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Lord Goodhart: My Lords, would the noble and learned Lord be willing to arrange meetings involving himself, the noble Lord, Lord Kingsland, the noble Viscount, Lord Bledisloe, and myself to discuss the issues, on the basis that at that stage none of us produced a new draft? We could examine the existing draft to determine what each of us regarded as the problems and whether we could work out a solution to those problems. I suggest that that might be an appropriate way to deal with the matter, rather than inviting the noble and learned Lord to come forward with a redraft before we have started discussion.

Lord Falconer of Thoroton: My Lords, I accept that suggestion with enthusiasm. I say to the noble Viscount, Lord Bledisloe, that I would very much welcome further discussions with everyone with whom I have already had so many enjoyable discussions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Lord Lloyd of Berwick moved Amendment No. 3:

No person is qualified to be Lord Chancellor unless he is a member of the House of Lords."

The noble and learned Lord said: My Lords, the amendment would give effect to what I thought the Committee had decided a few months ago, on 13 July 2004. I thought that we then decided to retain the office of Lord Chancellor with certain modifications on which we were all agreed. The Government, however, say that that is not the case and that all we decided then was to retain the name or title of Lord Chancellor, who could just as well be a Member of the House of Commons and need not be a lawyer. I cannot accept that that is a fair reading of the debate that took place in Committee on 13 July, nor of the vote that followed.

Perhaps I should remind your Lordships of the position as it then was, starting with the Long Title of the Bill:

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Clause 12 of that Bill stated:

On that occasion, Amendment No. 1 was moved by the noble Lord, Lord Kingsland. That amendment inserted the words "the Lord Chancellor" in Clause 1, where they now stand. The noble Lord linked to the amendment the Question whether Clause 12 should stand part of the Bill. The issue, as defined by the noble Lord, Lord Kingsland, when he moved his amendment, was whether the office of Lord Chancellor should be retained or abolished. On that occasion, he reminded the Committee that it was common ground that if the office was retained, it should be modified. For example, the Lord Chancellor should no longer sit as a judge. That was common ground.

It was common ground that the concordat reached between the Lord Chancellor and the Lord Chief Justice—who I am glad to see is present—should take effect under Part 3 of the Bill. As I say, all that was common ground. Part 3 contains the important provisions on the Judicial Appointments Commission, on which everyone is agreed. With those modifications, the Lord Chancellor was left with his present job of running a large department responsible for the administration of justice and with his special function of protecting and defending the independence of the judges and the rule of law. I believe that everyone agrees that the question whether he should continue as Speaker of this House is a question not for this Bill but for this House to decide in the fullness of time.

All that, as I say again, was common ground, so what actually was the issue that detained the Committee on 13 July? The issue was, I would submit, very clear; whether the job that I have described, and which was agreed, should be performed by the Lord Chancellor in this House, or whether it could be performed by a Minister in the House of Commons. That was what the debate was actually about.

Yet, the Lord Chancellor now says that all that was at issue was a name, a shell without the kernel, so that the Lord Chancellor would become just another name like the Lord President of the Council and the Lord Privy Seal. I cannot accept that as a fair reading of the debate that took place in Committee. I am afraid that I will have to make that good by a number of quotations from the debate. It will be somewhat tedious, but I suspect that it is one of the things that should be done when the Committee is reporting to the House.

I start with the noble Lord, Lord Kingsland. Having set out clearly, as I hope that I have done, all that was common ground, he then stated the issues as follows:

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In support of that argument, he quoted the evidence given by Professor Robert Hazell. That was the way in which the question was defined by the noble Lord who moved the amendment.

Then I come to the noble and learned Lord, Lord Howe. Again, he described the job as I have described it, and went on as follows:

he went on to explain that he meant a senior legal figure,

His third conclusion related to the title of the office.

I think that I will improve his quotation slightly. If it looks like a duck, and if it quacks like a duck, it probably is a duck. The noble and learned Lord used the expression "walks like a duck"; I think "quacks" is better. What is important there is that the question of the title came third. That was the third conclusion, and it was derivative from the other two conclusions; that he should be in the House of Lords and should be a senior lawyer.

I know that one should never quote oneself, but if I may:

I do not see the noble Lord, Lord Carter, in his place. Having referred to the removal of certain functions from the office of the Lord Chancellor, on which we were all agreed, he went on to say:

Of course, the noble Lord, Lord Carter, went on to say that in his view, that function could be performed equally well by a Member of the House of Commons. But, the point that I stress is that he too regarded that as being the issue in debate. The same is true of the noble Lord, Lord Richard, and how he put the issue. He said:

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The same point was made by the noble Lord, Lord Brennan. He said:

The noble Viscount, Lord Bledisloe, perhaps put it clearest of all, when towards the end of the debate he said:

All those speeches were all one way. There was only one contrary voice, and that was voice of the noble Lord, Lord Goodhart. He said that the only issue in the debate was the title, the name. He said that that was all that we would be voting on, not where he should sit; not whether he should be a lawyer or not. There may have been special reasons why he took that particular example.

Nobody followed that line in that debate, and it was specifically repudiated by the noble Lord, Lord Crickhowell, from the Conservative Benches, and by the noble Lord, Lord Skidelsky, from the Cross Benches. Nor was that line—and this is perhaps the most significant point of all—adopted by the noble and learned Lord the Lord Chancellor when he replied. He never once mentioned the speech made by the noble Lord, Lord Goodhart. On the contrary, he described the question for the debate in exactly the same way as had been described by everyone else:

That was said just before the vote was taken. A little later, he said:

In the event, of course, the office of Lord Chancellor was not abolished, so the question whether the name should be retained simply did not arise.

It would seem to me that that vote having been taken, the contrast having been made so clearly by the Lord Chancellor, and the vote having gone against him as it did, the amendment that I am putting before your Lordships is simply unnecessary, because the Committee has already decided the point. One can make that good by looking now at the new Long Title, which states:

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So the question that now arises is what are the modifications to which the Long Title refers? They are those that are spelt out in the Bill. They are those upon which we are all agreed, that the Lord Chancellor should no longer sit as a judge and that he should be bound by the concordat made between him and the Lord Chief Justice.

It seems that the Lord Chancellor is introducing further modifications to the office of Lord Chancellor which are nowhere to be found in the Bill as it stands. The Lord Chancellor has always been a Member of this House and he has always been a lawyer. That convention is as strong as any law and will remain until it is amended by statute.

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