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Lord Falconer of Thoroton: My Lords, I do not think I said that it would be much more likely to find someone in this House. I think that the noble and learned Lord is confirming that.
Lord Howe of Aberavon: My Lords, I have quoted verbatim, with some care.
Lord Falconer of Thoroton: My Lords, the noble and learned Lord went on to say that I said such a thing was much more likely. I do not think that I did say that.
Lord Howe of Aberavon: Yes, indeed, my Lords. I shall read it again:
"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".
It follows from that, as night follows day, that it is much more likely we should get in this House somebody qualified for the task, as we would wish.
I turn to the wider question of the extent to which, in so many different respects, the office of Lord Chancellor requires these dual qualifications. I shall quote from a passage which others will have heard before from a long submission made by this Government in November 2002—less than 12 months before the Prime Minister whimsically decided to abolish the office—to the Parliamentary Assembly of the Council of Europe. It is of some length but all of it is directly relevant. It says:
"The Lord Chancellor provides a counter-balance for the judicial branch against the centralised power of government and Parliament. Under this system, the head of the judiciary"—
that is no longer there but it matters not for this purpose—
That is quite right but on that, too, there are false arguments advanced. The noble and learned Lord has often talked of the department spending £3 billion a year. The noble Lord, Lord Morgan, referred to that too. When the Leader of the House, the noble Baroness, Lady Amos, was appointed to her present position, she was then the Secretary of State for International Development in this House, with a budget of £3.6 billion. Nobody complained then that that was in some way unconstitutional.
Moreover, the Lord Chancellor himself has demonstrated that he is accountable to Parliament—to the other place—because the other place has developed its exercises to study his department and call him as a witness. We are stronger today, in practice, in our
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surveillance of the Lord Chancellor's Department as far as concerns the House of Commons. So all these arguments fall into place. I return to the quotation:
"At the same time, he is removed to the House of Lords, away from the full force of party politics. The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with full understanding of legal culture and the rule of law. His tripartite role enables him to act as both a link and bulwark between the judiciary and the executive and the legislature. He can explain, defend and interpret each to the other".
Those are the words of this Government only a short time before debate on this issue started. The submission continues in paragraph 7:
"The Lord Chancellor is thus the judges' guardian and representative in the Cabinet and Parliament and, as necessary, vice versa. He exercises his responsibilities for judicial appointments and, where necessary, judicial discipline, as well as the management of the courts, in close and continuous consultation with the professional judges . . . In short, the existence of the Lord Chancellor enables the judiciary to maintain their independence, while ensuring that their legitimate interests and point of view are represented and protected at the highest levels of the other branches of government".
All those propositions are just as true today as when they were written in 1972.
The suggestion that this place has somehow become as crudely political as the other place, as the noble and learned Lord the Lord Chancellor implied, is not true. The noble Lord, Lord Morgan, discussed the role of this House in his interesting speech. It is more than just a revising chamber. It proved itself last week as being governed by anything but party politics; as the last guarantee against constitutional abuse—more than just the longstop, and not a theatre of party politics. The votes last week could have gone against what was being attempted even if not one Conservative Member of this House had voted at all. The Lords was exercising its function in a supremely important way, and to that extent it is much less political than another place. I do not pretend that we are all political virgins—we speak for ourselves—but we are much less political than the other place, and we have a constitutional role, which is why this is the place where the Lord Chancellor should be helping to guide and lead that role.
One asks oneself whether the Lord Chancellor's role has been substantially changed in relation to judicial appointments and discipline. It has been changed, but he is still the Minister through whom all those appointments and recommendations go into action. Clauses 106 and 107, which happen to deal with Northern Ireland, state that the power to remove or suspend a holder of judicial office is exercisable by the Lord Chancellor, and that a tribunal to consider the removal of the Lord Chief Justice may be convened by the Lord Chancellor. More specifically, to my surprise, Clause 105, which deals with High Court judges, says that
"a motion for the presentation of an address to Her Majesty for the removal of a person from any of those offices may be made—
(a) to the House of Commons only by the Prime Minister; and (b) to the House of Lords only by the Lord Chancellor".
That is an astonishing proposition. Does it not imply, as do many other things, that the Lord Chancellor should be a Member of this House? He is the only person authorised to take action of that kind.
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The point, as this document sets out in all those ways, is that it is the Lord Chancellor, who is a lawyer in this House, in whom these powers are vested. That ought necessarily to remain the case.
A similar argument can be advanced if one looks at the point that has already been touched on by my noble friend Lord Kingsland. Clause 1 of the Bill relates to the duty of the Lord Chancellor to uphold the rule of law. Again, I refer to a statement made in this House by the noble and learned Lord the Lord Chancellor. On 7 December he was dealing with the role of the Lord Chancellor in relation to Clause 1 when he said:
"Throughout the debates we have had on the rule of law, the contention has been that the Lord Chancellor has always had a role with regard to the rule of law, and that it is important that we do not inadvertently lose or diminish that role. There has also been general, if perhaps not universal, agreement that such a duty was a political one, but it was not a duty to be enforced in the courts. My amendment seeks to give effect to both these lines of argument; it acknowledges that the Lord Chancellor has a duty with regard to the rule of law and it acknowledges that that duty is not one that is cognisable as a matter of law. It will ensure that the rule of law features in the deliberations of the reformed Lord Chancellor in the same way as it does now with the existing Lord Chancellor. But it does so in a way that does not have wider, unintended effects". [Official Report, 7/12/04; col. 740.]
If the Lord Chancellor is endowed with those responsibilities to that extent with the express authority of the present Lord Chancellor, and no-one can look to the courts to enforce those duties in that way, how else are we to have confidence in the ability of the Lord Chancellor to fulfil those functions if he is not a senior lawyer? How else is he to command respect or authority in Cabinet? I have given other reasons in this House. It is fanciful to suggest that the office would not be fundamentally and mistakenly altered if these two propositions were not accepted by your Lordships' House.
The Lord Bishop of Chelmsford: My Lords, the noble and learned Lord the Lord Chancellor reminded us that, deep in our history, these Benches had the office of Lord Chancellor. My understanding is that one or two of them fulfilled the office quite well. I assure him, however, that, despite the difficulties of the Church of England, we have no desire to have it back.
Our role is to listen carefully to this debate and not to intrude on the legal argument. There are just three things we have to bear in mind. First, there is the history of this Bill. We began with the Government abolishing the post of Lord Chancellor. That having taken place, it is not surprising that this House is exercising some caution in constructing the Bill to ensure that we hem the Executive in from taking unnecessary action of that sort again without legal defence. There is a history to this that we cannot avoid.
Secondly, the argument this afternoon is about the context, not personal capabilities. Is this House the better context for this office? Having had the privilege of being in this House for nearly six years—despite times such as the present, when political agendas are rather apparent—I have noticed how jealous the House is of its independence, and how important Members find the freedom to make
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their own judgments and to act accordingly. If we are to have an office whose independence is important—but is a political appointment, and that is a right relationship—we have to ask whether it is the context of the more political agenda that is properly pursued in the other place, and we should not in any way denigrate that, or the context of this House that is appropriate. That is at the heart of the argument.
Thirdly, constitutional reform should be introduced with great care. In this House we have a duty to watch over the constitution of our country. It might be the judgment of the House that even if we are cautious in this matter and restore these clauses, what we have achieved, from a bad start, is an important piece of constitutional reform that does credit to Parliament, and to the Lord Chancellor. I do not think the restoration of these clauses undermines that achievement.
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