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Mr. Soley: One could, but that is a much easier matter to deal with. The House of Commons and the House of Lords can deal with those matters themselves and come up with a system that works. We are talking about something that has an impact on the vast bulk of the population, and those in the legal profession must answer the question why so many people see them as being very expensive and largely inefficient. That is not a good image, and they need to think about it.
Mr. Edward Garnier (Harborough) (Con): One of the advantages that the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) has over me is that he was able to make a speech wholly uninfluenced by most of the contributions made earlier in the debate. That may be something that the House will value. It is a pity that he was unable to be here to listen to the entirety of the debate, as I have doneno doubt he was absent for very good reasonsbecause he would have realised from the outset that he did not need to speak the first sentence of his speech, given that the Opposition Members who have spoken do not take the antediluvian attitude that he ascribes to us.
Many Opposition Members have spoken not in support of the Bill, but in support of some of its aspects, particularly in relation to the judicial appointments commission. There is much to be criticised in the detail relating to the judicial appointments commission, and my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) set out those criticisms very clearly. When the hon. Member for Ealing, Acton and Shepherd's Bush has a moment, perhaps tomorrow, I suggest that he read the speech of my right hon. and learned Friend, because, clearly, he did not have the advantage of listening to it this afternoon.
A number of hon. Members have criticised the Prime Minister for making these constitutional reforms, particularly in relation to the Lord Chancellor's office, on the back of an envelope, as part of a Cabinet reshuffle. Those criticisms are well made. That is not to
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decry all things that have been written on the back of an envelope. As I understand it, Abraham Lincoln's Gettysburg address was written on the back of an envelope, and it was none the worse for that. However, we are not here presented with some Leonardo-style doodle by a perceptive intellect on the constitution; we are hearing about what is effectively a mediaeval assassination note written by a contemporary Henry II to rid himself of a turbulent Lord Chancellor, Lord Irvine of Lairg. To do that, the Prime Minister had to invent a system that required the abolition of the office, without thinking of the consequences.
Most acts have consequences, and this act by the Prime Minister had profound consequences. It led to an embarrassing start for the office of the current Lord Chancellor, Lord Falconer, who is in every respect a perfectly likeable person, but who does not, I am afraid, carry either the political or the legal authority of many of his predecessors.
The Lord Chancellor is not always a politician. Lord Mackay of Clashfern was primarily a huge legal intellect, who reached the very highest office as a Scottish judge and as a Law Lord. He was translated into the office of Lord Chancellor, and I am not even sure that he was a member of the Conservative party until he became Lord Chancellor. The hon. Member for Ealing, Acton and Shepherd's Bush was wrong about that too.
Irrespective of whether a Lord Chancellor was a former party politician, it was assuredly true that once he became Lord Chancellor, he gave up any form of party political ambition and concentrated on doing what he was employed to do by the state: to defend to his last breathto quote Lord Hailshamthe independence of the judiciary. It takes someone of intellect and authority, and someone who is respected by the judiciary, no matter whether they are appointed by a judicial appointments commission or under the old system, to command not only the respect of the judiciary and the legal professionone can be as rude as one likes about either of those institutionsbut of Cabinet colleagues and the Prime Minister.
It is no good critics of the old system saying that the Lord Chancellor was no more than a jobbing politician, the protector of a vested interest and not a serious modern part of a modern constitution. It seems to me, at leastI leave it to others to make up their minds whether they agree with methat the reason that the office of the Lord Chancellor is old is because it is good and has served a useful constitutional purpose. However, the Prime Minister, his friends and those who like to write constitutional reforms on the backs of envelopes now come and tell us that the Lord Chancellor's office is bad, because it is old and needs to be modernised. As many Conservative Members have demonstrated all too well in the debate, the Government's arguments are ill thought out and have not been properly assessed.
One of the arguments put forward by the Government is that the office of Lord Chancellor is now out of date, so we should have a modern Secretary of State in the House who can secure the interests of that spending Department. If one changes the nature of the office or of the jobthe "post", as the Prime Minister prefers to call itit becomes increasingly ridiculous to call that office holder the Lord Chancellor.
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The Lord Chancellor whom the Government would like to see is no more than a junior or middling rank Cabinet Minister. Indeed, we see the genesis of that in the current pecking order in the Cabinet list. Whereas the Lord Chancellor used to be No. 2 or 3 on the listimmediately after the Prime Ministerhe is now second or third bottom in the Cabinet pecking order. That might be of no importance whatever, but it just so happens that the Government intend to fillet out the Lord Chancellor's functions and turn him into no more than the presiding officer over a spending Department. They will then say to the public, "How ridiculous to have a man who is the Secretary of State for Constitutional Affairs, the Speaker of the House of Lords, and a member of the other arm of the constitution. It is quite improper nowadays for this person to have a limb in each of the three parts of the constitution." The Government are performing a great con trick, and it is contemptible for them to try to persuade us that the changes that they are bringing forward are based on any thoughtful appreciation of what the constitution has stood for, and what the office of Lord Chancellor means.
The Minister who opened the debate said that it was right for the person who administers the courts to be a full-time Minister in this Housebut that argument is not especially useful when talking about the role of the Lord Chancellor. The Lord Chancellor's role is something else. We could have a courts Department, but if we go back only 20, 30 or 40 yearsbefore the Lord Chancellor's Department, or, now, the Department for Constitutional Affairs, became such a spending leviathanall the arguments that the Minister put forward at 3.30 pm fall to bits. [Interruption.] I can hear my hon. Friend the Member for Reigate (Mr. Blunt), but I have something to say.
The Minister said that changing the present situation would settle and clarify the relationship between the courts, the Executive and Parliament and make it easier to understand. If there were any logic behind the Government's arguments, they would remove the Executive from the legislature. If they wish to be purists in the misunderstood sense of Montesquieu, as the hon. Member for Stafford (Mr. Kidney) said, they would clearly separate all three limbs of the constitution, but they will not do so.
It is a pity that I have so little time, because although my views are no better than those of any other hon. Member, I would at least like the occasional opportunity to express them in the House. I would have liked to criticise the Government's proposals on the supreme court and criticise, yet support in part, their measures concerning the judicial appointments commission. Others have said a great deal about that, and no doubt hon. Members who could not attend the debate will be able to read what was said tomorrow.
Mr. Jonathan Djanogly (Huntingdon) (Con):
I declare my interest as a practising solicitor. It is good that a fair balance of lawyers and non-lawyers have spoken. We have had an interesting debate, but given the Government's proposals, it has not been satisfactory.
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As my hon. Friend the Member for Beaconsfield (Mr. Grieve) and other colleagues made clear, the constitutional proposals in the Bill began life as a slapdash press release from Downing street. One and a half years later, the Government's proposals remain as ill conceived as ever and insult has been added to injury because they have refused to allow such serious constitutional issues to be considered fully in Committee on the Floor of the House, as my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) powerfully explained. My hon. Friends the Members for Aldridge-Brownhills (Mr. Shepherd) and for South Staffordshire (Sir Patrick Cormack) and my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) supported that point.
The official Opposition will not oppose constitutional reforms that genuinely benefit this country, even when they are contained in such an unfortunate Bill. We accept the premise of the concordat and the redefining of the relationship between the judiciary and the Government for the reasons succinctly expressed by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), my right hon. Friend the Member for Wells and others. We thus do not object to the judicial appointments commission as long as merit, rather than a candidate's political views or crony potential, remains the sole criterion for the selection of judges.
The hon. Member for Stafford (Mr. Kidney) and the hon. and learned Member for Redcar (Vera Baird) broadened the argument about the commission by suggesting that there should be a greater mix of gender and ethnicity and more solicitor judges. The hon. Member for Stafford supported a more evolutionary approach, whereas the hon. and learned Member for Redcar was slightly more revolutionary.
We will not, however, support the acts of constitutional vandalism proposed in the Bill. What my hon. Friend the Member for Beaconsfield called the unedifying spectacle of the undermining of the historical office of Lord Chancellor and the creation of an unnecessary new supreme court are not changes that we believe the House ought to accept. Concerns about the Government's plans have been eloquently expressed, both in this place and throughout the Bill's passage in the other place.
I should like to address some of the interesting, and sometimes persuasive, arguments that we have heard today. Various hon. Members have considered the office of the Lord Chancellor. The right hon. Member for Berwick-upon-Tweed (Mr. Beith) explained the importance with which different groups view the role and its independence. We are still shocked by the Government's determination to mount an assault on this long-standing and constitutionally vital position. Indeed, it is only as a result of an Opposition amendment in another place that the Lord Chancellor has not been wiped clean off the face of the Bill.
In supporting the Bill for the Liberal Democrats, the hon. Member for Somerton and Frome (Mr. Heath) made a wide-ranging speech, which included his views on banning all Ministers in the other place and developing the role of the Attorney-General. I do not agree with him that a Secretary of State for
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Constitutional Affairs will have a stronger position in Cabinet than an unelected Lord Chancellor. We believe that the Lord Chancellor has, and should have, a vital role in upholding the rule of law and as the guardian of judicial independence. He should continue to act as the key link between the judiciary and the Executive, and his influence over constitutional matters should be maintained through the tenure of a senior Cabinet post.
Their lordships took a further opportunity to defeat the Government in the other place. In doing so, they secured an amendment to the effect that the Lord Chancellor must always be a member of the other place, as is the convention at present. That requirement would underline his ongoing constitutional role. He would also continue to assist in placing at least some distance between him and the political pressures of this place. Another Opposition amendment ensured that the Lord Chancellor will also need to have gained experience as a senior lawyer or judge. To undertake their delicate role, future Lord Chancellors must continue to be equipped with experience of interpreting the law.
The Minister today announced the Government's intention to reverse those improvements to the Bill. After the significant work in the other place, that is regrettable. As my right hon. and learned Friend the Member for Sleaford and North Hykeham said, both the requirement for membership of another place and that for senior legal experience will help to attract individuals who should be less susceptible to any political influence. As he eloquently put it, they will not give two hoots for preferment or patronage. We welcome that.
I agree with my hon. Friend the Member for South Staffordshire that the Lord Chancellor has the inherent power to stand up to Prime Ministers. He and my hon. and learned Friend the Member for Harborough (Mr. Garnier) also made the important point that, had we not had the Law Lords in the upper Chamber, the content of the Bill, as it was delivered to this House, would be much worse.
My right hon. Friends the Members for Suffolk, Coastal (Mr. Gummer) and for Wells, and my right hon. and learned Friend the Member for Sleaford and North Hykeham spoke of how style and convention is vital to the work of the Lord Chancellor and effective in practice. That includes the power of advice and influence, which needs professional expertise. A system that has taken 1,000 years to build is now, it is said, to be sacked in two years. The hon. and learned Member for Redcar said that it was unacceptable that members of the Executive should be able to appoint the judiciary, but spoke in rather absolute terms that do not always reflect the subtlety of our constitutional process.
Many hon. Members spoke of the Government's proposal to create a supreme court, which is also the focus of our reasoned amendment. In creating such a court, the only outcomes that appear guaranteed are unnecessary upheaval and unwarranted cost. The Government's starting estimate is for £30 million of set-up costs, but we all know how good they are at building estimates. Furthermore, an estimated £8.8 million of annual running costs for the new court stands in marked contrast to current running costs of a little over £168,000 a year. My right hon. Friend the
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Member for Wells mentioned how the situation is being exacerbated by proposals to increase court fees to litigants.
What do we stand to gain in return for that hefty investment? The Appellate Committee of the House of Lords is admired at home and abroad for the quality of its rulings, as hon. Members have said. The work of the Law Lords would not change in a new supreme court, as was pointed out by my hon. Friend the Member for Aldridge-Brownhills and my right hon. Friend the Member for Suffolk, Coastal. How would rehousing the Law Lords add anything to the excellence for which they are so rightly renowned? There may be some practical difficulties with the present arrangements, but why not explore further the suggestions made in another place for improving the facilities available to the Appellate Committee at Westminster?
The Government seem to think that the public are in total confusion over the role of the Appellate Committee and, worse still, they question the Committee's independence. I concede that a Lord of Appeal in Ordinary may not be a household name, but the role of the Law Lords as final arbiters of British justice is widely recognised in this country. We think that the public see clearly how well the country's highest court works and see no need to change it. A change of name would not produce some sudden breakthrough in public understanding. If anything, new questions would be thrown up. If a shiny new supreme court would prove so independent of Parliament, why would Parliament continue to be supreme over it?
The hon. Member for Perth (Annabelle Ewing) and the Scottish National party seem to be jumping on the bandwagon and want to use the proposals as an opportunity for the repatriation of jurisdiction to Scottish courts. As to the public's opinion, how would the court command more respect by moving from the nation's seat of power to less prestigious surroundings? The Law Lords might instead be perceived as ensconced in some ivory tower, delivering judgments detached from the real decision making in Parliament.
The hon. and learned Member for Dudley, North (Ross Cranston) made a serious and measured speech on access to justice, but his comparison with Zimbabwe reinforced our contention that what we have in this country works pretty well. Separation of powers does not require the Law Lords to be evicted from Parliament, just as the Government are not proposing that the Executive need to be prised from the legislature.
In noting the disagreement between the right hon. Member for Berwick-upon-Tweed and Lord Bingham, I add that the functions of the Appellate Committee would not change with a new building, nor would the impartiality with which the Law Lords undertake their work. The Government's arguments on the point seem theoretical at best and, at worst, represent a failure to recognise the overall constitutional balance that works in this country.
The integrity and independence of the Appellate Committee are not in question. As many hon. Members have attested, the scrupulous conduct of the Law Lords in another place already bears witness to their independence. Even the introduction of the Human Rights Act 1998 has not challenged that legitimacy. As my right hon. and learned Friend the Member for
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Sleaford and North Hykeham and others have noted, removing the Lords of Appeal in Ordinary from Parliament would only impoverish the quality of debates and legislation arising in the other place. The Law Lords would likewise stand to lose something: the benefit of their proximity to the heart of government. In short, our present arrangements are effective and respected. The Government's demand for a supreme court risks damaging that position, at significant financial cost and for few if any tangible benefits.
As my right hon. Friend the Member for Suffolk, Coastal warned, showing his experience of government and, incidentally, of a happy marriage, this is a Government of words, not action. He showed how we have not been given details of how the plans will work, while we know that what we have works now. He powerfully called for a return to courtesy being shown towards this place.
We must resist any further attempts by this Government to modernise purely for the sake of ticking another box in Labour's modernisation agenda. Enough parliamentary time has already been spent on measures that are not a priority for the British public. Like us, they will not understand why millions of pounds should be spent needlessly on a supreme court given that the Law Lords have proved so adept at their work. Similarly, they will not comprehend a Government who seek to abolish in the Lord Chancellor a Minister who for hundreds of years has helped to ensure that the rule of law is respected by the Executive. The Government are forcing through their constitutional hobby-horses with inadequate justification.
In those circumstances and for the reasons that I have set out, I ask the House to vote against the Second Reading of this Bill and in favour of the reasoned amendment tabled by my hon. Friends and me.
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