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Lord Lester of Herne Hill: I shall not follow the noble Lord, Lord Campbell of Alloway, into the tangled undergrowth and thickets of the ancient British constitution through the ages. Instead I shall make one point only and a point in support of the speeches made by my noble friend Lord Goodhart and the noble Lord, Lord Brennan.
I wish to give a short piece of evidence to the Committee. I am one of the few Members of this House who has served in a government in which rule-of-law questions came up frequently in Cabinet. The conduct of Ministers at the time persuaded me that the present system was not quite as perfect as suggested by those with a conservative disposition.
Lord Lester of Herne Hill: I was coming to that. It was a government who contained, among others, the noble Baroness, Lady Williams of Crosby, as a distinguished Minister. I served as Roy Jenkins's special adviser. In that capacity I was given responsibility for looking at the constitutional issues as they came before the Wilson Cabinet. I was a great admirer of the Lord Chancellor, Lord Elwyn-Jones, and of the Attorney-General, Sam Silkin. As I travelled back from Morocco I said to Elwyn Jones, on the eve of the Labour government's election, "What would you do if you were Lord Chancellor?". I remember that charming, genial and fine lawyer saying, "I would not be the last Lord Chancellor". I said, "Apart from that, Elwyn, what else would you do?". It was not clear to me that he had a clear idea. He served with great geniality.
The issues which arose in that Cabinet included what should be done about the Shrewsbury pickets. What should be done about the Clay Cross councillors? What should be done about the fact that the Scottish devolution proposals made no allowance at all for judicial review which, as contemplated at the time, would have given the judges no proper autonomy or power?
I have to say that, time and time again in Cabinet, the person who stood up for the rule of law was not the Lord Chancellor. It was not even the Attorney-General when he was allowed to be there. It was Roy Jenkins. I do not say that because I believe that a lay person who is not a lawyer would necessarily have the qualities of Roy Jenkins any more than would a lawyer. But I do say from my own observations of Cabinet proceedingsI hope that the noble Lord, Lord Wilson, will agree that I am not in breach of the Official Secrets Act in saying this after more than 30 yearsthat it is an innocent illusion to suppose that
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the label of "Lord Chancellor" or the office of Lord Chancellor matters. As the noble Lord, Lord Brennan, said so effectively, what matters is the structure within which the senior office holder operates, the individual personality of that office holder, and whether he or she is a person of strong and robust independence, integrity and understanding of the rule of law.
Lord Peyton of Yeovil: I listened with rapt attention and considerable admiration to the opening of this debate by my noble friend Lord Kingsland. I listened with similar respect and attention to the noble and learned Lord, Lord Lloyd of Berwick. However, I wonder whether their generosity had not led them to forget rather too soon the events which preceded 12 June. Those events sowed some widespread seeds of deep mistrust both of the Government and of the noble and learned Lord the Lord Chancellor himself. I must briefly remind noble Lords of why that was so.
In my view, since they came into office the Government have handled your Lordships' House in a thoroughly hamfisted way. They were cavalier in their dismissal of a promise which persuaded hereditary Peers to agree to depart from the House on the basis that a reasonable settlement would be made before anything further was done. As far as I can recall, the noble and learned Lord who now sits on the Woolsack dismissed it in a rather lighthearted manner by saying that it was a temporary arrangement which no one could really expect to last. But that was a very different standpoint from that adopted by the noble and learned Lord, Lord Irvine of Lairg, whose name, surprisingly, has not been mentioned in the debate so far. The noble and learned Lord, Lord Irvine, considered that a promise was a promise, and so he stood in the way of the Government.
My other charge against the Government is that they have been singularly na-ve in their attempt to wrap all this up in the garments of respectability, saying that it is a well thought out plan of constitutional reform. I do not really think that it was anything of the kind. Moreover, a shock was administered to the Government when they found that neither the Prime Minister nor the noble and learned Lord himself could wave a wand and cause his office to disappear. To get out of the situation created by the honourable conduct of the noble and learned Lord, Lord Irvine, the Government called back the Lord Chancellor from the Domewhere, incidentally, he was winning very few laurelsbecause he had just those qualifications for the job of the present post that the noble and learned Lord, Lord Irvine, lacked. The obedience and flexibility of the noble and learned Lord the Lord Chancellor commended him to the Prime Minister.
I question the idea that a Secretary of State would be able to resist the pressures of the Home Office. As I said the other day, although the noble and learned
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Lord did not take my words seriously, I believe that he and his department would make a very easy meal for the Home Secretary.
We have now had the experience of seeing the noble and learned Lord sitting happily on the Woolsack, still determined, at the end of his term, to destroy the office. I agree with what was said about this by my noble and learned friend Lord Howe. He expressed surprise that the noble and learned Lord, having enjoyed the office, could so easily then destroy it. If the noble Lord, Lord Goodhart, was right in what he saidthat we are simply arguing about the name and title of the officeI cannot see why the Government should not accept that.
I do not think that the noble and learned Lord can be all that surprised at the chilly reception given to this Bill and which, indeed, has been accorded to him for his part in it. He is perhaps the first holder of his office who has thoroughly enjoyed eating his cake, and now relishes destroying it.
As I have said, I find it quite impossible to dismiss from my mind all the events which preceded 12 June. My one fear is that, when the Bill goes back to the House of Commons, the calm attitude and reasoned compromise displayed by my noble friend Lord Kingsland and the noble and learned Lord, Lord Lloyd of Berwick, will not in any way be echoed by the Members and Ministers who sit in that House. I do not share the hopes expressed by my noble friend and I am very sorry for it.
Lord Richard: Having spent a modest 15 years in this House listening to the noble Lord, Lord Peyton, and 10 years in the other place listening to him, I have always been struck by the thought that beneath that curmudgeonly exterior, of which the noble Lord is very proud, there is a very gentle man; indeed, a humorist trying to get out. It is a great pity that he spoils it by being overly acid. It is like putting too much vinegar in the stew. You end up tasting only the vinegar and not tasting the meat. I have to say to him, in all candour and in great friendship, that the speech he has just made was frankly disgraceful in the context of this debate.
Perhaps I may try to bring this down to reality. We have been up in the realms of the constitutional stratosphere. Everybody has been telling me what a great office the Lord Chancellor is, as are the duties he performs, and how the constitution will be, if not destroyed, at least rocked if the Lord Chancellor goes.
Let us look at the alternatives. In our report we set out four possible ways in which, if one wanted to preserve the office of Lord Chancellor, it could be preserved. First, we could retain, preserve and enhance several crucial features of the office, including that he has to be a senior lawyer and a Member of this House.
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Secondly, the office of Lord Chancellor could be redefined so that the office became more a judicial than a political one, and legal aid could be transferred to other departments. Indeed, that was the argument put by the noble and learned Lord, Lord Mackay.
Thirdly, the title Lord Chancellor could be used for the Secretary of State for Constitutional Affairs. In other words, there is the Secretary State, and the person who is performing that function does what the Bill requires of him, but he is called the Lord Chancellor. That, as I understand it, has been the position taken up by the noble and learned Lord, Lord Howe.
Fourthly, the title Lord Chancellor could be used for the Speaker of the House, and indeed that is what the noble Lord, Lord Campbell of Alloway, seems to be advocating. One noble Lord who gave evidence to us said that the Lord Chancellor was Speaker of the House and, when asked what else he could do, said that he could "hold himself at the disposal of the House". I was not quite sure what that meant at the time, nor indeed am I sure now.
It is therefore important to start this argument by looking at the four main elements of what the Lord Chancellor is supposed to do and to ask ourselves is he doing them, in this day and age should he be doing them, or should they be done in some other way?
What are they? First, he is the senior judge in the United Kingdom, recognised as such as head of the judiciary. Secondly, he is responsible for the administration of the courts, legal aid, and some other administrative matters. Thirdly, he appoints the judges. Fourthly, he sits as Speaker of the Lords.
Let us look at each of them. First, it seems to me to be absolutely basic that if he cannot sit as a judge he cannot sit as head of the judiciary. We heard very strong evidence that it is not possible at the moment for the Lord Chancellor to sit. Reference was made in parenthesis by the noble and learned Lord, Lord Howe, to what the noble and learned Lord, Lord Bingham, told us about the efforts made to try to find work for the noble and learned Lord, Lord Irvine, to do.
"In the three years until Lord Irvine retired when I was here he sat on two cases. It was agreed between us that he could not do anything with crime because that affected his colleague, the Home Secretary, he could not deal with human rights because he had piloted that Bill through the House, he could not deal with judicial review because it was of government interest and he could not deal with commercial cases because they always went on for much longer than he could possibly sit. That left him in that period of three years with two cases, one about whether premises could be a dwelling for the purposes of the Rent Act if they did not have a kitchen and one about the construction of a mortgage deed".
That seems to me to explode the idea that the Lord Chancellor should continue to be a judge or be regarded as head of the judiciary; and, if he is not going
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to be the head of the judiciary, who is? The answer to that is the Lord Chief Justice. The question that then has to be asked is whether he is in a better position to safeguard the independence of the judiciary than is the Lord Chancellorthis emasculated Lord Chancellorwho is no longer a judge and no longer head of the judiciary itself.
It seems to me that the one thing the concordat doesand I very much agree with what my noble friend Lord Brennan said on thisis to establish a firm relationship, as far as I know for the first time in British constitutional history, between the judges and the executive. That is a much greater protection for the judges than they have ever had in the past, other than merely relying upon the efforts, unseen, of a Lord Chancellor. Therefore, that first function of the Lord Chancellor's office goes.
Secondly, he is the Minister now responsible for the administration of the courts and legal aid. Noble Lords may not like this, but the change in the Lord Chancellor's Department over the last 10 or 15 years has been dramatic. It is bound to cause changes in the role of the Lord Chancellor and in the office that any possible Lord Chancellor may occupy.
What is it? He now administers a budget of £3 billion a year. The manpower of the department is now 23,000 and will soon be 30,000-strong. If one were approached, objectively and cold, and asked, "My department has a budget of £3 billion and employs 30,000 staff. Where should the Minister sit?", the automatic reaction of anyone who has been connected with politics would be, "Down the other end". I am not saying that the Lord Chancellor has to sit down the other end, but I am saying that you cannot rule it out. For a senior Secretary of State of a major spending department of that sort, under our constitution, supply is determined down the other end of the corridor, not up here. It seems to me that a situation in which he was sitting up here and there was a junior answering for him on matters in the House of Commons would not be satisfactory.
If those responsibilities are removed from the Lord Chancellor's brief, which is the suggestion, and they go to a Secretary of State and the Lord Chancellor does other things, what is left? At the moment, judicial appointments are very much within the discretion of the Lord Chancellor. The existing process is arcane and shrouded. In recent years, since 1945, there has been very little criticism of the process on political grounds. By and large, judges are no longer appointed because of their political allegiances. It was not always so. Those attached to the 1,000 year-old institution, its mystique and its tradition, should perhaps recognise this.
There is a famous story told of Lord Halsbury when he was Lord Chancellor. There was a vacancy in the High Court and someone approached him and said, "Lord Chancellor, ceteris paribus, you will of course appoint the best man for the job", to which he said, "Ceteris paribus be damned! I shall appoint my nephew"and he did.
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The history of Lord Chancellors until the end of the Second World War is not the mystical one that we have heard about todayas the guardian of the constitution, the guardian of the rule of law. All too often, Lord Chancellors of the past have not been interpreting the views of judges to the Cabinet. What they have been doing is taking the views of the Cabinet and enforcing them on the judges and on the judiciary. By and large, the process has been in the opposite direction to that which noble Lords opposite seem to think.
I come back to the point I made a little earlier. In terms of the independence of the judiciary and the rule of law, the concordat is a greater safeguard than the existing position of the Lord Chancellor.
The consensus on the Committee, and I think now generally, is that the time has come to establish a Judicial Appointments Commission. That proposal may need fine-tuning, but I think that the Government's approach is inescapable and right.
Finally, there is the fourth function of the Lord Chancellorsitting on the Woolsack as the Speaker of this House. I ask those who support the office of Lord Chancellor on the basis of the 1,000 years of history, tradition and greatness behind him, do they really think that the office should be so diminished as to be confined to somebody who sits on the Woolsack of the House of Lords for two hours a day when the House is sitting and, indeed, when the House is self-regulating? Is that what it comes down to? With great respect, we are arguing about a name and shell. We are not arguing about a post. We are not arguing about anything particularly concrete. We are arguing about whether, after 1,000 years of history, we take this terribly dramatic step of removing the name "Lord Chancellor" from the British constitution. The way in which the office of Lord Chancellor is goinghis functions are going to go; his powers are going to goyou will be left with only a name.
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