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Lord Carlisle of Bucklow: My Lords, as a member of the Select Committee, I must say that the whole of our discussion during the weeks when that committee met were based on the assumption that if the Lord Chancellor were to remain he would be a senior lawyer. Indeed, I believe that the present Lord
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Chancellor would agree that that was implicit in much of what was said in those debates. It is the job for a lawyer, modified as it is, as it involves defending the independence of the judiciary, advising the Cabinet on the effect on the rule of law of their decisions and having a part at least still to play in appointments, as the Minister who decides whether a person put up by the Appointments Commission should be proposed for membership of the judiciary. Those are all jobs that should be done by a lawyer, and I cannot see why the Government should apparently be unwilling to accept that that is so.
Lord Phillips of Sudbury: My Lords, in response to my noble friend's extremely cogent case for not necessarily having a lawyer in the post, I refer him to Amendment No. 26, which contains Schedule 4 and which the noble and learned Lord, Lord Falconer, will shortly introduce. It describes the other functions of the Lord Chancellor and the organisation of the courts. There are 348 functions itemised, every one of them having a strong legal component. Although it is obviously the case that there are many non-lawyers who could make good Lord Chancellorsmy noble friend cited Lord Jenkins of Hillheadnone the less what we are dealing with here is the norm.
We need to be cautious in assuming that for evermore Prime Ministers will appoint the person most fitted to the traditional role of upholding the independence of the judiciary and the rule of law. Caution in that regard is proper, notwithstanding the point made by the right reverend Prelate about trust, which was an important point. In that regard, the balance falls clearly on the side of having a lawyer in this legally concentrated role.
Lord Falconer of Thoroton: My Lords, this may be ground that we have gone over before. The effect of the provision is yet again to restrict further the pool from which this important office holder can be taken. In the light of the decision made earlier this afternoon he must now be a Lord. If noble Lords vote in favour of his being also a lawyer of 12 or 15 years' practice, inevitably the pool diminishes.
As ever, the noble and learned Lord, Lord Howe, accurately put his finger on how the issue arises by quoting the excellent speech of the noble Lord, Lord Macdonald of Tradeston. If the relevant person is no longer to be a judge and constitute the head of the judiciary the issue arises whether the compulsion for this man or woman to be a lawyer is in the interests of the public and of the nation. Very often it will be in the interests of the nation to have someone undertaking this job who is a lawyer, but I ask noble Lords to consider what the job consists of. First of all, he is a Minister with responsibility for a £3 billion budget. His role in that respect, as everyone would agree, is to deliver a good service to the public regarding the courts and legal aid. Are lawyer Lords always the best people to be in charge of driving either the running of those functions or their reform? Sometimes they will be and sometimes they will not. One should not be driven by populism but what would the public say to
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the proposition that the people who are in charge of that £3 billion must always be in the Lords and must always be lawyers? I think that their answer might be to ask: why do you not choose the right person for the job who might well be a lawyer Lord but would not have to be?
The concordat was negotiated on the basis that it could be undertaken by someone who was not a lawyer. For example, input into the role of appointing judges would be provided by the Judicial Appointments Commission. The Minister's role would be to be accountable in that respect. Similarly, as regards the disciplining and financing of the judiciary, the Minister's role would not be that of a lawyer, but that of a Minister performing a ministerial function.
Finally, I turn to the independence of the judiciary and the rule of law. It is very difficult to rebut the proposition of the noble Lord, Lord Maclennan, that sometimes someone who is not a lawyer will be braver, stronger and more focused on those issues than a lawyer. During the course of the past century no Lord Chancellor ever resigned even though at one stage the then government procured that the Lord Chief Justice sign a letter of resignation in blank which the government could operate at any date they wished. The Lord Chancellor at that time was a senior lawyer.
I do not think that the right course is to restrict the pool yet further. I do not think that would carry confidence. The right course is to allow the Prime Minister of the day, whoever he or she may be, to choose the right person for the job who can best protect the values of justice, the rule of law and the independence of the judiciary that we all hold so dear.
Lord Howe of Aberavon: My Lords, I hope that the noble and learned Lord will answer one question. Is not the answer to his argument about restricting the pool immediately apparent when one contemplates what has happened already under this Government? The Prime Minister had no difficulty in enlarging the pool when he appointed Lord Williams of Mostyn as Attorney-General, later a distinguished Leader of this House, and when he appointed the noble and learned Lord, Lord Goldsmith, as Attorney-General. The merit of having the appointment in this House is that the pool may be enlarged in that way, and the argument about the pool effectively disappears.
Lord Falconer of Thoroton: My Lords, with respect that demonstrates the gulf between us. Lord Williams of Mostyn, who is much missed in this House, was an excellent lawyer. The noble and learned Lord, Lord Goldsmith, who is much respected in this House, is an excellent lawyer. In practice they were both selected straight from the Bar to hold high office. Do noble Lords think that the person who is to be responsible for a ministerial budget of £3 billion should be selectedor has to be selectedonly from among people whose previous experience comprises simply that of being excellent barristers?
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Being a barrister is of great assistance as regards some of the functions that the Minister performs. However, as regards quite a few of those functions, I modestly believe that my seven years' ministerial experience is much more significant and has made me much more effective in this role. If I had not spent seven years as a Minister I would not have been remotely able to perform that part of the role. I say with the greatest respect to the noble and learned Lord, Lord Howe, who has himself had a most distinguished ministerial career, that the idea that a member of the Bar can simply pick up the job with no experience of any kind of political or ministerial office is illustrative of the extent to which the pool would be limited by the measure that we are discussing.
Lord Kingsland: My Lords, we have had another extremely interesting debate on an aspect of the Lord Chancellor's characterthis time on whether or not he should be a lawyer. I was particularly struck by the noble and learned Lord's illustration that no Lord Chancellor in the 20th century had resigned from office. I regard that as a measure of the success of successive Lord Chancellors in ensuring that the rule of law was respected in Cabinet.
The noble and learned Lord, Lord Woolf, brought us a message from the Judges' Council that it was appropriate that the Lord Chancellor should be a lawyer. Your Lordships heard the noble and learned Lord, Lord Ackner, talk about what I think the vast majority of your Lordships consider to be the biggest threat to the rule of law in recent years; namely, the issue of the ouster clause. I simply do not see how anyone other than a Lord Chancellor who had a good grasp of the law could possibly have dealt with this issue in Cabinet.
That goes for all the rule of law issues that are likely to be disputed in the Cabinet or in Cabinet committees. The fact of the matter is that, as with so many other problems in politics, the devil is in the detail. If you have to get into the detail of the rule of law, you have to be a lawyer to understand it. I believe that our case is incontestable. I wish to test the opinion of the House.
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