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Earl Ferrers: This afternoon we have had a debate which has consisted mostly of speeches by legal and noble and learned Lords. Some of them have been learned and some are just legal, but most of them have fallen into that category. I do not fall into either category.

I have listened with a certain degree of surprise to what has been said. We have heard everyone saying what a Lord Chancellor should do, what the independence of the judiciary means, how it ought to be achieved, what the lawyers ought to do and how justice can be properly performed in this country. I listened to this with amazement because I had never thought that we had done this before. We had a Lord Chancellor for a thousand years; they may have all been different, years and years ago, but recently we have looked back on them with admiration and have thought that they conducted their work well. It is surprising that one then has people saying, "We ought to adjust this and adjust that", as if we were trying to devise a system for a new country that was starting up.

When a government come along with the intention of disposing of the office of Lord Chancellor, frankly, I wince in a great way. What was the first reaction of your Lordships' House? It was, "What are we going to do without a Lord Chancellor? We will have to have a Speaker". So, like all good authoritative bodies, we set up a committee to find out what kind of Speaker we should have. It was chaired by the noble and learned Lord, Lord Lloyd of Berwick, and it was decided that we would have to have a Speaker and pay him £100,000 a year. Then, surprise of all surprises, we will have to find something for him to do.

It never occurred to us to consider such things when we had a noble and learned Lord sitting on the Woolsack. He fitted in all the responsibilities that he was given. The noble Lord, Lord Richard, said that his office has increased enormously. I daresay that it has; so has the Prime Minister's office. In some people's minds the Prime Minister seems to manage all right with his greatly inflated office and I have no doubt that the noble and learned Lord the Lord Chancellor can too. However, that is not an argument for doing away with that which we have had and that which has been run well.

Other countries do not have a Lord Chancellor and people come to this country to see what we do and how we do it. I spoke to someone from South Africa the other day. He said, "We are engaged in building a new
 
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country and are trying to find out what to do. We come to your country and what do we find? You abolish everything and do away with it all".

I am not at all impressed by the idea of having a Speaker in your Lordships' House. We had one in the noble and learned Lord the Lord Chancellor and despite being able to ridicule that, it worked well. However, we will obviously have to do something if this office is abolished.

No noble Lord has yet referred today to what the Government are doing to the constitution. They are going around rather like Boadicea in her chariot chopping off everything that they can, particularly in your Lordships' House. First, they did away with hereditary Peers. Then they said that they must have 100 of them back, so 100 came back. Just for the sake of embarrassment, I remind your Lordships that we are the only Peers who are elected—none of the others is. Then they said, "Now we will do away with the Law Lords"—vaporise them—so the Law Lords went. Then the Lord Chancellor came along and said, "I want the Lord Chancellor's head off"—which used to be treason, but I suppose that it is not nowadays.

When we have got rid of the hereditary Peers, the Law Lords and the Lord Chancellor, what is left but the life Peers. Let nobody think that they will not be the next to go. Of course they will. We cannot have a House made up of a lot of life Peers packed in by the Government. We have recently seen and are continuing to see new Peers admitted day after day and good luck to them. We welcome them broadly. However, let us not pretend that that is the right way to fill a Second Chamber, when all the other participating bits have been removed.

I suppose that even the right reverend Prelates' chances are numbered. Certainly, their numbers are numbered. That is a great pity because the right reverend Prelate the Bishop of Worcester made a significant contribution when he asked why anything should be sacrosanct about 12 June 2003 just because the Prime Minister, however important he is, makes a judgment. That does not mean to say that nobody can then go down that path afterwards.

What the Government are doing to the constitution is of tremendous effect. They are wrong and it is wrong to encourage the Government to destroy the constitution, even if it means that there should be some way of changing slightly the work or the duties of the noble and learned Lord the Lord Chancellor. He ought to stay in his place as it is.

Lord Falconer of Thoroton: May I join other noble Lords and express my gratitude to the work done by my noble friend Lord Richard for successfully chairing the Select Committee? The committee made real progress in improving the Bill. In two significant areas we failed to reach agreement—the future of the Lord Chancellor, and the Supreme Court. Even in those areas we heard evidence which illuminated our discussions. We are not nearly so far apart in our views as this debate might suggest.
 
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I am glad that we had the Select Committee. I opposed it at the time, fearful that the most recent precedent prior to this Select Committee would be followed and the Bill would be killed. That has not happened. As my noble friend Lord Carter said, it has allowed for something akin to pre-legislative scrutiny in the course of the Bill going through Parliament. It has allowed the pace of reform to be more deliberate, so that proper consideration has been given to the principles and the details. That is to the good. The circumstances surrounding the birth of these proposals have led to them being attended by suspicion. They deserve to be considered on their merits. The Select Committee has given us time to do that. As the noble Lord, Lord Kingsland, said, there has been an emerging degree of agreement on what he described as the architecture of the new arrangements.

The role of the Lord Chancellor as it has developed over the past century until the beginning of the 1970s has the following elements. He is: the Speaker of this House; a judge; the head of the judiciary appointing, deploying and disciplining judges; the voice of the rule of law and the independence of the judiciary within government; and the head of a major government department responsible for the courts, legal aid and a number of other constitutional policy responsibilities.

Until the 1970s, as the noble and learned Lord, Lord Bingham, said in evidence to us, the predominant aspects of the Lord Chancellor's job and day were as judge and head of the judiciary, and Speaker of the House of Lords—the morning in the Judicial Committee of the House of Lords and the afternoon on the Woolsack. His ministerial responsibilities were not onerous. Indeed, in 1885, the Lord Chancellor's Office comprised only a Permanent Secretary and seven other officials, the vast majority of whom were lawyers. Following the Courts Act 1971, his office grew to 10,000 staff, with a budget to match. As has been stated often in the course of this debate and in Select Committee, that budget now stands at over £3 billion, over half of which is devoted to legal aid.

The expenditure of such large sums has increasingly become, quite legitimately, the object of political controversy. Questions are rightly asked about how well criminal courts handle the management of criminal cases, how the legal aid budget should be spent and how quickly and fairly the magistrates' courts deal with public law children cases. The regulation of the legal profession is a matter of legitimate political debate and there are questions about the extent to which the vulnerable and the socially excluded have proper access to advice and justice. Those are matters of political debate throughout the country.

The increase in both the size of the ministerial function and the political attention that it has attracted have been accompanied, although for different reasons, by a reduction of two other parts of his responsibilities—those of Speaker of this House
 
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and those of sitting as a judge. Since Lord Hailsham's tenure, the Lord Chancellor has had to be supported by a significant number of Deputy Speakers with whom to share the workload of the Woolsack. Although it is ultimately a matter for your Lordships' House to decide, the continuing role as Speaker is uneasy and difficult to reconcile with the changing demands of the office. By that, I do not refer to the burden of work, but to the nature of the work. A significant ministerial job is not easy to reconcile with being the Speaker of this House. As your Lordships have heard, the sittings of the Lord Chancellor as a member of the Appellate Committee of your Lordships' House have become fewer and fewer. As the noble and learned Lord, Lord Bingham, made clear in the extract of his evidence read by my noble friend Lord Richard, it has become increasingly difficult to find cases in which the Lord Chancellor can participate.

Practical difficulties aside, it has appeared increasingly inappropriate for the Lord Chancellor to sit judicially. There is now little if any support for that role. The Select Committee's first area of broad agreement was,

At the same time, the Lord Chancellor's workload in other areas has increased, but in respect of significant responsibilities of his role as head of the judiciary—the appointment, deployment and disciplining of judges—there is a growing sense that the time for significant change has arrived. As Committee members have been told in the course of this debate, members of the Select Committee were unanimous that the time had come to set up a Judicial Appointments Commission. It is neither sensible nor defensible to leave the appointment of judges to one person.

Whereas 50 years ago, he would be making about 25 appointments a year from a pool of barristers who would be largely known to him personally, now he makes over 700 appointments. The majority of those are not from the Bar but from a pool that is substantially unknown to him.

There is also acceptance of the need for the explicit involvement of the executive, albeit constrained, in the appointment system. The concordat negotiated with the judiciary, of which we have heard much in the debate, and for which there is considerable support, represents the view of the executive and the judiciary about what their relationship should be. It is possible to have different views about the precise involvement, but it is important to point out that the concordat envisages that the Minister fulfilling the role of the appointer—or the giver of advice—under the concordat is no longer either the head of the judiciary or a judge. There is acceptance that the role of the Lord Chancellor as a judge and head of the judiciary has gone.
 
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On the matter of discipline, change has already occurred. Both my predecessor and I have regarded it as wholly inappropriate to consider disciplining a judge without consulting the Lord Chief Justice. In relation to any serious step against a judge, we would seek his concurrence. A protocol to that effect already existed between us. The concordat sets out in detail how the discipline process would work in the future. Again the role envisaged by the Minister in the concordat is not that of a judge but a Minister.

Finally, in respect of deployment, the judiciary and I agree that, both as a matter of practicability and constitutional principle, it is wholly wrong for the Lord Chancellor to determine which individual judge should sit in which court. That is patently a matter for the judges. The view of the vast majority of those who gave evidence was that the time had come for the Lord Chancellor to cease to be the head of the judiciary. Instead, the Lord Chief Justice—the chief professional judge in England and Wales—should take that role.

There remains the Lord Chancellor's function as the person in government who protects the independence of the judiciary and the rule of law. This is a critical function. It must and will be preserved. It is the expression of key values on which our constitution rests: justice, the independence of the judiciary and the rule of law, aside from party politics. That role goes beyond the mere identification of the law and the need to adhere to it. It goes further than simply ensuring that the Government take proper legal advice before doing something.

In the context of a democracy, which is based on parliamentary sovereignty, it involves speaking out privately, and if necessary publicly, where the rule of law may be threatened. But the role is as part of government, not separate. It involves speaking for justice, the rule of law and the independence of the judiciary within the Cabinet and the Government. It is one aspect of a number of protections that exist. The Attorney-General, the courts, the police and lawyers all have a role. But the Minister, given his responsibilities for the justice system and the judiciary, has an important role to play.

The holder of the office needs to be a respected and trusted member of the Government, able to put the requirements of justice and the rule of law above daily considerations. The role—critical in our constitution—must be performed by someone who is no longer a judge. The effect of our deliberations in the Select Committee, and as we believed the position to be before that committee, was that the role of judge and head of judiciary had effectively gone. A judge in Cabinet, increasingly perceived to be outside the mainstream by his colleagues and the public, will not be as effective in protecting those interests of the judicary and the rule of law as a strong, respected member of Cabinet, with a clear and unequivocal responsibility to uphold justice and the law.
 
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