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Standing Committee Debates

Draft Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No. 2) Order 2006

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Eighth Standing Committee
on Delegated Legislation

The Committee consisted of the following Members:


Hywel Williams

†Binley, Mr. Brian (Northampton, South) (Con)
†Brennan, Kevin (Cardiff, West) (Lab)
Brokenshire, James (Hornchurch) (Con)
†Burgon, Colin (Elmet) (Lab)
†Connarty, Michael (Linlithgow and East Falkirk) (Lab)
†Djanogly, Mr. Jonathan (Huntingdon) (Con)
†Field, Mr. Frank (Birkenhead) (Lab)
†Hughes, Simon (North Southwark and Bermondsey) (LD)
†Irranca-Davies, Huw (Ogmore) (Lab)
†Mackinlay, Andrew (Thurrock) (Lab)
Mudie, Mr. George (Leeds, East) (Lab)
†Prentice, Bridget (Parliamentary Under-Secretary of State for Constitutional Affairs)
†Stunell, Andrew (Hazel Grove) (LD)
†Vis, Dr. Rudi (Finchley and Golders Green) (Lab)
†Wareing, Mr. Robert N. (Liverpool, West Derby) (Lab)
†Watkinson, Angela (Upminster) (Con)
Wilson, Mr. Rob (Reading, East) (Con)
Glenn McKee, Committee Clerk
† attended the Committee

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Tuesday 21 March 2006

[Hywel Williams in the Chair]

Draft Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No. 2) Order 2006

4.30 pm

The Parliamentary Under-Secretary of State for Constitutional Affairs (Bridget Prentice): I beg to move,

    That the Committee has considered the Draft Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No. 2) Order 2006.

It is a pleasure to serve under your chairmanship, Mr. Williams. This is the first time that I have done so and I am sure that the Committee will be fair and open with you at its head.

The draft order supplements the Constitutional Reform Act 2005, which received Royal Assent almost exactly a year ago, on 24 March 2005, and most of which will come into force on Monday 3 April. The Act modernises the constitution by reforming the post of Lord Chancellor, abolishing the Lord Chancellor’s traditional role as a judge and the head of the judiciary, and provides for the establishment of a new judicial appointments commission, a judicial appointments and conduct ombudsman, and a new judicial disciplinary system. The Act will also lead to the abolition of the judicial role of the House of Lords and the creation of a Supreme Court.

The 2005 Act modifies many statutory requirements on the Lord Chancellor, so that where they affect the judiciary they are exercised in consultation with the Lord Chief Justice or with the concurrence of the Lord Chief Justice, or are transferred to the Lord Chief Justice to be exercised in consultation with or with the concurrence of the Lord Chancellor. Most of those provisions relate only to England and Wales, although there are some tribunals whose jurisdiction covers all of Great Britain or the whole of the United Kingdom. In all those cases, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland also have functions conferred upon them.

The way in which various functions have been modified or transferred depends on the concordat agreed by the Lord Chancellor and the Lord Chief Justice, and on detailed discussions between officials and a working group of judges chaired by Lady Justice Arden.

Schedule 4 of the 2005 Act contains 407 provisions, which amend different functions of the Lord Chancellor in primary legislation up to 2003. However, it did not capture functions enacted or amended in legislation in the 2004-05 Session. With few exceptions, it also did not cover functions in secondary legislation. The Lord Chancellor has
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therefore laid before Parliament an order amending some 80 functions of the Lord Chancellor in secondary legislation. That order is subject to the negative procedure. The draft order before us amends functions in primary legislation or in secondary legislation that can be amended only by affirmative procedure.

There are three schedules in the draft order. Schedule 1 amends primary legislation. The most significant function affected under schedule 1 is the Lord Chancellor’s role as Lord of Appeal under the Appellate Jurisdiction Acts, which will be abolished. That was not done in the 2005 Act, because that Act repeals the Appellate Jurisdiction Acts as a whole. However, the repeal will not be commenced until we establish the Supreme Court in 2009. The draft order therefore brings to an end hundreds of years of legal and constitutional history, in which the Lord Chancellor presided as a judge over the House of Lords in its judicial capacity. It completes the work done by the 2005 Act, which abolished his role as a judge of the Court of Appeal, of the High Court and of the Crown court. The other functions affected by schedule 1 are in legislation passed in 2004-05, which is amended in order to conform to the requirements of the concordat and the provisions of the 2005 Act.

Schedule 2 amends a small number of pieces of secondary legislation that can be amended only by an affirmative order, and schedule 3 corrects a slip in the drafting of paragraph 199 of schedule 4 to 2005 Act, which amended section 146 of the Copyright, Designs and Patents Act 1988, which omitted a necessary reference to members of the copyright tribunal being appointed as well as being removed.

Andrew Mackinlay (Thurrock) (Lab): I listened carefully to my hon. Friend. She said that the purpose was to correct an error in the original Act. Can she explain to the Committee how it is possible—by what authority—we can amend by statutory instrument something that was in a Bill and is now in an Act of Parliament? Surely that can be done only by primary legislation. If I am wrong, perhaps she will explain the authority to the Committee.

Bridget Prentice: My hon. Friend, as predicted, makes an important point about the way in which we amend legislation. We are using the order—an affirmative order—to make the change, as it is a perfectly acceptable means of making a change in a case of drafting error such as this.

4.36 pm

Mr. Jonathan Djanogly (Huntingdon) (Con): The order makes several changes to the role of the Lord Chancellor, in the light of the provisions in the Constitutional Reform Act 2005 that modified the office of Lord Chancellor by ending his judicial role and transferring a number of his functions, many of which have been redistributed to the Lord Chief Justice. The exercise of many functions that the Lord Chancellor is to retain is to be conditional upon concurrence with the Lord Chief Justice.

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Primary and secondary legislation are now to be amended by the order to give effect to the new arrangement. As the Minister said, although most of the necessary changes required under the 2005 Act were made in schedule 4 to the Act, the order amends primary legislation that was introduced during the 2004-05 Session of Parliament. More significantly, it makes amendments to the Appellate Jurisdiction Acts 1876 and 1887 so that the Lord Chancellor ceases to be a Lord of Appeal.

This is not the time or place to rerun the discussion of the role of the Lord Chancellor, as the Minister—and you, Mr. Williams—will be pleased to hear. However, the Conservative Party is, at least, satisfied that the office of Lord Chancellor is to remain, despite the Government’s best efforts in the past to abolish that traditional and constitutionally important position. The order may be carrying out part of the process that will result in the modification of the Lord Chancellor’s role, yet the Lord Chancellor is to remain as a guarantor of judicial independence within the Cabinet.

4.37 pm

Andrew Mackinlay: I am pleased to catch your eye, Mr. Williams. Hon. Members have been given relatively short notice that they were to serve on the Committee, and I want to lodge my protest at the fact that the usual channels, and particularly the Government Whips, are unable to give hon. Members adequate opportunity to prepare, so that they can give Government proposals adequate scrutiny and provide accountability.

To illustrate that, perhaps I can mention that overnight I have studied a volume of documents that is only a fraction of those referred to in the order. For the purpose of the Official Report, which does not show diagrams, I shall say that the pile of Acts of Parliament that I have shown the Committee is about 1 ft deep. I do not know what that is in centimetres or modern money, but nevertheless there is a hell of a lot of legislation to deal with—and it is complicated. We do not do justice to the process if we assume that the charade that we are going through this afternoon is scrutiny of legislation. It is not, and I am not prepared to sign up to that charade.

It seems to me from the study that I have been able to make of the order that it is badly drafted. There is perhaps a case to be made for taking it back. I have on other occasions found measures from the Lord Chancellor’s Department to be flawed. I am told by the Whips that I do not turn up often enough to Committees of this kind, but certainly on one occasion in the previous Parliament the Department had to withdraw an order that was flawed and resubmit it to Parliament; so it has produced flawed legislation before. It was an order relating to people who could serve as justices of the peace in Northern Ireland.

To illustrate one area I think flawed, it would seem that the theme throughout, relating to a whole range of Acts—the Nationality, Immigration and Asylum Act 2002, the Gender Recognition Act 2004, the Civil Partnership Act 2004, the Pensions Act 2004, the
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Prevention of Terrorism Act 2005, the Mental Capacity Act 2005 and so on—is that there are some appointments hitherto made by the Lord Chancellor that he now shares the decision on, under the provisions of this order, with the Lord Chief Justice of England and Wales, the Lord President of the Court of Session in Scotland and the Lord Chief Justice of Northern Ireland. How does that advance our constitutional and judicial development? The Lord Chancellor has not given up his role; he is just sharing it with other people. That is not a massive transfer, a major constitutional shift, as suggested. But that is not the point that I want to make.

To use an example, because I want to expedite the proceedings of the Committee, look at page 3 of the instrument before us. Paragraph 10 inserts:

    “After paragraph 5(2)”—

of the Nationality, Immigration and Asylum Act 2002—

    “(3) The Lord Chancellor may appoint a person under sub-paragraph (1)(a) only with the concurrence of all of the following—”

I want to draw attention to “all”. That is why I think that the drafters, on the face of it, have been sloppy, although no doubt the Minister will tell me precisely why I am wrong in making that accusation.

I could understand the Lord Chancellor perhaps sharing with the Lord Chief Justice of England and Wales those matters that relate to England and Wales. Under this provision, the Lord Chief Justice of Northern Ireland is also involved. “All” does not differentiate. The principal judge of Scotland, the Lord President of the Court of Session, has to concur. To appoint a person whose competence or jurisdiction is in Scotland, the Lord Chief Justices of England and Wales and of Northern Ireland have got to agree, and vice versa.

That theme is throughout the provisions. I assume that that was not the intention of the Lord Chancellor’s Department and that “all” should not be there. The drafting should be such that the Lord Chancellor would consult the Lord Chief Justice of England and Wales where matters relate exclusively to England and Wales.

Andrew Stunell (Hazel Grove) (LD): I am following the hon. Gentleman’s argument carefully. If I understood him correctly, he believes that “all” includes everyone. Has he considered that the Government might have a different interpretation of “all”, as they have a different interpretation of many words that appear in legislation?

Andrew Mackinlay: No pun intended, but all will be revealed later, when the Minister replies. What she must not do is what she did on my intervention, which is head down, plough on, straight for the icebergs, full steam ahead. She has got to explain to the Committee why I am wrong. She did not when I intervened earlier. She did not give us the authority whereby we could amend primary legislation by this instrument. I assume that if Parliament puts a thing in an Act then that is set like stone and, unless there is a provision saying that if there has been a cock-up it can be
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amended by statutory instrument, we have to alter that by primary legislation. I am not trying to be flippant, but I think we should be told under what mechanism the error is corrected by the statutory instrument.

I renew my challenge to the Minister to explain that, because she did not when I intervened. To the hon. Member for Hazel Grove (Andrew Stunell), yes, it is clear to me that this consultation requires all three to agree, regardless of whether the appointee relates to Scotland, Northern Ireland or England and Wales.

Bridget Prentice: I am surprised that, given his detailed knowledge of all the Acts being discussed today, my hon. Friend did not notice that section 19 of the 2005 Act gives the Lord Chancellor the power to modify functions of his role and to amend primary legislation.

Andrew Mackinlay: I had not noticed that, because there were not enough hours from my appointment to this Committee until now for me to deal with the plethora of complicated legislation that is before us. I will, of course, consult afterwards, but if what the Minister says is true, that provides further evidence of how poor is our drafting and scrutiny of legislation, because such a catch-all provision should not be given to the Lord Chancellor. Other legislation is passing through the House that also worries those of us who wish to keep our hands on the capacity to be lawmakers.

I wish to make a couple more comments. However, I have covered a lot of ground and the Minister clearly did not answer in her intervention the point that I made about “all”. We look forward to her coming back on that.

Bridget Prentice: I certainly will.

Andrew Mackinlay: The other matter, which would probably exercise you, Mr. Williams, if you were not in the Chair—with its very onerous responsibilities, for which the stipend you receive is a mere pittance and much less than what you are worth—is the issue of the National Assembly for Wales (Representation of the People) Order 2003. The article in that order that is referred to deals with how to treat bent justices of the peace who fiddle the elections, although I am sure that that never happens in the Principality. Nevertheless, I want to understand why this place is amending that measure of the Welsh Assembly.

I am pretty au fait with the constitutional arrangements of Wales, and with how this House has not given it full legislative powers. I understand that principle and you, Mr. Williams, no doubt have a view on that which you would express if you were able to do so. That order is an order of the Welsh Assembly, and yet we are altering it at Westminster. That seems to me inappropriate, and perhaps we should be told not only the legal reasons but the political reasons why that matter should not have been referred back to the National Assembly for Wales.

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I could go on, but I guess that that would tax not only you, Mr. Williams, and the Minister, but friends on both sides of the House who have other things that they need to do this afternoon on behalf of their constituents. However, I must say that I do not think that this is the proper way for us to deal with legislation; I am not prepared to attend such Committees and acquiesce by my silence in rubber-stamping things. The Minister needs to give us a much more adequate explanation of this extensive measure that we are being asked to endorse.

4.48 pm

Simon Hughes (North Southwark and Bermondsey) (LD): May I first apologise? I arrived in the Committee Room late because I was in the main Chamber until the end of a ten-minute Bill. That was about a change of role for certain people; I was very happy to support the proposed change of role of women to enable them to become bishops in the Church of England, and I hope that that would enjoy majority support in the Committee. I am grateful that my hon. Friend the Member for Hazel Grove made sure that the Liberal Democrats were represented in this Committee and that what the Minister said was heard by my party.

I shall be brief. First, may I pick up on the procedural point raised by the hon. Member for Thurrock (Andrew Mackinlay)? I had not spotted it. However, it is certainly proper to ask whether the provisions in the order that require that a decision that has until now been taken by the Lord Chancellor should in future be taken jointly by the Lord Chancellor and others are technically correctly drafted. If there is a decision to do with, for example, Northern Ireland, logically it can at most be a decision between the Lord Chancellor and the Lord Chief Justice of Northern Ireland. If there is a decision to do with England and Wales, it will be a decision for the Lord Chief Justice and Lord Chancellor, and if it is a Scotland decision it will be for the President of the Court of Session and Lord Chancellor. I hope that I have got that Scottish title correct.

I should be grateful if the Minister would take that point seriously. It is important that there is no confusion. It seems to me illogical that a Scottish or Northern Irish matter should also require the head of the judiciary in England and Wales to have a say. If we want to recognise the different judicial and legal decisions in different parts of the United Kingdom, then I hope that this order does that—and confirms it. The Minister will, I hope, be able to address the drafting point, which is valid.

Secondly, I will spend a moment or two on comments about the main proposal in the order. It was debated yesterday in the House of Lords, as colleagues will know. All who spoke in the debate, including Lord Goodhart, who spoke for my party, remarked on the significance of the order in terms of the history of this country. I remember being brought up watching plays and films such as “A Man for All Seasons”. In the past, the role of the Lord Chancellor and the Chancellor of England were hugely significant. I think that I am right that the Lord Chancellor is in the top five in the order
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of precedence to this day. I discovered the other day that the Archbishop of Canterbury is even higher, which I had not realised, but the Lord Chancellor is certainly one of the most senior historic posts.

The Lord Chancellors played a key part as judges. They are appointed as a senior judge. Until not very many years ago, the Lord Chancellor would sometimes sit with the other Lords of Appeal in Ordinary and be a judge in our Supreme Court of Judicature. Indeed, Lord Hailsham, to my certain knowledge, did so regularly when he was Lord Chancellor. You and other colleagues, Mr. Williams, may remember that that has been occasionally the case since then. I think that the last Conservative Lord Chancellor sat, occasionally, as a judge in the House of Lords in the Judicial Committee. This is not an old bit of fuddy-duddy history, but is quite recent.

The person who effectively had the job in the British constitution of being the Minister for justice also had the job of being the senior judge in the senior court in the land—and also, sometimes, had the job of being the Speaker of the House of Lords. That is why my colleagues and I supported a change in that constitutional arrangement, and believed that a modern Britain needed to divide those three jobs. In the future the House of Lords can elect its own Speaker, which it will do as a result of the Constitutional Reform Act 2005, which we supported. We have a Supreme Court, which will be fully formed by 2009, I think. It will be small and no doubt beautifully formed by then, and will, it is hoped, have moved over to its planned home in the Middlesex Guildhall. Thirdly, the Lord Chancellor will cease to be a judge in the most senior court in the land. My recollection is that when the Act was passed the Lord Chancellor lost all his other judicial functions, but that was left for later.

Andrew Mackinlay: Will the hon. Gentleman join me in asking the Minister why, if the Lord Chancellor is giving up judicial functions—I agree with that—does he hold on to them throughout the order? The appointments are being made by him only after he has consulted the three people to whom I referred earlier in the debate. Parliament is not passing on the functions to the Lord Chief Justice and other heads. They are simply being shared. I find that perverse.

Simon Hughes: In the words of Lewis Carroll, I was coming to that. That was going to be my last point, but I will come to it in a second.

The order is significant. It adopts or implements a policy that my party has argued for, so we support it. When the order is passed, as I anticipate that it will be, we will have completed the process of ending the judicial role of the Lord Chancellor. That will indeed be a significant moment. However, it leaves one question, which was rightly asked by the hon. Member for Thurrock and which I also wanted to ask.

I understand why the Lord Chancellor should give up his judicial role and that will complete our process. I understand why the Lord Chancellor might want to keep some functions as the prospective Minister for justice or Secretary of State for Constitutional Affairs.
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However, it seems, to put it neutrally and non-judgmentally, to be a sign of a slight schizophrenia to keep the joint function between the senior judge, those who run the judicial and courts systems and the Minister for justice. I therefore share the concern about that, and it needs a bit more explanation, if the Minister would be good enough.

We have a Metropolitan Police Commissioner, and we recently legislated that he should be more accountable to the Greater London authority, but he is still nominated by the Crown on the advice of the Home Secretary. Arguing for keeping the joint function is like saying that we will keep that sort of responsibility. It has a slightly complicated line of accountability.

Will the Minister explain why we cannot see in the future a division between the political Minister for justice, who will have a perfectly proper set of responsibilities and appointments and announcements to make, and the heads of the judicial services who will act as the senior judges in England and Wales, Scotland or Northern Ireland? We support the proposal; it is significant, it is the end of an era and it is the right way to do things. That does not mean that we do not express our thanks to the very wise Lord Chancellors of the past who have contributed greatly to the enlightenment and reputation of Britain and to some very serious decisions in the most senior court in the land. They have done that job with seriousness and very well.

4.56 pm

Mr. Robert N. Wareing (Liverpool, West Derby) (Lab): I must start by agreeing with my hon. Friend the Member for Thurrock about the lack of time that we have had to look at the documents. Such neglect of Members is not peculiar to this Committee. I find time and again that the first time I see a statutory instrument is when I enter the Committee Room. That is something that the Procedure Committee might look at.

In general, I applaud the order. It will bring us further towards a real separation of powers. It is ludicrous that the Lord Chancellor should be a member of the legislature, the Executive and the judiciary. That is being ended. My experience in the House has changed my mind about the separation of powers, which I would like to see carried through to the legislature and the Executive. The Executive are far too powerful, and although it may not be completely relevant to the statutory instrument, members of the Committee might look carefully at certain sections of the French constitution on the separation of powers.

There seems to be some confusion between schedule 3 to the order and the explanatory memorandum. The explanatory memorandum tells us that part 3 of the Constitutional Reform Act 2005

    “repeals the Appellate Jurisdiction Acts, which govern the judicial role of the House of Lords.”

Schedule 1 to the order states:

    “The Appellate Jurisdiction Act 1876 is amended as follows.”

How can an order amend an Act that has already been repealed under the parent legislation?

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The new Supreme Court will not come into existence until 2008, and will not be fully staffed until 2009, as the hon. Member for North Southwark and Bermondsey (Simon Hughes) said, but the Appellate Jurisdiction Act 1876 referred not only to the judicial role of the Lord Chancellor but to that of the other Law Lords. Will the Lords of Appeal in Ordinary other than the Lord Chancellor still function until the Supreme Court comes into existence? If not, who will be carrying out the functions of the Law Lords in the interim?

4.59 pm

Michael Connarty (Linlithgow and East Falkirk) (Lab): I bow to my hon. Friends the Members for Thurrock and for Liverpool, West Derby (Mr. Wareing) and their intimate knowledge of the Acts that the statutory instrument will affect. As someone who used to teach government and political systems, I have to say that, in the round, the process of getting rid of the contradictions in the role of the Lord Chancellor, as explained by my hon. Friend the Member for Liverpool, West Derby, is to be welcomed. I am sure that the Minister, who is also thoroughly versed in this issue, will explain the complications created by this statutory instrument and make us feel happy about agreeing to it.

I have only one question, and it may be naïve. People have an obsession with and are allured by titles such as Lord and the functions of the other place, but I am one person who looks forward to its abolition. If it were abolished, or replaced by another second Chamber, would everything have to be altered again? The Lord Chancellor would presumably have to remain outwith the legislature altogether or be extracted from all the Acts so that we arrived at the sensible position of those in charge of the Supreme Court and its duties making appointments without reference to anyone who had anything at all to do with the legislature.

5.1 pm

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