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Lord Cledwyn of Penrhos: My Lords, I rise not to make a speech but to make a brief point. I am surprised that no one mentioned the possibility that there is another solution. It is not an absolute solution but it is a suggestion which should at least be put to the House; namely, that we have a Speaker in the Lord Chancellor. The noble and learned Lord the Lord Chancellor is also the head of the judiciary, in addition to being a Member of the Cabinet. While I have every faith in the noble Viscount, and have great sympathy with everything said by my noble friend, nevertheless, the Lord Chancellor is a figure of great significance in our constitution and in this House. We should therefore consider the possibility of referring cases to him.

Viscount Mountgarret: My Lords, on the point just raised by the noble Lord, Lord Cledwyn, there is little to distinguish—from a political point of view—the position of the Lord Chancellor and that of the Leader of the House. It is still a political appointment. If the Lord Chancellor were appointed in the same manner as the Speaker of another place, perhaps the argument would have greater significance.

I listened to the various arguments put forward and understand that a number of your Lordships hold strong views about change. We are animals who, from time to time, have a reluctance to change. However, the suggestion put forward by the noble Lord, Lord Richard, must appeal to most of your Lordships. In this matter we are taking a step in the dark. We are not certain of what the knock-on effect of this would be. I agree with my noble friend Lord Harmar-Nicholls when he said that it would be a retrograde step. I share his view. It may well be a retrograde step but we do not know that. If, without commitment, your Lordships' accept the proposal put forward by the Procedure Committee and incorporate it in a trial period of, say, two or three years with the Procedure Committee keeping the matter under review, the matter may be brought back to your Lordships' House at a later date when we could assess the views of your Lordships. That may be the best way forward.

Viscount Cranborne: My Lords, with the permission of the House, perhaps I may say that this has been an extremely interesting exchange. It has taken rather longer than perhaps any Member sitting in the House expected. But I agree with the noble Lord, Lord Richard, we should thank the noble Lord, Lord Monkswell, for raising a matter of considerable interest to your Lordships' House, and rightly so. Perhaps your

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Lordships will allow me briefly to put my own gloss on this debate. I do not wish to speak to the matters raised by the noble Lord the Chairman of Committees in his opening remarks. I wish to speak more particularly to the amendment tabled by the noble Lord, Lord Monkswell.

I am extremely conscious that the Leader of the House enjoys no more privileges than any other Member of your Lordships' House. That is not only the immemorial custom of your Lordships' House, but it is also right that it should be so. Many of your Lordships—I believe everyone who spoke this afternoon—recognised that that is the right and the position. I would be the last in any way to seek to undermine that position. It is fundamental to the way your Lordships' House is organised and self-regulation should be the watchword of how we conduct our affairs.

I therefore have the greatest sympathy with the dilemma put with such clarity by both the noble Lords, Lord Richard and Lord Jenkins, concerning the sub judice rule. The difficulty is clearly set out in paragraph 3 of the report. By virtue of a matter being raised as to whether or not it is sub judice, the noble Lord who raises the point is immediately entering into discussion on a matter which may subsequently and retrospectively, after that discussion, be thought to have been sub judice, thereby, in a circular way, defeating the very object of having a sub judice rule in the first place.

The last thing in the world I want to do—indeed it would be invidious for me to do so—is to put the Leader forward as a quasi-Speaker in this matter and in this matter alone. But the difficulty is, as the committee recognised, and indeed as the noble Lord, Lord Richard, recognised in his remarks, that at some point somebody must give a ruling if we are to avoid the matter being raised and thereby prejudicing the case in hand.

The noble Lord, Lord Cledwyn, suggested the Lord Chancellor as someone who might, with advantage, be proposed for this role. I am very far from being against that suggestion. However, I would ask the noble Lord to consider page 17 of the 1989 edition of the Companion to the Standing Orders. If the House would allow me, I should like to quote from that:

    "The Lord Chancellor is Speaker of the House of Lords ex officio. It is his duty ordinarily to attend as Speaker, to sit on the Woolsack and to preside over the deliberations of the House, except when it is in Committee. He puts the Question on all Motions which are submitted to the House, but he has no power either to maintain order or to act in any way as the representative or mouthpiece of the House".

That is qualified by the phrase,

    "unless the House confers the necessary authority upon him".

Lord Cledwyn of Penrhos: My Lords, the Lord Chancellor holds another very important office; namely, he is the head of the judiciary and he sits as a judge. He is one step away from the Cabinet as far as that is concerned.

Viscount Cranborne: My Lords, I wholly accept that point. The difficulty, it seems to me—as always, in all matters, but in this matter particularly, I am in the hands of your Lordships—is that the Lord Chancellor, who would undoubtedly be a better judge in these matters

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than I as Leader of the House, would find it difficult to enter into the regulation of your Lordships' House. The noble Lord, Lord Cledwyn, might like to take that point into account.

Lord Stoddart of Swindon: My Lords, I am obliged to the noble Viscount for giving way. The noble Viscount is the Leader of the House. The Lord Chancellor is not the Leader of the House. That is a difference. In one sense the Leader of the House is our man. The Lord Chancellor, apart from being outside of the House, is the judiciary's man. He is the leader of the judiciary. Therefore, he has an interest, unlike the Leader of the House. That surely disqualifies the Lord Chancellor from making any decision as to whether a matter is sub judice.

4.15 p.m.

Viscount Cranborne: My Lords, as is so often the case, the noble Lord, Lord Stoddart, has anticipated what I was going to say, although he perhaps puts it more forcefully and more elegantly than I could have done. The Lord Chancellor and the Leader of the House, as the noble Lord, Lord Richard, and indeed the noble Lord, Lord Jenkins, pointed out, have to lead a somewhat schizophrenic existence in your Lordships' House, both as members of the Cabinet and in performing a rather less partisan function. I feel that any competent Leader of the House must regard his or her position as Leader of the House as one in which he or she is Leader of the whole House and is not a partisan figure in that capacity. Many former Leaders of your Lordships' House are still Members of your Lordships' House. By common consent, they have been extremely effective and forceful Leaders of the House who have respected and indeed adorned that tradition. The noble Earl, Lord Longford, is a very good case in point.

There is a case for the Leader of the House to be given this task in spite of the caveats entered by the noble Lord, Lord Monkswell. I understand wholly what he says particularly as, if this change were to be made, it would be I, as Leader of the House, who would take on a function which would be a new departure for your Lordships and therefore would be all the greater a responsibility for me to discharge.

It might also be worth saying that the pronouncements of the Leader over whether a matter should be sub judice would be characterised in particular by two considerations. First, it is very clear that any pronouncement by the Leader on whether a matter is sub judice would be in the direction only of a relaxation of debate rather than a prohibition. That, in terms of the freedoms of your Lordships' House, would be most important for your Lordships to understand.

The second point has been made by many of your Lordships during the course of this afternoon's exchanges. The Leader would not pronounce in a personal capacity. He would take advice. I listened, as always, with particular attention to the words of the noble and learned Lord, Lord Simon of Glaisdale. I suspect that it would not be appropriate for the Leader to take the advice of the Opposition leaders or indeed the Convenor of the Cross-Bench Peers because they,

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inevitably, are purely political figures, however much they may be leaders in waiting. What would be sensible is for the Leader to take the advice of the Counsel to the Chairman of Committees and indeed of the learned Clerk of the House.

As such, primed with their advice and a suitable degree of notice before having to pronounce to your Lordships on sub judice matters, he would be rather like what I understand the Pope would be like when he pronounces on a matter of doctrine, in which he is, I am told, infallible. I am not a Roman Catholic myself but I understand that if he pronounces ex cathedra, he is suitably primed with all the advice and panoply which followers of that faith believe gives him the authority he would need. In this case that kind of advice would bolster the Leader's position as an independent figure representing your Lordships as a whole rather than representing the party of the government of the day.

I am extremely conscious that I have spoken for rather longer than I intended to, which perhaps is one of the penalties of speaking unprepared. I should like to suggest to your Lordships that there are two alternatives. The first is the alternative proposed by the noble Lord, Lord Richard, which is that we should try the recommendation of the committee for a period long enough to give us some experience of the workings of the proposal and that we should then review it after perhaps two or three examples of this happening. Then, if the House expressed itself dissatisfied with how the experiment was working, it would be open to the House to reject it.

The other alternative, which was proposed by the noble Lord, Lord Jenkins, was that this matter should be referred back to the Procedure Committee, which would then take note of the exchanges this afternoon and make a further recommendation to your Lordships. I am entirely, as always, in the hands of your Lordships' House. I have to say—this is no more than a matter of judgment in which I could be proved entirely wrong—that I would strongly suspect, having listened with close attention to the deliberations of the Procedure Committee when it discussed this important matter and indeed the consultations that occurred before that committee sat, that the committee would find it very difficult—there are many members of the committee present today who might disagree with me on this—to come to any different conclusion from the one it has already come to.

Therefore, if the House were to ask me to make a recommendation, the recommendation that I would feel constrained to make, in spite of the very sensible and understandable reservations expressed by noble Lords on all sides of the House, would be for a relatively short period of experiment. If the experiment is manifestly a failure, or if there are any doubts at all about the propriety of the way in which the experiment has been handled, or indeed the safeguards that are put in place, it is open to the House to refer it back to the Procedure Committee or indeed to revert to the status quo.

However, I believe that the House will be well aware of the difficulty to which so many of your Lordships have already alluded this afternoon. Quite simply, it

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does not make sense for Parliament, in the form of both its Houses, to labour under different sub judice rules. We are talking about the pragmatic effects of matters which are not being allowed to be discussed in one House and then being discussed in another. No matter where it is discussed, and in whichever House of Parliament, the person accused or the civil case under discussion, will find itself prejudiced in a way which would be against the best traditions of British justice and of this House.

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