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Lord Crickhowell: My Lords, I intervene briefly to take us back to the opening speech by the noble and learned Lord, Lord Lloyd, but, just before doing so, I comment to the noble Lord, Lord Richard, who often prayed in aid the Lord Chief Justice, that the Lord Chief Justice after all told us that the Judges' Council thought that it would be preferable, but not essential, for the Lord Chancellor to sit in this House.
I return to the points made by the noble and learned Lord, Lord Lloyd, when he spelt out what happened last time and what the House was voting about last time. I do so because I was struck by the remarkable evidence given only six weeks ago by the noble and learned Lord the Lord Chancellor to the Select Committee on the Constitution. Right at the beginning, he was asked by the chairman whether the
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position that he held as Lord Chancellor was to remain in place. The noble and learned Lord the Lord Chancellor replied:
"Well, I have made no such statement to that effect. The position in relation to the Constitutional Reform Bill remains that the Government's position is that they wish to replace the role of the Lord Chancellor with the Secretary of State for Constitutional Affairs".
A little later, when talking about the defence of the rule of law, the noble and learned Lord said that he envisaged that role being performed by the Secretary of State for Constitutional Affairs. He said:
"You all know well that there is a very considerable issue joined in the House of Lords whether, accepting that one wants the office-holder to fulfil that role, is it more effectively performed by the new office of Secretary of State for Constitutional Affairs or is it better performed by somebody who continues to hold the historic office of Lord Chancellor because the historic office of Lord Chancellor carries with its status, history and values that have persisted a long period of time. There is that very, very important debate going on".
He was pressed on whether he thought that we should have a Secretary of State for Constitutional Affairs or a Lord Chancellor. He said that either was possible, depending on how the debate which I have indicated is resolved. He added that, although the Lord Chancellor could be in the House of Lords, he much preferred that he should be in the House of Commons.
I make those points because I believe that this House knew what it was voting about in Committee. It seems remarkable that only six weeks ago, in an important committee, the Lord Chancellor said that he did not accept the House's position, that he still hoped that we would revert to having a Secretary of State for Constitutional Affairs and that he should be in the Commons. If there is no other reason for pressing this amendment, it is to ensure that the will of the House, expressed so clearly in Committee, is carried into effect and not challenged again only a few weeks later by the Lord Chancellor.
Lord Brennan: My Lords, today's debate has been notable for the contribution of the noble and learned Lord the Lord Chief Justice. If intelligence, objectivity and wisdom are the marks of a good judge, he has them all. The manner in which he addressed this House about matters as fundamental as the independence of the judiciary surely reassures us all that we have an independent judiciary, and we should be astute to ensure that its independence is properly maintained in the Bill.
The noble and learned Lord, Lord Lloyd, relied on the sentiment of this legislature during its last debate in Committee. I am afraid that I favour clarity in legislation to sentiment. The Bill makes no provision for the Lord Chancellor to be a Member of this House; that is why this amendment was required. It must therefore be considered as a constitutional proposition. The Bill is a new written chapter in the constitution of the United Kingdom. Why must one part of it say that a particular Minister must be a Member of this House? Why is it constitutionally necessary? For those who look to the benefits of yesterday, there might be many reasons, but the Lord Chancellor of yesterday has not survived this
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Bill. He is no longer the head of the judiciary; the concordat makes the Lord Chief Justice its head. If the Bill needs to state it explicitly, so be it. The Lord Chancellor does not sit as a judge henceforth. He shall not directly involve himself in disciplining judges, because Chapter 3 of the Bill makes it clear that he is likely to delegate that function to the Lord Chief Justice and the judiciary.
Only one role of yesterday is extant: the need to protect the independence of the judiciary and to promote the rule of law. Clause 1 of this constitutional chapter guarantees that independence by requiring not just the Lord Chancellor but every Minister to uphold those principles as a constitutional duty. How can it be plausibly suggested that it is better not to have such a written protection but corridor negotiations conducted in secret, the success of which, in the hands of any Lord Chancellor, will depend on his personal strength and capacity as a Minister?
The choice for those who think of tomorrow for the constitution is: put it in writing; write it clearly; make our protections plain to our country. If this is the reforming purpose of the Bill, which of that Minister's roles requires him to be in this House in the future constitution? Is it appropriate that, with a budget of some £3 billion, he is not in the elected Chamber? Is it appropriate that, because of the need to protect the independence of the judiciary, as is supposed, he must be in this Chamber?
What is the logic? If the logic is that we will look to a senior person no longer fired with political ambition to take up the role, I am afraid that that is yesterday's thinking. There is but a handful of practising lawyers in the other place and in this place. The future Lord Chancellor may be a lawyer; one hopes that he is, but it is not a constitutional requirement. In particular, it is not a requirement that he be from this Chamber. Nobody thus far has advanced a cogent reason under the Bill for the Lord Chancellor to be a Member of this House. All the arguments have been based on what we were used to in the past; they do not take into account the Bill as it stands.
I close by offering great deference to the views of the Judges' Council. It is very careful in its words but, if the best that it chooses to use is that it would be preferable to have the Lord Chancellor in this Chamber, I disagree. I think it preferable that it be a person from either Chamber, according to ability and circumstance. The protection of the judiciary under the Bill, if Amendment No. 24 is agreed, will be far stronger. The Lord Chief Justice will have the right to make representations to Parliament directly. What stronger and more public protection could there be?
When the noble and learned Lord, Lord Lloyd of Berwick, quoted from the previous debate, his advocacy was so persuasive that I had to ask for Hansard to be brought. It appears to be suggested that I had expected the Lord Chancellor to continue in some form in his previous role. Before the few
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sentences that the noble and learned Lord quoted about it not being democratic to have a Minister here, I said:
Lord Renton: My Lords, I wish briefly to clarify the application of the principle of separation of powers. In reference to the speech of the noble and learned Lord the Lord Chief Justice, we must all concede that, since time immemorial, the higher levels of the judiciary have been left completely alone and have not been interrupted in their work or influenced by politicians. But surely there is a danger of our carrying the principles of the separation of powers too far.
I am now in my 60th year of being in Parliament. I became a Queen's Counsel 50 years ago. When I was a Back-Bencher in the other place, I used to do part-time judicial work. A number of other noble Lords have had the same experience. We managed to do our judicial work without applying any parliamentary principles or sympathies. We had to, and did.
For us to carry the principle too far would be a disadvantagefor the following reason. We are legislators in both Houses. It is best that legislators should have had plenty of useful experience. Among the useful experience is having done part-time judicial work. Of course, there are other noble Lords who have been in Parliament and in the Cabinet. That is not a conflict. The separation of powers does not apply to them.
We must realise that if we wish our legislation to be practical and acceptable to the people, it is a very valuable factor, when it is being considered, to have the opinions of representatives of the people and, perhaps I may dare to say, more mature representatives of the kind that we find in your Lordships' House.
So although the separation of powers is to be considered and respected, it should not be carried too far. I wish to support the views expressed by the noble and learned Lord, Lord Lloyd of Berwick. I wonder whether there is any hope that it could be maintained that we continue to have the advantage in your Lordships' House of the Law Lords. They can help in a positive and learned way to improve our legislation.
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