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At Second Reading I dared to suggest that it might be possible to produce a report by the end of July. Without wanting to be too controversial at this stage of my speech, I should say that the noble and learned Lord the Lord Chancellor described that as fanciful. In fact we succeeded in doing it by the end of June. For that we owe a deep debt of gratitude to the noble Lord, Lord Richard. What a good report it is; it is a model of clarity. I would particularly like to emphasise the point which the noble Lord, Lord Richard, made at the end of his addressthat it will provide a very useful precedent if ever again we are presented with a Bill which ought to have received pre-legislative scrutiny, but which for one reason or another has not had it. We do not know what the reason was in this case; we have not been told. The report will be a very useful precedent for the future.
I see that I have already spoken for 15 minutesbut perhaps the clock has not been changed. One of the advantages of the Select Committee procedure is that some of the issues which seemed to loom so large have now disappeared altogether and all the issues are now in much better focus. The proposed abolition of the Lord Chancellor is a very good example of that. Everybody now agrees that the Lord Chancellorif the post and office are retained, as I profoundly hope that they areshould no longer sit as a judge. In some ways I regret that, because some recent Lord Chancellors have been very good judges indeed. In the absence of the noble and learned Lord, Lord Mackay, I can say that he is a very good example of how good a judge a Lord Chancellor can be.
But I accept that there are problems with a judge sitting as a member of the Cabinet, particularly, it seems, among the newly joined members of the European Union. So it is now common ground that if the Lord Chancellor is retained, he should be debarred from sitting as a judge. It is also common ground that he should no longer be solely responsible, as he has been in the past, for selecting the judiciary. We all agree that that task will now be performed by the new Judicial Appointments Commission, to which we all look forward.
So what, having got rid of those functions, is left? Sometimes, listening to the Lord Chancellor, one has had the impression that almost nothing would be left. But that of course is quite wrong; there will still be a huge job for the Lord Chancellor. In the first place he will run the courts, including the magistrates' courts, as he has always done. Secondly, he will have his role of defending the independence of the judiciary and the rule of law, and beingas has so often been saidthe voice of the judges in Cabinet. Thirdly, he will have his role as Speaker of this House. I will say no more about that because it will be a question for this House whether he should continue as Speaker. So I put that on one side.
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As for the other functions, they are exactly the same functions as would be transferred to the new Secretary of State under this Bill. That is a point on which we reached agreement. I hope to quote very little from the report, but I will quote paragraph 43, which stated:
"The Committee agrees that in view of the Concordat the future duties of the Lord Chancellor/Secretary of State office-holder should be responsibility for 'judiciary-related' matters (that is, the provision of systems to support the carrying on of the business of courts and tribunals, judicial appointments, and overseeing judicial discipline); and responsibilities as the 'constitutional conscience' of Government, defending judicial independence and the rule of law in Cabinet".
So there you have itthe Select Committee is agreed that the two jobs will be exactly the same. That prompts the question of what on earth the point is of transferring those functions from the Lord Chancellor, where they will rest under our scheme, to the new Secretary of State. I suggest that that is a question to which we have never heard a convincing answer.
Let me very briefly remind the Committee of the arguments that have been advanced from time to time. There are four in all. First, there is the argument based on separation of powersthat it is wrong for a judge to sit in Cabinet. But once we take away the judicial role, as everybody agrees, that argument falls flat on its face.
Secondly, there is the argument that there is too much for the Lord Chancellor to do. That was an argument that featured very largely in the original consultation paper. It was almost the only argument. But again, once we take away the judicial role and his role in selecting and appointing the judges, we have exactly the same role as that proposed for the Secretary of State. So that argument, too, falls to the ground.
Thirdly, there is the argumenta difficult argument perhaps at first to comprehendof the so-called inherent tension or conflict in the role of the Lord Chancellor. That is an argument which featured very largely in the speech of the noble and learned Lord the Lord Chancellor on 12 February, and in his written and oral evidence to the Select Committee. The argument is that on the one hand the Lord Chancellor has to uphold the rule of law, and that on the other he has to run a great department. He argues that those roles are in conflict and therefore should be split. Since this is such an important argument, I should again quote the Lord Chancellor's argument in his own words. He said:
"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".
"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".
"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 responsibilitiesa responsibility for being the protector of the judiciary and the upholder of the rule of lawthere 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 the 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".
Whether it is a rum old argument or not, the problem is that exactly the same argument will apply to the Secretary of State, because he will be running the same department and defending the independence of the judiciary under Clause 1. Therefore, how can the Lord Chancellor rid himself of this inherent tension and conflict simply by changing his name, unless the duty under Clause 1 is not intended to press on him too heavily? I asked the Lord Chancellor that very questionquestion 29 on page 29and I did not get a very satisfactory answer.
I therefore come to the fourth and last argument that has been advanced. It is said that the Prime Minister should be free to appoint whoever he wants to run the courtsfree to appoint a Member of the other place who is not a lawyer and could be quite junior in Cabinet ranking. That is the real difference between the two sides in this debate. In my view, the task of defending judicial independence in the Cabinet is of such critical importance that it should be given to a senior judge or lawyer who is a Member of this House and not to a politician on his way up the greasy pole.
Why do I say that the Prime Minister's role should be limited in this way but not in others, because after all, nobody would suggest that the Secretary of State for Defence should be a soldier or sailor? The distinction is almost too obvious to state. The Army must do what the Government say: there is no room for conflict or tension. However, the courts do not have to do what the Government say. Indeed, it is the other way round. It is the task of the courts to ensure that the Government do what Parliament says, which is very different. Therefore, there is obvious scope for friction between the judiciary and the executive, which may be getting wider all the timealthough I hope that it is not. However, since such scope exists, it is essential to have someone running the courts who has the respect of both sidesthe judiciary and the executive.
For similar reasons, it is essential to have someone who is a Member of this House, so that he can, as far as possible, be kept away from the hurly-burly of political conflict in the House of Commons. That would have the incidental advantage, often mentioned by the noble Lord, Lord Elton, of having two Cabinet Ministers in this House instead of one. We all know
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that our constitution depends on checks and balances, and that is especially important when one party or the other has a huge majority. One such check is the presence of the Lord Chancellor in the Cabinet. Of course, it is possible to exaggerate his influence, but I hope that I do not do that. I accept that he can always be dismissed by the Prime Minister. However, until he is, the check is there and we get rid of it at our peril.
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