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Lord Carter: My Lords, I wish to add to the encomiums addressed to my noble friend Lord Richard, the chairman of the Select Committee, who did a brilliant job in guiding us. As some noble Lords will remember, I was opposed to the appointment of the Select Committee on the grounds that the procedure of such a committee was not appropriate. We proved that to be the case. In the first part of our work, we treated the Bill as draft legislation and produced extremely good evidence. If we had stopped there, it would have been very helpful. But we then ignored the procedure in the Companion, decided to take no votes and dealt with amendments to the whole Bill in one day, with the exception of Clause 1, on which there was another short session. Until halfway through the processthe taking of evidence and the reportthe procedure was extremely good. However,
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the procedure that we then adopted showed that, if we had followed the procedure that should have applied, the appointment of a Select Committee on a substantive Bill would not have worked at all.
We have heard a great deal about the historic role of the Lord Chancellor. I understand the history and great dignity of the office. However, let us look at what Lord Chancellors do in practice. They emerge from highly charged political discussions with the Prime Minister and ministerial colleagues involving personalities, issues and policy; they revert to acting as head of the judiciary; they help to draft the party manifesto for the general election; at the same time, they are extremely busy as a departmental Minister with a very large budget and some 20,000 civil servants; then, in their spare time, they serve as the Speaker of the House of Lords.
We all have our views about what happened on 12 June, but without this Bill, the situation would have continued. We now agree that the Lord Chancellor should not be the head of the judiciary and perhaps should not be the Speaker of the House of Lords in the new role that we are now defining and agreeing. All that would have continued. None of the noble Lords who have tabled amendments proposed to change that situation; it was a complete anomaly, with the role involving a mixture of politician, judge and the other aspects about which we all know. The Bill has put that right; without it there would have been no concordat between the judiciary and the executive for the first time.
I have described the role of the Lord Chancellor. In practice he would not so much need Chinese walls between his various roles as the Great Wall of China. It seems generally agreed that the Lord Chancellor should not sit as a judge and should therefore not be the head of the judiciary. As a non-lawyerI think that I am the first to speak in this debateI have always thought it odd that the head of the judiciary need never sit as a judge, would very rarely sit as one and was appointed by the Prime Minister.
Any dispassionate examination of the role of the Lord Chancellor would conclude that the Speaker of this House should no longer be appointed by the Prime Minister but should be elected by the House. The noble and learned Lord, Lord Mackay of Clashfern, agrees with that view in an article in today's Times. As the noble and learned Lord, Lord Lloyd of Berwick, said, that is a matter for the House that need not concern us now.
If the roles of head of the judiciary and the Speakership are removed, it leaves the central question: what should the new role of the Lord Chancellor be? We agree that the Lord Chancellor should at least relinquish his role as head of the judiciary and Speaker of this House. Even if those functions are removed, all the amendments in this group are intended to ensure that there is a senior lawyer and a Member of the House of Lords in the Cabinet to protect the independence of the judiciary and the rule of law.
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I have listened carefully to the arguments in favour of a senior, experienced lawyer; I understand where they come from. If I were a very unkind non-lawyer, I would say that it was special pleading in spades. I was reminded of the famous remark by Jo Grimond on "Any Questions" 30 or more years ago, when there was much discussion of restricted practices in the trade union. He said:
If we were to require that the Lord Chancellor must be a senior experienced lawyer and a Member of the House of Lords, it would be a unique prescription on the power of the Prime Minister in the construction of the Cabinet. Any noble Lord who has spoken has dealt with the point that this House does not control supply. However, those who support the amendment suggest that a senior departmental MinisterI see that there are two former Chancellors of the Exchequer sitting oppositewith a budget of £3 billion should be a Member of this House and not the House that controls supply.
Lord Howe of Aberavon: My Lords, perhaps I may pick up on the noble Lord's use of the words "unique prescription". The unique prescription that the Lord Chancellor should be a senior lawyer and a Member of this House has prevailed for 100 or 200 years, but by convention and not by statute. But the unique prescription has been there; Prime Ministers and the nation have managed to live with it quite well.
Lord Carter: I am describing the prescription as a matter of law, not convention. It would now, I assume, be a matter of law that the Lord Chancellor should be a senior lawyer and a member of the Cabinet. That would be a unique prescription in law of the power of the Prime Minister and the appointment of the Cabinet. There is the major point that a departmental Minister with a budget of £3 billion
Lord Campbell of Alloway: Your Lordships will no doubt be aware that at paragraph 35 of the report, the view that the office of the Lord Chancellor should be retained in some way was expressed, putting it briefly, by noble and learned Lords, noble Lords and academics. In that context, it is wholly relevant
Lord Carter: I was just pausing for breath. In the report, we deal with the evidence against the Lord Chancellor being a senior lawyer. Evidence was received from Justice, where witnesses agreed with the Government's view that it was not essential for the Minister to be a lawyer in order to carry out his functions under the Bill. That was evidence from Roger Smith of Justice.
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In the Scottish Executive, there is no requirement that the Minister for Justice be a lawyer. The Committee was told by Roy Martin QC, vice-dean of the Faculty of Advocates, that his assessment of the experience in Scotlandwhere of the two Ministers for Justice since devolution one was a lawyer and one was notis that it does not make a particular difference. On the final question
Lord Carter: Are you intervening? I just bent down to put down my papers. If noble Lords are patient, when I have finished I will say, "I am finished". Then I am sure that noble Lords opposite will all get to their feet.
I conclude on the point of the rule of law. Seven members of the committee either were members of the Cabinet or had attended Cabinet, as I did for five years. We asked if any of us could remember from our time when the rule of law had specifically been discussed as the rule of law in Cabinet. Now, I am sure that there were many discussions with Lord Chancellors on points of law. No one could actually remember the rule of law being discussed as such in Cabinet. The evidence of the Lord Chancellor says it all:
"The rule of law in the questions that we are talking about is not has the Government complied with the law . . . we are talking about big constitutional issues which are identifiable to all members of the Cabinet. The question boils down very often to is it only a lawyer who can identify these sorts of rule of law issues? I do not believe it is, I believe that all constitutional politicians can spot them".
Lord Skidelsky: I support Amendments Nos. 1 and 7 to Clause 1. I do so as a member of the working party of Members of your Lordships' House chaired by the noble Lord, Lord Alexander, set up on the initiative of the Bar Council to consider the implications of the changes proposed in the Constitutional Reform Bill.
The reason that your Lordships' House took the unusual step of setting up a Select Committee at Second Reading was because we objected to the way in which the reform had been introduced. The Prime Minister's announcement on 12 June 2003, without consultation and as a kind of add-on to a Cabinet reshuffle, typified the extraordinarily cavalier way in which the Government have embarked on the process of constitutional change, perhaps more appropriately called the unravelling of our constitution.
It is for that reason that I cannot accept the argument of the noble Lord, Lord Brennan, that the rule of law and independence of the judiciary are adequately protected by Parliament. That may have
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been true in the past; I am not confident that it will be in the future. The noble Lord referred to Lord Hailsham. It was Lord Hailsham who warned of the dangers of "elective dictatorship". That is the permanent danger of a unitary constitution. That is why we should not abandon such defences as we have erected over time, however inadequate such defences may be, against a wilful Prime Minister who has an enormous Commons majority at his back.
I believe, as did our committee, that the Lord Chancellor is an essential counterweight to the supremacy of the executive and particularly to the power of the Home Office in our constitution. There is no need to remind your Lordships that ours is a fused constitution with a balance of powers and not a separation of powers. In this constitutional scheme, the Lord Chancellor is the main link between the legal profession and the government, representing the judges' views to the executive and the executive's views to the judges. He is thus an important element in the protection of the judiciary and the legal profession from political pressure. Such an office, and such an office holder, would be unnecessary and otiose if we had a formal separation of powers between the executive, legislature and judiciary, as in the United States, for example. That is not what the Government are proposing. There is to be no breach in the sovereignty of Parliament. What is proposed is simply to replace the Lord Chancellor with the Secretary of State for Constitutional Affairs.
Four essential functions are fulfilled by the Lord Chancellor in our constitutional system, which cannot be replicated by a Secretary of State for Constitutional Affairs. All these four functions flow not just from the name of the Lord Chancellor, as pointed out by the noble Lord, Lord Goodhart, with all the conventions attached to that name, but to the qualities that inhere in that name, whose connection with the name "Secretary of State for Constitutional Affairs" would be purely fortuitous.
The first function is to protect the independence of the judiciary. The noble and learned Lord, Lord Howe, has already quoted words from the Constitutional Affairs Committee of the House of Commons, pointing to the radical difference between the Lord Chancellor who is bound by judicial oath, and who is usually at the end of his political career, and a Minister who is a full-time politician not bound by judicial oath, and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion. Our own evidence at paragraph 21 adds that,
"there is no guarantee that the Minister will be a lawyer and so may lack the understanding of successive Lord Chancellors of the role that the legal system, the judges and the profession play in achieving a balanced constitution".
The second function is to protect the self-regulation of the legal profession. The noble Lord, Lord Carter, talked of restrictive practices. Restrictive practices can play a constructive role, if they protect the professional competence and integrity of the profession. The self-regulation of the legal profession ensures that. While the Secretary of State for Constitutional Affairs is to
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inherit the Lord Chancellor's power to improve or amend the ethical rules of the profession, our committee, at paragraph 51, was concerned that someone who is not imbued with legal habits of thought may interfere with the profession's rules,
Thirdly, we believe that the Lord Chancellor has an essential part to play in protecting the principle of appointment by merit. That is, he should continue to be responsible for appointing senior judges on the nomination of the Judicial Appointments Commission. As our evidence noted at paragraph 33,
"dangers inherent in [the powers of the Secretary of State for Constitutional Affairs to reject candidates for senior judges proposed by the Commission] could be very much lessened if the Lord Chancellor were to remain the appointing officer".
Finally, we believe that the Lord Chancellor is the best person to protect the running of the courtsparticularly with respect to the function of listing casesfrom executive interference. In our evidence at paragraph 44 we wrote that the administration of the courts,
That is why I strongly support the amendments to enable the Lord Chancellor to retain his essential place in our fused constitution. Whether he continues to be our Speaker is for your Lordships to decide.
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