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Lord Goodhart: My Lords, I speak for my party as well as for myself. The Lord Chancellor should not be required by law to be a Member of your Lordships' House. We have had the advantage of a remarkable speech by the noble and learned Lord the Lord Chief Justice. I agree with himI welcome his endorsement of itthat this Bill is an enormous constitutional step forward.
I recognise that other things being equal there are indeed some advantages in having the Lord Chancellor in your Lordships' House. There is a
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developing tendency to put senior legal figures into your Lordships' House rather than into the other place. Since 1997, we have continuously had one of the Law Officers in this House.
Until now the Lord Chancellor has in practice had to be a Member of your Lordships' House. If one goes far enough back in history one can find Lord Chancellors who were not, but for the past two or three centuries, the Lord Chancellor has had to be a Member of your Lordships' House because of his important judicial functions and, in particular, his chairmanship of the Appellate Committee of your Lordships' House.
It is now widely accepted that the Lord Chancellor should not continue to be the head of the judiciary or to sit as a judge. If those duties are removed, there is no reason as a matter of constitutional law why the Lord Chancellor should be bound to be a Member of your Lordships' House any more than is the Lord Privy Seal or the Lord President.
Amendment No. 3 would require the Lord Chancellor to be a Member of your Lordships' House, so one needs to look at the duties and powers of the Lord Chancellor that make that membership necessary. First, and in day-to-day work, the most important duty is to act as head of the Department for Constitutional Affairs, which is now a substantial spending department with a large number of staff. Certainly, for departmental purposes, it is better to be in the House of Commons, especially when it comes to the annual fight for money against the Chancellor of the Exchequer.
Secondly, the Lord Chancellor will have powers of some importance under Part 3 of the Bill. Those include a limited power of veto over the recommendations of the Judicial Appointments Commission and a concern with the disciplinary process. But under the concordat there is a double-lock procedure: it cannot be exercised without the agreement of both the Lord Chancellor and the Lord Chief Justice.
Thirdly and finally, there is a continuing duty to protect the independence of the judiciary and uphold the rule of law. That of course does not involve giving legal advice to the Government; that is the duty of the Attorney-General. But it is recognised as the duty of the Lord Chancellor to draw the attention of his Cabinet colleagues to proposed legislation or exercise of the prerogative that may infringe the rule of law. As a duty it is also recognised that it is not enforceable by law.
It is the last of those duties that is mainly relied on as the grounds for keeping the Lord Chancellor in your Lordships' House by law and at all times. It is said that the Lord Chancellor must be a senior figure with no hope of promotion, so that he is able to act independently and without fear of damage to his career.
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I have to say that I regard those arguments as unrealistic. First, I accept that under constitutional conventions a Lord Chancellor in your Lordships' House has no prospect of promotion. But if he has no ambition for promotion he will at least have an ambition to stay in his job. Cabinet office involves power, prestige and a stimulating job, and there are few people who will want to give that up even with a decent pension to compensate.
Secondly, it is far from clear how effective that duty is under the existing practices. The noble and learned Lord, Lord Ackner, has referred to the issue of the Asylum and Immigration (Treatment of Claimants, etc.) Bill, on which I will touch no further. My noble friends Lady Williams of Crosby and Lord Rodgers of Quarry Bank, who sat in Labour Cabinets in the 1970s, have, I am sorry to say, no recollection of Lord Elwyn-Jonesthe noble and learned Lordhaving raised issues of the rule of law with his colleagues at the time when he was Lord Chancellor. The real pressure often comes more from the judiciary and other outsiders than from the Lord Chancellor, as indeed the Asylum and Immigration (Treatment of Claimants, etc.) Bill shows.
Thirdly, requiring the Lord Chancellor to be a Member of your Lordships' House will not ensure that we will get an effective defender of the rule of law and may exclude the person best fitted for the office. The Lord Chancellor is and will continue to be appointed by the Prime Minister. If the Prime Minister wants to find a compliant Lord Chancellor, he will find one inside or outside your Lordships' House.
The noble and learned Lord, Lord Howe, relied on the events of 12 June 2003 as grounds for saying that the Lord Chancellor must remain in your Lordships' House. I am afraid that I draw the opposite conclusion. Those events show that even a powerful and highly respected Lord Chancellor, a Member of your Lordships' House, is vulnerable to being sacked at a moment's notice and that membership of your Lordships' House is no defence.
The protection given by membership of your Lordships' House is an illusion. I hope and indeed expect that the Lord Chancellor in future will frequently be a Member of your Lordships' House. But there will be times when if the Lord Chancellor has to be a Member of your Lordships' House, the Prime Minister may have to appoint someone parachuted in from outside with little or no ministerial or parliamentary experience or appoint a Member of your Lordships' House with a distinguished past who has become an extinct volcano.
If there is a Minister in the other place who would do the job admirably, why should the Prime Minister not be entitled to appoint that Minister and leave him or her in the House of Commons? Insisting that the Lord Chancellor must be a Member of your Lordships' House is no guarantee at all that we will end up with the best person for the job. What it does do is guarantee that, from time to time, the best person for the job will be ruled out. Independence of mind can be found in Ministers in your Lordships' House and in
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Ministers in the House of Commons. We will get a strong and effective Lord Chancellor if, and only if, the Prime Minister is willing to appoint a strong and effective person to that office, whether the person is a Member of your Lordships' House or of the other place.
Lord Mackay of Clashfern: My Lords, before the noble Lord sits down, can he tell us on what experience does he base his view that a Member of your Lordships' House has less of a chance of success in the annual financial negotiations than someone who is not a Member of this House?
Lord Goodhart: My Lords, the noble and learned Lord may well have had great success himselfhe had previously held ministerial officebut it is a matter of considerable importance that whoever holds the office should be familiar with the operations of the annual carve-up of the cake, and that someone who comes to your Lordships' House with no parliamentary experience is unlikely to have that skill and is unlikely to do as good a job as he would have done if he had a background in the House of Commons.
Lord Kingsland: My Lords, I know that your Lordships' are awaiting the speech of the noble and learned Lord the Lord Chancellor with keen anticipation, and so I shall be extremely brief. First, I pay tribute to the speech of the noble and learned Lord, Lord Lloyd of Berwick. He marshalled his facts and arguments in such a compelling way that I know noble Lords will have been extremely impressed by the force of his logic.
We are delighted to see both the noble and learned Lord the Lord Chief Justice and the noble and learned Lord the Master of the Rolls in their places today. I should like to say to them both that, so far as this side of the House is concerned, we accept entirely the architecture of the Constitutional Reform Bill. We accept the concordat; we accept the Judicial Appointments Commission; and we accept the context in which the new relationship between the Lord Chief Justice and the Lord Chancellor will unfold. The debate today is solely about what kind of person the Lord Chancellor should be.
I should like to say, in particular to the noble and learned Lord the Lord Chief Justice, that when this Bill becomes law, neither his successors, the successors to the noble and learned Lord the Master of the Rolls, the successors to senior Scottish or Irish judges, nor those to any of the Lords of Appeal in Ordinary will sit in your Lordships' House. There is, therefore, a real danger that the judiciary will become isolated from both government and the legislature unless there is a link between the judges and the other branches of government which the judges respect and trust. That is why the position of Lord Chancellor will be so crucial under these new arrangements.
As always, I listened with great interest to the noble Lord, Lord Richard, but I must say to him that I did not understand his argument about the importance of someone leading a large government department being a
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Member of another place rather than your Lordships' House. While it is true that the Lord Chancellor leads a department which now spends something in the order of £3 billion a year, the relationship between the Lord Chief Justice, the Lord Chancellor and the judges is not like the relationship between a Minister and other civil servants. The Lord Chancellor cannot instruct the judges to behave in a certain way. It is not like a normal departmental relationship. Quite often it will be the judges who tell the Lord Chancellor what to do. So, with great respect to the noble Lord, I think the analogy isI hesitate to use the word "facile", so I shall substitute it with "misplaced".
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