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Mr. Grieve: I should point out to the hon. Gentleman that it has been a critical issue ever since the matter was discussed in the other place at the start of proceedings on the Bill. It was made clear to the Government that the view of Members in the other place was that they wished the highly unusual and special role of the Lord Chancellor to be recognised by his being in the House of Lords, and thereby removed from some of the hurly-burly of politics, and by his being a lawyer to enable him to continue to provide the Government with the advice that they often need in order not to infringe the rule of law.
Mr. Tyler: I have always understood many Conservative Members to think that this House is pre-eminent, but I shall come back to that issue. In the meantime, the hon. Gentleman is factually wrong. The Select Committee's report followed much discussion in the Lords, so this is a latter-day objection.
On the question of whether the post should be held by a leading lawyer, paragraph 29 of the report says:
"The Select Committee of the House of Lords also reported a division of opinion on the question of whether the Minister should be a senior lawyer and those who considered that there was no need for the office-holder to hold a legal qualification. Accordingly, it made no recommendation."
My noble Friend Lord Goodhart said in last night's debate in the other place:
"there is a strong case for saying that the Attorney-General should be in the House of Lords, both on practical and constitutional grounds . . . The Attorney-General should be at least semi-detached from his colleagues, but the Lord Chancellor, as a member of the Cabinet, cannot be semi-detached in the same way."
"The main role of the Lord Chancellor when this Bill is enacted will be to be a departmental Minister of an important government department. His role as a constitutional watchdog in the Cabinet will be as it always has been—informal."—[Official Report, House of Lords, 15 March 2005; Vol. 670, c. 1234.]
Let us recall that that Department is concurrently spending some £3 billion of taxpayers' money. This House has always had responsibility for holding Ministers to account for the expenditure of public money. That is an important matter that has not been mentioned this evening.
Mr. Tyler: I hope that the hon. Gentleman can respond to that point.
Mr. Grieve: The hon. Gentleman's argument has little foundation. There is at least one other spending Department in the House of Lords—that of Baroness Amos, who controls a Department that spends sums substantially in excess of the Lord Chancellor's Department. There is no problem in holding her to account, just as we can hold the Lord Chancellor to account through the Minister.
There has been so much anxiety about this partly because of what happened last week. That was a classic example of what happens when the Government start to lose sight of the rule of law, as they did in their anti-terrorist legislation.
Mr. Tyler: I am grateful to the hon. Gentleman for his second speech. I am reminded that lawyers sometimes appear to have a sort of taxi meter that charges in guineas according to the length of their speeches.
I directly reject what the hon. Gentleman says. During last night's debate in the other place, Members on both sides of the House made much reference to the fact that Roy Jenkins, who was a Member of this House, might well have been a much better champion in defending the rule of law than many Lord Chancellors of that time. I find extraordinary the idea that only somebody in that place—"as at present constituted", to repeat the Select Committee's words—can be in a position to rise above party politics.
How can those who continually tell those of us who have been engaged in cross-party consideration of reforms to the second Chamber that we must preserve the pre-eminence of the House of Commons say at the same time that the holder of this great office of state can be answerable only to somebody in the subsidiary House up the Corridor? It is extraordinary that both arguments should be made at the same time. Parliament is changing, hopefully for the best, and I trust that we shall reverse the gradual and debilitating loss of power to the Executive. However, the notion that only the Lords can preserve the rule of law is patent bunk. Both Houses need to co-operate in holding the Executive to account, whoever is in power, but at the very least we need greater flexibility to ensure that the pool of talent for the role is not artificially restricted.
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In response to a contribution from my noble Friend Lord Goodhart, Lord Kingsland, the Conservative spokesman, said:
"What possible confidence can the noble Lord, Lord Goodhart, have that a non-lawyer sitting in the House of Commons would do a better job?"—[Official Report, House of Lords, 15 March 2005; Vol. 670, c. 1241.]
Lord Kingsland gave the game away. That is not the question that we are considering. We should be asking what possible confidence can we have that a non-lawyer sitting in the Commons will always do a worse job? That is the real issue. We should not say that the role must always be performed by a Member of the Commons. Flexibility along the lines agreed by our Select Committee remains the best option for an open choice of Lord Chancellor. I hope that the House will stand by its previous decision.
Mr. John Gummer (Suffolk, Coastal) (Con): I have always been a believer in convention rather than in writing these things out in words. The Minister has delighted the House with the clarity of his answers, and has always been willing to respond courteously and correctly, so I hope that he will not take it amiss if I say that convention is no longer strong enough to withstand the Government's behaviour. It is therefore important to have in place a number of protections.
The rule of law is the one thing above everything else that this country has given the rest of the world. Of all the constitutional concepts, the rule of law is crucial. The fact that no one is above the law—even our monarch is subject to the law, which is not the case for any other head of state—emphasises the importance that we attach to the rule of law. I am not a lawyer—I never wanted to be one—which is why I wanted to speak on the subject. Members who are not lawyers should speak out and say that the new lord chancellorship ought to be held by a lawyer. The Lord Chancellor does not just look after a Department but performs a particular role in government. He must remind Governments—constantly in some cases and occasionally in others—of their responsibilities towards that great inheritance of the rule of law.
I have no idea whether someone would be designated to perform that role if we changed the law. No one can be certain about that, although some of us have our suspicions. However, I am certain that the definition to which the Prime Minister must adhere when making the appointment means absolutely nothing at all. If definitions do not apply when the Prime Minister chooses the least important parliamentary secretary, he is not doing his job properly. Prime Ministers should choose Ministers who are good at the job and have the responsibilities and experience to discharge it. The present Prime Minister does not seem to have followed that very often, but it is a perfectly reasonable statement of how Prime Ministers are supposed to choose Ministers. There is nothing in the proposal that restricts the Prime Minister's choice.
It is not the Minister's fault that we feel strongly about this. It is the Prime Minister's fault, as he has presided over an Executive who have diminished the powers of the House, who resent the powers of the other House, and who have used their organisation of Government not for the better pursuance of government but for the creation of Ministries ad
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hominem. They have also shown scant interest in the rule of law. If ever there was a time when the country needed in statute rules that, to some extent, restrict the cavalier manner in which the Prime Minister chooses his Ministers, it is now.
The new Department has a peculiar slogan, which I have mentioned previously. It is incorrectly punctuated and thoroughly dangerous because it states that the Department for Constitutional Affairs stands for, "Justice, rights and democracy". Of course there is no mention of duties, responsibilities or obligations. No—the Department is a specially honed Ministry, designed to present a specific political view of the world. I want the head of that Ministry to be at least sufficiently trained in the law and of sufficient standing to defend what should exist in it and what the slogan denies.
For that reason, I strongly support what their Lordships have done. In any event, I believe that all the rubbish, which is supposed to be a compromise but is a litany of the obvious, should be removed, and I trust that we shall stick to our guns.
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