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Lord Goodhart: This group of amendments concerns the future title of the Minister at the head of the Department for Constitutional Affairs. In speaking to Amendments Nos. 1 and 7 in this group, I will have to discuss our own Amendment No. 8, which proposes the alternative name for the office of Secretary of State for Justice. Our position on Amendments Nos. 1 and 7 cannot be explained without reference to that alternative name. I asked to have Amendment No. 8 grouped with Amendments Nos. 1 and 7. That has not been done, so I will have to speak to Amendment No. 8 in this debate and I promise the Committee that I will not speak to it again when we reach the point at which it appears on the list.

As the noble Lord, Lord Richard, said in his very informative introduction to this debate, there was broad consensus in the Select Committee on what the Minister should and should not do. It was agreed that the Minister should not sit as a judge, should not be head of the judiciary in England and Wales and should have only a limited role in the appointment and promotion of the judiciary—a step that would greatly protect the independence of the judiciary. It was agreed that the Minister should continue to be head of his department, which is now a substantial department with a budget of more than £3 billion a year including legal aid. It was agreed that the Minister should have a role as defender of the independence of the judiciary and of the rule of law and that that should be recognised in the Bill, although we have not yet achieved consensus on the text.

The disputes that remain, therefore, are not about the functions of the Minister. They are: first, whether the Minister should have legal qualifications; secondly, whether he—I use the word "he" because of the current convention for using the gender of the present holder of the office—should have to be a Member of your Lordships' House; and thirdly, what he should be called. In a way, I regret that the title of the office has come first in the debate. It might have been better to tackle the other issues first so that we could see what kind of creature we were describing.

Titles are symbolic, but that does not mean that the issue is unimportant. Symbols have potency. However, it is plain that the new office is very different from the old one. In the past, the office had both judicial and political functions. Certainly, at times in the past the judicial functions were the more important of the two—as, for example, in the time of Lord Eldon, who was Lord Chancellor for some 20 years between 1805 and 1825 and spent most of his time sitting as judge of the Chancery Court.
 
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Now, of course, the judicial role, or the vestiges of it, are to be removed. The question is whether the title of Lord Chancellor should go with it. It would be possible to retain the name of Lord Chancellor for the remaining functions of the Minister. There are arguments for that. First, continuity would be maintained. Secondly, it is said that if it is at least coupled with the requirement that the Minister should have legal qualifications and be a Member of your Lordships' House, it would strengthen the standing and independence of the Minister and his ability to stand up to Cabinet colleagues to protect the independence of the judiciary and the rule of law. That argument has been clearly and forcefully put by both the previous speakers.

I am not persuaded. The question of legal qualifications and membership of your Lordships' House does not arise out of this group of amendments. It is a matter for later groups. We can see the advantage of having legal qualifications, but I do not believe that an intelligent and well informed lay person is incapable of understanding and defending the rule of law. Lawyers tend to have somewhat fixed and rigid views on this subject, and it is more than possible that an outsider could have a better understanding of the constitutional implications. However, that is a different issue. We shall be voting not on whether the Minister should have a legal qualification, but simply on whether he should be called Lord Chancellor.

We are certainly opposed to making it the rule that the Minister, as head of a department with a significant budget, should necessarily be a Member of your Lordships' House, whether or not there are suitable candidates for this office in another place. We need a Minister, in your Lordships' House or not, legally qualified or not, called whatever title, who will stand up for the independence of the judiciary and the rule of law. Will retaining the historic office or title of Lord Chancellor strengthen the hand of the Minister in defending judicial independence and the rule of law? The answer is no. The standing and authority of the Minister depends on the character and quality of the person who holds the office, the willingness of the Prime Minister to choose a person who has the character and quality to do the job, and the willingness of the Prime Minister to heed that person's advice.

We have had a series of strong and effective Lord Chancellors in recent years. The late Lord Hailsham and the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg, all fall into that category. They were strong and effective not because they were called Lord Chancellor but because they were strong and effective people appointed by Prime Ministers who were willing to appoint such people.

Not all Lord Chancellors have been strong and effective. It would be invidious to name names, but there is no magic about the title. As shown on 12 June 2003, the Lord Chancellor, however strong, is a Cabinet Minister who can be sacked by the Prime Minister like any other Minister. A future Prime Minister who wants a compliant Lord Chancellor will
 
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find one. The mystique attached to the office of Lord Chancellor was shattered by the events of June last year and I do not believe that it can be reconstructed.

That was a concern expressed by the noble and learned Lord, Lord Woolf, in his speech at which I was present in Cambridge on 3 March this year, when he said:

Professor Robert Hazell, head of the constitution unit at University College, London, as someone who regretted the announcement that the office was to be abolished, said in evidence to the committee:

We do not see the retention of the office of Lord Chancellor as being a necessary or even valuable addition to that role. We also have to say, however, that we are not happy with the title of Secretary of State for Constitutional Affairs, which is an inaccurate description of the office. We have long advocated the title of Minister of Justice or Secretary of State for Justice.

Justice is the core role of the department and the Minister. The department has some constitutional roles that cannot be described as justice matters. For example, it is an umbrella department for devolution and it is responsible for the conduct of elections. Those are fringe activities that should probably go elsewhere. But the administration of the court system, the role in judicial appointments and discipline of the judiciary, responsibility for legal aid, and for civil law and procedure are central to the department. What it lacks—and should get—is responsibility for criminal law and procedure, which would leave responsibility for prisons and police with the Home Secretary. That would leave us with a Ministry of Justice responsible for law and a Home Office responsible for order. That is a logical division of responsibility, which has been adopted in most other democratic countries, and which should be adopted here.

We cannot expect the transfer of criminal law from the Home Office to the Ministry of Justice while the present Home Secretary remains in office. The "Secretary of State for Justice" accurately describes the present functions of the Minister and the department and points out the direction in which the department should move to become a fully fledged Department of Justice. A move in that direction as soon as possible is essential to give the Minister equal standing with the Home Secretary, which cannot be achieved by retaining the historic title.

If we cannot have the title of Secretary of State for Justice, although I hope that it is possible, we are faced with an unattractive choice. Do we support the retention of the historic title when the office to which it was attached has been transformed into something completely different, or do we support the introduction of a new title, which is an incomplete and inaccurate description of the duties of the office?
 
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The movement to our objectives—the Ministry of Justice and the Minister of Justice—will be easier if we can move to a new name now, even if it is not one that we ultimately want. That name recognises rather than conceals the change of function of the Minister. While I am entirely sympathetic to the motives of those who wish to retain the title of Lord Chancellor, they are misguided in believing that it will have that effect. We do not believe that the retention of an outdated title will assist the protection of judicial independence and the rule of law. We shall therefore vote against the amendment.


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