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Lord Richard: My Lords, I thank the noble Lord for giving way. The point I was trying to make—if it was facile, I apologise; perhaps I did not make it properly—is that if the Secretary of State for Constitutional Affairs and the Lord Chancellor are merged into one office, there are pressures in two different directions. There is the pull, which has been vigorously expressed this afternoon, that, given the nature of the Lord Chancellor's part of the job, he should be in this House and there is the immense pull that comes from the other end with an annual budget of £3 billion to £4 billion. The reason for that is simple. It is because Members of the House of Commons will wish to hold him to direct account rather than to indirect account, which is what would happen if he was up here.

Lord Kingsland: My Lords, it is clear that there is a fundamental incompatibility. Someone who is a Member of the House of Lords is elected by a political party on a mandate to fulfil a series of political objectives through the instrument of parliamentary sovereignty.

Noble Lords: The House of Commons.

Lord Kingsland: My Lords, I beg your Lordships' pardon. I meant to say that a Member of another place is elected to fulfil a particular electoral mandate. Such Ministers are responding to the popular will: the will of the majority. The responsibility to protect the rule of law is all about protecting minorities; and, in particular, protecting individuals against majorities that abuse the law. That is why, in my submission to the noble Lord, Lord Richard, it would be wholly inappropriate for a Lord Chancellor to be a Member of another place. As the noble and learned Lord, Lord Falconer, has accepted in his first amendment today, the Lord Chancellor is there to protect the rule of law: the individual against the state, the minority against the majority. Yet the whole force of election to another place is to represent the majority and to fulfil the majority's wishes. Therefore I submit that it is wholly incompatible for a Lord Chancellor to be a Member of another place.

We have had a long debate and all the arguments have been well canvassed by noble Lords. It is now the task of the noble and learned Lord the Lord Chancellor to respond.
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Lord Falconer of Thoroton: My Lords, this is a very important debate and, to some extent, the issues are agreed. Although that is not necessarily the case as regards the answer, but the issues are agreed. In July 2004 there is no doubt that this House voted not only to preserve the title of Lord Chancellor, but also to preserve the office, and I accept that.

The office of Lord Chancellor carries with it values, history and status. I also accept that since 1760, when the kinsman of the noble Lord, Lord Henley, finally got into the House of Lords, it has been a matter of convention that every single Lord Chancellor has been in this House. So there is plainly a convention that, since 1760, the Lord Chancellor should be in the House of Lords.

Why has the Lord Chancellor always been in this House? First, and most obviously, it is because he has had to be a judge and the House of Lords deals with legal matters. Since the end of the 19th century the Judicial Committee of the House of Lords is a committee of the Lords and is the final court of appeal. As judges, successive Lord Chancellors have chaired it. So the Lord Chancellor has had to be in the House of Lords both in recent times and in times gone by.

I anticipate that there is also agreement around this House on what the new role of the Lord Chancellor should be. He should be a Minister at the ministerial end of the concordat—to use a form of shorthand—and he should be responsible for protecting the independence of the judiciary and preserving the rule of law within government. We have also heard during the course of this debate that, as a Minister, the Lord Chancellor will be responsible for a budget of around £3 billion, the administration of the courts, legal aid and various other issues. Those matters could be dealt with by a Minister either in the Lords or in the Commons.

It is important to remember that these matters have a huge impact on people's daily lives. I do not refer just to those who actually go to court—although they certainly affect them—and not just to those who receive legal aid, but also to those in the community who look to the courts to provide them with standards and protections. That is quintessentially a role for someone accountable in the normal way.

Turning to the ministerial end of the concordat, perhaps I may quote the noble and learned Lord the Lord Chief Justice in his evidence to the Select Committee:

The concordat was negotiated on the basis that the work could be performed by a Minister. Those two roles are vital parts of the post of Lord Chancellor under the new arrangements, which I think we all agree. Although we all focus strongly on the independence of the judiciary and the rule of law, it would be wrong, first, to forget those two functions,
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and secondly, to forget that those two functions will be the ones that the Minister most performs on a day-to-day basis.

As to the third function—namely, ensuring the independence of the judiciary and the rule of law, which is vital—it is impossible to ignore the speech of the noble and learned Lord, Lord Woolf. He has made it clear that the new arrangements which he specifically put to the House—and which do not include as a condition that the Lord Chancellor should be in this House—provide better protection for the independence of the judiciary than the current arrangements.

The proposition on which the whole argument depends is that one will always be better off with a Member of this House than with someone in the Commons to protect the rule of law. The basis for that proposition is faulty. In many cases one will be much better off having someone in this House, but surely the right course is not to restrict the holder of the office to this House but to make clear what we expect from that office holder. We expect the office holder to be a competent Minister, to perform the ministerial end of the concordat responsibly, and to be a guardian of the rule of law and the independence of the judiciary.

With the greatest respect to the House, it is misplaced to say that only we can do it. To take up the words of the right reverend Prelate, it is "mistrustful" of the other place to say that it could never produce anyone as good as someone from our place to perform that function. That is not understanding that the role has changed—and changed in a way that we want it to change.

The force of the speeches of the noble and learned Lords, Lord Lloyd and Lord Howe, expressed an arrangement which, by the agreement of the House, we have changed. We should accept that it has changed and that what we are seeking to achieve is not something which is good for this House but something which is in the best interests of the nation as a whole. Surely it is in the best interests of the nation that the Prime Minister should accept the basis on which the person who holds the office is appointed, and that that person should be someone who will be good at all three functions I have identified. We should accept that that does not necessarily mean that in every case the office holder has to come from here.

I am quite sure that either in a short time or a medium time we will come to the conclusion that, as a result of accepting the amendment of the noble and learned Lord, Lord Lloyd, we may have deprived the nation of the best person for the job. I invite noble Lords to reject the noble and learned Lord's amendment.

Lord Lloyd of Berwick: My Lords, I am grateful to the noble and learned Lord the Lord Chief Justice for coming to the House and expressing the preference of the Judges' Council that the Lord Chancellor should be a Member of this House.

The issue before your Lordships is very simple: if the Lord Chancellor is to do his job properly as a bridge or intermediary between the judiciary and the
7 Dec 2004 : Column 776
executive, he must have the confidence not only of the Prime Minister but of the judges. He will have the full confidence of the judges only if he is a senior lawyer and a Member of this House—not for the good of the House but for the good of the nation. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 229; Not-Contents, 206.

Division No. 1


Ackner, L.
Alton of Liverpool, L.
Anelay of St Johns, B.
Arran, E.
Astor, V.
Astor of Hever, L.
Attlee, E.
Baker of Dorking, L.
Beaumont of Whitley, L.
Bell, L.
Belstead, L.
Biffen, L.
Blackwell, L.
Blaker, L.
Blatch, B.
Bledisloe, V.
Bramall, L.
Bridge of Harwich, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Caithness, E.
Cameron of Lochbroom, L.
Campbell of Alloway, L.
Carey of Clifton, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Carr of Hadley, L.
Carrington, L.
Cavendish of Furness, L.
Chadlington, L.
Chalker of Wallasey, B.
Chilver, L.
Chorley, L.
Cobbold, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Courtown, E.
Craig of Radley, L.
Craigavon, V.
Crathorne, L.
Crawford and Balcarres, E.
Crickhowell, L.
Cuckney, L.
Dahrendorf, L.
Darcy de Knayth, B.
Dean of Harptree, L.
Dearing, L.
Denham, L.
Dixon-Smith, L.
Donaldson of Lymington, L.
Dundee, E.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Falkland, V.
Feldman, L.
Ferrers, E.
Finlay of Llandaff, B.
Fookes, B.
Forsyth of Drumlean, L.
Fraser of Carmyllie, L.
Freeman, L.
Freyberg, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Gilmour of Craigmillar, L.
Glentoran, L.
Goschen, V.
Greenway, L.
Griffiths of Fforestfach, L.
Habgood, L.
Hanham, B.
Hanningfield, L.
Harris of Peckham, L.
Hayhoe, L.
Henley, L.
Heseltine, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Home, E.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hylton, L.
Imbert, L.
Jellicoe, E.
Jenkin of Roding, L.
Jopling, L.
Kalms, L.
Kimball, L.
King of Bridgwater, L.
Kingsdown, L.
Kingsland, L.
Kirkham, L.
Laidlaw, L.
Laing of Dunphail, L.
Laird, L.
Lamont of Lerwick, L.
Lindsay, E.
Listowel, E.
Liverpool, E.
Lloyd of Berwick, L. [Teller]
London, Bp.
Lucas, L.
Luke, L.
McAlpine of West Green, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
MacLaurin of Knebworth, L.
Maginnis of Drumglass, L.
Manchester, Bp.
Mancroft, L.
Mar, C.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Hendon, B.
Monro of Langholm, L.
Monson, L.
Montagu of Beaulieu, L.
Montrose, D.
Moore of Lower Marsh, L.
Moran, L.
Morris of Bolton, B.
Moser, L.
Mowbray and Stourton, L.
Moynihan, L.
Murton of Lindisfarne, L.
Naseby, L.
Neill of Bladen, L.
Newton of Braintree, L.
Nickson, L.
Noakes, B.
Northbourne, L.
Northbrook, L.
Northesk, E.
Norton of Louth, L.
Norwich, Bp.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Parkinson, L.
Patten, L.
Pearson of Rannoch, L.
Peel, E.
Perry of Southwark, B.
Peyton of Yeovil, L.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Plumb, L.
Plummer of St. Marylebone, L.
Portsmouth, Bp.
Quinton, L.
Quirk, L.
Rawlings, B.
Reay, L.
Rees, L.
Rees-Mogg, L.
Renton, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Rogan, L.
Ryder of Wensum, L.
Saatchi, L.
Sainsbury of Preston Candover, L.
St John of Fawsley, L.
Salisbury, Bp.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Sandwich, E.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Sheppard of Didgemere, L.
Skelmersdale, L.
Slim, V.
Soulsby of Swaffham Prior, L.
Steinberg, L.
Sterling of Plaistow, L.
Stevens of Ludgate, L.
Stewartby, L.
Stoddart of Swindon, L.
Strange, B.
Strathclyde, L.
Sutherland of Houndwood, L.
Swinfen, L.
Taylor of Warwick, L.
Tebbit, L.
Tenby, V.
Thatcher, B.
Thomas of Gwydir, L.
Thomas of Swynnerton, L.
Trumpington, B.
Tugendhat, L.
Ullswater, V.
Vinson, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Waldegrave of North Hill, L.
Walker of Worcester, L.
Walton of Detchant, L.
Warnock, B.
Wilcox, B.
Williamson of Horton, L.
Wilson of Tillyorn, L.
Windlesham, L.
Wolfson, L.
Wright of Richmond, L.
Young of Graffham, L.


Addington, L.
Ahmed, L.
Alderdice, L.
Alli, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Avebury, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bhattacharyya, L.
Billingham, B.
Bonham-Carter of Yarnbury, B.
Borrie, L.
Bragg, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carlile of Berriew, L.
Carter, L.
Carter of Coles, L.
Chandos, V.
Chester, Bp.
Christopher, L.
Clarke of Hampstead, L.
Clement-Jones, L.
Clinton-Davis, L.
Condon, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Dholakia, L.
Dixon, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Dykes, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Falkender, B.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fearn, L.
Fellowes, L.
Fyfe of Fairfield, L.
Gale, B.
Garden, L.
Giddens, L.
Golding, B.
Goldsmith, L.
Goodhart, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Greengross, B.
Gregson, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Hamwee, B.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Hayman, B.
Henig, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hooson, L.
Howarth of Breckland, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hutchinson of Lullington, L.
Inge, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Judd, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Lipsey, L.
Livsey of Talgarth, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Merlyn-Rees, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Mitchell, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Neuberger, B.
Newby, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Peston, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prosser, B.
Prys-Davies, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Razzall, L.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Rennard, L.
Richard, L.
Roberts of Llandudno, L.
Robertson of Port Ellen, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Roper, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Russell-Johnston, L.
Sainsbury of Turville, L.
Sawyer, L.
Scott of Needham Market, B.
Sewel, L.
Sharman, L.
Sharp of Guildford, B.
Sheldon, L.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Steel of Aikwood, L.
Stern, B.
Symons of Vernham Dean, B.
Taverne, L.
Temple-Morris, L.
Thomas of Macclesfield, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Thornton, B.
Tomlinson, L.
Tope, L.
Tordoff, L.
Triesman, L. [Teller]
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Vallance of Tummel, L.
Varley, L.
Wall of New Barnet, B.
Wallace of Saltaire, L.
Walmsley, B.
Warner, L.
Weatherill, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Crosby, B.
Williams of Elvel, L.
Winston, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

7 Dec 2004 : Column 779

Lord Kingsland moved Amendment No. 4:

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