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Lord Mackay of Clashfern: My Lords, with great respect, before the Minister sits down, what is at issue here is the resources not of the legal profession but of the courts, which are part of the judicial arm of Government. The Lord Chief Justice for England and Wales, not a Minister of the Crown, has been charged with the responsibility for that. Surely it cannot be right for the Minister in the executive government to be able to overrule the decision of the Lord Chief Justice upon whether a person can be spared from his judicial strength in order to perform a particular act. Of course, there are always possibilities for negotiation. For example, the consent of the Lord Chief Justice might be secured by the executive asking that vital question.
Baroness Ashton of Upholland: My Lords, I am sorry if I misspoke. I am not a lawyer, so I am afraid I do not always use the right terminology. The noble and learned Lord will just have to forgive me for that.
Negotiation is important, and it is there in the consultation process in the Bill. The Lord Chief Justice will make representations on the issues, and the Minister will consult. I doubt there would be many circumstances under which, if the Lord Chief Justice felt strongly, the Minister would be minded to do anything other. However, within legislation, one has to consider the absolute positions. It is our view that if it was felt that it was in the national interest, regardless of the resource question—and there would be an equal issue regarding the use of resources in any area of life—one must nevertheless be able at least to say to the senior person one is looking for, "In the context of this incredibly important event that has taken place, where public confidence in a particular aspect of public life
28 Feb 2005 : Column 27
has been rocked, I would like you to take this on because in the eyes of the government you would be the right person". It is only that that divides us.
Lord Laming: My Lords, before the Minister sits down, does she agree that this section of the Bill, as now stated, does nothing different to the judiciary than to any organisation from which someone may be drawn to chair an inquiry? In other words, there has to be discussion and negotiation.
Baroness Ashton of Upholland: My Lords, discussion and negotiation are a critical part of the process. As we have indicated, we have specifically put within Clause 10 the consultation with the Lord Chief Justice and the other appropriate senior Law Lords, and so on, to ensure that we have covered that point. The Government's contention is that when there are issues of such national importance, we must be able at least to ask the individual. The resource issue is, in a sense, to be played into that equation, but not to be the overriding factor, for the reasons I have said, about any other profession we might be looking to bring in to chair an inquiry.
Lord Goodhart: My Lords, I am most grateful to all Members of your Lordships' House who have spoken in the debate, and for the considerable weight of support that the amendment received. I am not disturbed by the fact that both speakers on the other side were the only two speakers who were not lawyers—the noble Lord, Lord Laming, and the Minister. I am particularly grateful to the noble and learned Lord, Lord Mackay of Clashfern, who speaks from remarkable experience—as a former head of the Scottish judiciary as Lord President, a Cabinet Minister as Lord Chancellor, and the former head of the judiciary in England and Wales as Lord Chancellor.
It has been suggested that the decision should rest with the individual judges, but I do not think that correct. After all, the judiciary is one of the three branches of the constitution, and a Minister, as a member of the Executive, should not have the right to call on an individual judge to act as chairman of an inquiry. Whether a particular judge is released to take part as chairman of an inquiry is properly a decision for the judiciary as a body, expressed through the Lord Chief Justice as its head. Constitutionally, it is absolutely correct that the decision should be taken jointly by the Minister and the Lord Chief Justice.
As the noble Viscount, Lord Bledisloe, said, it is in any case difficult to imagine a judge accepting an appointment to chair an inquiry if he or she knows that the Lord Chief Justice, although consulted, has not agreed. The Minister said that the issue may be critical. There may be critical issues but, if it is true and appropriate that a judge should be selected to chair a particular inquiry, I cannot imagine that a Lord Chief Justice would refuse to make a judge available for that purpose.
The amendment seems important, and I wish to test the opinion of the House on it.
28 Feb 2005 : Column 28
4.11 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 149; Not-Contents, 131.
Ackner, L.
Addington, L.
Alton of Liverpool, L.
Ampthill, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Beaumont of Whitley, L.
Blaker, L.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Brougham and Vaux, L.
Buscombe, B.
Campbell of Alloway, L.
Clement-Jones, L.
Colwyn, L.
Condon, L.
Cope of Berkeley, L.
Craigavon, V.
Dahrendorf, L.
Darcy de Knayth, B.
Denham, L.
Derby, Bp.
Dholakia, L.
Dixon-Smith, L.
Donaldson of Lymington, L.
Dykes, L.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Falkner of Margravine, B.
Fearn, L.
Feldman, L.
Fookes, B.
Fowler, L.
Garden, L.
Gardner of Parkes, B.
Geddes, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Greenway, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Harris of Richmond, B.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hutton, L.
Jenkin of Roding, L.
Jopling, L.
Kimball, L.
Kingsland, L.
Laing of Dunphail, L.
Lane of Horsell, L.
Lindsay, E.
Listowel, E.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Manchester, Bp.
Mancroft, L.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Mayhew of Twysden, L.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Morris of Bolton, B.
Mowbray and Stourton, L.
Moynihan, L.
Murton of Lindisfarne, L.
Naseby, L.
Neill of Bladen, L.
Neuberger, B.
Newton of Braintree, L.
Noakes, B.
Northesk, E.
Northover, B.
Onslow, E.
Oppenheim-Barnes, B.
Park of Monmouth, B.
Patten, L.
Peel, E.
Perry of Southwark, B.
Plumb, L.
Quinton, L.
Reay, L.
Redesdale, L.
Rees-Mogg, L.
Rennard, L.
Renton, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L. [Teller]
Rotherwick, L.
Ryder of Wensum, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Sharp of Guildford, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Stewartby, L.
Swinfen, L.
Taverne, L.
Tebbit, L.
Thatcher, B.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Tordoff, L.
Trenchard, V.
Trumpington, B.
Waddington, L.
Walker of Worcester, L.
Walmsley, B.
Warnock, B.
Weatherill, L.
Williamson of Horton, L.
Windlesham, L.
Acton, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B. (Lord President of the Council)
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Carter of Coles, L.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Temple Guiting, L. [Teller]
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jones, L.
Jordan, L.
Laming, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Marsh, L.
Masham of Ilton, B.
Mason of Barnsley, L.
Maxton, L.
Merlyn-Rees, L.
Mitchell, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Murphy, B.
Nicol, B.
Palmer, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Snape, L.
Stone of Blackheath, L.
Strabolgi, L.
Taylor of Blackburn, L.
Tenby, V.
Thornton, B.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Wall of New Barnet, B.
Walpole, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the affirmative, and amendment agreed to accordingly.
28 Feb 2005 : Column 30
4.23 p.m.
Lord Goodhart moved Amendment No. 3:
On Question, amendment agreed to.
Clause 12 [Duration of appointment of members of inquiry panel]:
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