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Lord Brennan: The Bill provides a new and fundamentally different framework for the constitutional position of our judiciary that does not involve a Lord Chancellor. Those who propose these amendments assert that the role of Lord Chancellor should continue, and they essentially rely on its antiquity and the supposed scope of its functions to justify its retention. They particularly rely, as did the noble and learned Lord, Lord Lloyd of Berwick, on the role of the Lord Chancellor in protecting the independence of the judiciary. I will henceforth call that "the role".

That approach confuses the office with the functions. I strongly disagree with the approach and I regret to say, but will say, I hope forcefully, that the contention does not survive objective analysis. The Bill is intended to reform. It will preserve the best of the past to advance the future but will not be trapped by the past in making that future constitutionally good.

Let me start with history. Before this debate, I had occasion to look at each of the major textbooks on constitutional law and history, in particular, Dicey. In none of them did I find any significant reference to the role of protecting the independence of the judiciary. It simply was not there. Indeed, when I looked at the history, what was there was the predilection of Lords Chancellor up to the Second World War to appoint judges, up to and including the Lord Chief Justice, by dint of political patronage and not merit. In my research, I found that it was only in 1975 that the Lord Chancellor—
 
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Lord Hailsham—first explicitly expressed the role of defending the independence of the judiciary inside the Cabinet and in Parliament as important.

But on what basis can it be defended? We are fortunate in Lords Chancellor such as the noble and learned Lords, Lord Mackay and Lord Irvine, but do we know if they ever had occasion to defend the independence of the judiciary in the Cabinet? If so, on what principle did they defend it? It is not written; it is not even mentioned in the textbooks. Perhaps that might indicate to us that this is exaggerating a problem. The independence of the judiciary of this nation is protected not by the Cabinet and not by the Lord Chancellor, but ultimately by us in Parliament. I shall now develop that contention.

As to the functions of the Lord Chancellor as judge or senior judge, nobody can plausibly argue that he should sit. It is better that he does not. The Bill does away with that. As to his function as Speaker of this House, is it acceptable that a senior Cabinet Minister should spend so much time here as is required when his main function is to serve the public interest in his own ministry? Perhaps we should change our procedures.

The only area in which this debate is significant is in the administration of justice. Within that, the only issue that is seriously raised for the retention of the Lord Chancellor is the role in protecting the independence of the judiciary. I disagree with that emphasis. The independence of our judiciary as to security of tenure, appointment and discipline rests with Parliament. For 300 years, the judges of this country have been independent and have had security of tenure; that is since the Act of Settlement. Politicians respect that independence. Judges, realising that they have it, show its importance by the integrity with which they bear office. It does not and did not need a Lord Chancellor to produce that constitutional position.

The system of appointment by the Lord Chancellor—not in terms of personalities, but as a system—has been heavily criticised. The Bill changes it to an independent commission, the assessment and recommendation of which will have to be decided on by a Minister. If he disagrees, he must explain in a reasoned—in which I include that it would be rational—explanation why he did not accept a recommendation. That is very different from times past. It does not involve a Lord Chancellor.

Lastly, there is discipline. The Bill creates a new system of discipline, effectively exercisable by the Lord Chief Justice on behalf of Ministers, with prescribed procedures and an overview by an ombudsman. That is better than before, and it does not need a Lord Chancellor. Those functions—security of tenure, appointment, discipline—are all developed in the Bill for the better. They do not depend upon a Minister.

What of the role, the critical question of whether the Lord Chancellor must be there to protect the judges? That is the ultimate and only question arising in the amendments. Of the three branches of power in a democracy, the judiciary is the weakest—the least able
 
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to protect itself, because of its independence and its inability to enter public debate. It is therefore everybody's democratic duty to ensure that it is properly protected. A constitutional principle is needed to do it, and that is what the Bill creates. It makes for new and better protection of the judiciary, for the following reasons.

First, the concordat agreed in January of this year is an historic and unique document. It is the first time in our history when the judges and the Government have agreed together on the best way to manage the judiciary. It is founded on a welcome concept of,

which is seen as being "paramount". That is an advance. It does not need a Lord Chancellor.

The concordat is substantially embodied in the Bill. However, it includes a new, enhanced and much more powerful role for the Lord Chief Justice. By Clause 2, he becomes the president of the courts of England and Wales. In that role, he has a statutory duty to represent the judges. He must manage their administration and he must deal with Ministers and Parliament in all of those duties. This is new, different and important, and it does not involve a Lord Chancellor—far from it.

Lord Lloyd of Berwick: I am grateful to the noble Lord for giving way. Will he bear in mind that the noble and learned Lord, Lord Woolf, said in his evidence that he saw no reason why the concordat, to which everybody attaches importance, should not work with a Lord Chancellor or a Secretary of State? He could see no difference.

Lord Brennan: I thank the noble and learned Lord for reminding me of that fact, but I should like to concentrate, before I return to answer that point, on the question of what the Lord Chief Justice is to do.

The new role appears to be little understood. It is assumed that the Lord Chancellor is the only person who can represent the judiciary. The Bill says different. The Lord Chief Justice, as well as the Minister for Constitutional Affairs, will represent the judges and their independence. He will do so with Ministers and Parliament and if necessary do so by public debate, if he feels that that independence is under threat. He will not be trammelled by political constraint where a Lord Chancellor would be.

My next point will enable me to deal with the point raised by the noble and learned Lord, Lord Lloyd. The role of the Lord Chief Justice fits in with and is fortified by the constitutional guarantee in Clause 1 of the continued independence of the judiciary. That involves all Ministers involved in justice and every Minister, whether in justice or not, is forbidden from interfering with judicial decision making. The noble and learned Lord, Lord Lloyd, reminded me of what the noble and learned Lord, Lord Woolf, said. What
 
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he said was that it may be the Lord Chancellor, or it may not. He did not say that it has to be the Lord Chancellor. Prudence on his part would surely lead him not to overstate at this stage the new role that the Bill gives to him. The role of the Lord Chief Justice and the constitutional guarantee work together.

Lord Campbell of Alloway: I thank the noble Lord for giving way. Will he not accept that there is no guarantee whatever in Clause 1 and that it is wholly unacceptable to suggest that there is a guarantee? Does he not appreciate that in paragraphs 75 to 79 of the committee's report reservations were expressed by noble and learned Lords and by Lady Justice Arden about enforcement? The black-type guarantee of judicial independence, as the noble Lord must know, is a marginal gloss. It is not part of the statute or the Bill. It cannot be amended and it cannot be referred to as an aid to interpretation; and in any event it is totally misleading and wrong.

Lord Brennan: It is embarrassing to remind ourselves that in 2002, we in Parliament enacted a guarantee similar to this to protect the judges of Northern Ireland. Did we then, in doing so, consider that it was of no effect, that it was a gloss? Of course we did not. We wrote it then as we write it now in the Bill—as a constitutional provision. We may be little accustomed to dealing with written constitutions in this country, but it is time that we started to learn to use them with the intended effect that they are intended to have.

How is the guarantee to be honoured? That is the question implicit in the intervention of the noble Lord, Lord Campbell. It will be honoured in many different ways. The Secretary of the Cabinet, in his proper constitutional position, properly exercised, could not for a moment permit Cabinet discussion to occur in which political interest was threatening the independence of the judiciary, if this clause is law. It is unthinkable that that could occur.

Secondly, if there is difficulty about the independence of the judiciary in Cabinet, the Attorney-General can attend. It was only in 1992 that the Attorney-General stopped representing the Lord Chancellor in the House of Commons on all of these questions. Thirdly, and in any event under the Bill, the Lord Chief Justice himself will have the right to make representations, in public if necessary, to ensure that the guarantee is honoured.

Last and most important of all, when a constitution is written it is not Ministers or judges who give it the final protection—it is this Parliament. Would we be so supine as to allow this guarantee to have no effect? Are we not prepared to use the Select Committee on Constitutional Affairs and give it strength to make it an effective guarantee? Are we not prepared to debate in this House whether or not the guarantee has been observed? It seems to me that in this debate the parliamentary duty to preserve the constitution is fundamental.
 
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