Gentleman has made. I think that we would be better served by having a strong Cabinet Minister answerable to the elected House with a mandate of his or her own to counter the weight of the Home Secretary. We should also rearrange the functionality between the two Departments so that the Home Office is cut down to size and the Department of Justiceas I would have itis a much more significant body. That is a genuine disagreement that we can hold. I think that we can both agree that there is a need for the person who heads the Department to have sufficient status and weight to be able to hold their own.
Mr. Kidney: To be clear, before the hon. Gentleman moves on, given the Liberal Democrats' support for a full-blown Ministry of Justice, may I take it that he believes that the Lord Chancellor does not need to be a lawyer to hold that position.
That is my view. That is the view that I will express in Committee when we reach that stage. I do not want to mislead the hon. Gentleman, and I will make it plain that some of my noble Friends, many of whom have legal qualifications, take a different view. However,
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from this Bench in this place, I shall express the view that the legal qualification is not a necessary part of the equation.
I now move on to the proposals for the Supreme Court. This is a significant move but not a revolutionary one. It is absurd to suggest that it is. It is confusing and pointless that we have a Supreme Court already, with absurd names such as the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council acting in its constitutional role, and we choose to call the members of the Supreme Court the Lords of Appeal in Ordinary. Lords of Appeal in Ordinary is exactly what they are not, and nobody should suggest that they are.
We have a senior court which is not the House of Lords despite the fact that people think that it is. It is a separate body of judges that happens to sit, rather uncomfortably, within that edifice. It has an entirely different function, as has already been argued in this debate, and very often Law Lords do not exercise their role within the legislature, and nor should they because that puts them in an invidious position in dealing with their primary responsibilities.
We have fictions built on fictions built on fictions. Because I believe that we should be a modern democracy where things are as clear as possiblealthough nothing in the law can be entirely clearit is helpful to the general public to understand that we already have a Supreme Court that is a separate entity and fulfils a particular function, and that the members of that Supreme Court are the senior judiciary of the land.
As regards judicial appointments, I wholly support the proposals, with one caveat. In Committee we need to do justice to the concerns expressed by Sir Colin Campbell and the Commission for Judicial Appointments about the structure and role of the proposed judicial appointments commission. We ought to be careful to assess the validity of those concerns.
In general terms, there is much to support in the proposals. I welcome the enhanced role of the Lord Chief Justice. As I said, I should like to explore whether the Attorney-General should have further express duties. The holder of that office sometimes plays a more significant constitutional role than we give credit for. It is a developing role, and transparency and clarity about what is expected of the Attorney-General, particularly in giving unequivocal advice, perhaps when that is not sought, on the appropriateness or legality of Government actions, might be an enhancement of the role.
Mr. Grieve: The role of the Attorney-General as the sole proper legal figure in Government has clearly been enhanced by the fact that the Lord Chancellor's role has been so dreadfully diminished. The two go together, which is one reason why the Lord Chancellor's office should be preserved.
Mr. Hogg: I would not want to discourage the hon. Gentleman from being brief, but does he accept that there is in principle much to be said for the Attorney-General sitting in this House, and that whenever possible the Government should appoint as Attorney-General someone who is in this House?