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Lord Marlesford: My Lords, did I hear the noble Baroness correctly? Did she say the more efficient and effective working of the second Chamber of Parliament, referring to the other House? The other House fails to scrutinise legislation properly, which is why we have this discussion today.

Baroness Jay of Paddington: My Lords, I must ask the noble Lord, Lord Marlesford, to forgive me. I must have been very inarticulate. In fact, I said, "to make more efficient and effective this second House of Parliament". I am sorry if the emphasis was misheard.

I say to the noble and learned Lord, Lord Lloyd of Berwick, whose amendment I do not believe is at all helpful, that I found his report on the Speakership very helpful indeed and I agree with it almost entirely. I know that a decision on that report is not related to this Bill, but it is worth looking at the Select Committee's detailed suggestions in the context of this Bill in regard to what the committee described as an expanded role for the Lords' Speaker as "guardian of the Companion". All of that is significant. I see the abolition of the office of the Lord Chancellor as Speaker as a golden opportunity to improve procedures in this House—this House, I say to the noble Lord, Lord Marlesford—but also as a very good opportunity to create an important senior position

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of Lords' Speaker and so, to quote my late noble friend Lord Williams of Mostyn in his evidence to the committee,


    "heightening the profile in the interests of the House and the representative functions".

In conclusion, I welcome in principle the Bill's proposals to separate legal, government and parliamentary responsibilities in the interests of good governance and of transparency. In practice, I am sure that the clear delineation between judicial, executive and legislative functions will achieve the political reform that is appropriate and necessary for a mature democracy in the 21st century.

6.54 p.m.

Lord Rawlinson of Ewell: My Lords, in my 48 consecutive years in one or other of the Houses of Parliament I have never known such antagonism as there is at the moment between the judiciary and the executive. For all the sweet talk about the cheeky chappie on the Clapham omnibus, the very fact that one has to have a publicly made concordat between the executive and the judges demonstrates to me how unfortunate for the rule of law is the present relationship between the Government and the judiciary.

That coincides with the House discussing this ill prepared Bill—it is accepted that it is ill prepared—which was thrust upon the country and upon some of the leading players unheralded and unpromoted. The people and the organisation that will be happiest are those who inhabit the corridors of the Home Office. It is to the Home Office that noble Lords should look to see why and how such antagonism, which is so unfortunate for the body politic, has grown up.

I suppose the Government believed, by saying that the Lord Chancellor should no longer exist, that that would be that. It seems to me that they had no idea of the ramifications. They went hawking around various legal bodies to find out the Lord Chancellor's role in particular areas. They were so ill prepared. On 2 March we had a Written Statement about the Lord Chancellor's ecclesiastical patronage. There used to be an official in the Lord Chancellor's Department who was known as Buns Cartwright and his job was to make the recommendations for the livings that came under the Lord Chancellor's patronage. Helpfully, he used to add notes such as, "Very good slow bowler", or "Good opening bat", which would go forward to the Lord Chancellor for appointment. Only on 2 March did we hear about the ecclesiastical patronage that had to be dealt with.

In the debate on the Address, the noble Lord, Lord Goodhart, agreeably accused me of romantically considering that all the Lord Chancellor did was to appoint the judges. In fact, in 1990, before he came to this House—14 years ago—I moved an amendment from the Benches over there to the Courts and Legal Services Bill. The amendment proposed that the Lord Chancellor should be stripped of his judicial powers and that there should be a statutory appointments committee. There was hostile opposition to it. Of course, it was the wrong vehicle for such proposals, but nevertheless Lord Boyd-Carpenter and Lord Hailsham nearly had a fit of

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excitement and fury and the noble Lord, Lord Mishcon, leading for the Labour Benches, begged me to withdraw the amendment. Of course, I withdrew it. It was merely a vehicle for argument and discussion.

This definitive Bill not only strips the Lord Chancellor of his judicial powers, but also abolishes the office under the doctrine of the separation of powers. But the Bill makes it clear that one cannot avoid a substantial role for a Minister, both in the selection and appointment of judges. So there is a political role for someone. In the Bill there are constant references to what such a person has to do, what he can do, what he can reject, and what he can ask to be considered again. That is all for the Minister. As my noble friend Lord Waddington pointed out, if this is a role for a Minister, why create a new Minister when we have a Lord Chancellor? His judicial powers could be taken away, which apparently is what everyone wants, but he could be left as the Minister who is referred to so continually in the Bill. Instead we have this new, very junior appointment, just scrabbling into the Cabinet, one above Mr Hilary Benn, who is the lowest form of life in the Cabinet. That will be the Constitutional Secretary. There is already a Lord Chancellor. Why not keep the Lord Chancellor as "the Minister"? The immediate advantage is that he is a senior officer, as a opposed to a junior officer, which is what the Secretary of State for Constitutional Affairs will be.

The person who is dangerous in all this is the Home Secretary. He does not really care very much for the rule of law. He does not understand the necessity of access to courts. He does not forgive if a judge disagrees with him. I remind noble Lords that when my right honourable friend the Leader of the Opposition was Home Secretary and judges were overturning some of his provisions, there was applause for the courage of the judiciary in standing up to the executive. Of course, all that has disappeared now. The judges are entitled to bridle at the Home Secretary's attitude and his implicit criticism of the courts' decisions. He will gain most from the abolition of the office of Lord Chancellor.

We could get exactly what we want from this Bill if "the Minister" remains the Lord Chancellor and we keep the Lord Chancellor in that role. Any hint of conflict between the judiciary and the executive is not good for the body politic. Any hint of a threat to the rule of law is very serious. Of course, the spin doctors—there still are some despite Mr. Campbell's retirement to the music hall stage—will say that this is all lawyers' talk and that what is being suggested is perfectly reasonable. But it is not. The rule of law is inherent in our constitution. It is difficult to avoid a Cassandra-like attitude as one witnesses all the institutions withering. The House of Commons is derided and often ignored. The House of Lords is neutered, the judiciary is slighted and life is never the same.

More patient, critical examination should have been given to the Bill before it was brought before this House. Delay is the price that the Government must pay for so mishandling such a substantial piece of legislation. I will support the amendment proposed by my noble and learned friend Lord Lloyd of Berwick.

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7 p.m.

Lord Marsh: My Lords, one of the great charms of this House is that every now and again when one reads the Order Paper one finds that what is printed on it does not relate to the key issue that eventually comes to be discussed. I think that here we have a classic example of that. This debate is of major importance. Whether this House plays any significant role in the progress of this Bill or other subsequent legislation relating to it will depend very much on the amendment. That is the key issue. What happened in the past is history and we cannot do anything about it but there is a great deal more optimism than is justified.

If the amendment is passed, that will kill the Bill in its present form. The idea that it will drift gently down to the other place and that they will receive it, try to make it work and send it back to us fails to understand the deep bitterness on the issue of House of Lords reform in a very large section of the House of Commons and that bitterness is not confined to any one political party. To suggest that at this stage we need more time and a Select Committee because we do not understand the Bill quite yet and we need to get to know it demonstrates how phoney the case is for the amendment.

Last July, the Government circulated a 50-page document for consultation on this Bill. Several hundred people got copies of that document and some actually replied to it. Three weeks ago we had a very good five-hour debate, which had 23 speakers, who covered all of the key issues. Indeed, many of them have covered the issues again today. The next stage should have been a lengthy Committee stage in which those key issues could be debated and negotiated with the Government. With this particular Bill I believe that there would have been a lot of scope in a conventional Committee stage for the Government to accept amendments and for matters to be discussed. If this amendment is agreed, that will not happen. Let us be realistic about it.

Noble Lords delude themselves if they think that the Select Committee will be appointed and up and running and reporting in three months. That ignores the practicalities. In four weeks' time, the House rises for the Easter Recess until 19 April. On 27 May, the House rises until 7 June. On 22 July the House rises until 7 September.


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