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Lord Goodhart: My Lords, could the noble and learned Lord, Lord Lloyd of Berwick, explain why he has tabled the amendment, if, as his argument seems to be, it is unnecessary to consider this question because it has already been decided by the vote in Committee.

Lord Lloyd of Berwick: My Lords, if the Lord Chancellor wished to ensure that the Lord Chancellor need not be a Member of the House of Lords, it would have been be for the Lord Chancellor to table that amendment, not us. That is why I am saying that our amendment is not, strictly speaking, necessary. But, having been once misunderstood, it seemed better now that we should table this amendment to make it clear once and for all and, I hope, with as large a majority as was registered on the last occasion, that we should ensure that the Lord Chancellor is a Member of this House and a senior lawyer—as he has always been. I would answer the noble Lord, Lord Goodhart, simply with the words, "once bitten, twice shy". On this occasion I hope that we shall make absolutely clear what we want.

I have spoken much too long already. I have not advanced any of the reasons that should be advanced—I hope that that will be done by others—regarding why it is so necessary for the Lord Chancellor to be a Member of this House. The evidence given in Select Committee was almost overwhelmingly in favour of that—the views expressed by the Law Society; those expressed very firmly by the House of Commons Constitutional Affairs Committee; the views expressed by the noble and learned Lord, Lord Bingham, on many occasions on behalf of the judges, when he was Lord Chief Justice; and in the Law Lords' evidence to the Select Committee, and so on. All of that points to ensuring that the Lord Chancellor should be a Member of this House.

I know that I have trespassed on your Lordships' time, but perhaps I may repeat, because it is something that many of your Lordships may not have heard, a speech by the noble and learned Lord, Lord Cooke of Thorndon, which explains the view of the Lord Chancellor's office from the other side of the world—
 
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indeed, from all around the world. Those who heard the speech will never forget it and I hope that your Lordships will pay due attention to it. He said:

I beg to move.

Lord Campbell of Alloway: My Lords, we seem to have been speaking to Amendment No. 4 as well as this amendment. I shall be brief. One asks a simple question: does not the substance of concern about qualifications for appointment to the office of Lord Chancellor relate exclusively to the due discharge of his functions? One of those is the due discharge of the constitutional advisory role in Cabinet; and I am grateful to the noble and learned Lord for acknowledging that function twice today. Assuredly, that function may be discharged only by a Lord Chancellor who, on appointment, is or becomes a Member of this House and has requisite legal expertise.

Another point has arisen recently, to which the noble Lord, Lord Goodhart, referred. Does one need to table amendments if the extant conventions would continue to operate in any event? That is right, up to a point, because they would—and I have been advised that they would. But was that advice right? Should one take that on trust? Is that not a fundamental question on which this House now, at this stage, should know where it stands and have this matter resolved on the face of the Bill?

I have always said that the constitutional function is the only other matter for which I would go to the stake. That function has been acknowledged. It has not yet been expressly acknowledged on the face of the Bill—and I hope that that will be the case in the revised draft. But whether it is or is not does not affect the points made by the noble and learned Lord, Lord Lloyd of Berwick, regarding the "once bitten, twice shy" and "empty shell" arguments, which hang over our heads. It is best to have this matter resolved.

Finally, membership of this House affirms entitlement to a Writ of Summons to attend, to speak and to vote.

Lord Phillips of Sudbury: My Lords, once the principle of maintaining the ancient and esteemed office of Lord Chancellor has been accepted, and I give the Government some credit for accepting the verdict of this House last July, the issue of whether or not he or she should be a Member of this place revolves for
 
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me around whether or not that will strengthen his or her ability in Cabinet to uphold the rule of law and the independence of the judiciary.

Consider the circumstances against which that vital role is to be carried out in 2004. Government is becoming ever more presidential and concentrated. It is also becoming more centralised year by year. Above all, with the continuing breakdown of community life and ever more mobility, the sinews of our society are increasingly those of statute law, which we are churning out at the rate of more than 12,000 pages of new law per year. That means ever more, and more contentious, work for the judges.

Why should a lawyer sitting in this place be more likely to have more experience, prestige and authority as Lord Chancellor than a lawyer in the other place? For the purposes of this amendment, I have assumed that the Lord Chancellor, whether he or she be there or here, should be a lawyer.

A small but not insignificant point is that we would probably have to abandon the title of Lord Chancellor if he or she was in the Commons, which would be damaging to public recognition. It would be a complete anomaly to have a Lord sitting in the Commons. However, the substantial point is that the Commons, year by year, is a more partisan assembly, made up of professional politicians—men and women who have done little if anything but pursue a political career. I say that with no disparagement at all.

We know, for example, that the Government have not lost a single whipped vote since they came to power in 1977.

A noble Lord: 1997.

Lord Phillips of Sudbury: My Lords, I am sorry. I meant 1997, although it seems more like 1977.

That record contrasts with an average of two or three defeats in the Lobbies per week in this place. The greater independence of Members of this place is not just a function of having a fifth of our Members sitting on the Cross Benches; it is also because most Members of this House have long and often distinguished histories—they have worked and led in the big wide world, which tends to bring with it a singular independence of judgment and action. There are also few financial or other inducements to stifle honest dissent, as the infinitely more diverse voting record of Members in this place manifests.

Added to that is the presence here of many senior lawyers. Again, that is wholly unlike the other place these days. Even though the Law Lords may, after reform, cease to sit here while still on the Bench, many will come here after retirement and so continue to contribute richly to our deliberations, not least by trenchant comment on the discharge of his or her office by the Lord Chancellor of the day. I am convinced that all that will be of the greatest support to future Lord Chancellors, no less than to those in the past. I must say in passing that the argument that we should abandon the status quo because some Lord
 
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Chancellors have been less than independent and effective is an argument for the abolition of every office in the state.

I turn to my final point. The provision of Clause 1 for the independence of the judiciary to be the duty of not just the Lord Chancellor but also other members of the Cabinet seems to be—how shall I put it?—virtuous but useless. If virtue could be attained simply by the passing of a provision of a statutory enactment, Parliament would have been out of business long ago. The reality is that the convention or constitutional principle of the independence of the judiciary and of the rule of law is a function of our political culture. It is lodged in hearts and minds more than in the annals of the law. It is significantly bound up with the role of the Lord Chancellor, which, in its turn, is intrinsically dependent on his or her status as a senior lawyer in this House.


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