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Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for giving way. Is he aware that the Joint Select Committee on Human Rights, in a report published this week, unanimously came to the contrary conclusion?
Lord Falconer of Thoroton: My Lords, on the Clause 10 provision, I am aware of that. But the noble Lord will be aware that the relevant certificate has been signed in another place in relation to the Bill. It indicates on the basis of proper and legitimate advice that the Home Secretary has come to the view that this is a perfectly legitimate thing to do in the context of the Human Rights Act.
Lord Kingsland: My Lords, I am most grateful to the noble and learned Lord for giving way. I reinforce the point that I made and to which he very kindly referred. My point is that the protection provided by the
European Convention in criminal law matters is too weak to deal with issues such as the presumption of innocence in relation to propensity and Clause 10.
Lord Falconer of Thoroton: My Lords, the Lord Chancellor must form a view about where the rule of law is being infringed. That will frequently bring him into conflict with his political role. If it does, the rule of law must prevail. There is no doubt about that. But he must from time to time make decisions about policy where he believes the rule of law is not infringed. If every time he does that he is criticised for failing in his role as Lord Chancellor, that will lead to increasing difficulties in his role. One of the things he must do is retain the confidence of the judiciary in relation to what he does.
Baroness Kennedy of The Shaws: My Lords, I hesitate to interrupt. One of the concerns that many of us have is that the noble and learned Lord is describing this very complex role that the Lord Chancellor plays—deciding where he is protecting the rule of law but where he can be a Minister happily developing policy. Will a Secretary of State who is not necessarily from a legal background—someone who does not have a loyalty to the law—understand where those boundaries should be set? Can we be confident that a Secretary of State with ambition will not side with the political part of his background, as distinct from that which will protect the rule of law? That is where our anxieties lie.
Lord Falconer of Thoroton: My Lords, that point is absolutely rightly and forcefully put. The question that the abolition of the Lord Chancellor's role raises is: can you go on with a £3 billion budget? With these policy responsibilities—a responsibility for being the protector of the judiciary and the upholder of the rule of law—there is an obvious conflict. The conflict has become greater and greater. The separation of powers is not some abstract concept. It is preventing your role as a Minister overtopping your role as a protector of the constitution, or preventing your role as a protector of the constitution overtopping your role as a Minister. Eventually, we are getting to the point where that conflict cannot be contained in one office. It is a matter of regret, because it is such an impressive, historical office, but we must learn from history, and we must ask ourselves whether those arrangements can continue—
The Earl of Onslow: My Lords, the noble and learned Lord seems to be arguing that there cannot be a protector of the constitution and a politician in the Cabinet, therefore the protector of the constitution goes from the Cabinet, and there is no further protector of the constitution. That seems a rum old argument from the Lord Chancellor.
Lord Falconer of Thoroton: My Lords, with the greatest respect to the noble Earl, confronted with this conflict, there are a number of ways in which you could seek to remedy it. You could, for example, as one
noble Lord suggested, transfer away all the ministerial functions from the Lord Chancellor, and leave the Lord Chancellor as in effect the protector of the judiciary. You would have this irony of the Lord Chancellor sitting in the Cabinet, presumably being the head of the judiciary, never sitting as a judge, and not being a judge. I respectfully suggest that that would not provide either adequate or sensible protection.In answer to the specific point made by the noble Earl, recognising the important role played by the Lord Chancellor in protecting the rule of law and independence of the judiciary, we propose to do three separate things, all of which are referred to in the concordat that was discussed and agreed with the noble and learned Lord the Lord Chief Justice, on behalf of the judiciary.
First, we propose to place on the Secretary of State for Constitutional Affairs a specific duty to protect the independence of the judiciary. The noble and learned Lord, Lord Mackay of Clashfern, raised the question of how that would be enforced. That would be a matter for debate and development over a period of time. Secondly, we propose to place a specific duty on all members of the government involved in the administration of justice to respect the independence of the judiciary. Thirdly, we propose to make the Lord Chief Justice the head of the judiciary—the senior judge in England and Wales, the person who carries the respect and authority of other judges in England and Wales. That is the replacement package to protect the independence of the judiciary in relation to the government. It is sensible.
Noble Lords will know that the Lord Chancellor is third in order of precedence in the land after the Royal Family and the Archbishop of Canterbury—third is overstating it, because there are many members of the Royal Family. Nevertheless, he has an important position in the land. Where he is in the Cabinet, however, depends entirely on the Prime Minister of the day. Noble Lords will remember that when Winston Churchill was Prime Minister, he threw his Lord Chancellor out of the Cabinet altogether. I say this advisedly, because his grandson is in the House. He has heard me say before that the Lord Chancellor was regarded as a slightly difficult man, whom the Prime Minister did not like to have around, so he flicked him out of the Cabinet. The permanence of the Lord Chancellor in the Cabinet is a variable thing over time—
Baroness Kennedy of The Shaws: My Lords, I do not promise that this will be my last intervention. The concern that many of us have is that there can be a shared responsibility among Cabinet Ministers, to remind themselves that the rule of law matters. However, when a Home Secretary is saying, "let us reduce the standard of proof"—and he is licensed by the Prime Minister, who takes the same view—clearly they do not think that that is an inherent part of our view of what the rule of law means, and who is to
gainsay that? Who is to speak for justice in the Cabinet then? That was what my noble and learned friend Lord Irvine of Lairg did—and he paid the price.
Lord Falconer of Thoroton: My Lords, if reducing the burden of proof in particular circumstances—I make no comment on particular circumstances—infringed the rule of law in some shape or form, for example by infringing the Human Rights Act 1998, the Secretary of State for Constitutional Affairs, the Attorney-General and, perhaps most significantly, the Lord Chief Justice could speak out. Ultimately, it would be for Parliament to form a view about what should happen.
Lord Falconer of Thoroton: My Lords, we make our case fairly and squarely on the increasing conflict between the role of the Lord Chancellor as a Minister—it does not matter whether he is called a Secretary of State; in recent times, he has been a Minister all the time that he has been Lord Chancellor—and his role with regard to the judiciary. We are right to make the change now, before those pressures become too great and the system begins to break down.
Lord Phillips of Sudbury: My Lords, the Secretary of State said that the Lord Chief Justice could speak out. Is he sure that a judge with no base in this place will be able to speak out and speak out soon enough for his or her advice to be heeded?
Lord Falconer of Thoroton: My Lords, I say it with some diffidence, but the noble and learned Lord the Lord Chief Justice has today spoken out on several issues through the pages of the New Statesman and "The World at One". So, he has never had any difficulty getting his points across. I do not believe for one moment that there are not adequate outlets for the Lord Chief Justice to express his concerns in an appropriate way.
I must also make it clear that those concerns can be expressed internally as well as externally under these arrangements. It is also worth stating that another part of the process must be keeping the executive and the judges as close as possible with regard to matters of mutual concern. Part of the arrangement made in the concordat between myself and the noble and learned Lord the Lord Chief Justice was to involve judges in the unified administration of the courts and to involve judges in a non-executive capacity in relation to my own department, so that there are close links. The state benefits from a mutual understanding and a partnership between the judges and the executive, in a way that does not infringe the judges' independence.
Lord Elton: My Lords, did the noble and learned Lord notice the growl of assent that came from behind him, when he said that it was for Parliament to defend
the rule of law? Can he see why we are puzzled that Parliament should be strengthened by the removal of all the senior practitioners of the law?
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