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"LORD CHANCELLOR: FURTHER QUALIFICATION FOR APPOINTMENT
(1) A person is not qualified to be appointed Lord Chancellor unless he has at any time
(a) held high judicial office for a period of at least 2 years; or
(b) practised as a qualifying practitioner (as defined in section 16) for at least 12 years.
(2) For the avoidance of doubt, a person serving as a law officer of the Crown is practising as a qualified practitioner."
The noble Lord said: My Lords, much of the ground of this amendment was covered in the previous debate. The issue is, very simply, whether the Lord Chancellor should, in addition to being a Lord, be a lawyer.
The responsibilities of the Lord Chancellor in relation to the Judicial Appointments Commission, the concordat and the rule of law are, in my submission, reason enough for all future Lord Chancellors to be either judges who have held high judicial office or senior lawyers of practising experience of at least 12 years. I understand that this view is endorsed by the noble and learned Lord the Lord Chief Justice and the Judges' Council. I intend to say no more than that in introducing the amendment.
Viscount Bledisloe: My Lords, Amendment No. 5, in my name, is grouped with Amendment No. 4. I am more than happy not to move it in favour of the greater wisdom, as always, of the noble Lord, Lord Kingsland.
The noble and learned Lord the Lord Chancellor spent a lot of time in the previous debate praying in aid the fact that the noble and learned Lord the Lord Chief Justice was not adamant about the Lord Chancellor being a Member of this House. However, I point out that he is adamant about him being a lawyer. So I hope that your Lordships will find no difficulty in supporting this amendment.
Lord Maclennan of Rogart: My Lords, the previous debate has, to some extent, foreshadowed the debate on this amendment. Indeed, some of the steam may have gone out of the debate, following the result of the
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vote. But it has not reflected the balance of evidence which was put before the Select Committee. It was clearly divided between those who, weighing past experience of the duties of Lord Chancellor, saw the appropriateness of a lawyer discharging that role; but equally weighty evidence was presented by those on the other side, notably from Justice and a number of individuals.
The strongest argument for not confining the choice of Lord Chancellor to someone with legal experience is that in balancing the qualities, weight is given to one, which may be important, but which could outweigh all the others, pointing to the suitability of a particular candidate. In the decisions which have to be taken within Cabinet, I submit that the most important quality is the gravitas of the individual, which derives most commonly from long political experience. Such political experience normally leads to promotion and helps to clinch arguments when there is debate within government.
Undoubtedly, the new job of Lord Chancellor is not as it was before. He will no longer sit as a judge, he will no longer be the head of the judiciary and he will not speak for the judiciary. That job has been assigned, and will be clearly underpinned by the Bill, to the Lord Chief Justice. There is no compelling reason why a lawyer's training should be thought the most essential requirement for this weighty office.
The House has tonight decided that this job must be discharged by someone sitting in this House. It will always be possible to find a suitable person who is a lawyer, ennoble him or her and bring them into this House for the purpose. But if that happens, such a person will not have long political experience and the gravitas that that brings. I think that going down that route would be a profound error of judgment.
When I think back to my experience of those who spoke out in defence of human rights, civil liberties and the rule of law in governments in which I have served and which I have witnessed at close hand, it is not always the lawyers who spring to mind as the people who have been the most profoundly effective advocates on these issues. If I may be extremely personal, the man who seemed to me most readily and effectively to protect those liberties and values was the former Home Secretary, Roy Jenkins. I doubt whether anyone could have argued that he was unsuitable to be Lord Chancellor because he was not legally qualified.
Two of the amendments before us suggest that a lawyer should have 12 years of practice and experience, and the other proposes 15 years. Such provisions would certainly rule out many lawyers who have been elected to the House of Commons on the grounds of inadequate time spent doing the hard graft of a lawyer. They would certainly have ruled me out; I resigned my practice when I became a junior Minister at the age of, I think, 33, although my experience at the English Bar was enough to cause the late Lord Elwyn-Jones to offer me the job of Lord Advocate at the Scottish Office, for which I was wholly unfitted.
There seems to be no reason of principle being deployed behind the argument for the choice of a lawyer for this job. I submit that no good reason of
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principle could be found. It is certainly evident that we have had lawyers in that role but, as was explained in the previous debate, that was because of the legal function which the Lord Chancellor exercised and which he will not, in his new incarnation, be required to exercise.
It is not as though in the British Isles we are without experience of a Minister of Justicethat is in effect what the Lord Chancellor iswho is not a qualified lawyer. The Scottish Executive began their life with a lawyer as Minister of Justice. I do not know whether I can refer to him as my friend, but my colleague, Mr Jim Wallace, took that role. But he was succeeded in that role by Mrs Jamieson, who is not a lawyer but who is effectively discharging the job of Minister of Justice. It seems to me that there is no good reason for ranking legal experience above all others in choosing the most suitable person for the job. I hope that we shall not limit in that unfortunate way the discretion of the Prime Minister in choosing a Lord Chancellor.
I do not believe that the last word has been said on the issue of whether the Lord Chancellor should sit in this House or in another place, but it is perfectly clear that, as things stand, if there were any possibility that he might sit in another place, there would be too small a pool of suitable candidates for the job. I beg to suggest that there might even be too small a pool in this House for the job in future. The attractions of this House to people who are suitable will diminish with the changing nature of the job, because the Lord Chancellor's functions will be so profoundly different under the new arrangements to which we have given our support.
I cannot conclude my remarks without noting the profoundly important speech made by the noble and learned Lord the Lord Chief Justice in the earlier debate. Nor can I ignore his reporting of the views of the Judges' Council on the issue under discussion. I simply say that those of us who have had experience of government have a different perspective from members of the judiciary on how government works and of the standing that lawyers have in government. To some extent, they are regarded as technicians. They are not regarded as the voice of the people, as other Ministers are. They are, to my mind, regarded as perhaps innately conservative, and that may be a useful function in government. They are also regarded as advocates, which is something that, by its nature, does not lie easily with the ideal that they are in some peculiar way above the battle.
Lawyers are never regarded as free of political taint by those who make the decisions. In the debates that we have had, there has been a slight tendency to idealise the objectivity of lawyers. I am bound to say that I believe that we should have a more realistic view of what their role and function has been and would be.
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Above all, I beg the House not to make the mistake of so confining the pool of talent for the job as the amendment would do.
Lord Mackay of Clashfern: My Lords, as the noble Lord said, the Scottish Executive originally had a Minister of Justice who was a lawyer and now has a Minister of Justice who is not a lawyer. Would he comment on the fact that the Scottish Executive includes, ex officio, the Lord Advocate, who is a lawyer? So the Scottish Executive includes a lawyer as part of the constitution of the executive.
Lord Maclennan of Rogart: My Lords, that is undoubtedly true. Our own United Kingdom Government can call on the services of the law officers to perform a broadly similar role to that described by the noble and learned Lord, Lord Mackay, in the context of the Scottish Executive.
Lord Howe of Aberavon: My Lords, very briefly I wish to intervene again, because the noble Lord asked for any arguments in support of the proposition that the Lord Chancellor should be a senior lawyer. I shall quote two brief statements made by Her Majesty's Government in the past two years, which set out that case clearly.
"The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with full understanding of legal culture and the rule of law. His tripartite role enables him to act as both a link and bulwark between the judiciary and the executive and the legislature. He can explain, defend and interpret each to the other".
"the Lord Chancellor's position as head of the judiciary also has the effect of ensuring that only an experienced and senior professional lawyer can be appointed to the position. It is not enough to have a legal qualification; the holder must be practising as a lawyer. A review of the outstanding attributes of the present and former Lord Chancellors underlines the achievement of successive Prime Ministers in appointing only practising lawyers held in high regard".[Official Report, 7/3/03; col. 1096.]
The first half of that first sentence speaks of the Lord Chancellor's position of the head of the judiciary also having the effect of ensuring those beneficial consequences. We know now that the Lord Chancellor will not be head of the judiciary, so the insurance policy on which the Government relied only 18 months ago in this House has been withdrawn. We need to replace that with a statutory insurance policy now.
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