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Mr. Beith: On the principle that the hon. and learned Gentleman is advancing, it is quite proper that anyone considering the views of the Lord Chief Justice or anyone else should look at them in their entirety and not misquote them, but to take the view that someone might possibly have said in private something that differs markedly from what they said in public is not a particularly good way of assessing their declared opinions.
Mr. Garnier: I accept that. That is why I said candidly a moment ago that I had no proof one way or the other; I merely caution Members against relying on the written words of Lords Chief Justice, especially when they are quoted out of context.
More to the point, and more interestingly, when people complain that the judiciary, or some members of the judiciary, are members of the House of Lords and thus members of the legislature, and that that confuses those two pillars of the constitution—namely, the legislature and the judiciary—and demand the setting up of a supreme court outside Parliament whose judges are not Members of Parliament, it strikes me as odd that, despite that, they rely on the views of Law Lords, or the Lord Chief Justice in this instance, to support their case. I make that criticism of both sides of the argument.
My hon. Friend the Member for Huntingdon (Mr. Djanogly) quoted at length from the speech of Lord Lloyd of Berwick. He is perfectly entitled to do that, but such quotation does not always assist; it is our arguments and views that are important when we discuss Bills in this place, although we should no doubt pay respect to the views of their lordships. Equally, if it be thought by the purists on the other side of the argument that there should be an obvious and clear separation of the judiciary from Parliament, surely we should not allow ourselves to be influenced in coming to our views by the views of members of the House of
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Lords who are judges. We should respect the purity of their arguments by not paying too much attention to their views.
Peter Bottomley: The point that I have taken from this is that the word "concordat" means agreement and that the word "compromise", at its best, means agreement. It is clear that in the concordat the present Lord Chancellor has signed up to things with which he disagreed. He was willing to change his views, so the Committee can say that we should not take a single sentence from one part of the concordat to determine which way we would prefer to go ourselves.
Mr. Garnier: My hon. Friend anticipates me, because I do not think that we should legislate by concordat. We should legislate in this and the other place, and I am not sure that it is proper for a judge, no matter how eminent or senior, to reach agreements with a member of the Government, or with the Lord Chancellor, in such a way as to design the legislation that the Government intend to push through the House. I accept that the Government have a vast majority and that all the arguments we make against their legislation will soon be tested in the Lobby. It does not take great powers of anticipation to know what the verdict of the Division will be. None the less, there seems to be a huge inconsistency in the way in which we treat the opinions of members of the House of Lords who are also members of the judiciary.
We should be robust enough to put forward our own arguments. We may disagree; the hon. and learned Member for Redcar (Vera Baird) and I have had our disagreements. She is a passionate supporter of the supreme court and of the removal of the Law Lords from the House of Lords and their placement somewhere else. She is a passionate supporter of the reform of the office of Lord Chancellor. I happen to disagree with her, but that need not be a cause of a war or a spat. They are just two separate opinions, which we are entitled to express. If she wishes to express another, I would be delighted to let her.
8.45 pm
Vera Baird: I am concerned that the hon. and learned Gentleman seems to be suggesting that the Lord Chief Justice has signed up to something with which he does not agree. I do not know on what basis the hon. and learned Gentleman suggests that, nor do I understand on what basis his colleague, the hon. Member for Worthing, West (Peter Bottomley), expressed a similar view, trying—not for the first time—to expand or explain the point.
Will the hon. and learned Gentleman explain why he says that Lord Woolf may have signed up to a concordat with which he does not agree? Will he explain why he says that it is our views that count and that we should not be influenced by what Lord Woolf says, despite his having a representative role on behalf of the judiciary? Will he explain that particularly in the light of another quotation of Lord Woolf—this is Hansard and not letters from Lord Woolf—in which he says that the Bill is
"a piece of great reforming legislation . . . It will rank in importance with the great constitutional instruments of the past."—[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 759.]
Does the hon. and learned Gentleman think that he meant it, or not?
The Temporary Chairman: Before the hon. and learned Gentleman gets to his feet again, I should say that I have not been in the Chair long but I am beginning to worry that we are drifting into matters that may not be sufficiently to do with membership of the House of Lords. I understand that these short clauses are a temptation to us all, and the concordat is relevant, but I would welcome a little more emphasis on the subject of membership of the House of Lords.
Mr. Garnier: I shall obey your constraints, Mr. Stevenson, and return to the requirement that the Lord Chancellor be a member of the House of Lords.
There is a perfectly respectable argument for leaving the Lord Chancellor where he is. As I said at the outset, what concerns me is that the Lord Chancellor's functions and job, from the enactment of this Bill, will be entirely different. We need a Lord Chancellor in the House of Lords who, as we shall discuss under clause 3, has a legal qualification or legal experience but deals with a Department that is much restricted and much more like the office of the Lord Chancellor in the 1950s. That would prevent much of the complaint of the purists who want an accountable Cabinet Minister in this House. I am not convinced that Ministers in the other House are unaccountable. The Government ought to be accountable to both Houses of Parliament.
I accept the point about Supply. In the scheme of things, I dare say that £3 billion in the Government's total expenditure is a small amount, but as one academic has recently said, the Department has become a leviathan, consuming taxes much more than it traditionally used to do. I come back to the traditional point that we should return the Lord Chancellor's office to its previous remit and then cut off a large part of its public expenditure aspects for some other Minister. Whether that Minister is in the Commons or in the Lords matters little to me; the ill-tempered arguments that have flowed across the Chamber this evening do not entirely hit the point. The point is that this Government have by stealth and intellectual dishonesty so altered the role of the Lord Chancellor that, effectively, his title, as attached to a Member of the House of Lords, will be meaningless. The decision on whether he is a Member of the House of Lords depends for its validity on the Lord Chancellor's being the office holder that he would have been 40 years ago and not the office holder that he would be next year or the year after.
We will come shortly to deal with clause 3, for which other but similar arguments may apply. However, neither the Prime Minister nor our constitution is disadvantaged by the appointment of a Lord Chancellor who is a Member of the House of Lords, as long his accountability function is dealt with by a Member of the Commons. I urge Members who are in the Chamber—I fear that Members who are not here will not have the benefit either of my argument or of opposing views—to pay attention to what the Opposition have said, because our arguments are not without merit.
Mr. Beith:
I do not find the battle cry of "Let us return to the Lord Chancellors of the 1950s" very appealing. I am not terribly excited about the prospect of
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resurrecting Sir David Maxwell Fyfe, later Lord Kilmuir, and his like. Indeed, there were more political Lord Chancellors in those days than has been the case in recent years. However, that is the basis on which we should try to resolve this matter.
Before I come on to the position of the Constitutional Affairs Committee, I should like to deal with the issue of making Ministers accountable to either the House of Commons or the House of Lords. Whether the officer holder is a Member of the Lords or the Commons, the other House will have the problem of not holding him accountable. I strongly support my party's long-held view that we should have more mechanisms for holding Ministers to account in the House of which they are not a Member. We already have some mechanisms, including the Select Committee. Indeed, I have tried to encourage the hon. and learned Member for Redcar (Vera Baird) to seek membership of that Committee so that she can pose questions to the Lord Chancellor. In general, however, a modern Parliament should have mechanisms allowing Ministers from either House to appear not just in Committee but even on the Floor of the House to answer for themselves.
That, however, is not the core of my argument. The Select Committee rightly recognised that there was a tension between the different functions of the office. The Lord Chancellor has ministerial responsibility for a large Government Department, which has just been accused of becoming a leviathan by the hon. and learned Member for Harborough (Mr. Garnier). If that is the case, it is because of the amount of money that we have to spend on legal aid to give people access to justice. The size of the Department's budget is directly related to that problem, and we must consider how we could contain that expenditure at a manageable level while securing access to justice for people who need it. However, the Department has a very big area of responsibility, which we recently increased by transferring to it, quite rightly, responsibility for tribunals, which should not be controlled by Departments with a direct interest in the outcome of their decision.
Understandably, Members of the Commons may wish to question the man in charge, the Lord Chancellor, about that big Department. We have tried to defuse hostility and uncertainty by arguing that the Lord Chancellor has a responsibility to defend the judiciary, the rule of law and judicial independence, and needs status to do so. That argument has generally been accepted. We expressed the widely held view that we do not want in that position a Minister who is seeking further promotion. We said that 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)".
That principle should be applied so that we find the kind of person we want, but it is not affected by the question of which House the candidate belongs to. I can think of people who do, and do not, fit the category in both Houses. I am not entirely convinced that the present Lord Chancellor has eschewed further political appointment, despite his membership of the Lords. Nor does membership of the House of Lords necessarily imply that one is old, wise and senior.
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Notable junior Ministers in the other place have enjoyed significant advancement. Until recently, for example, Baroness Scotland was a Minister in the Department for Constitutional Affairs. A shrewd man might put money on her obtaining further high office under a Government of her own party. A number of able people with aspirations to higher office have been Members of the House of Lords, but the Committee did not believe that they were the sort of people who would reassure the judiciary and other people concerned with the law that they would stand up to Home Secretaries and tell them that they are going too far and that their approach is not consistent with the Government's commitment to the rule of law and judicial independence.
Home Secretaries almost invariably think that their proposals are the only way to deal with the latest security problem and outweigh all civil liberties concerns. It takes someone with some strength and someone who is prepared to stand up to a Prime Minister who may want to back his Home Secretary to take on the post. Those qualities can be found in either House; they need not be sought only in the Lords. In looking at the tension between those considerations, we as a Select Committee certainly felt that there was no compelling argument to insist that the Lord Chancellor should be a member of the upper House.
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