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Baroness Symons of Vernham Dean: My Lords, I agree with that very strongly. The mechanisms for the partnerships in the Middle East and some of the Gulf countries are enormously important. However, in saying that it is important to remember that NATO still needs to make some real improvements in the way it takes decisions, the way it allocates its resources and in its overall efficiency. Some 323 committees operate under the NATO umbrella at the moment. I see that the noble Lord, Lord Howell of Guildford, shakes his head. I agree very strongly with that shake of the head.
Lord Howell of Guildford: My Lords, is there not a need to extract from this tremendous amount of discussion, which the Minister says is going on, a clearer view on both sides of the Atlantic—both an American and a European view—on what exactly we want out of NATO, and whether it is just to be regarded as a "toolbox", as some Americans describe it, or something more? Is not the right model for the future more on the lines of the Combined Joint Task Force, which seems to me a thoroughly sensible and practical arrangement between European, American and NATO forces, rather than the European security and defence policy, which is much vaguer and has vague anti-NATO tones within it?
Baroness Symons of Vernham Dean: My Lords, I know that the noble Lord thinks that the European dimension has some anti-NATO tones to it. I have heard those anti-NATO tones; I shall not deny that they exist. However, it is our position as Her Majesty's Government—I am sure that the noble Lord agrees with this—to defend NATO as the principal cornerstone. As I indicated, a great deal of discussion is going on, but that is structured discussion. It is not talking for its own sake. It is looking at the way that NATO can best define its role for the future. I have had the honour of substituting for my right honourable friend the Foreign Secretary at a number of recent meetings and participating in those discussions myself. They are focused and they are looking at the real challenges that exist in the 21st century.
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Business of the House: Unstarred Question
Baroness Amos: My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the following Unstarred Question be referred to a Grand Committee—
The Countess of Mar—To ask Her Majesty's Government whether they will reconsider their policy on bovine tuberculosis in light of concerns expressed by more than 350 veterinary surgeons to the Secretary of State for Environment, Food and Rural Affairs about the spread of the disease.—(Baroness Amos.)
On Question, Motion agreed to.
New Opportunities Fund (Specification of Initiative) Order 2005
Baroness Amos: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the draft order be referred to a Grand Committee.—(Baroness Amos.)
On Question, Motion agreed to.
Contracting Out (Functions in Relation to Cultural Objects) Order 2005
Baroness Amos: My Lords, I beg to move the third Motion standing in my name on the Order Paper.
Moved, That the draft order be referred to a Grand Committee.—(Baroness Amos.)
On Question, Motion agreed to.
Constitutional Reform Bill [HL]
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I beg to move that the Commons amendments be now considered.
Moved accordingly, and, on Question, Motion agreed to.
[The page and line references are to Bill 18 as first printed for the Commons.]
The Commons do not insist on their Amendments Nos. 1, 2, 264, 265 and 593 but propose Amendments Nos. 1B and 1C in lieu of Commons Amendments Nos. 1 and 2 and Amendments Nos. 1D to 1F as consequential amendments to the Bill—
1B Leave out Clause 2 and insert the following new Clause—
(1) A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.
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(2) The Prime Minister may take into account any of these—
(a) experience as a Minister of the Crown;
(b) experience as a member of either House of Parliament;
(c) experience as a qualifying practitioner;
(d) experience as a teacher of law in a university;
(e) other experience that the Prime Minister considers relevant.
(3) In this section "qualifying practitioner" means any of these—
(a) a person who has a Senior Courts qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990;
(b) an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary;
(c) a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland."
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1B.
We return to the debate—the characteristics of the Lord Chancellor. This debate is essentially on one issue. Should future Lord Chancellors always, and without any possibility of an exception, be by law both lawyer and Lord?
We have, by this Bill, transformed the role of the Lord Chancellor, created a new method of appointing judges, created a Supreme Court, and given effect to a new relationship between the judges and the Executive, with the Lord Chief Justice, and not the Lord Chancellor, becoming the head and leader of the judges in England and Wales.
These changes are, as most people would accept, both far-reaching and overdue. The manner of their introduction should not obscure both the need for them and the fact that they have now been the subject of the most widespread consultation, and parliamentary scrutiny and have received widespread support. The noble and learned Lord the Lord Chief Justice said at Second Reading:
"If it is given life, it [this Bill] will rank in importance with the great constitutional instruments of the past. We must ensure that that happens".—[Official Report, 7/12/04; col. 759.]
In legislating for these changes, we have listened very carefully to the proposals for change made both before the Bill went through Parliament, and as the Bill went through its parliamentary stages. By far the most important part of the pre-parliamentary process was the agreeing of the concordat with the judges. They have accepted and, indeed, strongly support the new relationship between the judges and the Executive. As the noble and learned Lord the Lord Chief Justice stated in his speech at The Lord Mayor's dinner for Her Majesty's Judges:
"What was previously uncertain becomes clearly defined, so both sides know what their respective rights and obligations are . . . The Concordat is universally endorsed by the judiciary as providing essential protection for the independence of the judiciary into the future".
Let us also be clear as to the Lord Chief Justice's views regarding the nature of the Minister as set out in the Concordat. He said in his evidence to the Select Committee:
"My firm support for the concordat reflects the fact that I see no difficulty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional Affairs by the concordat. I do not consider that such a Minister requires any enhanced status or particular title to enable him or her to exercise those functions. There is benefit in that Minister being a lawyer. However, the Minister's ability to defend the independence of the judiciary and the rule of law and ensure that the courts are adequately resourced will, to an extent, depend upon his or her standing within the cabinet. This is a matter about which it is impossible to legislate, since it is in the hands of the Prime Minister of the day".
The judges also recognise fully that the new arrangements involve the leadership of the judges moving from the Lord Chancellor to the Lord Chief Justice for England and Wales. Our policy involves that shift being clear. Neither we nor the judges want two heads of the judiciary—we want one, and the Bill reflects that.
Those who see the change as being no more than the acceptance of the trend that the Lord Chancellor will no longer sit as a judge, such as the noble and learned Lords, Lord Howe of Aberavon and Lord Lloyd of Berwick, have not properly understood the scale of the change which this House and another place have voted for.
In the light of those new arrangements, it is important to identify the nature of the job that the Lord Chancellor will perform in the new arrangements. He will be the Minister in charge of a department spending in excess of £3 billion on courts and legal aid. There are other things as well, but those are the two areas of biggest expenditure. Secondly, he will be the member of the executive who acts jointly either with the new Judicial Appointments Commission or the judiciary in appointing judges and in acting with them to ensure a well run justice system. Thirdly, he will be the guardian in the executive of the independence of the judiciary and, by extension, the rule of law.
Currently, the Lord Chancellor is also Speaker of this House. As this House knows, we do not think it is appropriate any longer for the Lord Chancellor to continue as Speaker. After the proceedings on the Bill are concluded, we hope that the House will find an opportunity—taking into account the report of the committee chaired by the noble and learned Lord, Lord Lloyd—to debate the future of the Speakership.
The old requirement for the Lord Chancellor to be a judge sitting in the Judicial Committee of the House of Lords made it beyond doubt that the Lord Chancellor had to be a Lord and a senior lawyer. Once that practical requirement goes, the issue needs to be looked at afresh in the context of the new job. The first two requirements of the new job—being a Minister and being the executive's part of the relationship with the judges—probably tend in favour of someone in the other place, although not necessarily and not conclusively. There will always be scope for Cabinet Ministers beyond the Leader to sit in this House, but
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it is obvious that responsibility for large amounts of public expenditure and for delivering important services to citizens throughout the country more easily sits in the other place. Equally, to be the representative of the executive who works in partnership with the judiciary may more effectively be achieved by someone who reflects the currents within the Commons. That many of the functions must be performed in an objective, independent, non-party way does not detract from that.
The third function—protecting the independence of the judges and being the guardian of the rule of law in the government—is a critical role, but it needs to be properly understood. The Lord Chancellor is but part of the protection of those two important parts of our constitution. The noble and learned Lord, Lord Bingham of Cornhill, told the Constitutional Affairs Select Committee:
"What protects (judicial independence) most is the tradition and the culture. I could say, and I feel quite sure we would all agree, that in over 20 years of holding judicial office none of us would ever have experienced any attempt whatever by anyone in any official position to influence any decision which any of us was about to make no matter how sensitive the case might be. The general public have no conception of the degree of fastidiousness which on the whole governments and officials show in this particular respect and sometimes go to almost unnecessary lengths to avoid anything which could even be construed as an attempt to influence the thing".
The idea that the principle of the independence of the judiciary is not understood by those in the other place is fanciful. The idea that an ambitious politician of integrity in the Commons might not be the best person to defend the judges is wrong. Would a Tebbit, or a Merlyn-Rees, or a Whitelaw, or a Jenkins, or a Shirley Williams, or a Nigel Lawson, be inadequate champions of the judges? They would be excellent if given that job, and they could have been better than very many of the pool of lawyer Lords available at the time. I exclude from consideration, of course, all the Lord Chancellors of the time.
You do not need to be a lawyer to know when judicial independence is being attacked. The powerful speeches made in this House attacking the undermining of the judiciary in Zimbabwe have seldom been made by the lawyers in this House. The principle of the defence of the rule of law underpins our constitution. All of us are subject to the law and equal before the law. The government of the day must obey the law, and they must not do anything that they know breaches the law. We are a parliamentary democracy; we want our laws to be made by our Parliament. The noble Lord, Lord Kingsland, suggested last week that there was a fundamental inconsistency in subscribing to the rule of law and being accountable to your constituents as a member of the other place. He said:
"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".—[Official Report, 15/3/05; col. 1218.]
3.15 p.m.
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