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Lord Maclennan of Rogart: My Lords, I am most grateful to the noble Lord, Lord Kingsland, for giving way. But I put it to the noble Lord that he is, perhaps inadvertently, idealising the historical role of the Lord Chancellor in recent times. I believe that the previous Conservative Lord Chancellor might not have gone as far as suggesting that he, in his role as Lord Chancellor, could either have stopped the Conservative Cabinet in its tracks if it had proposed something contrary to the rule of law or ever denied that, as a Member of a Cabinet, he was bound by collective responsibility for its decisions. The example I put forward is the denial of access to justice—an issue of great constitutional importance—which the noble and learned Lord, Lord Mackay, was unable to resist, when legal aid rules were substantially altered to cut access to the courts.
Lord Kingsland: My Lords, I am most grateful to the noble Lord for his intervention. If he will allow me to continue a little further, I think that he will get the answer to his question. I was about to argue that a Lord Chancellor responsible for upholding the rule of law in statute would find that responsibility incompatible with membership of another place.
Election to another place on a political mandate, which is to be implemented by a parliamentary majority by the mechanism of parliamentary sovereignty, is a
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reflection of the will of the electorate. By contrast, the rule of law is that part of our constitution which upholds the right of the minority against the majority. It upholds the right of the individual against the state.
How can a politician—elected on a popular mandate and bound by the convention of collective responsibility—when one of his colleagues insists that the popular will demands the ouster of the courts or demands the suspension of habeas corpus be part of that popular majority and, at the same time, uphold the rule of law? There must be a fundamental conflict between the statutory requirement of upholding the rule of law and, at the same time, the electoral requirement of doing the bidding of the majority.
The noble and learned Lord has based the whole Bill on the concept of separation of powers; but what could be a greater confusion of powers than to confuse the principle of parliamentary sovereignty with the principle of the rule of law? If the noble and learned Lord was an elected politician in another place, he would find it impossible to determine to which of the two he owed the greater duty. Therefore, constitutionally, it must be right that the person who defends the rule of law in our constitution is not an elected politician. The doctrine of separation of powers demands that.
I am also astonished to hear the noble and learned Lord suggest that anyone who is asked to do the job of Lord Chancellor could undertake it without being a lawyer. I am sure that your Lordships have had a very careful look at the Bill. For those of your Lordships who have done so, I am convinced that the inevitable conclusion must be that the post of Lord Chancellor could be undertaken only by someone who was not just a qualified lawyer but also someone who was very experienced in the law.
The Lord Chancellor will be asked to take the final decision on who should have a judicial appointment. He will be asked to exercise his judgment about the capacity of someone to be a judge. How can he do that without having the professional understanding of what the judicial task is about? The noble and learned Lord the Lord Chancellor shares also myriad responsibilities with respect to the management of the judicial system, including judicial discipline, together with the Lord Chief Justice. How can he do that unless he is a lawyer of equivalent status and standing to the noble and learned Lord the Lord Chief Justice?
For those reasons alone the Bill demands a lawyer, but there are two additional reasons as well. First, as the noble and learned Lord is well aware, the noble and learned Lord has removed all the judges from your Lordships' House—not only the judges from the Judicial Committee, but also the Lord Chief Justice, the Master of the Rolls and the Lord President. Without those judges the only lawyer left in the other branches of the political system will be the Lord Chancellor. It will be the Lord Chancellor to whom the judges will wish to talk. They will need to talk to someone for whom they have great jurisprudential respect. For that reason as well, the Lord Chancellor will need to be a lawyer.
Finally, many distinguished non-lawyers made the most compelling speeches in the debate on the Prevention of Terrorism Act. But the detailed analysis
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of what did or did not comprise the rule of law, in my submission, required legal expertise. The core of the debate about the rule of law in your Lordships' House was a debate about the law; and, indeed, about many extremely sophisticated facets of the law. How can a Minister defend the rule of law unless he has a thorough grasp of its components? In my submission, only a lawyer can do so. So, for those reasons as well, it seems to me inconceivable that your Lordships could come to any other conclusion but that the Lord Chancellor needs to continue to be a lawyer.
I recall in one of the earlier debates the noble and learned Lord the Lord Chancellor saying that there should be no constraint on the qualifications for Lord Chancellor because the Prime Minister should not be inhibited in his choice of the person for that position. I see the noble and learned Lord nodding in assent. In my submission, that is a bad argument.
The basis of the argument is that it is wrong that the Prime Minister, in taking any decision about anything in his political universe, should be constrained by anything. The problem for any Prime Minister about a Lord Chancellor who is a lawyer and Lord is that he is a constraint on executive power. I hope that is not the reason why the noble and learned Lord wants to remove that constraint.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".—(Lord Kingsland.)
Lord Lloyd of Berwick: My Lords, in due course, I shall be moving the amendment which stands in my name. However, I understand that it has been agreed for the convenience of the House that we should say all that we have to say now and then move the amendment formally in due course.
Last December, this House saved the office of Lord Chancellor. I hope that does not sound too melodramatic. It is worth saying again because it has been put about—and was, indeed, put about by the Lord Chancellor himself—that all we had saved was the title of Lord Chancellor. That was never true and I am very glad that the Lord Chancellor has accepted today that it is his view that we have saved the office of Lord Chancellor.
Historically, as we know, the office has been held by a senior lawyer who has also been a Member of this House. The noble Lord, Lord Kingsland, has dealt primarily with the many arguments in favour of the Lord Chancellor being a Member of this House. I suggest that that convention is now so strong that it ought not to be broken. It is at least as strong, I would suggest, as the parallel convention that the Prime Minister should not be a Member of this House.
My task is the lesser one of persuading your Lordships that the Lord Chancellor should also be a lawyer, as he has also always been.
When we voted on 7 December, we voted in favour of retaining the office of Lord Chancellor as traditionally understood, save in two relatively minor respects. First, we agreed that he should no longer sit as a member of the Appellate Committee. But as, since the days of the
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noble and learned Lord, Lord Mackay of Clashfern, the Lord Chancellor has seldom done that, it was not a great matter.
Secondly, we agreed that the Lord Chancellor should no longer be the titular head of the judiciary—that title now falls to the Lord Chief Justice. But we intended, at least I believe we intended, that in all other respects the office should continue as before. We intended that the Lord Chancellor should continue to be the head of a great department of state responsible for the administration of justice. We also intended that he should be responsible, as a very senior member of the Cabinet, for representing the views of the judges in Cabinet and defending the rule of law. That is how the great Lord Chancellors of the past have seen their role.
The House of Commons, by their Amendment No. 2, propose that the Lord Chancellor need no longer be a lawyer. That argument, if accepted, is obviously very important; it would bring about a very important change.
The arguments in favour of the change seem to be as follows. First, that as the Lord Chancellor is no longer to be a judge, he need no longer be a lawyer. That argument was, indeed, advanced today by the noble and learned Lord the Lord Chancellor. But it is such an obvious non sequitur that it need detain us no further.
The second argument—the more important argument—is that the Prime Minister should be free to choose the best man for the job. An example that has been given in the past is that if the choice lay between a Roy Jenkins on the one hand and a second-rate lawyer on the other, the Prime Minister should be free to choose Roy Jenkins.
Thirdly, as no one suggests that the Secretary of State for Defence should be a soldier, that the Secretary of State for Health should be a doctor, or that the Secretary of State for the Environment should be—I suppose—a builder, the argument is: why should the Lord Chancellor be a lawyer? To do the noble and learned Lord the Lord Chancellor justice, he did not advance that third argument before your Lordships today.
So I am left with the second argument, which I shall try to answer. I have said already that one of the most important—if not the most important—functions of the Lord Chancellor is to be the representative of the judges in Cabinet and a spokesman for their views. Putting it another way, he is to be the intermediary—or, if you like, the bridge—between the Executive on the one hand and the judiciary on the other hand. One does not need to be a far-seeing prophet to realise that that function will have an increasing importance in the years to come.
To do that job—to act as the intermediary or bridge—effectively, the Lord Chancellor clearly needs not only to have the confidence of the Prime Minister; he also needs to have the confidence of the judges. He will only have that confidence if he knows the legal system inside out before his appointment and if he understands the rule of law, in all its many
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ramifications, through his long training in the law. Above all, if I may put it this way, he must be a lawyer by instinct; a lawyer with an instinct for justice.
But even all that is not enough if he is not also a very senior lawyer. Nothing would undermine the confidence of the judiciary more than if the Lord Chancellor was still on the look out for another job; if he was still looking for political preferment when his particular job came to an end. That is why, as has been said so often during these debates, the Lord Chancellor needs to be at the end of his career—or at the peak of his career, put it how you will—and not half-way up the greasy pole.
It may be said that all that is so obvious; that the Lord Chancellor must so obviously be a lawyer, that it is hardly necessary to say so in the statute. I am not so sure. There is much in the Bill that to me at any rate hardly needs saying, but we have said it. As the noble Baroness, Lady Scotland, is so fond of saying, we are where we are. At the moment we are in the course of modifying the office of Lord Chancellor, but we must do so in such a way as to make clear the limit of those modifications.
That is why, when the Lord Chief Justice spoke in the debate on 7 December, he said that his own view and the view of the Judges' Council was that the Lord Chancellor should be a lawyer, and ideally should have the same qualifications as a High Court judge. He wanted a requirement to that effect, by which I understood him to mean that he wanted it written in the Bill, which is where it was until Amendment No. 2 was passed in the House of Commons. I suggest that those views should be paid great heed today.
One last point needs to be made. There is a wider question. The Lord Chancellor is no longer to be the head of the judiciary, but he is still the head of the legal profession, which is far wider than the judiciary, important though the judiciary is. It includes barristers, solicitors, magistrates, magistrates' clerks and, perhaps more important than ever, the court staff. They all look to the Lord Chancellor as the head of their profession. That is how he is seen throughout the common law world, and indeed elsewhere. It would be a tragedy if we were to spoil that image.
I want to remind your Lordships—and tell those of your Lordships who did not hear it—of what was said by my noble and learned friend Lord Cooke of Thorndon, formerly president of the Court of Appeal of New Zealand, in this House on 11 October. I regret that it is quite a long quotation, but it is so apt and not a single word is wasted. Those who heard him say it will never forget it. He said:
"What is the greatest legal office in the world? Before the Bill was conceived, there could have been little doubt that it was that of the Lord Chancellor. In a non-Gilbertian sense, he embodied the law of England. His—and it could be her—high status has been an enduring symbol of the commitment of the United Kingdom to the rule of law and the independence of the judiciary. That was not primarily because he sometimes sat as a judge—a practice which was falling into desuetude and is now being abandoned. That was incidental. It was because he was a senior Member of the House of Lords and of Cabinet—an illustrious and universally respected
- lawyer who was able to speak with authority for all that the law represents. He was a kind of guarantor or watchdog of legality at the heart of the constitution".—[Official Report, 11/10/04; col. 38.]
I suggest to your Lordships that that is all that needs be said.
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