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Mr. Kenneth Clarke (Rushcliffe) (Con):
Surely, if the Prime Minister wants to, he may do all those things when he appoints any Minister in any Department. Does the hon. Gentleman at least accept what I understand to be the argument in favour of having an experienced senior lawyer? Whereas in the generality of
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ministerial posts, people like us are appointed to a variety of posts as they get reshuffled, and operate as generalists and politicians in this House, in the case of the Lord Chancellor, we want someone absolutely imbued with a sense of the independence of the judiciary and the supremacy of the rule of law, and who is not just part of the party political cab rank to which he and I are proud to belong.
Mr. Leslie: I am sure that the right hon. and learned Gentleman is not ashamed of that fact. My point is simple. The nature of the Lord Chancellorship is changing. It will be a ministerial post. He will no longer be head of the judiciary or a Law Lord. We do not need the unnecessary legal qualificatory bar or the requirement that he must always be unelected. Heaven forfend that an elected person should hold a ministerial post. It is as simple as that, and that is why we have suggested broad criteria that might be desirable for holding the office of Lord Chancellor. It will still, of course, be a senior ministerial post. The right hon. and learned Gentleman is right to suggest that we would not want to fetter the Prime Minister unduly, which is why we hope to strike the compromise that we have produced.
Although we give examples of the sort of experience that might be desirable, we remain of the view that it is wrong to be unduly or rigidly prescriptive, because circumstances can change and we cannot predict entirely who might be the best person for the job in the future. Nevertheless, our amendment is tabled in a spirit which more formally recognises the desirable qualities of the reformed office of Lord Chancellor.
The battles and disagreements about the changes to the nature of the Lord Chancellorship have been had, debated and are largely resolved. It is a different job, with different characteristics, requiring different qualities, and it is time to accept that fact rather than fight the old arguments again by proxy.
Mr. A. J. Beith (Berwick-upon-Tweed) (LD): The more the hon. Gentleman talks about the difference and the changed nature of the job, the more he risks putting off those peers who might, at the end of the day, accept that that does not need to be specified in statute. At least some of them are concerned primarily that the person who holds the office should continue one present feature of the jobthat its holder has the seniority, standing and view to enable him to challenge other Ministers when they seem to threaten the independence of the judiciary.
Mr. Leslie: The right hon. Gentleman makes a worthwhile point: strength of character and integrity cannot simply be legislated for by saying that only people in the House of Lords or with 12 years' legal experience fulfil those criteria. In the compromise that we have proposed, we have tried to highlight the fact that we recognise that experience is required. The sorts of experience required are listed but they are not prescriptive. Our amendment sets out what is desirable, which is why we offer it as we do. It sets out in broad terms the qualities sought in candidates for the new lord chancellorship, and I hope that both Houses can accept that approach.
I am sorry that the Minister is prolonging a dispute with the other place when we appear otherwise
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to be close to reaching an end to an important piece of legislation, which, for various reasons, it is desirable that we see on the statute book if possible. However, the way the Minister is proceeding does not give me confidence that there will be a satisfactory resolution of the outstanding matters.
The Minister starts on a completely false premise. He argued that, because the nature of the Lord Chancellor's job has changed, as provided for in the Bill, it is perfectly appropriate that the post should be held by any other Minister in the Commons. I must assume that he has read the Lords Hansard, where he would have seen that ever since debate on the measure started, one of the central issues that has had to be considered is the aversion voiced in the other place, and indeed by us, to the disappearance of the special role of the Lord Chancellor as a Minister different from other Ministers. The Government have been forced to acknowledge that during the passage of the Bill, even though they did not want to do so, because they have provided that the Lord Chancellor shall take a special oath of office; they have acknowledged that the Lord Chancellor should retain his historic title, marking him out from other Ministers; and most particularlybecause they certainly did not intend to do this when they first floated these reformsthey have been forced to concede various guarantees about continued judicial independence that have been enshrined in the concordat. And who is the Minister who will oversee the protection of the concordat? It is the Lord Chancellor.
There really is no point in the Minister telling the House that because the Lord Chancellor will no longer sit as a judge there will no longer be a need for someone to be present who is intimately linked to protecting judicial independence. I have to tell the Minister that I have no faith whatever in the Government when it comes to protecting judicial independence.
Mr. Edward Garnier (Harborough) (Con): Is not my hon. Friend's point further reinforced by the suggestion that a current or future Lord Chancellor, especially if he is a lawyer, should return to private practice having held that office? He cannot be responsible for the appointment of judges either as a tick-the-box man, following the recommendation of the judicial appointments commission, or as a direct appointee, and then go back to private practice to appear in front of the very judges whom he may have appointed.
Mr. Grieve: The issue goes rather further than that. As I understand what the present Lord Chancellor is saying, not only may he himself wish to return to private practice when he comes to the end of his period as Lord Chancellor, but he will actually suggestI believe, on Mondaythat in future judges should be appointed as judges for periods of time and return to practice thereafter. That is something that fills me with enormous disquiet, but we shall have to return to that as and when that extraordinary announcement is made.
There is every reason to keep the Lord Chancellor as a lawyer and a lord. In the debate in the other place, I note that Lord Howe of Aberavon rightly pointed out that as late as 2002, in the Government's submissions to the Council of Europe about the role of Lord Chancellor, they spell out every argument that, even
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taking account of the changed role of the Lord Chancellor, justifies keeping the Lord Chancellor as lawyer and lord.
"At the same time he is removed to the House of Lords, away from the full force of party politics. The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with a full understanding of legal culture and the rule of law. His tripartite role enables him to act as both a link and bulwark between the judiciary and the executive and the legislature. He can explain, defend and interpret each to the other."
The tripartite role may no longer exist, but the Lord Chancellor continues to have a dual role that fully justifies the maintenance of his exceptional status. I simply cannot understand how the Minister can come to the House and argue that the legislation changes that. He can argue that he does not want it, but there is no logic behind the position that he has adopted. As the right hon. Member for Berwick-upon-Tweed (Mr. Beith) said, there must be concern that, if the Lord Chancellor does not have that status, he will become prey to party politics.
Let us look at the question as one of logic and forget what party is in government, although I have to say that we have seen plenty of examples in this Parliament of Ministers laying into the judiciary. The right hon. Member for Sheffield, Brightside (Mr. Blunkett) expressed himself in fairly intemperate terms when he was Home Secretary, and I detect that his intemperance may grow now that he is no longer in that post. I am troubled by the prospect of ending up with a Lord Chancellor who is fairly junior in the hierarchy of Ministers, who is present in this House and who wishes to have a further career in politics; such a person will inevitably be subject to much greater pressure not to uphold the rule of law or to defend the judiciary.
The Attorney-General, although he has an important role in advising the Government, is not present in Cabinet to uphold the rule of law, whereas the Lord Chancellor is, on a permanent basis. The Attorney-General is only present by invitation. All the more reason, therefore, why we should ensure that there is a lawyer of distinction within Government to perform precisely that role. If the Minister had simply suggested that we also consider a distinguished teacher of law in a university as an addition to the provisions on a qualifying practitioner, his argument would have had some force and I would have been prepared to consider it; but to remove the requirement to be a lawyer when the Lord Chancellor will have to perform a series of legal and quasi-judicial functions to maintain the independence of the judiciary is a very foolishand quite unnecessarydevelopment, which increases our anxiety that the only reason why the Government have done it is that they have already identified a Member of this House whom they wish to appoint to the job as soon as possible. Listening to the right hon. Member for Sheffield, Brightside beginning to encroach on at least one limb of the role of Secretary of State for Constitutional Affairs by talking about Englishness the other day, it struck me that he was lining himself up for
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that very job. I do not want the right hon. Gentleman to get that jobever. That possibility is a good reason in itself to ensure that the Lords amendments are maintained.
We shall stand by the Lords amendments and reject the absolutely vacuous amendment in lieu. I can only assume that this fig leaf of an amendment reflects the Government's slight queasiness about what they are doing. I urge the Minister to tell the Prime Minister and others that if they want the Bill, they should be sensible. The Bill contains good things, such as the creation of a judicial appointments commission
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