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Mr. Garnier: I largely agree with the thrust of what my constituency neighbour, the hon. Member for Leicester, East (Keith Vaz), said a few moments ago. The reasons that he gently put forward reinforced what I said at the outset of our debate this afternoon—that there is a growing gap between the law in its wider sense and Parliament, which is much to be regretted.
The closer the understanding between the law and Parliament—those who make the law and those who have to apply and interpret it—the better it is for the people of our country. Too often, the House passes laws that make very little legal sense when they come to be applied in the courts in particular cases, whether civil or criminal, and particularly in the field of criminal law. If the Government have their way today and remove clause 3 as they did clause 2—the two clauses are very much of a piece—the greater will be the distance between the two institutions and it will grow to our mutual disbenefit.
Under the new regime, the Lord Chancellor will not really be a Lord Chancellor—he will be no more than another head of a public Department. Just as the Secretaries of State for Health, for Transport or for Defence do not have to be qualified doctors, lorry drivers or soldiers, so it will be perfectly possible under
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the modern regime for the next so-called Lord Chancellor—whether he or she is, as I hope, in the House of Lords or in the Commons—to carry out the work of arranging the divisions of various circuits, for example. However, that rather misses the point of the value of the Lord Chancellor's office, which is being wholly undermined and destroyed by the Bill.
I believe that it is important for the Lord Chancellor not to be just another jobbing Secretary of State. I happen to believe that the office of Lord Chancellor has traditionally been accorded rather greater importance than that, and that we are devaluing it and the work that the office holder does by the arrangements that the Government are implementing through the Bill. It is a regrettable step that we are having to witness.
As I said when we debated clause 2, I am aware that I do not have at my disposal the necessary power in numbers to defeat the Government's intentions, so I shall have to await another opportunity to put this right, but it is not right for the Government to inflict this wrong without Opposition Members expressing their concerns about the damage that will be inflicted.
I fully accept that my argument will not appeal to many, if any, Labour Members, and still less to the Chairman of the Constitutional Affairs Committee. He is an eminent parliamentarian and Chairman of his Committee, and not a member of either of the two legal professions in this country. However, I am less worried about that argument than about the downgrading and diminution of the office of the Lord Chancellor. I am concerned that the office is being turned into something else. The Government are trying to fool us into thinking that the office of Lord Chancellor will be maintained in its previous state simply because the name will be retained. However, that is rather like unscrewing the name plate from a Rolls-Royce, sticking it on a lesser vehicle and claiming that the lesser vehicle is none the less a Rolls-Royce—that was perhaps not the best example, but I hope that it made the point that I wished to get across.
I regret that I am powerless to persuade the Committee, due not so much to the Government's arguments, but to their numbers. I repeat my worry that there is a growing gap between the institutions of Parliament and the law. Despite what has been said one way or another, I think that the judiciary look to someone with authority whom they respect to speak up for them in the councils of Government. The Lord Chief Justice will take over that role, and under clause 6, which we were not able to discuss because of the guillotine, he will be able to present a written representation to Parliament. However, that is not quite the same as having a Lord Chancellor who is well versed in the eccentric, yet none the less valuable, traditions of the legal establishment and able to speak up for the law, the rule of law and the independence of the judiciary at the Cabinet table and in the Chamber of the House of Lords because of his professional and political upbringing.
Mr. Heald:
It has widely been accepted here and in the other place that the Lord Chancellor will have the role of speaking up in the Cabinet on important matters to which the rule of law may be relevant, such as detaining
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terrorist suspects and the like. Does my hon. and learned Friend agree that if the Lord Chancellor is not a lawyer and does not understand the issues, he will be poorer in that role?
Mr. Garnier: I have no doubt that anyone who is capable of being a good Secretary of State will have the energy and intellect to understand basic ethics and learn about the requirements of the rule of law. However, that person would be at a disadvantage because he would have to learn about it, whereas it was second nature for Lord Irvine, Lord Mackay and Lord Falconer. I am decrying not the intellectual abilities of a non-legal Lord Chancellor, but the downgrading of the office and the growing distance between the two institutions.
A consequence of the situation will be the increasing importance of the Attorney-General as the defender of the law's institutions in Parliament. Although I disagree with the current Attorney-General's politics, he is an extremely fine lawyer. Perhaps because he sits in the House of Lords, he has had the time to appear as the Government's chief advocate in the courts.
Keith Vaz: The hon. and learned Gentleman wants them all to be in the House of Lords.
Mr. Garnier: I am talking about the Attorney-General, not the Lord Chancellor. The Advocate-General for Scotland is in the Chamber. I think that she has appeared for the Government several times in the European Court of Justice and perhaps she has appeared in the House of Lords acting for the Scottish Executive.
The Advocate-General for Scotland (Dr. Lynda Clark) indicated dissent.
Mr. Garnier: Whatever the hon. and learned Lady does, she knows rather more about it than I. The simple point is that the Law Officers will increasingly be taking over the protective role of the Lord Chancellor, because the Government are giving up the Lord Chancellor's role as protector of the judiciary and the interests of the rule of law.
Mr. Garnier: I see that the Minister disagrees. I know that the Bill contains guarantees and so forth, but that merely underlines the point that I made about the growing gap. Lord Chancellors did not need to have that set down because they understood what their job was, but the job is changing. The job of the Lord Chancellor under the Labour Government will not be the job of the Lord Chancellor in the days of Lord Mackay, Lord Irvine or any of their recent predecessors. I regret that; it is a retrograde move, but there is sweet Fanny Adams I can do about it.
10 pm
Vera Baird: I am concerned about the precise nature of the clause, which requires a person either to be a High Court judge,
or—and it is either/or so obviously one does not have to be a High Court judge—to have
Under clause 22, a qualifying practitioner must have "a Supreme Court qualification" under section 71 of the Courts and Legal Services Act 1990, which states that a person must have rights of audience in all the proceedings of the Supreme Court. That is of course not the new supreme court, but the old one, which is the Court of Appeal and the High Court.
I am right about the meaning because the next tier of qualification in the 1990 Act is a person who has a "High Court qualification", who is only a High Court advocate and not a Court of Appeal one. It is thus definitely a requirement under the clause that a person must for at least 12 years have been a person with rights of audience in the Court of Appeal and the High Court. That excludes an enormous number of senior and good lawyers.
Many, many solicitors are not High Court advocates because that does not enter into their way of being. They may prepare, and know a great deal about, High Court proceedings, because they are the solicitors who back up senior High Court advocates with their preparation, but they are not themselves High Court advocates. One could imagine that commercial solicitors, family solicitors or senior partners in a number of types of solicitor's practices might be admirably qualified in every way and would fit the mould that even Opposition Members are hankering for, but they will be excluded by the clause. It is a bad idea because it could exclude many good people.
On the other hand, the clause gives little protection from anything in the context of the Bar, because every member of the practising Bar is a Supreme Court advocate from day one as long as they remain a practising member of the Bar. Consequently, that does not require someone to be a senior lawyer; it requires them only to have been called for 12 years, which, as most Members who are lawyers will realise, is a calibre they will have attained by the age of about 33, 34 or 35. It does not require a barrister to be a senior lawyer and quite a few solicitors are likely to qualify. For instance, there is no protection in requiring a barrister of 12 years' call: someone might have undertaken magistrates court advocacy or industrial tribunal cases, or they might—being in private practice—do Chancery paperwork and never ever go to court, because they retain their status as a Supreme Court advocate by virtue of being in independent private practice. There is no protection of the kind that members of the Committee are seeking from that qualification. It is the wrong test. What is the point of it?
The clause would exclude—would it not?—a senior professor of law who might be ideal but who had never become a High Court advocate. He may have been a solicitor, but he may not even have done that; he may have been a law commissioner for several years. He might be an admirable person to take up the post, yet under the clause he would be excluded.
Equally, it seems to me that a professor of accountancy, who might have been seconded to the Court Service or have advised in detail about how the Court Service should organise its accounting procedures and finances, will understand its administration in far
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more detail than a barrister of 12 years' call possibly could, popping in and out of court to do a case or never going there at all. It seems to me that such a person could admirably understand the way the courts and their financing work and would be an admirable choice for that role.
Somebody from social sciences who might have been called in to try to turn the courts into what we all want them to be—an institution that puts the public participants first—may also have looked in huge detail at the way in which courts function, in order to try to guarantee that witnesses, victims and so on are looked after properly. They will know extremely well from start to finish, from A to Z, far better than a barrister of 12 years' call, how the courts work—and they will have known for many years. All such people will be excluded by the requirement of being a Supreme Court advocate, a High Court judge or a lawyer.
The provision is quite unnecessary. It gives no protection and does the damage of excluding people from other than the legal profession who could be just as good as a lawyer. Insisting on such a provision in legislation has the additional danger of making the job look like it is there for the protection and promotion of lawyers. In fact, it is not; it is about administering a public service. As such, it can be done by anyone who has any of the range of qualifications that I have mentioned and many many more that I have not thought about. I urge Members not to vote for this silly clause.
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