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Mr. Djanogly : Lord Lloyd of Berwick successfully moved an amendment on Report in the other place to require the Lord Chancellor to be a Member of the House of Lords. He made various comments that are worth repeating. He said:
"The issue was, I would submit, very clear; whether the job that I have described, and which was agreed, should be performed by the Lord Chancellor in this House, or whether it could be performed by a Minister in the House of Commons. That was what the debate was actually about.
Yet, the Lord Chancellor now says that all that was in issue was a name, a shell without the kernel, so that the Lord Chancellor would become just another name like the Lord President of the Council and the Lord Privy Seal. I cannot accept that as a fair reading of the debate that took place in Committee."
"I therefore come to the fourth and last argument that has been advanced. It is said that the Prime Minister should be free to appoint whoever he wants to run the courts—free to appoint a Member of the other place who is not a lawyer and could be quite junior in Cabinet ranking. That is the real difference between the two sides in this debate. In my view, the task of defending judicial independence in the Cabinet is of such critical importance that it should be given to a senior judge or lawyer who is a Member of this House and not to a politician on his way up the greasy pole."—[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 750–51.]
Peter Bottomley (Worthing, West) (Con): Is not that point illustrated by the fact that, during the few hours when there was no Lord Chancellor in the botched Cabinet reshuffle, the Government decided to make major changes to the judiciary? That emphasises why we should always have someone around who will say to the Prime Minister and his modernisers, "Don't go so fast with our independent judiciary."
Mr. Djanogly: My hon. Friend makes a good point. That strange moment in history was especially bizarre because the Lord Chancellor appeared to say that there was a need to modernise at a time when the constitution was working well rather than waiting until it had become weak. When something does not work and is weak, such as—dare I say it?—the dome, not much appears to be done about it.
Vera Baird: Will the hon. Gentleman explain how putting the Lord Chancellor in the Lords provides greater protection if the person who is appointed is a young and ambitious peer who hopes to get on in politics?
8 pm
Mr. Djanogly:
I shall come to that in a moment. A package of issues is involved here, the conclusion of which is the part of the Bill that we are now defending, and we have to look at those issues in context.
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Lord Lloyd of Berwick surmised that the evidence given in Select Committee was almost overwhelmingly in favour of his amendment, citing
"the views expressed by the Law Society; those expressed very firmly by the House of Commons Constitutional Affairs Committee; the views expressed by the noble and learned Lord, Lord Bingham, on many occasions . . . when he was Lord Chief Justice; and in the Law Lords' evidence to the Select Committee, and so on."—[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 753.]
Mr. Beith: The Committee strongly asserted its view that the occupant of the post should be a senior person who is not looking for further political office. However, not everyone in the House of Lords fits that description, and not everyone in the House of Commons would be disqualified on those grounds.
Mr. Djanogly: I thank the right hon. Gentleman for making that point. I shall come to his Committee's recommendation in a moment, and he might wish to comment further then.
Vera Baird: I am sorry that the hon. Gentleman has said what he just did, because the House of Lords Select Committee did not recommend that the Lord Chancellor should be a peer. Opinion was divided on that issue. Neither did the Committee on which the right hon. Member for Berwick-upon-Tweed (Mr. Beith) serves say whether the Lord Chancellor should be a peer or not. In fact, it expressly stated that it found no compelling argument that he should be. The hon. Member for Huntingdon (Mr. Djanogly) should be careful to ensure that he is right when he says that he is giving the overwhelming view of all sides.
Mr. Djanogly: I shall not dispute what the hon. and learned Lady has said. I was quoting from Hansard, and it is on the record. She has made her point and I thank her for that.
The requirement for the Lord Chancellor to be a senior lawyer is part of a package that is represented in clauses 2, 3 and 4. In respect of clause 4, we are saying that, for judicial independence to work, the Lord Chancellor needs to be a Member of the House of Lords and to be a senior lawyer. In effect, we are saying that the Lord Chancellor should not just be a full-time politician like any other running a Department; he should be slightly removed from the intensity of political pressure, in order to fulfil the Lord Chancellor's important historic role of acting as guardian of the rule of law and representative of the judiciary.
That would best be achieved by his being a Member of the House of Lords, because the atmosphere in the other place is less political. Furthermore, a peer would be likely to be a senior individual who had reached the latter stages of his or her career, and would therefore be less likely to be swayed towards unquestioning support for the Government on the basis of a promise of political advancement. Lord Howe of Aberavon said:
"Secretaries of State do not always realise it, but their functions can be shuffled around at will. Secretaries of State are relatively small beer compared with the importance of the Lord Chancellor's position."—[Official Report, House of Lords, 7 December 2004; Vol.667, c. 764.]
That is indeed a sobering thought for the average Secretary of State.
The House of Commons Select Committee on Constitutional Affairs published its report on 25 January 2005. It states:
"Assuming that the House retains the Bill to an extent in the format in which it arrived from the House of Lords, on balance we prefer to keep the office of the Lord Chancellor and its distinctive status, different from that of all other members of the Cabinet, because as we said in our earlier report when contrasting the role of the Lord Chancellor with other ministers, the Lord Chancellor 'has a special constitutional importance enjoyed by no other member of the Cabinet and . . . is usually at the end of his career (and thus without the temptations associated with possible advancement)'."
"Although it may be more likely that someone in the House of Lords as at present constituted has the seniority and lack of aspiration towards further office which we considered desirable, it is by no means certain, and there will be suitable candidates for the post in both Houses."
I take the point that the Committee makes there. However, that is surely overcome to some extent by the flexibility of the other place to appoint people in a faster and more direct way than exists in this House.
The Lord Chancellor should be a politician at the end of his career, not a junior politician on the make. The Lord Chancellor is the guarantor of judicial independence, and the Government's proposals to open the position to a Member of the House of Commons who might be relatively junior and need not have a legal background would weaken the Lord Chancellor's ability to defend judicial independence against more powerful colleagues. The Bill as it stands will help to ensure that the Lord Chancellor's position as the guarantor of judicial independence is maintained. It would strengthen the office, and the Government should leave this clause alone.
Mr. Tyler: My colleagues and I would like to support the Government in rejecting this requirement and to insist that it is much more important to retain flexibility. Frankly, the arguments adduced by the hon. Member for Huntingdon (Mr. Djanogly) were very dubious indeed.
Mr. Heald: Will the hon. Gentleman give way?
Mr. Tyler: Not at this stage; I have hardly started. Let me advance my argument first, then we can see what the hon. Gentleman has to say.
The hon. Member for Huntingdon did not refer to the fact that the concordat, which is extremely important, now accepts that this flexibility would be useful. Furthermore, I reject the selective way in which he quoted from the Select Committee chaired by my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith). It was absolutely outrageous. He left out the vital sentence at the end of the recommendation. He led up to it perfectly properly, by saying:
"Although it may be more likely that someone in the House of Lords as at present constituted has the seniority and lack of aspiration towards further office which we considered desirable, it is by no means certain, and there will be suitable candidates for the post in both Houses."
"There does not, therefore, seem to be a compelling argument for insisting that the Lord Chancellor must be a member of the Upper House."
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