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Peter Bottomley: My hon. and learned Friend the Member for Harborough (Mr. Garnier) just said that he was making the point that the present arrangements allowed the Lord Chancellor to pick the new head of the family division. It is a pity that the Committee has had to hear the hon. and learned Lady refer copiously to her notes, which must have been written before my hon. and learned Friend made his intervention, because what she said in the last two or three paragraphs paid no attention to what he said and to what the Committee heard.

Vera Baird: First, that is utterly incorrect and secondly I am not reading from my notes. I am reading from the Hansard of what the hon. and learned Gentleman said last time. Would the hon. Gentleman like to borrow it? I am happy to hand it across.

Peter Bottomley: I repeat, my hon. and learned Friend said that he was illustrating the present method of appointment. Everything that the hon. and learned Lady said after that ignored what he said and that may not be regarded as the greatest courtesy to the Committee.

Vera Baird: The hon. Gentleman is wrong yet again. I heard what the hon. and. learned Gentleman affected to have said last time. That is what he has tried to put right tonight. I have read what he did say last time and what he said last time was a calculated slur on the current Lord Chancellor for seeking to "appoint his pupil master". Otherwise, as I have said, if the complaint is about the lack of transparency, why not complain about that lack in the other 10 judicial appointments made over the last few months? The position is utterly clear. It does not matter how many times the hon. Member for Worthing, West (Peter Bottomley) rises, he cannot erase what was said in Hansard.

8.30 pm

The fact that the current Lord Chancellor is a peer has not stopped him from being slandered on the basis that he is somehow inappropriate and not independent because he was once the flatmate of the Prime Minister. That, too, has been said innumerable times by Conservative Members. Neither has being a peer or, indeed, a lawyer, protected him from the allegation that he is inappropriate because he did not stop the ouster clause from being placed in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, though, of course, that never happened. Scandalous and silly attacks against the current Lord Chancellor have been made and the fact that he is a peer has not protected him from them.

It is ironic that the very party that has tried to use the fact that the current Lord Chancellor is known to the Prime Minister and was appointed to the peerage to become Lord Chancellor by the person who was his flatmate when they were both lawyers as evidence that
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the system is somehow under threat from the Prime Minister's cronyism is the same party that is now saying that the way to protect the legal system from an inappropriate threat is to ensure that the next Lord Chancellor has exactly the same professional qualifications as a senior lawyer and exactly the same status as a peer as the current Lord Chancellor. Conservative Members repeatedly say the opposite of what they previously said from one week to the other, tying themselves in silly knots. The current Lord Chancellor is, incidentally, an absolutely excellent holder of that office—and he would be if he were in the House of Commons.

What protection are we to derive from the fact that the next Lord Chancellor must, if the Tories have their way, be a peer? Well, we would be so well protected that Lord Archer or anyone else in the peerage who had been convicted of a criminal offence could become Lord Chancellor. Such people are not debarred from holding their peerage. I guess, also, that the son of a son of a son of a son of a son of a notable peer, in whom the strain of high merit has grown a little thin over the years, could equally be appointed Lord Chancellor. By the skin of our teeth, we have just escaped the possibility that the Lord Chancellor could be someone convicted in South Africa of being involved in an attempted coup against the Government of Equatorial Guinea—the son of a former Prime Minister. Happily, he has only a hereditary baronetcy, but it is pretty close. [Interruption.] Some Conservative Members are acknowledged experts in the ranking of the hereditary peerage and have a degree of understanding way beyond my own in that respect.

That shows how much protection there is in ensuring that someone is a peer. It does not make the slightest bit of sense. It is clear that making the Lord Chancellor a peer provides no protection. It is the calibre of the person that matters, and the calibre can be high, irrespective of whether he or she is chosen from the House of Commons or the other place. The overwhelming case for him to be in the Commons centres on the answerability argument.

Let me now deal with the second proposal—that the Lord Chancellor should be a senior lawyer. It is not just a senior lawyer, though, but one with particular qualifications—

The Temporary Chairman (Mr. George Stevenson): Order. The hon. and learned Member will know that the issue of the Lord Chancellor being a lawyer is dealt with in clause 3, which we shall come to in a moment. We are currently debating the particular issue of membership of the House of Lords.

Vera Baird: I am grateful for that guidance. The hon. Member for Huntingdon in opening for the Opposition, referred to the two issues as a package, so it seemed right for me to deal with them in the same way, but I shall return to that matter later.

Mr. Garnier: I shall not follow the hon. and learned Lady down the somewhat acerbic and personalised route that she took, because doing so advances neither her own arguments nor the general tenor of the debate. She is, of course, perfectly entitled to make her remarks and deliver them in whatever tone she wishes. I would not want to prevent her from doing so.
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I would like to concentrate on some of the differences in the two sides of the argument, not because I believe that one side is necessarily right and the other necessarily wrong, but because I merely want to express my opinion. I am not saying that, if either or both of clauses 2 and 3 were removed from the Bill, civilisation as we have known it for the last 3,000 years would cease to exist. It is silly to put such arguments into our minds, but it is important to appoint the best person for the job of Lord Chancellor.

Given how the Bill has been amended and how the functions of the office of Lord Chancellor are to be radically changed, it would be more honest, in the end, to describe the Secretary of State for Constitutional Affairs—the head politician of the £3 billion a year public Department—as the Lord Chancellor. The person who will hold the title of Lord Chancellor after the Bill is enacted will not be a Lord Chancellor as we have all understood it for the past 30, 40, 50 or perhaps 100 years. He will still less be the same sort of Lord Chancellor who existed in the days of Henry II or even Henry VIII. We are dealing with the title "Lord Chancellor" differently from how Lord Irvine, Lord Gardiner, Lord Hailsham, Lord Kilmuir and any other relatively recent, but not extant, Lord Chancellor would have understood it.

I described the Bill and clause 1 as intellectually dishonest, and there is something intellectually dishonest about pretending that the Lord Chancellor will be anything but a politician who heads a spending Department. The title will be continued for political convenience and to prevent people from having hissy fits about its removal, but the job will not.

We must be clear about the situation. I am perfectly prepared to have a Lord Chancellor with functions and a remit that are much more restricted than those of the current holder of the office. In the 1950s, the Lord Chancellor's Department had a tiny number of civil servants and little spending power. Beyond his ceremonial role, the Lord Chancellor did little more than chair the House of Lords and deal with the appointment of the judiciary. The judiciary was taken only from the Bar of England and Wales in the 1950s. There were only between 2,000 and 3,000 barristers in those days—perhaps not even as many as that—so it was perfectly possible for the Lord Chancellor personally to know the candidates from the Bar of England and Wales who would be of suitable quality for high judicial office.

I understand that that is no longer possible. The Bar of England and Wales now numbers between 10,000 and 12,000 people and there are about 70,000 to 80,000 practising solicitors in England and Wales. Those people form the pool from which the judiciary may be selected, so the Lord Chancellor cannot possibly be expected to know all 80,000 to 95,000 lawyers who could be eligible for judicial office. The Lord Chancellor's job and functions are thus completely different from those in the 1950s and the early 1960s, but for all sorts of reasons—good and bad—we want the title to continue. As I said a moment ago, however, we are misleading ourselves if we think that the Lord Chancellor, as head of the Department for Constitutional Affairs, is doing anything like the job of the old Lord Chancellor.
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We also fool ourselves and perhaps get into a bit of a muddle if we try to rely on the words of Lord Woolf as being for or against the argument. During the previous Parliament, the then Home Secretary—he is now the Foreign Secretary—thought it appropriate to rely on extracts of correspondence that he had had with the then Lord Chief Justice, Lord Bingham. He made the mistake, as others have done in court and perhaps in the Chamber, of reading only an extract. He cited the extract in support of the Government's policy to curtail jury trials, but if he had read the whole letter, he would have discovered that the then Lord Chief Justice's views on the matter were not as he hoped that the House would understand. Similarly, those who agree with the Government's view on clause 2 should not look for too much support for their position in what Lord Woolf has said, or is reported to have said. There are two reasons for that. First, I suspect that his views, as expressed publicly, are designed to lead to some sort of compromise and are not necessarily the views that he might express in private. I have not discussed the matter with him, so I have no way of proving that one way or the other. I merely caution Members against relying too much on extracts from letters or documents penned by the Lord Chief Justice in support of arguments that they want to make.

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