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Question proposed, That the clause stand part of the Bill.
Mr. Leslie: I am hoping that the Committee will also reject and remove clause 3 from the Bill, for reasons similar to those that we discussed in the previous debate, and also for additional reasons.
The clause insists that the Lord Chancellor must have at least two years' experience of holding high judicial office, or 12 years' experience as a qualifying practitioner of the law, as set out in clause 22—in other words, as a lawyer. The new role of the Lord Chancellor in the Bill means that it is no longer necessary to have specific legal qualifications or experience in practice, and there is no reason why this ministerial post should require particular qualifications when other ministerial posts do not. The Lord Chancellor no more needs to be a lawyer than the Secretary of State for Health needs to be a doctor, the Chancellor of the Exchequer a qualified accountant or the Secretary of State for Education and Skills a university lecturer.
Hon. Members may well think that it is desirable for the Lord Chancellor to have legal qualifications, but that is entirely different from saying that the office
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holder must in all circumstances have had 12 years' practice as a lawyer or be a judge. The concordat with the Lord Chief Justice, which was debated earlier in today's proceedings, was negotiated explicitly on the basis that the reformed ministerial role requires no special qualification, and that was reflected in the comments made by the Lord Chief Justice that I, and my hon. and learned Friend the Member for Redcar (Vera Baird), quoted earlier.
With the transfer of the judicial selection process to a new independent judicial appointments commission and the consequent limiting of the Lord Chancellor's discretion, there is no continuing requirement for him to have legal qualifications, as he will be acting on the recommendations of the commission and will hence be accountable to Parliament. It will be the job of the commission to weigh up the precise legal abilities of candidates.In respect of the Lord Chancellor's duty to uphold judicial independence and the rule of law, the key qualities are not legal qualifications, but more the character and judgment of the person holding the office. Legal qualifications do not guarantee that the Lord Chancellor will have the strength of character to fulfil those particular duties.
Keith Vaz: But is it not the case that the Minister responsible will have to have knowledge of the candidates? Although only one candidate will be put forward, it will be possible, will it not, for the Lord Chancellor—the Secretary of State for Constitutional Affairs—to reject and send back a candidate for the supreme court, for example? Surely it would be an advantage if the person who held the office had knowledge of the Bar, in particular, because that is where the judiciary is drawn from initially, and they would then have knowledge of the personalities involved.
Mr. Leslie: That may be an advantage and it may be desirable, but it is not fundamentally necessary for the conduct of this particular office. It is not essential for Ministers in other ministerial roles to have knowledge of the candidates whom they wish to appoint to posts of a non-judicial nature.
Mr. Siôn Simon (Birmingham, Erdington) (Lab): Does my hon. Friend agree that it might be undesirable for the Minister to be a lawyer selecting from a group that people outside might view as a bunch of his pals? These days, we have such a thing as equal opportunities. The notion of a Minister selecting from a pool of people whom he or she knows and grew up with professionally might, in some circumstances, be considered a negative and a bad thing.
Mr. Leslie:
There is equal virtue in that point as in the point made earlier. That may well be undesirable in the view of those who believe that the holder of the post must have a certain degree of objectivity in making appointments without fear or favour from the body of potential candidates and ensuring that there is a certain amount of distance and fairness in the appointment process. We wish to create a judicial appointments commission partly in order to move away from even the
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suggestion that appointments are made from among people who are perhaps closest to the appointer, and to ensure that they are made solely on merit according to the commission's assessment.
My hon. Friend the Member for Birmingham, Erdington (Mr. Simon) makes a reasonable point. I am not saying that it is or is not desirable that the Lord Chancellor should or should not be a lawyer—I am saying that such a qualification is not an essential prerequisite, and a non-lawyer is not incapable of undertaking this fundamentally ministerial office.
Mr. Heald: I declare that I am a barrister—not practising, although I got more than 12 years in.
Given the role of the Lord Chancellor in sticking up for judicial independence and dealing with complicated points on the rule of the law of the sort that we have debated, will it not be a huge disadvantage if he is not a lawyer?
Mr. Leslie: No. As I say, I do not regard the fact that one might have reached a certain number of years of practice in a particular profession as an absolute requirement for having the strength of character to guard the independence of the judiciary or stand up for the rule of law. Those are characteristics of an individual with strength of character and good sound judgment. Those are the qualifications necessary in the person who is best for the job; someone's being a lawyer does not fundamentally guarantee that they do or do not have them. It may be an advantage to have a certain knowledge of the law, but it is not a fundamental requirement.
In fact, we should be very cautious of any notion that power should reside exclusively with one body or one group of individuals. The law does not belong to lawyers, and the office of Lord Chancellor should not belong to any particular profession or class of people. The Prime Minister of the day should be able to pick the best person for the job from the widest pool of candidates, not just from judicial office holders or senior lawyers. A senior lawyer may be the best person to perform the role, but we have no good reason to constrain that choice with statutory limitations in the rigid manner proposed in clause 3, and I strongly urge the Committee to resist it.
9.30 pm
Mr. Djanogly: Lord Kingsland, the shadow Lord Chancellor, successfully moved an amendment on Report in the House of Lords to require the Lord Chancellor either to have held high judicial office for at least two years, have practised as a qualifying practitioner for at least 12 years—I should like to declare that I am a practising solicitor—or be serving as Law Officer of the Crown.
The Constitutional Affairs Committee report concluded that it
I admit that that is hardly the most decisive of recommendations, but it just about constitutes one. Our core argument is that the Lord Chancellor plays a central role in administering justice, including being
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involved in appointing, disciplining and protecting the judiciary, and that there is therefore a need for legal understanding.
Let me briefly explain some of the functions that will remain with the Lord Chancellor. They include: functions that relate to the framework for organising the courts system; setting the jurisdictional boundaries in England and Wales; providing and allocating financial material and human resources for the administration of justice; matters regarding the pay, pensions and terms and conditions of the judiciary, and providing staff and resources for judicial training. They also include determining the overall number of judges and the distribution of business between the different levels of the varying courts.
Mr. Simon: I could do that, and I am not a lawyer.
Mr. Djanogly: The hon. Gentleman may believe that he has a good understanding of jurisdictional boundaries in England and Wales, but that would have to be seen. If he will hear me out, the jobs get even more complicated.
We should note that the Bill has been complicated because the functions of the Lord Chancellor that do not require consultation with the Lord Chief Justice or his concurrence have been removed by the decision of the other place to retain the office of Lord Chancellor. Furthermore, many aspects remain on which the Lord Chancellor and the Lord Chief Justice need to work together regularly and closely. Although the Lord Chief Justice is to take over the Lord Chancellor's rule-making powers that are not exercised by rule committees in order to mirror the Lord Chancellor's existing statutory powers to allow or disallow the rules made by rule committees, the Lord Chancellor's agreement to any rules that the Lord Chief Justice makes will be required. I should like the hon. Member for Birmingham, Erdington (Mr. Simon) to try that one. We must note that the Lord Chief Justice will assume the Lord Chancellor's functions on making practice directions. Again, that will be with the Lord Chancellor's concurrence.
Earlier, the Under-Secretary said that the number of years that a lawyer has practised does not by itself lead to qualification for the job. I agree to some extent. However, a non-senior lawyer, let alone a non-lawyer, would have a hard if not impossible time as Lord Chancellor, given the requirements of the role. A specific number of years of practice does not make someone eligible, but the job specification makes it unlikely that anyone other than a lawyer could do the job.
When he moved his amendment, Lord Kingsland said that he understood that the Lord Chief Justice supported it. Earlier in the debate, Lord Woolf, Lord Chief Justice and chairman of the Judges Council, summarised the council's position thus:
"At a meeting on 24 November last, the Judges' Council unanimously approved the Bill, subject to the concerns on which I must now address your Lordships. The first concern is that there should be a clear statement on the face of the Bill that the holder of my office will be the head of the judiciary. Without this amendment to the Bill, the Judges' Council is concerned that the retention of the title of Lord Chancellor could send a confusing message as to the role of the holder of my office in the future. The
- noble and learned Lord the Lord Chancellor recognises the validity of that point and is proposing Amendment No. 11 to Clause 3, which of course I support.
Subject to that clarification, the Judges' Council would welcome the retention of an office called "the Lord Chancellor". It would like to see a requirement that the holder should be a lawyer, ideally with similar qualifications to those required before a person can be appointed a High Court judge. The Lord Chancellor will not be a judge, however, and so he should not take the judicial oath . . . there is a proposal for a different form of oath in one of the groups of amendments."—[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 757–8.]
The Bill delivered to us from another place provides a balanced approach to the role of the Lord Chancellor, and plays an important part in guaranteeing the continued independence of the judiciary. We consider a requirement for the Lord Chancellor to be a Member of the House of Lords and a senior lawyer to be part of that balance. That balance was carefully struck in the other place and it is the best formula for us to retain in this place.
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