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The Earl of Onslow: Will the Lord Chancellor give us some evidence of that fact? The idea that Lords Chancellors Hailsham, Mackay, Jowitt or Gardiner could not do that is incomprehensible. The noble and learned Lord's assertion that, because he is not a judge, a Secretary of State can is incomprehensible. There is no basis in fact for that.

Lord Falconer of Thoroton: The point that I am making is that there is widespread acceptance of the view that the person currently fulfilling the role of Lord Chancellor should no longer sit as a judge. There is also widespread acceptance of the view that a member of the Cabinet cannot discipline judges, cannot deploy individual judges and should not appoint judges on his own. Indeed, the Select Committee was unanimous on those three points.

Lord Howe of Aberavon: I apologise for interrupting the noble and learned Lord the Lord Chancellor, but we should make it absolutely clear that there is no difference between us on that point. It is entirely common ground that the Lord Chancellor in Cabinet should not be a judge but that he should be a senior lawyer in this House. The Lord Chancellor has articulated a strong case for exactly that conclusion without any question of the man being a judge.

Lord Falconer of Thoroton: I am grateful to the noble and learned Lord, Lord Howe, for making that point. There is complete agreement that a judge will no longer be head of the judiciary. The particular authority that came, and comes, to the Lord Chancellor in Cabinet is because he is a judge—the senior judge.

Lord Phillips of Sudbury: In response to that point, will the noble and learned Lord the Lord Chancellor accept that when he was in Birmingham court on Saturday last before 350 young people and an equal number of parents and teachers, his magnetism revolved solely and exclusively round his personal qualities and the fact that he was the Lord Chancellor of England—not because he was Secretary of State for the Department of Constitutional Affairs?

Lord Falconer of Thoroton: The 300 or so 13 to 14-year-olds were unaware that my personal magnetism was based on the fact that I was the Lord Chancellor.

Just as the Leader of the other place and the Leader of this place have roles requiring them on occasions to put the interests of the Chambers they lead before their political affiliations, so must this Minister when it comes to justice and the protection of the rule of law. Of course, in every case it will depend on the quality and timbre of the holder of the office. He cannot expect his views always to prevail, but his voice must be heard, and the strength of the office depends on its relevance and its defensibility.
 
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In the place of the Lord Chancellor the Bill provides the right combination to provide an office of appropriate certainty. It clearly sets out the responsibilities of the executive and the judiciary. It is unique in that the justice functions given to the Minister by the Bill cannot be removed save by primary legislation. For the first time, it provides for judicial independence with a defined role for the Minister. We shall place on the Minister a clear, statutorily defined role to protect the rule of law. We will debate in later groups the terms of that role but there will be no doubt that such a role will be placed in the Bill.

The job description—this reflects where the process has got to, not because of 12 June, but the position that already existed—is, therefore, of a Minister with a substantial budget performing a role within government that puts him in a mainstream position in terms of political issues, with a special obligation in respect of justice and the rule of law.

Baroness Williams of Crosby: The noble and learned Lord the Lord Chancellor is aware of the relative pattern of powers among departments in government. Does he agree that to have the singular effect that he is now claiming for the future Secretary of State, it would be better to have a department that is as powerful as the Home Office? That would mean switching the criminal justice system from the Home Office to that of the new Secretary of State for Constitutional Affairs?

Lord Falconer of Thoroton: I do not think that it would be necessary to do that, but I agree with the basic proposition that the office we describe has to be strong enough to stand up not just to the department to which the noble Baroness referred, but to any department that may seek to do something that infringes the rule of law. It is also important to remember that the holder of this office has to be someone who is capable of being a Minister expending £3 billion of government money in respect of issues of legitimate public concern. Therefore, the rule of law and the ministerial role must go together.

Lord Mackie of Benshie: Would this Minister's position be protected, and its independence enhanced, by the automatic right to a substantial pension?

Lord Falconer of Thoroton: Anybody's position would be enhanced by access to a substantial pension. I do not put forward substantial pension and large salary as the basis of status—rather, it is the position and the requirements of that position set out in statute; the irremovability of certain functions from him as a result of statute; and the fact that he or she is going to perform a very important role.

Some suggest that incremental change is all that is required; they say, "Don't abolish—simply change". The temptation of that course will be great, particularly to this House, but I urge the House to resist. The basis on which the Bill is drafted and the assumption on which the concordat was agreed is that the new office holder should be a Minister. While his
 
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responsibilities will involve working closely with the judiciary, it is not as a judge that he will be doing this; it is as a Minister. That is the inescapable consequence of his no longer sitting as a judge or being the head of the judiciary.

The time has come to accept this fundamental change. This is not something that has come out of the blue.

Noble Lords: Oh!

Lord Falconer of Thoroton: The organisation Justice raised these issues back in the 1970s. The noble and learned Lord the Lord Chief Justice said in giving evidence to the Select Committee that the concordat,

We may debate how this change should be achieved. We need to craft, very carefully, the role and standing of the new job to ensure that the proper balance exists. But let us no longer doubt that the change must be made. Some appear to have accepted that argument. I include the noble Lord, Lord Kingsland, and the noble and learned Lord, Lord Howe, in that. But they suggest that there may be some benefit in calling the new office holder the Lord Chancellor. Again, I believe that the answer is no. He is not doing the same job. We should recognise that and not suggest that he is. We should also recognise that the job requires the rule of law element—to use shorthand—and the ministerial role. Both those roles must be balanced in the appointment that the Prime Minister makes at a particular time. Furthermore, we do not want there to be any confusion with the new role of the Lord Chief Justice.

Others argue that additional restrictions are required: that the office holder should be a lawyer or a judge, or take a special oath or be a Member of this House. We shall come to those amendments later. I can certainly see that on occasion it would be an attraction to a Prime Minister to have a senior lawyer in the post. I can see the attraction of the holder of this office being in this House. But the question is, should the Prime Minister be constrained to have a senior lawyer in the House of Lords?

Noble Lords: Yes!

Lord Falconer of Thoroton: Should he, when confronted with the choice of, say, Mr Michael Howard QC or Viscount Whitelaw as the holder of this office, be forced to have Mr Howard on the basis that he is a senior lawyer? Is it not possible to conceive that making a choice between competing skills, the right conclusion for the Prime Minister of the day to come to is that the best man or woman for the job would be someone in another place who was not a qualified lawyer?
 
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The Earl of Erroll: I believed that one of the objects of Parliament was to constrain the powers of the Prime Minister. The Prime Minister is arrogating to himself the powers of the monarch, so we now have the monarch's powers sitting within Parliament. We must at some point constrain those powers, or we shall go back about 800 years in history.

Lord Falconer of Thoroton: This Bill and the debate in relation to it gives Parliament the opportunity to determine whether the changes should take place. I submit that the right course to take is to accept that change should occur. It is welcome change and, rather than seeking to cling to the historical aspects of the argument, we should see what is best to get the protections that I believe we all want.

Returning to the heart of the debate, the only grounds on which the amendments in this group can be supported is either that the office of Lord Chancellor is not abolished, or, if it is, that the name is retained. I believe that neither of those propositions, in the light of the acceptance of the new architecture, is sustainable. It is not right, and it does not protect either the citizen or the interests of justice, that we continue with the current arrangements.

I believe that we agree about more than we perhaps think. We know what we want the office holder to do. We do not achieve that by refusing to face up to the difference between the job of the Lord Chancellor, as I have described it, and the widely supported functions of the new Secretary of State. I invite the movers of Amendments Nos. 1 and 7 to consider very carefully, in the light of what I have said, whether the best protection for the public and for justice, is to withdraw the amendment and accept the changes that have occurred.


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