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Lord Simon of Glaisdale: My Lords, I follow three speeches of great constitutional moment with which I respectfully agree. I support the Bill as a measure of necessity in the circumstances described by my noble and learned friend the Lord Chancellor.
We often speak of the constitution being one of separation of powers. That is true of the American constitution. Strictly speaking it is not true of ours; our constitution is based on something much more delicate and much more frangible in the end, unless it is a balance of powers. At the point of balance stands the Lord Chancellor and his Permanent Secretary. That is why the post is of such importance, as has been recognised by every speech this evening.
I only desire to add one thing. The American legal system is in one respect superior to ours, namely, in the greater flexibility with which people can move from academic life to judicature, to government service, to private practice, and so on. An extreme case would be a very bright young lawyer from the Harvard Law School who might spend a few years in private practice, then go into government legal service and then on to the Bench, and then back again into the government legal service and finally end up as a judge of appeal. I do not know whether he is still in office, but quite recently the Professor of Laws at the University of San Francisco was appointed Chief Justice of California. I know that my noble and learned friend is sympathetic to that kind
of flexibility because he has told me so in a letter. I would, with respect, ask him to do all that he can to encourage that in our system. In the meantime, the measure proposed by my noble and learned friend the Lord Chancellor seems to be necessary.
Lord Hooson: My Lords, we support the Bill because it seems to be necessary and a matter of common sense. The noble and learned Lord, Lord Ackner, referred to the fact that the Lord Chancellor's Department is a unique department, and so it is, but it is also now a major department of state. It has grown as much in size during my parliamentary career as any department proportionately. It would be contrary to conventional wisdom not to have the widest choice in the selection of a future Permanent Secretary because the administrative experience and on overall appreciation of the skills that are necessary in government seem to be more important than legal background.
Having said that, the growth of the Lord Chancellor's Department is also indicative that the Bill is necessary at this time. The Master of the Rolls, the noble and learned Lord, Lord Woolf, has mentioned the problems that that situation creates.
In a wise move the noble and learned Lord the Lord Chancellor sent to various people interested in the Bill a covering letter outlining his view concerning its necessity and explaining the reasoning behind it. He said, and virtually reiterated today:
- "No person would be appointed to be my Permanent Secretary who did not have the fullest appreciation of these traditions and values".
He spelt out those traditions and values in his letter and in his speech this evening. That is a matter that is fully appreciated. No one could possibly think that he would not respect them. The concerns expressed today do not relate to what the noble and learned Lord the Lord Chancellor will do, but what might be done in the future after his day.
The noble and learned Lord, Lord Woolf, said that he was sure that safeguards would exist in the future if there were a continuation of the close consultation which now takes place between the Lord Chancellor and the senior judiciary on all issues which might seriously affect the judiciary. I understand that informal discussions take place now and that they are important. The noble and learned Lord, Lord Ackner, also referred to the conventions which have guided the Lord Chancellor and his department in their relationship with the judiciary.
The time may be approaching, if it has not already arrived, when we must consider whether some of those conventions should be institutionalised; that there should be an institutionalised meeting between the Lord Chancellor and senior members of the judiciary. If we have reached the stage where it is no longer necessary, as I do not believe that it is, for the Permanent Secretary to the LCD to be a lawyer, we may later reach a stage, with the great expansion of the LCD, when it may be argued that the Lord Chancellor himself need not be an eminent legal figure.
Therefore the time is rapidly approaching when we may have to rationalise the relationship between the two hats, as it were, which the Lord Chancellor wears: that which he wears as a head of an important and rapidly expanding department, and that which he wears as head of the judiciary, and as the conduit between government and the whole judicial system.
My noble friend Lord Lester of Herne Hill wanted to be here this evening. As the noble and learned Lord the Lord Chancellor knows from correspondence, he was anxious to raise the possible institutionalisation of relations with regard to certain aspects of his department. It is my party's policy, and until recently, if not still, that of the Labour Party, that there should be a judicial appointments commission. It would reassure those who have taken part in this short debate, and who approve of the move being made by the Lord Chancellor this evening, if he could indicate that there will be wider discussions on an all-party basis, and a non-party basis, to consider the LCD and what safeguards there will be, not when the department is in his hands--we know of his own dedication to the independence of the judiciary--but in the future.
8.14 p.m.
Lord Kingsland: My Lords, in the context of the many other government initiatives in the constitutional area, this seems a remarkably modest one. I am aware that the Conservative Party, when it was in government, in 1990 introduced legislation to ensure that in future the permanent secretary need not be a lawyer. So I accept that from where I am coming in this debate, I am not in a strong position to argue that the permanent secretary's status as a lawyer should be restored. I am further aware that everything the noble Lord the Lord Chancellor said about the LCD today is true: it is a big department, employing many people, with an immense budget, and with huge administrative tasks.
The other day I glanced at the introduction of Professor Heuston's great book on the lives of the Lord Chancellors. He tells us that just before the first permanent secretary was appointed in 1885, the Lord Chancellor had four or five employees. It was customary, when each Lord Chancellor surrendered the Great Seal, that one of them should destroy all the papers in the Lord Chancellor's office on the grounds that his successor should not see the way in which his patronage was exercised. The LCD has, in that sense, now become a department of state like any other.
On the other hand, as so many noble Lords, especially the noble and learned Lord, Lord Simon of Glaisdale, have said, the LCD is constitutionally unique. It is at the hinge of the constitution, particularly in the context of the separation of powers. It seems to me that the separation of powers in our country depends upon mutual self-restraint between the legislature and the judiciary. The legislature restrains itself from interfering in the judicial process, and equally the judges restrain themselves from questioning the contents of any Bill as it works its way through Parliament. That self-restraint depends for its successful operation upon the personalities of the people who are, on the one hand, in Parliament, and, on the other hand, on the Bench. It is
of course the Lord Chancellor's responsibility to select those who are on the Bench; to guarantee their independence; and to ensure that the decisions they take respect our tradition of the separation of powers.The modern Lord Chancellor is a busy man. He is a Cabinet Minister. Indeed, he is the only Cabinet Minister who can call into question any decisions that his colleagues are about to take that might breach constitutional or legal rules. He has the obligation--pleasant, I hope--of presiding over your Lordships' House. He also administers the court system and, above all, chooses our senior judges. With all those responsibilities, it is usual for the Lord Chancellor, even our present Lord Chancellor--bearing in mind that he has practised regularly at the Bar and has a good knowledge of those who are ready for promotion to the Bench--still to need good and fearless advice from his department.
I am not suggesting that members of the LCD who are not lawyers are not capable of being fearless. I make no such suggestion. But the Lord Chancellor needs fearless people in his department who know what is going on in the courts; who know what is happening at the Bar; and who know people of the stature to be promoted to the High Court Bench and above. He needs therefore high quality, able, dedicated, and, above all, independent-minded officials at a senior level to give him that good advice.
My right honourable friend the shadow Attorney-General in another place introduced an amendment which provided that if the Permanent Secretary of the Lord Chancellor's Department is not to be a lawyer, then the next senior person in that department should be a lawyer. That was an imaginative amendment but I can see the force of the objections of the noble and learned Lord the Lord Chancellor. For example, for very practical reasons, it would be difficult to ensure that at the point when the permanent secretary changed over from lawyer to non-lawyer, the deputy permanent secretary, or whatever he is to be called, changed over from non-lawyer to lawyer. Indeed, that would be undesirable because one would not wish to see a coincidence of change between the two. It would be better for one to overlap the other.
The noble and learned Lord pointed out that of the five department heads who answer to the permanent secretary, one is the department head who personally advises the noble and learned Lord. I can see that that was a reassuring point for him to make. But the person who advises the noble and learned Lord on legal matters is not the person who is responsible for judicial appointments. I wonder whether the noble and learned Lord the Lord Chancellor would consider this possible approach. I assume that one of the five people who answer to the Lord Chancellor is the head of judicial appointments. If I am right in that assumption, surely it must be right, except in the most exceptional circumstances, which I trust would need justification to your Lordships' House and indeed to another place, that that individual should be a lawyer and indeed a lawyer who has great experience of, and regular contact with, the kind of people one would expect to fill the higher reaches of the judiciary in this country.
I recognise the difficulties of the noble and learned Lord the Lord Chancellor in the modern world, managing his great department. I respect his judgment in this matter. I hope that in making this new appointment, which I understand will have to be made by the middle of next year, he will bear in mind the other comments made in this debate, and not just by me; in fact, perhaps less by me than by anyone else because so many noble and learned Lords have spoken with such distinction and authority. I hope that the noble and learned Lord will bear in mind the concerns which have been expressed in the way that he approaches appointments during his tenure of office.
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