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Lord Lester of Herne Hill: My Lords, will the noble and learned Lord deal with one matter? He mentioned Roy Jenkins; does it count at all with him that my personal experience for two and a half years of the second Wilson government was that it was Roy Jenkins—neither a lawyer nor at that time a Member of this House—who as Home Secretary stood up for the rule of law against the left in cases such as the Shrewsbury Two and the Clay Cross councillors, when the lawyer members of that Government, fine though they were, were not as able to do so?
Does that indicate that an arbitrary exclusionary rule would keep away a fine person of that quality from acting as a Lord Chancellor?
Lord Lloyd of Berwick: My Lords, of course I accept everything that the noble Lord says. Roy Jenkins was unquestionably a very fine man and he might perhaps have made a Lord Chancellor, but he did not have the qualifications that I, and I believe the judges, regard as so important.
Lord Renton: My Lords, having agreed fully with what the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Kingsland said, perhaps I may add a few further factors that arise as a result of my having been in both Houses for nearly 60 years. I should perhaps mention that for all but nine of those years I have been a Queen's Counsel and had at one time a busy practice and a great deal of part-time judicial work.
During my 34 years in another place there were no fewer than 20 Queen's Counsel spread across the House. In those days plenty of Labour Members were Queen's Counsel, but now there are only 10 Queen's Counsel in the House of Commons and eight of them are Conservatives. However, in your Lordships' House there are 34 Queen's Counsel spread across the House. I am glad to say that there are some in each party and on the Cross Benches who are active and successful in practice.
Therefore, I feel that the noble and learned Lord, the Lord Chancellor, when presenting his case, overlooked the reality of the situation of the profession. That is regrettable and fundamental. It follows that it would be unwise and impractical not to have the Lord Chancellor in your Lordships' House, as has happened for centuries with success. The repeal of Clause 2, which is what the Government are proposing, would be unwise, impracticable and against the public interest.
Lord Morgan: My Lords, I would like to speak strongly in support of what my noble and learned friend the Lord Chancellor said. I do so with the confidence of a non-lawyer, who tend to be unrepresented in these discussions.
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Many of the arguments that we have heard, which were powerfully put and which I respect, are based on the way things have been; that is the way it has been for generation after generation; century after century. We have been spared 1,000 years of history, which we heard in a previous debate, but let us take 1,000 years of history.
The point is that the job of the Lord Chancellor is different: he is fulfilling a different role. He is not head of the legal profession or the judiciary. He—or let us hope, she—cannot be a judge. There is an independent Judicial Appointments Commission to make appointments. He or she will not be in charge of internal discipline; on the contrary, as we have heard, the Lord Chief Justice will have that role, and his role will be enhanced as a result of the Bill.
I see no reason for the Lord Chancellor to be a lawyer. Lawyers do not have a monopoly of the understanding of the principle of the rule of law and of constitutional rights. The rest of us could use our fuddled brains to understand those matters as well. It is a matter of intelligence, not of background. The professional value is not necessary any more than—as we have heard—in other areas. The best Minister of Health we ever had was a Welsh coalminer. He knew nothing about medicine, but he fulfilled a role.
The role of the Lord Chancellor is constitutional. It is not to be a lawyer; it is to act at the interface between the judiciary and the Executive. It is to consider that role and to apply his intelligence and his understanding, which might even be historical understanding, to look at these matters. It is his role to see that the rule of law is preserved. He should have an outlook that is judicious but not necessarily judicial. He need not be a judge; he need not be a lawyer. He should, as we have heard, fulfil some of the other qualities that were fulfilled by the late Lord Jenkins of Hillhead.
We have no reason to confine the choice simply to those who are professional lawyers. On the contrary, I would go even further and agree with the Bar Council, which observed that it was highly desirable that the Lord Chancellor should not be a lawyer because that would give an impression of an incestuous professional expertise whereas the rule of law belongs to everybody, to every citizen, even to those of us who are not lawyers. That is what the Government are upholding; that is what they are doing in the Bill and I very strongly support them.
Secondly, I also see no reason why we should have the Lord Chancellor in your Lordships' House. The House of Lords was at its best last week in protesting, opposing and amending proposals on the Prevention of Terrorism Bill. I played my full part last week and am very proud of my role as a critic. That is what the House of Lords should be doing. It should be revising and amending, acting as a Chamber representing the community in defending civil liberties, located in the real world.
The House of Lords is at its worst in arrogating to itself a monopoly of wisdom and claiming that, for example, parliamentary sovereignty is in essential
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conflict with the rule of law and that it is for the elected people down the Corridor, not for us. Parliamentary sovereignty is a concept for us, too. We are a part of Parliament and it seems absurd to say that only a part of Parliament should consider that proposal.
Following last week's discussions on the Prevention of Terrorism Bill, it is even more important that the Lord Chancellor should be in the House of Commons because he is considering precisely the interface between the judicial handling of terrorist cases and the view of Ministers who can, as we know, often be arrogant. He should be accountable to the elected Members of the House in areas such as the working of judicial review. We need the strongest possible Minister to do that, whether he be a lawyer or not, drawn from the widest range of talent. As we heard earlier, there are plenty of examples of very strong Ministers who have taken that view in the House of Commons and very weak legal officers who have not taken that view, however great their list of qualifications and however lengthy their entry in Who's Who.
My noble and learned friend the Lord Chancellor made the point that this is an important Minister who will be handling a budget of £3 million or more—probably more—
Lord Morgan: I meant billion, my Lords—forgive me. I am not numerate, but £3 billion was what I meant to say. That is a very large budget, with lots of noughts at the end—too many for me. It clearly should be defended and justified by an accountable Minister in the House of Commons.
It is very important that somebody like the Lord Chancellor should be an open forum, accountable to Members of Parliament, to the public, to citizenry and not simply to an unelected House. I regret, therefore, that these proposals are challenged. I think that the House of Lords is seen at its very best if it adheres to its traditional role as a defender of freedom and does not emerge so strongly that it adopts an anachronistic and exaggerated posture which does not seem appropriate.
Lord Howe of Aberavon: My Lords, I yield to nobody in my admiration for the late Roy Jenkins, but I do not think that one case, however distinguished, really proves that point. I should like to deal with the arguments advanced by the noble and learned Lord the Lord Chancellor to a large extent by quoting some passages for which he was responsible, beginning with that very point.
It is of course clear that one could find some people of great distinction and angelic independence who have qualified as dentists or engineers. But what are the odds? The noble and learned Lord the Lord Chancellor gave us the answer in the debate on 7 December when he said:
"In many cases one will be much better off having someone in this House . . . it is 'mistrustful' of the other place to say that it could never produce anyone as good as someone from our place to perform that function".—[Official Report, 7/12/04; col. 775.]
We are not going that far. The noble and learned Lord is there asserting what we assert—it is much more likely that this place would produce someone of the right quality and qualifications. I repeat:
That is the central point, partly for the reasons given by my noble friend Lord Renton.
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