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Mr. Tyler: I congratulate the Select Committee on footnote 21, which deals with the relevant recommendation and states:

"Nothing in the use of the word "Lord" necessarily indicates membership of the House of Lords: eg Lord President of the Council and Lord Privy Seal have frequently been members of the House of Commons."

Clearly, the title is not important. My right hon. Friend's Committee may well recall that, when Mr. Edward Heath was a Minister in this House and Lord Privy Seal, it was said that he was neither a lord, nor a privy—nor a seal.

Mr. Beith: I think that my hon. Friend was determined that I should not forget to mention the footnotes to my Select Committee's report. Clearly, there are no formal obstacles to the holder of the office of Lord Chancellor being a Member of the House of Commons. Some hon. Members have expressed the belief that it is desirable that he should be a member of the House of Lords. I do not wholly share that belief—candidates can be found in both Houses—but it is in no way appropriate that we should write into legislation a disqualification like the old disqualification that the Lord Chancellor must not be a Roman Catholic. The case for disqualifying all who are not members of the House of Lords from holding the modified office has not been made out in any of the argument that we have heard tonight.

Peter Bottomley: I am glad to speak after the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who has chaired the Select Committee on Constitutional Affairs effectively. It is a matter of record that the only formal votes in the Select Committee's report were on whether the Lord Chancellor had to lead the House of Lords and on the cost of the Government's new proposals.
 
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The issue is whether it is possible for someone who sits in the House of Commons to be the Lord Chancellor. The answer is that it would be possible if clause 2 were taken out. The question is whether it is sufficiently desirable to make that possible or whether, as many hon. Members have argued, it is better, at least for some time in the future, to say that the Lord Chancellor should come from the partly unreformed House of Lords. That comes down to whether we seriously want to have a Lord Chancellor from the House of Commons. If the Lord Chancellor is someone who has been elected to the Commons for some time—let us assume that clause 3 remains as drafted—someone could be selected who is a good, experienced lawyer whose talents are spotted relatively early; but what happens to that person after they have been Lord Chancellor?

We could fall into the trap that was illustrated by the fact that, when there was no Lord Chancellor for a few hours, when the Prime Minister and his cohort—those involved were not cronies but a mistaken cohort—believed that he could abolish the Lord Chancellor by fiat or by administrative action, the changes were proposed to the Law Lords and the idea of establishing a supreme court arose, although it had not been thought through or consulted on and was not in the right form anyway. The concordat's existence confirms that the Government had to recognise their mistakes.

If we want to avoid that kind of thing happening in the future in relation to something rather more serious than where the Law Lords sit, there are good arguments for saying that we should not make all these changes and that we should prohibit the Prime Minister from picking a Lord Chancellor who is in the Commons. There is no difficulty in picking a Lord Chancellor from the Commons and, given some continuity in the unreformed House of Lords procedures, sending that person to the House of Lords. That was one of the reasons why the disqualification of Roman Catholics was changed so that Sir Peter Rawlinson could become Lord Chancellor. There is a lot to be said for saying that, if the person who has the most talent is currently in the Commons, what should happen to them is what happens to someone who has got the most talent and who is neither in the Commons nor the Lords: they get appointed to the Lords to become Lord Chancellor.

In fact, for all the occasional fuss about the previous Lord Chancellor, Derry Irvine, no one would accuse him of not being prepared to stand up to the Prime Minister or fellow Cabinet Ministers. There are times when the person who is fulfilling the functions of Lord Chancellor must say to the rest of the Cabinet, "No; this is wrong. You shouldn't do it. We shouldn't do it. It's not going to happen." I fear that if the Lord Chancellor were in the Commons, they would not say that, because they could and would be overruled.

9 pm

Although some of the things that the hon. and learned Member for Redcar (Vera Baird) has said may be correct, her arguments are not sufficiently great. Although hon. Members on both sides of the House, including the Committee Chairman, have properly quoted the Select Committee's conclusions, it is reasonable for the House to say, "Not now and not in this way—leave clause 2 in the Bill."
 
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Mr. Heald: As far as the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who chairs the Committee, is concerned, may I join in the tributes to the thorough way in which the Committee went about its business? He said that one must consider the balance of the argument and a decision must be made. When the Judges Council examined the matter, however, it concluded that although the matter is not vital, it is preferable for the Lord Chancellor to sit in the other place.

As my hon. Friend the Member for Worthing, West (Peter Bottomley) said a moment ago, standing up for the independence of the judiciary is not always an easy job, and requires a certain stature and seniority. I agree that, as far as I am aware, the recent incumbents of the office of Lord Chancellor have stood up for that essential independence.

The hon. and learned Member for Redcar feels that the Commons contains excellent candidates for the office—perhaps she is right—and she mentioned the Budget too. In making an overall decision, however, one should reflect on the point that the other place is a less partisan House, and that the sort of person who might be appointed there or who is already there is likely to be the sort of person whom we want—somebody who is coming towards the end of their career, who has sufficient seniority and who is a lawyer. If it is preferable, and I believe that it is, to appoint a Lord Chancellor who is a peer, a lawyer and so on, this House should take the bull by the horns and make a decision—a point reflected in clause 2.

My hon. and learned Friend the Member for Harborough (Mr. Garnier) pointed out that once the Bill is passed, the Lord Chancellor will not be the person he was. He will be tied down, regulated and controlled by concordat, because the judges are frightened that somebody who is not committed to judicial independence will be appointed. Such a person might be a young politician on the make, who might have less seniority and less common sense than previous incumbents, and who might not be a lawyer.

We can introduce two extra protections if clauses 2 and 3 remain in the Bill. Having heard the arguments, we should divide in favour of retaining clause 2, if the Government want to leave it out.

Mr. Leslie: We have heard some desperately poor arguments from Conservative Members, and the sound of barrels being scraped. Clause 2 is clearly unjustifiable and should be removed from the Bill, and I urge my hon. Friends to oppose it.

We have heard a number of interesting arguments, including the idea that in reality the Lord Chief Justice does not hold the views that he expresses. The hon. and learned Member for Harborough (Mr. Garnier) went on to say that it was intellectually dishonest to keep calling the post Lord Chancellor when the Government have fundamentally changed it by stealth. It is a bit rich to accuse the Government of intellectual dishonesty when the Government wanted to abolish the title of Lord Chancellor in the first place. As far as changes by stealth are concerned, the legislation and the concordat have been debated for more than a year in Parliament, which is hardly stealthy.
 
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The hon. Member for Worthing, West (Peter Bottomley) came up with all sorts of interesting suggestions, including that the Prime Minister could pick a Member of Parliament to be Lord Chancellor, but would then have to turf them out of this place, send them to the House of Lords and cause a by-election, because of the absolute objectionableness of having somebody elected in that post. What a dreadful, horrible concept that would be—I say that, of course, with irony.

There are many reasons why the Lord Chancellor does not have to be a peer—a concept that my hon. and learned Friend the Member for Redcar (Vera Baird) eloquently advocated, as did the right hon. Member for Berwick-upon-Tweed (Mr. Beith). Indeed, the main argument of the hon. Member for North-East Hertfordshire (Mr. Heald) was that it might be preferable to have a Lord Chancellor who was a peer. I submit again that that is not what the Bill says at present. It says that that individual must be a peer, not "perhaps could be" or that it "might be preferable", so that is not an argument in favour of clause 2.

A peerage is no longer a prerequisite for a Lord Chancellor. The Lord Chancellor would no longer have to be a Law Lord—not least because, with the new supreme court, there will no longer be an Appellate Committee of the House of Lords. Ministerial functions of that reformed office are capable of being undertaken in either House of Parliament. It would be perverse to say that anyone can be Lord Chancellor except those who are elected. It would be ridiculous to prevent for ever the taxpayer from holding a Lord Chancellor to account, via this elected House, for that £3 billion of legal aid expenditure. A peerage is no guarantee that we would get the best person for the job. We should ensure that it is possible for the Prime Minister to pick either an individual who is in the other place or an elected individual if they are the best person for the job. I hope that the House will reject clause 2 as it stands.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 119, Noes 272.

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