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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.
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.
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 Justicewho I am glad to see is presentshould 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.
"First, the individual who occupies the office of the Secretary of State for Constitutional Affairs must, in our view, be a senior and experienced lawyer . . . Secondly . . . the Secretary of State will have to be in your Lordships' House. This is not only because there is a poverty of qualified lawyers coming from another place . . . but also because your Lordships' House is able to stand back from the hurly-burly of political life in another place and assess the constitutional implications of Bills that come to it".[Official Report, 13/7/04; col. 1144-45.]
"If the office holder is to have the qualifications of a senior lawyer and Member of this House, with the duties imposed on him as we are all agreed, one comes back to that old phrase that if it looks like a duck".[Official Report, 13/7/04; cols. 1153-4.]
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 therefore come to the fourth and last argument that has been advanced. It is said that the Prime Minister should be free to appoint whoever he wants to run the courtsfree to appoint a Member of the other place who is not a lawyer and could be quite junior in Cabinet ranking. That is the real difference between the two sides in this debate. In my view, the task of defending judicial independence in the Cabinet is one of such critical importance that it should be given to a senior judge or lawyer who is a Member of this House and not to a politician on his way up the greasy pole".[Official Report, 13/7/04; col. 1148.]
"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".[Official Report, 13/7/04; col. 1164.]
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:
"'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".[Official Report, 13/7/04, col. 1176.]
"The Government say that we are to have an ordinary, run-of-the mill House of Commons politician in the middle of his career looking for promotion, with no particular knowledge of the law and its workings, hoping to keep the Prime Minister's good will and get promotion and move upwards, sideways or perhaps, if he is difficult, outwards, in a very short time.
Contrariwise, we say that there should be somebody in the traditional mould of a Lord Chancellor who has served the British constitution in an evolving way for many centuries. It should be a senior lawyer in this House, bound by an oath to the duties imposed on him by Clause 1. It should be somebodyand this is the key perhapsat the ceiling of his career, who has nothing to hope for by way of promotion and who therefore is in a strongerI only say strongerposition".[Official Report, 13/7/04; col. 1180.]
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 lineand this is perhaps the most significant point of alladopted 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:
"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".[Official Report, 13/7/04; col. 1190.]
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:
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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