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Mr. Leslie:
I understand the hon. Gentleman's desire in general for statute law clarification and codification to make for easy reading, and I apologise for the fact that that is not always the case. However, I am absolutely assured that the provisions set out in clauses 16, 17, 18 and 19 and schedule 6 achieve what we want them to achieve, and that they are clear to those who are versed in reading these matters.
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To elaborate somewhat, clause 16 provides for the transfer, modification or abolition of existing functions of the Lord Chancellor or for the exercise of those functions concurrently by another person—the concordat aspect. They are principally aimed at functions in primary legislation enacted since the introduction of this Bill or in secondary legislation or in prerogative instruments elsewhere.
Clause 16 introduces schedule 6, about which the hon. Member for Southwark, North and Bermondsey (Simon Hughes) is concerned, and which lists functions of the Lord Chancellor that cannot be transferred to anyone else. Those functions relate to the Great Seal, the judiciary, judicial appointments and the organisation of the courts. The clause allows the addition of functions to schedule 6 where those functions that have been transferred are modified by an order under clause 16, but the order-making power cannot be used to transfer, modify or abolish functions listed in that schedule. In other words, they give that protection to those particular aspects of the role of Lord Chancellor, and they are there to add that greater protection. That was the purpose of the amendments. They are a consequence of the concordat. I hope that that gives a little succinct clarity as to the nature of schedule 6.
Mr. Grieve: I am pleased that schedule 6 is present. As I understand the reasoning behind it, it is that the Government and the other place considered that there were functions discharged by the Lord Chancellor which were such that they should not be done by any other Minister. Some of those relate to administration, but have judicial aspects to them. The vast bulk of the list illustrates that.
The Minister may agree with me that the schedule highlights the extent to which the Lord Chancellor, despite the changes that have been brought into being, continues to have important semi-judicial or at least administratively judicial functions that will not go away. In those circumstances, does the Minister agree that that highlights the need to ensure—something we shall come on to in a moment—that his position is made separate and distinct from that of other Ministers?
Mr. Leslie: In many ways, schedule 6 comes at the apex between judiciary and Executive. It is there in quite a formal sense to provide assurances and protections about those particular functions that relate to the Great Seal, judicial appointments, the judiciary in general and the organisation of the courts, which many would prefer not to be undertaken by other Ministers. Schedule 6 is amendable only by primary legislation, although it can be added to, but not taken away from. That is a good principle on which clarity can be gained with regard to the respective functions of the Lord Chancellor versus the judiciary.
Simon Hughes: I apologise if I did not hear the Minister do so, but will he address the question about the six pages of specific functions? Is he able to find a way of putting what they mean in a somewhat more accessible place?
Mr. Leslie:
I am reluctant to give an absolute commitment that my officials will spend too long
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redrafting, even if it is only in the simple form of a helpful ABC guide to the role of the Lord Chancellor. However, I suspect that we will need to have something of that ilk to aid officials' understanding of where the Lord Chancellor's functions do and do not start. I will certainly look into it, but I imagine that there is an expense in the drafting arrangements.
I hope that I have detailed sufficiently the nature of clause 16 and some of the clauses associated with it and that the Committee will agree to let it stand part of the Bill.
Clause 16, as amended, ordered to stand part of the Bill.
Schedule 6
Government amendments Nos. 48 to 51 made.
Mr. Leslie: I beg to move amendment No. 559, in page 150, line 6, at end insert 'and (c)'.
The Chairman: With this it will be convenient to discuss Government amendments Nos. 463, 560, 464, 465 and 561.
Mr. Leslie: As I have already said, schedule 6 protects certain judiciary, court and Great Seal-related functions of the Lord Chancellor. These functions cannot be transferred by order under clause 16 or by order under section 1 of the Ministers of the Crown Act 1975. That is essential, given clause 4 and the Lord Chancellor's particular duties in relation to judicial independence. Amendments Nos. 463 to 465 provide for the addition to and deletion from schedule 6 of certain functions that the Lord Chancellor exercises in England and Wales. Amendments Nos. 559 to 561 amend schedule 6 to provide for the protection of certain judiciary or court-related functions that the Lord Chancellor exercises in Northern Ireland so that they cannot be transferred by an order under clause 16 or to another Minister by an order under the Ministers of the Crown Acts. They ensure that protection is afforded to those functions that the Lord Chancellor exercises in respect of Northern Ireland.
Amendment agreed to.
Government amendments made: Nos. 463, 560, 464, 465 and 561.
Schedule 6, as amended, agreed to.
Clause 17 ordered to stand part of the Bill.
Government amendments made: Nos. 52 to 54.
Clause 18, as amended, ordered to stand part of the Bill.
Government amendments made: Nos. 55 and 56.
Clause 19, as amended, ordered to stand part of the Bill.
'(1) This section applies during any period when—
(a) the office of Lord Chief Justice is vacant, or
(b) the Lord Chief Justice is incapacitated.
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(2) During such a period—
(a) any function of the Lord Chief Justice may be exercised by the senior Head of Division;
(b) anything which falls to be done in relation to the Lord Chief Justice may be done in relation to the senior Head of Division.
(3) The senior Head of Division is—
(a) the Master of the Rolls, or
(b) the President of the Queen's Bench Division, if the office in paragraph (a) is vacant, or
(c) the President of the Family Division, if the offices in paragraphs (a) and (b) are vacant, or
(d) the Chancellor of the High Court, if the offices in paragraphs (a), (b) and (c) are vacant.
(4) For the purposes of this section—
(a) the Lord Chief Justice is to be regarded as incapacitated only if at least three of the Heads of Division declare in writing that they are satisfied that he is incapacitated;
(b) in such a case, the Lord Chief Justice is to be regarded as incapacitated until at least three of the Heads of Division declare in writing that they are satisfied that he is no longer incapacitated.
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