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The Bill has one obvious virtue: it is very short. Its purpose is to link the salary of the Lord Chancellor to that of a Secretary of State, instead of to that of the Lord Chief Justice. Roughly speaking, it would halve the salary of the Lord Chancellor. Under present legislation, the Lord Chancellor will be entitled to £202,000 from 1st April, although the present holder of that office said that he would, for the time being, draw only £184,000. Under the Bill, the Lord Chancellor would get about £97,000, the same salary as the Leader of the House of Lords.
I should make it absolutely clear that the Bill is not in any way intended as a personal attack on the noble and learned Lord, Lord Irvine of Lairg, as the present Lord Chancellor. He is someone for whom I have the utmost respectexcept, perhaps, for his views on the reform of your Lordships' House. I do not wish anything I say, nor do I wish anything in the Bill, to be taken as a personal attack.
The Bill is moved in support of a constitutional principle. On these Benches, we believe that the office of Lord Chancellor has moved, is moving and ought to continue to move away from being a judicial office and towards being a ministerial and political one. That should be recognised by giving the Lord Chancellor a ministerial salary rather than a judicial salary.
At present, the Lord Chancellor is entitled to a higher salary than the Prime Minister and approximately one-and-a-half times the salary of a Cabinet Minister in another place. Cabinet Ministers receive part of their MP's salary, as well as their ministerial salary. The Lord Chancellor is entitled to approximately double the salary of the Leader of the Housethe only other Cabinet Minister in your Lordships' House. That is a historical anomaly.
The noble and learned Lord, Lord Irvine of Lairg, is not here today. That is correctbecause of his personal interest in the matter he could not take part in the debate. He would be wasting his time to sit and listen. No doubt he will read it in Hansard.
I am delighted that the noble and learned Lord, Lord Mackay of Clashfern, the only living former Lord Chancellor, has come from Scotland to speak on this occasion. I expect him to give a vigorous defence of the present arrangements. If that is so, it will be a welcome contribution to the debate.
We need to start with a little history. The office of Lord Chancellor has always been traditionally well paid. Much of the background to the salary situation is set out in the report of the Committee on the Remuneration of Ministers and Members of Parliament, chaired by Sir Geoffrey Lawrence QC, published as Command Paper 2516 in November 1964. I should add that my wife was a junior member of the secretariat of that committee.
In 1830, a Select Committee recommended that the salary of the First Lord of the Treasury, and other senior Cabinet Ministersexcept for the Lord Chancellorshould be £5,000 per year. That recommendation was accepted by Parliament. In 1832, following the report of the same Select Committee, Parliament gave the Lord Chancellor an aggregate salary of £14,000 per year. That was more than twice the salary that the Prime Ministeror the First Lord of the Treasury, as he was then calledreceived and was equal to £700,000 per year at today's values. The sum was made up of £4,000 as Speaker of your Lordships' House and £10,000 paid as a judicial salary.
By the time of the Supreme Court of Judicature (Consolidation) Act 1925, the Lord Chief Justice received £8,000 per annum. There were some increases after the Second World War as a result of higher inflation.
In its 1964 report, the Lawrence committee recommended an increase to £18,000 per year for the Prime Minister, £17,000 per year for the Lord Chancellor and £12,000 per year for other Cabinet Ministers. Those recommendations were not implemented in full. Two Acts were passed in 1965; the Judges Remuneration Act and the Ministerial and other Salaries Act. Under the Judges Remuneration Act, the Lord Chancellor received £14,500 and the Lord Chief Justice £12,500. Under the Ministerial and other Salaries Act, the Prime Minister received £14,000, which was £500 less than the Lord Chancellor. Other Cabinet Ministers received £8,500. Until that date, therefore, the Lord Chancellor's salary had been treated as a judicial salary.
In the Ministerial and other Salaries Act 1972, the Lord Chancellor's salary was for the first time treated as a ministerial salary, but he continued to be paid a sum which was much greater than that of a Cabinet Minister. At that stage, the Lord Chancellor and the Prime Minister both received £20,000 a year and a Secretary of State £13,000, all subject to increases by statutory instrument to match inflation. Those figures were repeated in the Ministerial and other Salaries Act 1975, an Act which is still in force, subject to later amendments.
Since the Administration of Justice Act 1973, judicial salaries have not been fixed by Parliament. They are fixed by the Lord Chancellor with the approval of the Treasury. Finally, the Ministerial and other Pensions and Salaries Act 1991 provided that the salary of the Lord Chancellor, which was by then fixed at £91,500, should thereafter be £2,000 above that of the Lord Chief Justice. That gave effect to the recommendation of the Top Salaries Review Board in 1983. The 1991 Act has the incidental effect that, technically, the Lord Chancellor has power, by deciding on the salary of the Lord Chief Justice, to decide his own salary, though of course subject to Treasury consent.
The 1991 Act as a Money Bill received only a short debate in your Lordships' House. I have looked at the Second Reading debates in both Houses to see whether anything relevant to the Lord Chancellor's salary was discussed and I discovered only one brief exchange in your Lordships' House. On 26th February 1991, my noble friend Lord Mackie of Benshie said:
The first justification mentioned is the special responsibilities of the Lord Chancellor. Frankly, as an explanation or justification, that will not wash. Of course the appointment of judges is a matter of great constitutional importance, but we have to ask whether the responsibilities of the Lord Chancellor are greater than those of the Chancellor of the Exchequer, the Foreign Secretary or the Home Secretary, the three traditional great offices of state. Are the responsibilities of the Lord Chancellor necessarily even greater than those of, for instance, the Secretaries of State for Defence and Health?
As to the need to pay high salaries to obtain suitable candidates for the office, the proof of the pudding is in the eatingor, in this case, the disproof of the pudding. The ministerial Benches include the noble and learned Lords, Lord Williams of Mostyn, Lord Falconer of Thoroton and Lord Goldsmith, and the noble Baroness, Lady Scotland of Asthalall of them barristers of the highest ability; any of whom would be an admirable choice for the office of Lord Chancellor; and each of whom would be able to earn far more in private practice than they do as a Minister. But each of them has accepted a government post for a salary which is far less than that of the Lord Chancellor.
The role of the Lord Chancellor as an active head of the judiciary is now, frankly, fictional. The Lord Chancellor hardly ever sits as a judge. In response to a Written Question of my noble friend Lord Lester of
Of course the Lord Chancellor's role as Speaker of your Lordships' House is now largely nominal. It is, frankly, a waste of the time of a Lord Chancellor. Why should a Lord Chancellor spend half an hour a day, dressed up in fancy dress, listening to questions?
By contrast, the political and administrative role of the Lord Chancellor has increased greatly. The Lord Chancellor's Department is large, with a very large bill, and it will become larger when the staff of the magistrates' courts are absorbed into it. At that point it will have a staff of approximately 25,000 people.
The responsibilities of the Lord Chancellor's Department now go well beyond the traditional ones of the judiciary, the court system and civil law. After the last election, the Lord Chancellor's Department took over from the Home Office responsibility for the Freedom of Information Act and the Data Protection Act. Since then, it has also taken over responsibility for elections. The department has general responsibility for constitutional law. Indeed, apparently it wishes to restyle itself as the "Department for Justice, Rights and the Constitution".
The present Lord Chancellor is far more politically active than was the noble and learned Lord, Lord Mackay of Clashfern. The noble and learned Lord, Lord Irvine of Lairg, heads several Cabinet committees and is a big fish in the political pond. He is seen as a politician. In the public's view, it is not him but the noble and learned Lord, Lord Woolf, the Lord Chief Justice, who is seen to be the real head of the judiciary. It is of course the noble and learned Lord, Lord Woolf, and not the Lord Chancellor, who has in the past few days defended the judiciary against the intemperate attacks of the Home Secretary.
The office of Lord Chancellor is becoming almost indistinguishable from that of any other Cabinet Minister. The only remaining function of the Lord Chancellor that is distinctive is his role in the appointment of judges. I have no criticism at all of the judicial appointments made by the noble and learned Lord, Lord Irvine of Lairgthe appointments made by his predecessor are, by common consent, quite outstandingbut we cannot assume that the standards will always be so high. We on these Benches, together with many lawyers and organisations such as Justice, believe that the appointment of judges should now be made by an independent judicial appointments commission. If this happened, the Lord Chancellor's Department would become simply a ministry of justice, headed by a Minister who need not be a lawyer and who might well sit in the House of Commons. I do not think, therefore, that there is any justification for paying the Lord Chancellor twice as much as his colleague, the Leader of the House.
I turn to two final points. First, the Bill does not deal directly with the Lord Chancellor's pension. The pension would, of course, be reduced in consequence of the reduction in the salary to which it is linked. The Lord Chancellor's pensionuniquelyis not linked to the length of his term of office. That is to a limited extent, although not wholly, justified by the fact that the Lord Chancellor, as the holder of a judicial office, cannot return to practice, unlike the Law Officers or other Ministers who are lawyers. Once the Lord Chancellorship ceased to be a judicial office, the Lord Chancellor, if a lawyer, could return to practice. But then, the justification for a full pension, however short the term of office, would end, even if it is justified now.
Secondly, the Bill is intended to come into effect on 1st April 2004. That date has been chosen not as All Fools Day but as the beginning of a financial year. Even with the help which I fully expect the Government to give to this Bill as a useful contribution to the reduction in public expenditure, I do not expect it to become law by 1st April this year.
Lord Mackay of Clashfern: My Lords, it is a privilege to follow the noble Lord, Lord Goodhart, particularly when he wrote to me saying that it would be welcome were I to speak in this debate. I received from his letter the impressionat which he has at least hintedthat I might not be entirely in favour of his proposals.
As your Lordships know, I held the distinguished office of Lord Chancellor for almost 10 years. Therefore, I must have some kind of interestalthough essentially academicin the Bill. I do not believe that the Bill as it stands would affect my personal position.
Like the noble Lord, Lord Goodhart, I propose to approach this matter on the basis of the Lord Chancellor's office; I do not propose in any way to discuss the situation so far as concerns my successor, the noble and learned Lord, Lord Irvine of Lairg.
The Bill seeks to equiparate the Lord Chancellor's salary with that of a Secretary of State. It is suggested by the noble Lord, Lord Goodhart, that in practice the Lord Chancellor's position has become that of a Secretary of State. In my submission that is obviously not correct.
The Lord Chancellor is, first of all, a judge. On taking office, he takes a judicial oath as Lord Chancellor, usually administered by the Master of the Rolls in the presence of all the senior judges of the Supreme Court. He is president of the Supreme Court, and president of the Chancery Division of the High Court of Justice. He provides the administration for all these courts and for county courts and the Crown
I regard the provision of administrative support to the judges and the way that the Lord Chancellor's Department is organised as part of the judicial administration of judicial functions. For example, the Lord Chancellor provides the listing officers in the various courts. Listing is a judicial function: it is done by the listing officers in the name of, and on behalf of, the judges who are in administrative positions at the various courts, such as the resident judge in a normal combined court centre.
That administrative provision is made by the Lord Chancellor. In my view, it is extremely important that that administration should be seen as provided by one who holds the office of a judge and who, as I said, has taken the judicial oath, as Lord Chancellor, to do right to all manner of persons according to the laws and usages of this realm without fear or favour, affection or ill-will. In that capacity, he is discharging an important judicial function.
The noble Lord, Lord Goodhart, referred to the appointment of judges, and I need not refer to that again. I am grateful for his comment upon the appointments that I was instrumental in proposing while in office. It is an extremely important part of the Lord Chancellor's function and I think I am right in saying that one of my noble and learned predecessors, Lord Hailsham of Saint Marylebone, said he thought it was perhaps the most important part of the Lord Chancellor's function. I would not necessarily say that it is more important than some other parts, but it is certainly very important.
My third point relates to complaints against judges, which the Lord Chancellor is responsible for dealing with. In my view, it is very important for the independence of the judiciary that complaints against it are dealt with by a judge, a member of the judiciary himself. So there is a very close arrangement of judicial functions, apart from sitting in court.
As has been mentioned, the Lord Chancellor is a Lord of Appeal and therefore entitled to sit in judicial proceedings of the committees of this House, and when he sits, he presides. He is also, by statute, a member of the Judicial Committee of the Privy Council and again, when he sits there, he presides. I sat with the present Lord Chancellor a year or two ago in a case in the criminal law area.
The extent to which any Lord Chancellor sits from time to time is often a matter of circumstances and personal convenience. So far as I am concerned, I do not regard it as in any way preventing the Lord Chancellor from sitting that he is a member of the Government. When he sits, he sits as a judge, with the responsibilities of a judge incumbent upon him. I believe that the Lord Chancellor, like any other judge, will not sit in a case in which any bias or party interest is reflected, but that applies to every judge. In that respect, the Lord Chancellor is no exception.
I believe that it is correct, as the present system provides, that the Lord Chancellor is salaried on the basis of the judicial office that he holds. He is not a Secretary of State. As your Lordships know, Secretary of State is an office held by a number of people, all of whom are equivalent in parliamentary terms. It is not usual to designate particular Secretaries of State in Acts of Parliament although that can happen. However, the Lord Chancellor has no power to execute any of the functions of a Secretary of State, nor does any Secretary of State have power to exercise the functions of the Lord Chancellor except in very rare circumstances provided for in an Act of Parliament. Generally speaking, however, there is no question of any Secretary of State being able to perform the Lord Chancellor's functions. The offices are quite distinct. No Secretary of State takes a judicial oath or in any way holds office in any of the courts of this country or is entitled to sit.
One of the consequences of all this, certainly in modern times, is that persons appointed as Lord Chancellor have been regarded as persons with sufficient experience and standing in the law to be able to preside with appropriate competence in the highest courts in this country. In that situation, it is only right that the salary should be on the basis of the appointmentas a judicial appointment and as the head of the judiciary. It is for that reason that the salary arrangements are as set out by the noble Lord, Lord Goodhart, with a small lead over the Lord Chief Justice, reflecting the Lord Chancellor's place in that hierarchy. The current lead is £2,500, which is less than any percentage lead that is likely to be awarded. I think that on the current basis, at the Lord Chancellor's current level, if 1.5 per cent were awarded, the lead would be more than £2,500. So a fixed lead would in fact be a diminution from what would be expected if the ordinary arrangement of percentage increases were allowed.
When I was first introduced to the office of Lord Chancellor, I was told by a well-informed department that the Lord Chancellor's office dated from 602. The earliest appointment that could be traced was in 602. So it is a fairly ancient office. It has developed over the years. I believe that it is a very important part of what our constitutional history has provided for us. It has provided that the head of the judiciary is a Member of Parliament and responsible to Parliament for the proper performance of the important judicial aspect of government.
As has been said, the Lord Chancellor can be removed from office summarily, without any notice, although he then automatically becomes a Lord of Appeal, entitled to sit in the House of Lords in that capacity. He is therefore in a unique position to be answerable to Parliament for the way in which the judicial functions of the state are performed. Any other judge will have security of tenure and cannot be answerable to Parliament in the same way. It is a unique provision provided by our constitutional history. I certainly think that, on the basis of the arguments we have heard so far, it is one that we should seek to preserve.
In the current situation I believe it right to say that this Bill cannot properly proceed if the present office of Lord Chancellor remains as it is. Accordingly, I submit to your Lordships that on that basis this Bill should not be supported. But I also take the view that it would be a mistake to modify the office of Lord Chancellor along the lines suggested by the noble Lord, Lord Goodhart.
I note with interest that the noble Lord, Lord Lester of Herne Hill, will speak on behalf of the Liberal Democrat Benches. When I was Lord Chancellor I remember being invited by the noble Lord, Lord Lester, to a human rights conference in Oxford. He kindly invited me to preside at that conference. He made very clear to my private secretary that he invited me in my capacity as a judge, not in my capacity as a Cabinet Minister. That is still the position. The noble and learned Lord, Lord Irvine of Lairg, is a judge just as much as I was. Therefore, it would be quite wrong to alter the situation in which his salary is presently determined.
The combination of functions to which I referred being in the hands of someone competent to exercise judicial office at the highest level is an important feature of the independence of the judiciary in this country and also an important feature of the way in which the three arms of government are in harmony although in tension. It is sometimes suggested that the Lord Chancellor's office is a breach of the doctrine of the separation of powers. One often hears that referred to. What one does not hear so often referred to is that the three powers in question are the executive, the judicial and the legislative branches. In our country the executive branch is entirely made up of members of the legislative branch. I think I am right in saying that at the moment all Ministers of the Crown are Members either of your Lordships' House or of the House of Commons. So there is a terrifically strong link there. The link that exists in the Lord Chancellor between the judicial and the executive branches has been tried and formed by our history and is surrounded by important conventions. It is an office that I hope will long continue.
I think I am right in saying that the late Lord Elwyn-Jones said that he spent a lot of his time as Lord Chancellor trying to ensure that he would not be the last. He was successful in that. To that extent I succeeded also and I hope that many of our successors will have the same success.
Lord Lester of Herne Hill: My Lords, it is a particular pleasure and privilege to speak after the noble and learned Lord, Lord Mackay of Clashfern. He exemplified the extraordinarily powerful advocacy that I am told he displayed at the Scots Bar and when he defended some of the measures that the government of which he was such a distinguished member introduced. I well remember that.
My only disappointment, if I may say so without impertinence, is that I never persuaded the noble and learned Lord, Lord Mackay of Clashfern, that there was anything in the far-reaching constitutional reforms for which I, my party and many others pressed during his period in office. In particular, we never persuaded him at all of the kind of reforms that underlie my noble friend's Bill, in relation to the office of Lord Chancellor.
We should be grateful to my noble friend for introducing such a significant constitutional measure, and for the way in which he explained the issues and background. Like the previous speakers I want to emphasise for the avoidance of doubt that, in our support for the Bill, we do not regard it in any way as a personal attack on either the noble and learned Lord the Lord Chancellor or the office of Lord Chancellor.
I want to give a little more background and add a little more colour to the issues, if I may. The Ministerial and other Salaries Act 1975 that the Bill seeks to amend was enacted when the Lord Chancellor was the genial and companionable Lord Elwyn-Jones, whom many of us remember with particular affection. His autobiography, In My Time, which has been referred to, contains much sartorial and other information about the office of Lord Chancellor. In addition to describing his three hats as Speaker, head of the judiciary and Cabinet Minister, he also described his ceremonial clothing in great detail.
Nowhere in Lord Elwyn-Jones's autobiography did he mention that Parliament had given him and his predecessors a very fine salary, equal to that of the Prime Minister and much greater than the salary of the Chancellor of the Exchequer, the Foreign Secretary or the Home Secretary, all of whom had been elected by the people as Members of Parliament. Nowhere did he mention that although his large ceremonial purse is normally empty, the Lord Chancellor's own purse is amply filled out of the Consolidated Fund, in addition to the considerable public expenditure on his palatial apartment.
As has been said, in 1983, the Top Salaries Review Boarda very distinguished body indeedpresided over by Lord Plowden, recommended that the Lord Chancellor should receive £2,500 more than the Lord Chief Justice, in recognition of his role as head of the judiciary. That was passed by affirmative resolution procedure year on year. The reasons given by the review board are interesting. It noted that determining the Lord Chancellor's salary presented difficulties because of the special nature of the job. It stated:
The fact that Lord Hailsham of Saint Marylebone, as Lord Chancellor, had decided not to draw the full salary is surely of some significance. It suggests that he, a most distinguished holder of that office, regarded the amount awarded to him as excessive. However, in 1991, as the noble Lord, Lord Goodhart, mentioned, the 1975 Act was amended so that that £2,500 automatic increment was prescribed in primary legislation without the need for further parliamentary approval by the affirmative procedure.
Those events occurred long before the enactment of the Human Rights Act 1998, which incorporated the European Human Rights Convention into UK law and long before the important judgment of the European Court of Human Rights in McGonnell v United Kingdom in February 2000.
Times have changed in other ways. It was no doubt true in Lord Elwyn-Jones' time, as his autobiography records, that Cardinal Wolsey's term of office marked the high point in the power and influence of the Lord Chancellor. But that is no longer so. The power and influence of the present Lord Chancellor is unequalled as a heavyweight Cabinet Minister and close confidant of the Prime Minister. Without surrendering any part of his ministerial patronage, he has added greatly to the powers of his department and to the public funds at his disposal. He has great responsibilitiesgreater than any modern predecessor. However, as the noble Lord, Lord Goodhart, said, they are no greater than those of the Prime Minister or his other senior colleagues.
In one other significant respect, his position has significantly altered. Although, as the noble and learned Lord, Lord Mackay of Clashfern, said, he remains head of the judiciary, that is in a nominal sense. In practice, he has had to abandon sitting in a judicial capacity because of the need to comply with
The description by the noble and learned Lord, Lord Mackay, of the Lord Chancellor as head of the judiciary is, as I said, entirely correct in theory, but not in practice. I respectfully suggest that the administrative support that is given by his department to the courts is more an executive function than a judicial function and, in any case, could not justify an inflated salary.
The changes mean that any justification for the increment has been eroded, if not altogether destroyed. We now have the report of Mr Erik Jurgens about the office of the Lord Chancellor, which, if approved by the Parliamentary Assembly of the Council of Europe, would invite the UK to review the office in such a way that the Lord Chancellor's judicial function is no longer combined with membership of the Cabinet and with presiding membership of a Chamber of the legislature. I believe that similar concerns have also been raised internationally within the Venice Commission for Democracy. This has become an internationally important issue. I should add that, even if the Lord Chancellor continued to sport three hats, it would be profoundly unsatisfactory if there were to be a personal financial incentive for him to sit judicially in order to seek to preserve his inflated salary. I am sure that that is not the case.
As several noble Lords have said, the increment awarded to the Lord Chancellor to ensure that he is paid £2,500 more than the Lord Chief Justice is founded on the notion of him as head of the judiciary; a notion, it is argued, which means he should not be paid at the same rate as his fellow Ministers. That might have been acceptable in 1983, when the Lord Chancellor sat frequently in a judicial capacity in the real sense, but these days it is surely anachronistic and an unnecessary drain upon public funds.
There can be no doubt that the present very distinguished incumbent of that great office, who has been known to refer disparagingly to "fat cat QCs", would not wish to be remembered as a fat cat on the Woolsack. When I came to the Bar there was an outmoded practice called the two-thirds rule, according to which a junior barrister had to be paid two-thirds of the fees of a Queen's Counsel, in addition to the amount paid to the QC. I am glad to say that that was eventually abolished. Surely, the present Lord Chancellor should welcome the abolition of a rule requiring him to be paid more than the Lord Chief Justice and much more than his fellow Ministers.
Nor can the present position convincingly be justified on the basis of market forces; that is, on the ground that able candidates cannot be found for the office of Lord Chancellor unless they are paid more than other Ministers. The noble and learned Lord, Lord Williams of Mostyn, who is the Leader of the House, and the noble and learned Lords, Lord Falconer of Thoroton, and Lord Goldsmith, are all examples of Ministers who were willing to sacrifice the possibility of earning much larger sums in private practice so as to devote themselves to public service. I have no doubt that the noble and learned Lord, Lord Irvine of Lairg, would have accepted his appointment as Lord Chancellor if his salary had been equal to that of a senior Minister of the Crown.
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