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Lord Falconer of Thoroton: I apologise to the Bishops, my Lords.
The department for which the Lord Chancellor is responsible is now responsible for a budget, as I have said on many previous occasions, of £3 billion. It continues to evolve with the magistrates' courts coming within its remit from next month. And this place continues to evolve. A statutory prohibition on the Lord Chancellor being a Member of the other place would, in my view, prevent the office evolving over time in response to the reforms on which we are all agreed.
We cannot legislate to ensure that the best person for the job is appointed; if we could, we would have done so already. Clause 2 may prevent someone whom your Lordships may consider strong and eminently suited to the office from accepting it because he also wants to continue to serve his constituents, and his constituents may continue to want him to be their representative.
I have outlined my strong conviction, but many others share my view that it is the person who holds the office that is important, not where he is a Member. Perhaps I may quote from the recent Constitutional Affairs Select Committee report on this. It stated:
"Although it may be more likely that someone in the House of Lords as at present constituted has the seniority and lack of aspiration towards further office which we considered desirable, it is by no means certain, and there will be suitable candidates for the post in both Houses. There does not, therefore, seem to be a compelling argument for insisting that the Lord Chancellor must be a member of the Upper House".
I move on to the second aspect of the debate, as the noble Lord, Lord Kingsland, suggested. I detected from earlier debates that some of your Lordships have formed the view that legal qualifications or knowledge gained through practice at the Bar, or being a judge, is needed to carry out the functions in the concordat effectively. As I have said, that is plainly not the case. The ministerial role for the Lord Chancellor in the concordat simply does not require that.
The Judicial Appointments Commission will be formed of people who are skilled in determining whether candidates for judicial office possess the relevant skills and experience. The Lord Chancellor will not need a legal qualification or a prescribed period of experience in legal practice to judge the merit of candidates, and the system is set up to ensure that any personal knowledge the Lord Chancellor has of candidates will not prejudice the selection process. Indeed, one purpose in creating a Judicial Appointments Commission is so that it will not be one person's knowledge—which, inevitably, will be intense in some areas but not in others—driving the process of judicial appointments.
The Attorney-General is the legal adviser to the Cabinet. He advises all Ministers and he can advise the Lord Chancellor. Should any legal issues arise about the
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operation of the process itself, the Department for Constitutional Affairs has a team of legal advisers, like any other government department.
So that leaves us again with the Lord Chancellor's special role in relation to the rule of law and independence of the judiciary. I am convinced that sound judgment in those matters does not depend on the application of forensic legal skills. What is needed is judgment, intellect, courage, stature and independence; an appreciation of our constitution and respect for its principles. It is those characteristics that have served Lord Chancellors, as they have served impressive political Ministers, so well over the ages. While many politicians and Lord Chancellors have had legal qualifications and experience, for Lord Chancellors, that has been as a result of the judicial functions of the office, which are now no longer to be performed by the Lord Chancellor.
In recent times, the Lord Chancellor plainly had to be a lawyer and a Lord because he presided over the Judicial Committee of the House of Lords. That requirement has now gone. The skills needed to be a judge are no longer needed by Lord Chancellors. I am certain that, even without their legal qualifications, Lord Chancellors would still have been able to carry out their special functions, and the rule of law and independence of the judiciary would still have their valued place at the heart of our constitution. The Lord Chancellor would be a guardian of that—lawyer or not.
We have a lot to lose if we reinsert the statutory requirement that was Clause 3. Many eminent people who could uphold the rule of law and independence of the judiciary with exceptional courage and determination may be disqualified. Many excellent legal minds may be disqualified from holding the office because they have pursued an academic career or just miss out on the practising requirement. The last time that we debated this, we identified a significant number of people who were not lawyers who, it was widely regarded throughout the House, would have been excellent defenders of judicial independence and the rule of law. All those people would have been excluded by Clause 3.
Legal experience does not necessarily mean a person will be the right one for the job. Other experience, such as previous experience as a Minister, are equally important. I have already set out how valuable my prior experience of ministerial office has been to me in my role as Lord Chancellor. I do not think that I need to reiterate the points about what the ministerial role should be. The issue is not about whether a lawyer could be a good Lord Chancellor. We all know, looking at history, that that is the case. The issue here is whether only a very senior lawyer can be a good Lord Chancellor based on a record of sustained legal practice.
Those are the arguments. We must try to make it as easy as possible to insure that the right person gets the job. Neither of these limitations achieves that.Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Falconer of Thoroton.)
Lord Kingsland rose to move Amendment No. 1A, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".
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The noble Lord said: My Lords, I shall speak also to Amendments Nos. 264, 265 and 593 and to Amendments Nos. 2 and 2A. The issue of Lord and lawyer has already been very fully debated in your Lordships' House on two previous occasions: first, in Committee on 13 July, I think, and, secondly, on Report on 7 December. On both occasions, the debate ended in a vote.
Off the Bill went and now it has come back with another place disagreeing with our belief that future Lord Chancellors should continue to be both Lords and lawyers. I do not need this afternoon to argue again the full case that was so beautifully argued by so many of your Lordships. I simply want to remind your Lordships of what I think are the key issues.
Your Lordships will recall that, when the Bill first came to us, the Minister who was to be responsible for its operation was the Secretary of State for Constitutional Affairs. Your Lordships were left in no doubt that future Secretaries of State for Constitutional Affairs would inhabit another place and would, in all likelihood, not be lawyers. We had a flavour of the status of future Secretaries of State by observing the status of the present Secretary of State for Constitutional Affairs, which is rather low in the hierarchy.
Unexpectedly, it proved impossible for the Government to abolish the position of Lord Chancellor in June 2003; so the noble and learned Lord had added to the end of his title, "and Lord Chancellor". I think that he would agree that his main responsibility since appointment has been as a Secretary of State, rather than Lord Chancellor; although I am the first to recognise that he has fulfilled the responsibilities of Lord Chancellor impeccably.
In the Bill in Committee, there was one crucial omission that has now been rectified and, I am glad to say, accepted by another place. That is the provision in Clause 1 placing a duty on the Lord Chancellor—whom, I am pleased to say, we replaced for the Secretary of State—to observe the rule of law. Clause 1 is headed, "The rule of law" and states:
Later, in Clause 14, we find that future Lord Chancellors will be required to take an oath. Proposed new subsection (2) to Clause 14(1) states that future Lord Chancellors will,
"swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary".
So there have been two important changes since the Bill arrived in your Lordships' House, both of which have been accepted by the noble and learned Lord. The first is that, in future, the Minister will continue to be the Lord Chancellor; the second is that he or she will have a statutory obligation to observe the rule of law and will have taken an oath to that effect. The question before your Lordships, therefore, is whether the office of a future Lord Chancellor—statutorily bound to observe the rule of law and having taken an oath to that effect—is compatible with being a Member of another place.
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I, perhaps, might test your Lordships' patience by dilating for a moment on some recent constitutional history. Your Lordships will remember, in particular, that in the asylum legislation proposed in 2004 there was an attempt to introduce an ouster clause. Your Lordships will also remember that, very recently, in the Prevention of Terrorism Bill, there was an attempt to introduce an open-ended suspension of habeas corpus.
If the noble and learned Lord the Lord Chancellor had not been primarily the Secretary of State for Constitutional Affairs, but had been primarily the Lord Chancellor with his traditional and conventional responsibilities for the rule of law, neither the ouster clause nor the suspension of habeas corpus would have emerged from the Cabinet. They would never have seen the light of day.
A traditional Lord Chancellor, charged by convention with his responsibilities for the rule of law, would have stopped his colleagues in their tracks. It was only because the noble and learned Lord was saddled with the primary responsibility of being Secretary of State for Constitutional Affairs that he was unable to do so. Fortunately for the country, your Lordships' House stepped into the shoes of the Lord Chancellor and stopped both the ouster clause and the permanent suspension of habeas corpus.
Now, the mists have cleared; we find ourselves on the verge of an Act which will enshrine in statute the Lord Chancellor's responsibility to uphold the rule of law. It is my contention that that responsibility is incompatible with membership of another place. Membership of another place—
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