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Baroness Whitaker: My Lords, I have a couple of mild observations. First, it is not quite right to talk about "the exception proving the rule" in any sense. It is a translation from the Latin and the word is "probat", which is mistranslated as "prove". It means "tries" or "challenges". The exception of Roy Jenkins did indeed challenge the rule.
Secondly, equally mildly, I am rather depressed by the idea that only a lawyer can stand up for the rule of law in Cabinet. It seems to me that the rule of law is actually not a legal principle. Various rules in law are indeed legal principles, but it would be self-referential in the extreme for the rule of law to be primarily only for a lawyer to represent. It is one of the most important—if not the most important—constitutional and democratic principles. Defending it may well normally fall to the Lord Chancellor in Cabinet. He or she will not lack expert advice in the elements of the rule of law, just as his or her counterparts in other departments have their expert advice. I remember from my days in the Civil Service that the task of the adviser to the Minister is to support, with expertise, a ferocious defence of the Minister's departmental values against differing interests. I have no doubt that that capacity would continue.
Lord Forsyth of Drumlean: My Lords, I shall be brief as I do not wish to repeat any of the arguments that have been made and I support the amendment of my noble friend Lord Kingsland. However, I wish to challenge something that the noble and learned Lord the Lord Chancellor said about the idea that the Prime Minister should be free to appoint whom he likes. The noble and learned Lord, Lord Lloyd of Berwick, pointed out that the present status of the Lord Chancellor as Secretary of State for Constitutional Affairs puts him pretty low
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down the pecking order in Cabinet. I appreciate that Cabinets do not meet very often these days, and that indeed it is not given access—
Lord Falconer of Thoroton: My Lords, the Cabinet meets once a week, and that is about as often as it met when the noble Lord was in it.
Lord Forsyth of Drumlean: My Lords, it has a meeting, but it does not perform the functions of Cabinets in the old days. Indeed, it is not even given legal opinions when major decisions that affect us all are being made, as the noble and learned Lord the Lord Chancellor knows only too well.
Cabinets seem to be a kind of rubber stamp for a small group within the Government. But in my day—speaking as a relatively junior member of a previous Cabinet—when the noble and learned Lord, Lord Mackay of Clashfern, was Lord Chancellor, he was a huge figure, set apart from the rest of us who were scrabbling our way up the greasy pole, as the noble and learned Lord, Lord Lloyd of Berwick, put it. He did not need to get elected and was not part of the political atmosphere. That is important because when he spoke, he spoke with authority which was detached from the political process. It seems to me that it is a great advantage to have someone in this House who is out of the political fray, and that anyone with any experience of the Cabinet would see that.
I do not wish to repeat the arguments about being a lawyer; they seem to me to stand. But I wish to pick up the point about the Prime Minister being free to choose whom he likes. It is entirely appropriate that the Prime Minister is constrained by having to pick someone who is a Member of this House and a lawyer. Without getting too close to the bone, if I look at some of the appointments that this Prime Minister has made, the old rules and conventions seem to be flouted daily.
The noble Baroness talked about the Civil Service. We have seen information officers, who used to be independent, replaced by political people in the Civil Service. Only yesterday, we saw the appointment of a Cabinet Minister as our Ambassador in South Africa. I do not know whether the Government have already sought agrément from the South African Government, or whether they intend to do so after the general election, but I do not know what qualifications a former Chief Secretary has to be our Ambassador in South Africa.
I could go on at great length and draw the attention of the House to other appointments that have been made by this Prime Minister that seem to be based on friendships and patronage. If ever there were an argument for this House constraining the freedom of the Prime Minister to appoint whoever he likes, it is based on the office of the Lord Chancellor—an appointment which is central to the rule of law and to our constitution as we understand it.
Viscount Bledisloe: My Lords, I get the impression that the House would like to bring this matter to a conclusion, but I want to make one point. Let there be no doubt that if this House allows Clauses 2 and 3 to be removed from the Bill, it will have abandoned any real attempt to retain the office of Lord Chancellor in any
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meaningful sense. The name will be retained, but little or nothing else. The point is that the Lord Chancellor should be at the apogee of his career and outside the hope of future preferment so that he can bring a degree of detachment to the roles given to him by the Bill to preserve the rule of law and the independence of the judiciary. It is virtually impossible for him to fulfil that function if he is still in the rat race to gain political promotion and still has the hope of ultimately reaching No. 10.
It is for those purposes that Clauses 2 and/or 3—in the long run, when we get to the final bargaining stage, it might be that one of them is acceptable; but at least one of them, and for the moment essentially both—must be preserved. Otherwise, we may just as well go back, give way to the Government completely, abolish the Lord Chancellor and have a Secretary of State.
Lord Goodhart: My Lords, we on these Benches—with the usual exception of my noble friend Lord Phillips of Sudbury, who may be described as the Helena Kennedy of our party—support Commons Amendments Nos. 1 and 2 and wish to see Clauses 2 and 3 deleted from the Bill.
The insistence that the Lord Chancellor be a Member of your Lordships' House rather than of the other place makes only one difference; that is, that the person appointed to the office will have no prospect of promotion to Prime Minister, Chancellor of the Exchequer or head of another major government department. Why is that thought to be a good thing? It is asserted by a number of noble Lords, including the noble Viscount, Lord Bledisloe, that it is, but it is surely no guarantee whatever of independence. If the Prime Minister wants a compliant Lord Chancellor, he will surely be able to find one. In any event, ambition to retain an office is a powerful incentive to comply with a Prime Minister's wishes. Someone with no prospect of further promotion may well be an extinct volcano who carries little clout with his colleagues.
There is no other government department in which drive and ambition can be regarded as a disqualification for holding office. There is no reason why it should be different for the Department for Constitutional Affairs. The DCA needs a strong and effective Cabinet Minister as much as any other department, someone who will fight for legal aid and access to justice and who has the clout to win that fight against his colleagues.
It is said that the office of Lord Chancellor is different because of his constitutional role as the defender in Cabinet of the rule of law and the independence of the judiciary. In relation to the independence of the judiciary, the role is shared by other Ministers of the Crown. That role is important, but it is amorphous, and it is very hard to pin down what it amounts to. Certainly, my noble friends Lady Williams of Crosby and Lord Rodgers of Quarry Bank, who served in the Labour Cabinets of the 1970s, have no recollection of the then-Lord Chancellor Lord Elwyn-Jones ever having raised constitutional issues in Cabinet, and I doubt that he was unique in that respect.
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We are to some extent in danger of confusing the roles of the Lord Chancellor and of the Attorney-General. The Lord Chancellor is not, and never has been, the legal adviser to the government, nor has he been the spokesman for the judiciary in the Cabinet. The role of legal adviser is that of the Attorney-General. It was the Attorney-General, not the Lord Chancellor, who advised the Government on whether the invasion of Iraq would be valid.
Ironically, there is a strong case for saying that the Attorney-General should be in the House of Lords, both on practical and constitutional grounds. On practical grounds, because the Attorney-General plainly has to be a lawyer and needs to be a respected lawyer in recent practice, something that is inconsistent with membership of the other place; and on constitutional grounds because the government and their legal adviser should be at arm's length from each other. The Attorney-General should be at least semi-detached from his colleagues, but the Lord Chancellor, as a member of the Cabinet, cannot be semi-detached in the same way.
In this debate we have over-rated the future constitutional role of the Lord Chancellor, particularly since he is no longer the head of the judiciary in England and Wales; and under-rated the future constitutional role of both the Attorney-General and, even more so, of the Lord Chief Justice as the head of the English judiciary. In future, it will plainly be the role of the Lord Chief Justice to act as spokesman for the judiciary, and he will be in a stronger position to do so than a Lord Chancellor ever has been. The main role of the Lord Chancellor when this Bill is enacted will be to be a departmental Minister of an important government department. His role as constitutional watchdog in the Cabinet will be as it always has been—informal. That role does not justify excluding the Lord Chancellor from the House of Commons, and thereby frequently excluding the person best qualified for doing the job from doing it.
I must also say that from outside your Lordships' House most people interested in this issue, including lawyers, would regard it as astonishing that your Lordships' House should insist that the office of Lord Chancellor should be restricted to Members of this House, even when the Lord Chancellor's judicial role is extinct and therefore no longer requires it. If we disagree with the Commons amendment, we will be portrayed as looking to the past and not to the future, and that portrayal would be correct.
The question of being a lawyer is a related but distinct issue. I see legal qualifications, unlike membership of your Lordships' House, as a positive factor in making the choice of Lord Chancellor. Other things being equal, it is better to have someone who has a legal qualification than not. I expect, therefore, that most Lord Chancellors will in fact have legal qualifications, but that is not essential, and it is surely more important to have the best person to do the job. As I said already, the main role of the Lord Chancellor will be to act as a departmental Minister.
The role of the Lord Chancellor requires knowledge of general principles of the constitution, rather than strictly legal knowledge. After all, we do not, even now,
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expect a Lord Chancellor to be an expert in, say, trust law, patent law or commercial law, or any particular branch of the law. Many people who are not lawyers have the kind of knowledge of the constitution that is necessary. I could name from among current Members of your Lordships' House, for example, the noble Lord, Lord Norton of Louth, or my noble friend Lord Holme of Cheltenham.
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