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Lord Howe of Aberavon: I fancy that this is the first occasion after 12 years in your Lordships' House that I have taken part in a Committee stage debate, so I apologise for any procedural infelicity. I am also conscious of the fact that it is now some 32 years since I last wore a wig in anger, so I am to some extent disqualified in that respect as well.
During the intervening years, I have had the opportunity of presenting and discussing the reputation of our legal system in this country in many other parts of the world as Foreign Secretary and, in the decade or so following that, as an adviser to one of the world's largest American law firms. Throughout the world, our legal system, because of its structure and shape, commands universal respect which we put at peril with great unwisdom.
It is interesting that that was clearly recognised by Her Majesty's Government only a very short time before the events of 12 Juneto be compared almost with 9/11 in their folly. When the Council of Europe pressed the Government to explain the extraordinary anomaly of the Lord Chancellor's role, emphasising the separation of powers and so on, the Lord Chancellor's Department submitted a long paper in response to Mr Eric Jurgens's motion in the Parliamentary Assembly of the Council of Europe, which explained the position as follows:
"The Lord Chancellor provides a counter-balance for the judicial branch against the centralised power of government and Parliament . . . he is removed to the House of Lords, away from the full force of party politics. The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with full understanding of legal culture and the rule of law".
We are all agreed, as the noble Lord, Lord Richard, has pointed outand I join in paying tribute to his chairmanshipon the acceptability of discarding the judicial role of the Lord Chancellor, and of saying a sad farewell to his sitting on the Woolsack in this
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House. As the noble and learned Lord, Lord Bingham of Cornhill, said, and we recorded in our report, the old days when the Lord Chancellor spent the first half of the day sitting judicially and the second half sitting as Speaker have, for better or for worse, gone for ever. We know that his sitting in this House was short-lived; the late Lord Chancellor, the noble and learned Lord, Lord Irvine, actually sat as a judge during his three years on only two cases. The nature of the job is therefore not substantially changed by that alteration, and the case that the Government were making remains exactly as strong as it was when they made it to the Council of Europe.
My noble friend Lord Kingsland has already quoted from the judges' response to the initial decision explaining why the Law Lords wished the office to continue with its present strength and reputation. But that support for the present state of affairs is also supported very powerfully and clearly by the report of the Constitutional Affairs Committee in the other place from 10 February this year. The committee said, referring to Lord Chancellors of recent times, that all have been distinguished within the legal profession, to which they have professed great loyalty. It went on:
"There is a radical difference between on the one hand a Lord Chancellor . . . who has a special constitutional importance enjoyed by no other member of the Cabinet and who is usually at the end of his career (and thus without temptations associated with possible advancement) and on the other hand a Minister who is a full-time politician, who is not bound by any judicial oath and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion".
That is the second essential distinction. That general argument is, interestingly, robustly supported by a noble friend in familiar disguisethe noble Lord, Lord Lester, under the heading of the Odysseus Trust. Under the heading,
"We strongly favour the creation of a powerful Minister of Justice, with the legal stature and qualifications of a traditional Lord Chancellor, and a specific duty to uphold the rule of law and the independence and integrity of the judicial system".
That is no doubt a recognition that that is the right way of securing, more surely, in the phrase of the noble Lord, Lord Goodhart, a "strong and effective" holder of this important officesomeone qualified in that way.
Three things follow from that analysis, which are quite familiar. First, we need to have in that office a distinguished senior figure at the end of his career. Paragraph 36 of our report sums it up in the following words. The holder must have,
That plainly means a senior lawyer. I am grateful to my noble friend Lord Kingsland for his generous tribute to the expiring breed that I appear to represent. He will also remember that in the course of our committee's deliberations, the original phraseology was not,
The second proposition, which is again familiar to the Committee, is that the holder of the office should be in this House. There are good practical reasons for that. First, as my noble friend Lord Kingsland, said, sadly there are almost no leading lawyers left in the other place. When I was fortunate enough to be appointed Solicitor General, there were at least half a dozen Members of my own party clamouring and competing for that job, and I counted myself extremely lucky to get it. There were at least as many on the other side of the House, many of them of real distinction.
Alas, if one goes to the other place now, one looks not quite in vain, but one finds people with that kind of qualification only with difficulty. The evidence for that is that the two Attorney-Generals under this Government have both been Members of this House. For the first time for many centuries, that office has had to be held in this House. So the idea that there may be spare lawyers of the distinction and quality to be appointed to holder of this office simply lying around on the Benches of the House of Commons is certainly a myth. I must say with some sadness that the decline was demonstrated by the fact that for a short time the shadow Attorney-General was not a practising lawyer of any kind but a parliamentary agent. That illustrates the extent to which the holder of this office, if he is to be a senior lawyer, must be in this House.
"If . . . one important function of the Lord Chancellor or Secretary of State is to be a guardian of the constitution, then in that respect it is entirely appropriate for that Minister to be a Member of this House".
The third conclusion relates to the title of the office. If the office holder is to have the qualifications of a senior lawyer and Member of this House, with the duties imposed on him as we are all agreed, one comes back to that old phrase that if it looks like a duck and if it walks like a duck, it probably is a duck. If this creature's qualifications are going to be equivalent to those of the present Lord Chancellor, why on earth should we not call it Lord Chancellor?
The name matters not just because of the nomenclature of the office but because of the historic authority attached to that title. I noted the rather light-hearted way in which the noble Lord, Lord Goodhart, was happy to dismiss that antique title. I understand
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the thinking behind the notion of a Minister of Justice but, frankly, we do not have a Ministry of Justice and we do have a hugely important and long-respected office of Lord Chancellor. It is not sensible to say that the title has been so badly damaged by the way in which the Government have handled it that we should simply shed a few tears over the broken vase and let it lie.
This will be the last time I quote from Professor Robert Hazell, but it is interesting to read his description of his understanding of the question, which was in the very first evidence before the committee. He said that he could understand why the Government were ready to discard the judicial role of the Lord Chancellor and his role as Speaker of this House. But he said:
"I do not understand why the Government wanted also to throw away his first hat and abolish the title for the function as a Cabinet Minister. No convincing reason was advanced in the consultation paper and I am not sure that any has been subsequently. It seemed almost as if the Government were casting down the title of Lord Chancellor in an act of mindless modernisation and it certainly put the judiciary in a fright. It raised unnecessary fears that the independence of the judiciary was under threat and that in casting aside the office the Government were also casting aside the values which the Lord Chancellor upheld as the constitutional conscience of the Government and as the protector of the judiciary".
That is the head of the constitution unit at University College, London, describing his impression of the impact made by the reckless decision to discard the office of Lord Chancellor. We cannot respond to that by saying, "Well, it's too bad chapsit's gone so let it go". If we are going to maintain the authority of the office holder, we need to do what we can to repair the damage that has been recklessly committed. It shows the damage done to the vase and I am not prepared to accept it.
That impression is powerfully reinforced by some observations made from time to time by the noble and learned Lord the Lord Chancellor himself. In last week's edition of the House Magazine, that immensely influential organ, he said:
"Why should any Prime Minister be constrained in the person he chooses to do that jobconstrained by it having to be a lawyer, constrained by it having to be a member of the House of Lords? The key thing is quality of the individual, and the Prime Minister should have the widest possible choice".
I see no wisdom in that whatever. If so many people on all sides of our society, and certainly in the world outside, attach great importance to the legal qualificationssenior lawyer qualificationsand membership of this House, surely we should respect those views. As I look at that observation by the noble and learned Lord the Lord Chancellor and the insight that it gives one into his thinking, I am reminded of the cynical legal comment that even in an affidavit the truth will out.
The Lord Chancellorship is the most remarkable and important aspect of our constitution. Yet the shape of that office depends not on statute but on what our constitution dependsthat is, conventions. If one looks up constitutional law and human rights in the relevant volume of Halsbury's Laws of England, as I
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did, to find the qualifications of the Lord Chancellor, one finds that there are no statutory qualifications for the office of Lord Chancellor although it has,
That is the foundation of this cornerstone of our constitution. Over centuries, the quality, qualifications and authority have been defined and upheld by constitutional convention and by convention aloneconvention that this Government have been recklessly disposed to overthrow, with possibly far-reaching consequences.
I do not want to use the phraseology of the noble and learned Lord the Lord Chief Justice, but the noble and learned Lord the Lord Chancellor is personally a most engaging colleague. For that reason, I do not relish having to make my next remark. But I have to say that I do not find it easy to respect someone, however personally agreeable, who has the privilege of being appointed to such an historic and constitutionally vital office and is then disposed, at little more than a moment's notice, to set about its demolition. In order to prevent such constitutional vandalismI make no apology for repeating the phrasethat office now has to be recreated, preserved and strengthened. It is no longer a convention rightly respected over centuries. It now has to be restored by Act of Parliament. It has to be restored by the will of this House.
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