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Lord Goodhart: My Lords, I should like to endorse what the noble Lord, Lord Richard, has said and to fill in one major omission from his speech today. I refer to the enormous debt owed by members of the committee to the noble Lord for his brilliant chairmanship of the committee.

On Question, Motion agreed to.

House in Committee (on Recommitment) accordingly.


Clause 1 [Guarantee of continued judicial independence]:

Lord Kingsland moved Amendment No. 1:

The noble Lord said: Before I speak to my amendment, I should like to add my tribute to the noble Lord, Lord Richard. He referred to the noble and learned Lord the Lord Chancellor's flexibility and charm. The noble Lord, Lord Richard, had both those qualities in abundance and, in addition—and I hope that he will take this as a compliment—a good helping of Welsh guile, which helped to get the committee through one or two difficult phases in its work. I should like to thank him very much indeed.

It is my responsibility to begin the Committee stage by moving Amendment No. 1. This amendment is linked with Amendment No. 7 and a number of clause stand part debates, as noble Lords will see from the Marshalled List and the groupings list. Essentially, the issue is this. The Government wish to expunge the office of Lord High Chancellor of Great Britain from our constitution. They wish to do so because they think that the office has now outserved its usefulness. We, the Opposition, disagree. We believe that the office still has a vital role in protecting the rule of law in our country.
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When the debate on Amendment No. 1 is ended, it is almost certain that the matter will be put to the test. I would not wish any of your Lordships, therefore, to underestimate the importance of the occasion. But, at the same time, I would not wish your Lordships to oversimplify it. The question of whether or not the office of Lord Chancellor ought to survive has to be seen in the context of the Government's Bill.

There have been several debates on the Bill and many noble Lords will by now be familiar with its content. I should like to say at the outset that not only the Opposition but, I believe, a large number of your Lordships accept many of the provisions in the Bill; and the Select Committee stage has helped to crystallise our thoughts on the issues in detail. We sympathise with the initiative to set up a Judicial Appointments Committee; we support the conclusion of a concordat with the Lord Chief Justice; we accept that it is no longer appropriate for the Lord Chancellor to sit in the Appellate Committee of your Lordships' House.

Taken together, all these initiatives represent perhaps the most dramatic change in the judicial arm of our constitution since the Act of Settlement. The changes will replace decision-making on the work of the judicial arm by one individual—the Lord Chancellor—with a tripartite arrangement divided between the Judicial Appointments Commission, the Lord Chief Justice and the Secretary of State for Constitutional Affairs.

I emphasise at the outset of the debate that it is not the Opposition's intention to unravel, in any way, the architecture of the Bill; we accept the tripartite architecture in full. Our only concern, encapsulated in Amendment No. 1, is whether the position of Secretary of State for Constitutional Affairs is sufficiently powerful to carry out the tasks stipulated in the Bill for that role.

Over the past six months, many noble Lords have speculated long and hard about what it was on 12 June 2003 that led the Government to make their announcement about the position of the Lord Chancellor. Much time has passed and the Select Committee has had a chance to look at the matter dispassionately. In taking our decision today, we have to test, against the new architecture in the Bill, whether the Government's decision on 12 June—or purported decision because they could not put it into effect—was right.

In order to test this, I should like to refer your Lordships to two parts of the evidence. The first part was given in a most imaginative contribution by Professor Robert Hazell, who is the head of the Constitution Unit at University College London. He put the issue in this way. He said that in any modern Cabinet there are two forces—the forces of order and the forces of law—and successful government requires those two forces to be in balance, and he added that there is a real concern in many modern governments that the force of order will prove too strong for the force of justice.
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In his response to the consultation by the noble and learned Lord the Lord Chancellor, on the question of the survival of the office, the noble and learned Lord, Lord Bingham, said:

Will the proposed office of Secretary of State for Constitutional Affairs deliver what the noble and learned Lord, Lord Bingham of Cornhill, wants?

The component parts of the office have been described on several occasions by the noble and learned Lord the Lord Chancellor and others. It is envisaged that the office will normally be occupied by a party politician, who is not a lawyer, in another place and without any special precedence in the Cabinet. It is my view that an office so constituted will prove a deeply inadequate protection for the rule of law in our nation.

I derive some support for saying that from the experience of the noble and learned Lord, Lord Woolf, in respect of the ouster clause in the Asylum and Immigration (Treatment of Claimants, etc.) Bill, now thankfully no longer in the text. In his Squire centennial speech in Cambridge, a few months ago, the noble and learned Lord Woolf, in the heat of contesting the clause, said:

If that is the judgment of the noble and learned Lord, Lord Woolf, on the present state of the office of the Secretary of State for Constitutional Affairs, what changes are necessary in the Bill to remedy this defect? I shall suggest what changes we believe are necessary.

First, the individual who occupies the office of the Secretary of State for Constitutional Affairs must, in our view, be a senior and experienced lawyer. This follows not only from the stipulations of the relationship between the Secretary of State and the Judicial Appointments Committee and the requirements of the concordat; it is also very hard to see, on a dispassionate reading, how anyone other than an experienced, qualified lawyer could possibly perform his constitutional duties.

Further, the responsibilities of the Secretary of State for Constitutional Affairs are also to the independence of the judiciary and the rule of law. What have been the great challenges to the rule of law over the past three years? The introduction of propensity evidence in the Criminal Justice Act 2003; the purported ouster clause earlier this year in the asylum Bill; and an attempt—which luckily failed—to change the burden of proof in a number of other criminal matters. In order to contest such matters in Cabinet the Secretary of State for
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Constitutional Affairs will have to have a real, in-depth grasp of the criminal law. I do not see how someone can perform the role without having legal qualifications.

Secondly, in my submission, the Secretary of State will have to be in your Lordships' House. This is not only because there is a poverty of qualified lawyers coming from another place to your Lordships' House; but also because your Lordships' House is able to stand back from the hurly-burly of political life in another place and assess the constitutional implications of Bills that come to it, or decisions that are made about those Bills. Again, Professor Robert Hazell, in his evidence, saw your Lordships' House as the natural guardian of the constitution, a view recently endorsed by the noble Lord, Lord Wakeham, in his report on your Lordships' House.

But would a Secretary of State for Constitutional Affairs—legally qualified and a Member of your Lordships' House—do the job that the noble and learned Lord the Lord Chancellor now does? It seems to me highly unlikely that he would.

It is just imaginable that someone could still emerge from another place. My noble and learned friend Lord Howe served as a Law Officer and held two great offices of state in the 1980s as Chancellor of the Exchequer and Foreign Secretary. If the noble and learned Lord, with all those qualifications, had been made Secretary of State for Constitutional Affairs in your Lordships' House, I have no doubt that he would have carried the same amount of political clout as if he had been made Lord Chancellor.

But in the 21st century, I am afraid, there will be almost no Lord Howes coming off the production line in another place. Sadly, very few lawyers of that quality are able to enter politics in another place. Future Secretaries of State for Constitutional Affairs will come direct from the legal profession into your Lordships' House carrying no political clout at all. Their political clout will derive from the office that they hold. The office of Lord Chancellor will provide them with that clout—its prestige, its status, its weight, its parallel classification with the Home Secretary, the Foreign Secretary and the Chancellor of the Exchequer. That is why maintaining the office of Lord Chancellor is so crucial in our constitutional arrangements. It is the only guarantee that, in the deliberations of the Cabinet, the rule of law will stand up to the predatory ambitions of those who represent the forces of order.

The Government have sought to promote the notion of the separation of powers as being at the heart of our constitution. It is not. It is not the separation of powers but the balance of powers that matters in our constitution. The Lord Chancellor in the Cabinet is a great inconvenience to the executive. That is the reason he should stay there. I beg to move.
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