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Mr. David Heathcoat-Amory (Wells) (Con): I am pleased to follow my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack). I entirely agree with the wise remarks about how the Government have presented the Bill to the House. For that reason, I will not dwell on those points, except to endorse them wholeheartedly.
I am drawn to this debate not as a lawyer, but as part of the lay elementI have always regarded constitutional matters as being of supreme importance. The longer that I am a Member of this House, the more regard I have for constitutional issues, because they concern where power resides in the country, who exercises it and who is accountable, and to whom those people are accountable, how they can be removed and how they are appointed. Those issues transcend the temporary decisions of passing majorities in this House and lay down the ground rules under which future decisions will be taken.
What I have just said is disguised by the fact that we do not have a written constitution in this country. If we were in the United States, Australia, India or anywhere else with a written constitution, it would almost be certain that the issues before us today would be subject to constitutional amendments and would therefore require super majorities in the relevant parliamentary Houses and possibly a referendum too.
Under the unwritten British constitution, however, no Parliament can bind its successors, and no law or Act, whether constitutional or otherwise, is entrenched. Some disagree with that statement and claim that the Bill of Rights after the Glorious Revolution has an overwhelming status in our constitutional history to which we must refer, but the Dicey doctrine holds sway among most constitutional lawyers in holding that there is legally no such thing as a constitutional Bill and that any future Parliament may therefore repeal any previous Act, whether it is constitutional or not. That is the British system and the British way. It follows that the Government of the day may introduce or amend any Bill that they like in exactly the same way as any other legislation.
That is the legal position, but politically successive Governments have approached those matters with a good deal of caution and forethought, and even with humility. That makes it doubly disappointing that, in promoting the Bill, the Government have, as my hon. Friend the Member for South Staffordshire said, denied us the possibility of debating which clauses should be decided on the Floor of the House and which should be decided Upstairs. That is a monstrous denial of parliamentary powers and rights.
I have something even more troubling to say: the Government are serial offenders on constitutional reform and seem to regard the British constitution as
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something to be tinkered with as a matter of passing convenience. They lurch from one ill-thought-out proposal to another without any real understanding or analysis of the underlying principles and accumulated wisdom that is personified in that collection of statutes and conventions that we call the British constitution. They resemble a blind monkey trying to do a jigsaw puzzle. We have had the botched and uncompleted reform of the House of Lords; the fiasco over regional assemblies; and the proposed European constitution, which will be this country's written constitution if the Government get their way, and is being introduced without any plan or any real understanding of the implications of what is at stake.
So we come to the attempt to abolish the office of Lord Chancellor, which, as we have heard several times today, was done as part of a reshuffle. The office of Lord Chancellor is older than this Parliament, and it is outrageous that the temporary Prime Minister of the day should, as a matter of passing convenience, announce its abolition as part of a reshuffle without any consultation. There was no White Paper, nor were the Queen, the senior judiciary, the Cabinet or the House consulted or informed in any way. There was nothing about it in the Labour manifesto; no mandate whatsoever exists for these reforms. It was simply a way of conducting an awkward reshuffle, getting rid of one friend of the Prime Minister and replacing him with another.
That is a shameful way of approaching matters of such importance, particularly given that as recently as 2003the year of the notorious reshufflethe Government defended the position of Lord Chancellor, saying that that office,
"straddling as it does the three parts of the constitution, makes its holder uniquely placed to protect the interests of each part against the demands of the others. In particular, it both upholds judicial independence and mediates between the executive and the judiciary when occasion for controversy arises."[Official Report, House of Lords, 7 March 2003; Vol. 646, c. 1095]
What happened in the three months between that statement and the proposed abolition of that ancient office? Of course, those original proposals have been heavily amended in another place, which I congratulate on its struggle to get the Government to rethink their proposals, and I hope that they will accept most of the amendments that were forced on them or agreed to. However, the proposals remain radical.
The Government now have a new way of justifying the Bill. Many hon. Members referred to the separation of powers. Of course, I understand that the doctrine of separation is reflected in various parts of our constitution. Power should not reside in one person or one institution, and there must be a check and a balance on the exercise of all powers. However, it is a completely different matter to advance a pure separation of powers, which does not exist under the British constitution and never has. This House is a standing affront to the pure separation of powers. Of course, in some respects we are a legislature, because we pass laws, enact legislation and check the Executive, but we also support the Executive, who are among us and arise from us. One of the duties of the House of Commons is to support the Executive of the day. That commingling of different parts of Government is established in the House that is debating this Bill.
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So it is with the judiciary. It was noticeable that when the Government recently wanted somebody to do a very political jobto conduct an inquiry into the death of the weapons inspector, Dr. Kellythey appointed a Law Lord. The idea that has been advanced today in various quarters that there must be a rigid, pure and absolute distinction between the institutions of the judiciary, the Executive and the legislature does not apply and never has, and the Government do not believe it.
If the separation of powers is so important under the European convention on human rights and we are said to be vulnerable to a challenge, how is it that we signed the convention in 1950 and have existed for more than 50 years under the system whereby powers are not absolutely separated? If there is a problem and an impending court case under the convention in which we are said to be in breach of article 6, let us hear about it and deal with it. However, I know of no such case. The reverse is truethe independence and impartiality of the British judiciary are widely admired throughout the world. Indeed, the Government suffered from that when the judiciary in the House of Lords overturned their attempt to incarcerate people in perpetuity without trial. That happened over detainees.
The independence does not depend on any theoretical separation of powers but can be traced to the fact that we haveor had until nowa senior member of the judiciary at the heart of British Government. Again, my hon. Friend the Member for South Staffordshire made that point. It is crucial that that position continues in order to safeguard the rule of law and the independence of the judiciary against attacks by weaker members of the Government of the day, who are always irritated by the judiciary. Indeed, the previous Home Secretary recently expressed his frustration at the judiciary, which was inhibiting some of his plans on asylum and immigration. That is a bit rich from a Cabinet Minister in a Government who imported the European convention on human rights into our law.
A Lord Chancellor with the same status as in the past is better than declarations in the Bill that assert the judiciary's independence and the rule of law. They have no more than a declaratory value because no one will enforce them judicially. I quake at the idea of replacing the Lord Chancellor, with his historic office and traditional seniority, whereby he ranks alongside the Foreign Secretary and the Home Secretary, with a more junior Minister who may be called Lord Chancellor but will be no more than a career Minister on his or her way up the greasy pole, will have no respect for many of the conventions and will not bring to the Cabinet and the centre of Government the weight and authority that is our best safeguard of the rule of law and the independence of the judiciary.
Of course we need amendments from time to time. The idea of the Lord Chancellor's sitting as a judge has had its day. The Law Lords have agreed among themselves not to vote on matters that are partisan or could come before them in their judicial capacity. The position continuously evolves. However, the Bill goes much further. I am worried by the prospect of granting responsibility for appointments, even with a judicial appointments commission in place, to a comparatively
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junior Secretary of State, who may be called Lord Chancellor. I am more worried about that than about the Lord Chancellor's making appointments under the current system.
It is bizarre that the Government and the Under-Secretary who opened the debate made no criticism of the current appointments system. The hon. and learned Member for Redcar (Vera Baird) criticised it and she holds a more logical position. If there is something badly wrong with the current appointments system, let us change it. However, the Government's position appears to be that there is nothing wrong. They have no allegations about the quality of appointments or the criteriathey say that appointments should be made on meritbut they still want to change the system. I have observed lapses in the behaviour of recent Lord Chancellors, but not in regard to making appointments. I and others were critical, for instance, of the last Lord Chancellor for holding fundraising dinners for the Labour party while he was Lord Chancellor, but I certainly have no criticism of his judicial appointments.
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