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Keith Vaz: I should like to declare an interest, Mr. Stevenson. I am a non-practising barrister and my wife holds a part-time judicial appointment.
I am troubled by what the Minister said this evening, not because I do not have enormous respect for him— I do. This issue occupied the Select Committee for a while, and the reason why there was not a decisive outcome to those discussions—although the hon. Member for Huntingdon (Mr. Djanogly) thinks that there was, this is the first time that I have heard the word "may" being used to describe a decisive outcome—was that there was a genuine division among members of the Committee on the issue. It was only thanks to the avuncular and consensual chairing by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) that we managed to arrive at the words in our report.
I am of the view that the holder of the office ought to be a lawyer, although I was happy to go along with the recommendations of the Select Committee, because they represent a firm indication of the kind of person who we think should occupy the position. The Minister's argument—he put it forward very eloquently again this evening—is that if the Secretary of State for Health is not a doctor, why should the Secretary of State for Constitutional Affairs be a lawyer? That is correct, although the Secretary of State for Health probably has to be a non-smoker these days to be able to retain the position—
Keith Vaz:
Not by statute, but by convention and by policy. I note that my hon. Friend the Member for Birmingham, Erdington (Mr. Simon) put in a bid for the job of Lord Chancellor on the ground that he thought he could do it. His wonderful hairstyle would mean that he would not need to purchase a wig. His suggestion opens up the possibility that anyone could be appointed
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to the position, which deals with the important areas that have been dealt with by the hon. Member for Huntingdon.
Mr. Simon: Is my hon. Friend saying that if I could do the job, anyone could do it? I was saying that a person would not have to be a lawyer to do it, therefore I could do it.
Keith Vaz: I am sure that the Whips will have noticed my hon. Friend's second bid for the post.
The fact remains that of course the Prime Minister is going to appoint whoever he wants to this position, assuming that people are appointed on the basis of merit in politics. He will get the best man or woman for the job, irrespective of whether that person is a lawyer or not. The way in which the Select Committee has moved with regard to its recommendations signifies the desire that the person ought to be a lawyer, and a senior lawyer at that. Where the Minister has got me is with regard to the very restrictive nature of the clause as it has been drafted—and that is why I shall support the Government in the vote.
I am not clear why there would be any doubt that the person serving as a Law Officer of the Crown should have
although I note that the Solicitor-General did not practise as a qualified practitioner—nor, I think, did her predecessor. Perhaps the Minister will tell us why this provision has been put into the Bill, because I did not follow the deliberations on it in another place. I would have thought that it was pretty obvious that the Law Officers should be members of the Bar, or members of the solicitors' profession, as is the case with the present Solicitor-General. I know that she was made a Queen's Counsel, as was her predecessor, my hon. and learned Friend the Member for Dudley, North (Ross Cranston), just before they assumed office. I did not think there was any doubt that the Attorney-General and the Solicitor-General ought to be members of the profession, although both are senior members of the profession.
Peter Bottomley: I do not disagree with the hon. Gentleman, except in the context of the way in which we will vote, but I think the answer to the "qualified practitioner" question is tied to clause 22, which allows Scottish lawyers to be considered as well. It is a way of embracing all qualified lawyers.
Keith Vaz: We now have a Law Officer on the Front Bench who happens to be a Scottish Law Officer, and I am grateful to the hon. Gentleman for correcting my misinterpretation of what is going on.
The concordat is only part of what concerns us. Someone who is asked to consider the merits of candidates for the supreme court and can reject a candidate whom he does not want—which the Secretary of State, the Lord Chancellor, will be able to do—must have a knowledge of the law and the personalities within it. That cannot be acquired over a short period; it must be acquired over a number of years.
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Any Prime Minister, bearing in mind the nature of the office and the deliberations that have taken place here and in the other place—and, no doubt, reading the report of deliberations in the Select Committee with great care—will know how important it is for that office to be held by a senior member of the profession. I think it entirely unreasonable to restrict it to those who have held high judicial office for two years, which is another reason why I cannot support clause 3. I cannot recall in recent history the appointment of a Lord Chancellor who had first been a judge. I know that senior QCs have been appointed, but we have certainly not had any judges while I have been a Member of Parliament.
Mr. Garnier: Lord Mackay of Clashfern was a Scottish judge before becoming a United Kingdom Law Lord, and subsequently Lord Chancellor.
Keith Vaz: He is one of three who have occupied that position over the past 15 years or so.
I think the Minister should understand our concern in the House of Commons about the type of figure who could occupy this post. This is not to do with an age qualification; it is not necessarily to do with the fact that someone should have been a Member of this House for a number of years. It is to do with the fact that this is a very important office in the land, and even the office of Secretary of State—without the judicial functions and the Speakership of the Lords, which will go—remains a very important post in Government.
I had the privilege of serving the two most recent Lord Chancellors, as Parliamentary Private Secretary to the current one and, in the case of the last one, as a member of the Government. They were—Lord Falconer, of course, is still there—big figures in the legal establishment. Before the current Lord Chancellor became a Member of the House of Lords he was a very senior and highly successful member of the Bar, and I believe he commands enormous respect in the professions and among the judiciary. The same applied to his predecessor, Lord Irvine, and to Lord Mackay. They are big figures, who have occupied big positions in Government.
I hope that when the Prime Minister comes to make this appointment, he will not choose anyone for the job just because he or she meets the minimum criteria and qualification requirements. I hope that he will choose someone with the seniority that would be expected for the post. I think that he will choose a lawyer, because it is an obvious post for a lawyer—and let us face it: there are an awful lot of lawyers for him to choose from. Of course he can choose someone else if he wants.
However, given the views of the Committee and given the need for that person to interact on a constant and continuing basis with the high judiciary, it is important to have a lawyer in that position. That is why I was happy to go along with the consensual words of the Chairman of the Select Committee. They are not absolutely decisive, as I said at the start. They are not saying, "As this clause says, it must be this, that or the other," but they indicate what we hope will be the case, and that is good enough for me.
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9.45 pm
Mr. Beith: It is obvious from the carefully argued contribution of the hon. Member for Leicester, East (Keith Vaz) that there was a range of views in the Select Committee, but they were not impossible to reconcile, as the words that we have used show. I am persuaded to some extent by his arguments, but I would not rest my case on the view that familiarity with the Bar is a good argument for having a lawyer in this position. As the hon. Member for Birmingham, Erdington (Mr. Simon) pointed out, before he got around to announcing his own claims for office, knowledge of some of the candidates is not necessarily a good position from which to secure dispassionate analysis of a wide range of candidates. Indeed, the last person I would expect to argue that particular view is the hon. Member for Leicester, East, who rightly focused the Select Committee's attention, on a number of occasions, on the need to widen the pool from which candidates for senior judicial office—indeed, junior judicial office—are chosen.
As we found when we looked at the changes in the Scottish system, familiarity with a certain part of the legal profession is sometimes a barrier. In Scotland, the Edinburgh establishment seemed long to dominate judicial appointments. That was one of the motives for creating an appointments commission. Therefore, in England there are dangers not simply of cronyism, but of being too aware of a particular part of the profession to take a dispassionate view. However, the whole nature of judicial appointments will change under the Bill.
If a Lord Chancellor comes to consider a judicial appointment and contemplates rejecting it, he would have to have advice before him. Indeed, he would not be discharging his duty properly if he did not ensure that he had appropriate advice on the reasons for rejecting the candidate or for accepting the nomination.
A Minister dealing with a complicated medical issue has to take advice before reaching a decision. The difference between the Secretary of State for Health in taking advice on a difficult medical decision and the Lord Chancellor is that, in the Lord Chancellor's case, the presumed mechanism is that he accepts the recommendation of the appointments commission and only departs from it if he has found compelling reasons to do so. In those circumstances, he must surely have had to take appropriate advice and to ensure that he had a range of dispassionate advice before him. It is possible to do the job without the familiarity with the profession that experience of serving as a judge or at the Bar for 12 years would give.
It can still be argued that the legal profession and the judiciary may be a lot more comfortable, certainly in the early years of the new system, with someone who they recognise as having authority in their field. That is an advantage that the Prime Minister ought to weigh when considering the making of an appointment. It probably would be considered carefully.
It is not the same with the Law Officers as we usually understand the term, whether the Advocate-General or the Solicitor-General, who are in principle expected to take cases on behalf of the Government and to appear, as the Attorney-General did only the other day, in court representing the Government. Active participation and
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qualification in the profession are requirements for carrying out that job. Appointments to that post have changed in recent years and there has been a much greater tendency, particularly with the Attorney-General, to appoint someone from outside active politics, who may be politically sympathetic but whose essential qualification is that he is able to give the Government high quality legal advice and to appear for the Government in some of the more important cases to which they are a party. That is a different situation from being the Minister who both runs a large Department and exercises certain functions where he confirms or concurs with decisions that come up through a process, at the head of which is the Lord Chief Justice. All those provisions were included to ensure that too much did not rest upon the shoulders of a politician in an area where the Government were, rightly, trying to ensure that appointments were not made on anything like political grounds.
It seems to me that the job could be done by someone who is not a lawyer. He would have more homework to do, just as being Chairman of a Select Committee requires extra homework, but I am very glad that the post will not be confined to lawyers. It would be a bad principle to follow that line. Again, as in the case of a Chairman of a Select Committee, any area where someone has to tangle with the law, for whatever reason, requires looking carefully into a wide range of matters, but that is not a reason for formally excluding from the Lord Chancellorship for ever, or for as long as the legislation stands, someone who does not have the legal qualifications specified in the clause. Some people who do not meet that requirement might well do the job to a very high standard.
I stand by the consensus viewpoint that the Select Committee reached—that, while it may be an advantage for the holder of the post of Lord Chancellor to be a senior lawyer, it does not and should not need to be written into the Bill. Some of my colleagues from the Select Committee have already explained why.
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