|Previous Section||Index||Home Page|
It is necessary to return to some of the basic issues surrounding the Bill to understand why we tabled the new clause. The old structure of the Lord Chancellor provided, as we have debated peripherally this afternoon, that he was a judge first and foremost. He was a judge with a hybrid role, because as well as sitting as the head of the judiciary and a Law Lord, and being Speaker of the House of Lords, he was a Minister.
As a Minister, one of the Lord Chancellor's duties was to ensure that the administration of justice and the court system operated correctly, so he was a departmental Minister. In addition to that he wasI believe that this expression has been usedthe judge at the heart of Government, providing a moderating influence on colleagues in respect of the operation of the judicial system, if necessary, and sometimes legal advice. However, he did so not in a formal sense, as the Attorney-General does, but informally, expressing an opinion if the rule of law was in danger of being undermined.
The Lord Chancellor also had a role in protecting the judiciary when Ministers such as Home Secretaries got irritated that their Executive purposes were being thwarted by judicial decisions. As we know from the recent past with the previous Home SecretaryI have a funny feeling that we are beginning to see this with the current Home Secretarythe phenomenon is not unusual. I might add on a bipartisan basis that there have no doubt been previous Conservative Home Secretaries and others who at times felt equally frustrated by the judiciary's taking views of their decisions that they found unfortunate.
Nevertheless, in a country where the rule of law prevails, it is of great importance that Ministers should accept judicial decisions, and more importantly, as the Minister will have no difficulty accepting, that they should not use their political status to try to undermine the judiciary. It is easy for those who are subject to political pressuressometimes from an electorate who are irritated by judicial decisionsto move to a position where they covertly or overtly criticise judges and their decisions. If that happens in this country, we shall face a serious situation that we have so far succeeded in consistently avoiding.
1 Mar 2005 : Column 893
To illustrate the point, we could contrast that with the situation in France, a country that featured in yesterday's debate in relation to the merits of its judicial system. I remind the Minister that in a recent trial of a French Minister on serious charges of tax evasion and, I seem to remember, fraud, the situation became so bad that the judges trying the case said that they no longer felt safe to use the computers provided to them by the state to record their daily rendering of the case and their notes, because they were convinced that they were being hacked into. They started using their own laptops. There was a long litany of complaints about political interference in the judicial process. There were protectors of this Minister, or ex-Minister as he was by then. Indeed, he was the leader or chairman of a political party.
I am sorry to say that that is not the only such problem that has arisen in France over the past 30 or 40 years. Mercifully, we have succeeded in avoiding such problems in this country. It may sometimes be said that our system of law is slower than those of other countries, and it can make mistakes; but the reputation for integrity of English and, for that matter, Scottish and Northern Irish judges is remarkably consistent, and has not been called into question. Judges' sagacity may occasionally be called into question, but not their integrity. That is largely owing to the absolutely accepted convention in the Government that judges cannot be criticised, even if Ministers are hopping mad about what they have done.
One of the problems of the changes envisaged in the Bill is the alteration of the Lord Chancellor's status from that of a judge in the Government to that of any other Minister. He loses his judicial statuswhich we accept, because we recognise that he can no longer sit as a judgebut continues to have a unique role, which we highlighted when we discussed schedule 6: the role of carrying out functions that require him to behave as if he were a judge, and certainly to apply standards of independence and integrity. We also know that one of the reasons for the Government's accepting that the Lord Chancellor should take a particular oath when taking office, albeit not the original oath, is the fact that his role is different from that of every other Minister. We have debated what the terms of the oath should be, but I think there is a community of view throughout the Chamber that the Lord Chancellor has, or should have, a different status and oath.
One question that has been discussed both in the other place and here is whether the Lord Chancellor should be a Minister who can sit in either House of Parliament, or whether he should sit only in the other place. The Government have strongly expressed the view that he should be capable of being a Minister in the House of Commons, whereas weas I have said, and as the Minister knowshave argued long and hard that he should be a lawyer sitting in the House of Lords. It will be interesting to see, when the Bill returns to the House of Lords, what it will make of the amendments that we have made to the relevant part.
We want the Lord Chancellor to be a lawyer in the House of Lords not because we think it is quite nice for him to be the Speaker in full fig on the Woolsackalthough if the Lords wish him to be Speaker that will be possiblebut because we think that it will provide at least a measure of further protection from the political
1 Mar 2005 : Column 894
interference that is, I fear, inevitable in a democratic Chamber where Members are likely to express, both privately and publicly, a range of sentiments on behalf of their constituents, including criticism of the judiciary. It is vital for the judiciary to be protected.
Mr. Grieve: Yes, indeed. Clearly, if there were an elected or largely elected second Chamber, which we are not currently in a position to implement, the question of who apart from elected Members should be in the Lords would require careful consideration. If that were to happen, perhaps that would be the time when the Lord Chancellor would no longer have a role in the Lords. Equally, given that it is perfectly possible to preserve some non-elected functions in the Lords, it would be possible to keep him there.
I am sure that the Minister has had an opportunity to look at the paper on the subject produced by a cross-party group that included Labour Members, which I found fascinating reading. It makes an important contribution to the debate. It is apparent from the paper that the group saw scope for continuing to have non-elected Members in the other place, and for retaining a role for the bishops. I do not see the Lord Chancellor's being part of that arrangement as incompatible with those proposals. Those are all subjects for discussion, but I do not want to stray from the main issue.
Does my hon. Friend agree that, having hived off the judicial functions of the Lord Chancellor from that existing role by statute, a vast amount of extremely important functions would still be retained? In the light of that, the Lord Chancellor should not be reduced to the role of Secretary of State, which is an indivisible function. If I have an opportunity to speak later, I shall go into that matter further.
Mr. Grieve: I agree with my hon. Friend. He heard me refer earlier to the powers in schedule 6, and other provisions in the Bill also make it clear that the Lord Chancellor remains a linchpin in terms of ensuring the independence of the judiciary, and the integrity of the judicial system and the dispensation of justice in this country. It is important that we get the right structures in place to ensure that that tradition, which the Lord Chancellor has honoured so well in the past, can continue.
That brings me to the issue surrounding the new clause. Currently, by virtue of taking the judge's oath in the Lords, the Lord Chancellor is effectively disqualified from taking any other ministerial office thereafter. He is a judge, and like any judge, he cannot go back to his professional career at the Barif he is a lawyerwhen he ceases to be Lord Chancellor. He cannot become any
1 Mar 2005 : Column 895
other kind of Government Minister, and he has hitherto been required to remain in the House of Lords. He can continue to sit as a Law Lord, if he so wishes, until he reaches retirement age, and that is it. The great merit of that arrangement is that he has no desire for further preferment, and therefore has some immunity from the political pressures that can easily build up on a politician who feels that he still has a career in front of him.
The problem with the Government's proposals is that, having insisted that the Lord Chancellor need not be in the Lords and could be a Minister in this HouseI suspect that if the Government get their way, that will inevitably happenthey will end up appointing quite a junior Minister in the pecking order of the Cabinet hierarchy in this House who is seeking to further his career. It is at that point that a Lord Chancellor could become particularly susceptible to pressure from colleagues trying to influence the system of judicial appointments, for examplean area in which the Lord Chancellor will still have important functions to perform, either with the judicial appointments commission or through his extensive powers under schedule 6to do what the Prime Minister or other Cabinet colleagues want done.
Given that the Government are insisting on going down that road, and that they have rejected our view that the Lord Chancellor should be in the Lordsan arrangement that already provides that extra protectionthe only solution is to have a clause in the Bill to ensure that the Lord Chancellor is disqualified from holding any other ministerial office when his period as Lord Chancellor comes to an end. In my view, that will ensure that he is somebody who is at the end or peak of his career when he is appointed, who has no further desire for preferment
|Next Section||Index||Home Page|