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Lord Lawson of Blaby: My Lords, will the noble and learned Lord the Lord Chancellor allow me to intervene, since he was kind enough to mention me among many others?
The first argument that he used for maybe having the Lord Chancellor in the other place was the responsibility for a considerable amount of public expenditure. Surely he is aware that public expenditure decisions are collective Cabinet decisions. If any one Minister has a particular responsibility it is the Chancellor of the Exchequer, who is always in the other place. Therefore, that argument has no merit whatever.
Lord Falconer of Thoroton: No, my Lords, that is wrong. Perhaps I was wrong to suggest that the noble Lord would make a great defender of the judges—it certainly did not have the desired effect.
Lord Falconer of Thoroton: My Lords, as far as the expenditure is concerned, money is allocated to each individual Minister, and then that individual Secretary of State is responsible for the expenditure of that money., That Secretary of State will take responsibility for it, particularly if the expenditure is poor. With great respect, it is wrong to say that there is not a particular responsibility on Secretaries of State in the way that the money is spent.
I go back to the point that I was making. I quoted the noble Lord, Lord Kingsland. With respect—what rubbish. His view of democracy is wholly inconsistent with our constitution, and it has no basis in fact. The assumption that Members of the other place will press issues irrespective of the commitment to the rule of law is not reflected in our history. Our people want the rule of law and do not want to be ruled by lawyers. All too often, some lawyers dress up what is, in truth, a political debate as if it were a legal discussion. It is also noteworthy that those non-lawyers who have spoken in debates on this Bill have often done so in a manner that was almost apologetic for intruding on a private discussion. The rule of law is too important for its consideration to be reserved to lawyers.
The noble and learned Lord, Lord Ackner, and the noble Lord, Lord Kingsland, made similar attacks in debating the Prevention of Terrorism Bill. They said that had there been a Lord Chancellor of the traditional sort, the Bill would not have emerged in the form that it did. The Bill, in the form that it emerged, complied with the European Convention on Human Rights. There were legitimate issues about whether it was sufficient judicial involvement for judges to be involved before or shortly after an order was made. For the noble Lord, Lord Kingsland, or the noble and learned Lord, Lord Ackner, to suggest there was only one answer that complied with the rule of law, and that
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they knew what it was, revealed an imperviousness to respecting the views of others that so often lets the lawyer down.
Lord Kingsland: My Lords, I am most grateful to the noble and learned Lord for giving way. I submit that the standard set by the European Convention on Human Rights and the standard set by the rule of law in this country are not the same thing. That is particularly true in the area of criminal law, where all our continental colleagues have inquisitorial, rather than jury, systems, and they set much lower standards about protecting the defendant than we do. I do not accept that the standards set by the European Convention on Human Rights in some areas are as high as our own rule of law standards.
Lord Falconer of Thoroton: My Lords, I accept that they would not always be the answer, but they are a pretty strong guide that the rule of law is not being breached.
Regarding the prevention of terrorism, the current judges rightly took the view that it was an issue that Parliament must resolve, and in respect of which they should be silent. Another example is the admission of bad character evidence. The noble Lord, Lord Kingsland, said that our changes were "contrary to the rule of law". They most certainly were not, and no one else suggested that they were. They were plainly an issue to be determined by the politicians.
The noble Lord, Lord Kingsland, referred to the ouster of the judicial review clauses—completely failing, in the course of his account, to see the significance of the role played by the Lord Chief Justice with regard to that issue. The Lord Chief Justice held out against the clause. He made proposals about how the use of the High Court would be just as quick as a scheme that did not use it. We listened and, eventually, agreed.
Our Bill recognises the need for a new role for the Lord Chief Justice and defines what it should be. The effect of the changes already voted for by this House in the Bill has been to shift the judicial power and standing from the Lord Chancellor to the Lord Chief Justice. We should not think that a substitute for that aspect of the change is to force the Lord Chancellor into this House as a lawyer, come what may. Far from strengthening the office, it will, over time, weaken it.
To place the Lord Chancellor in the Lords and reduce the pool from which he or she can be selected, having rightly deprived him of his judicial status, is a mistake. We should be doing all we can to entrench and strengthen the office. Allowing the holder to be from either House, allowing a strong and committed politician to hold the office, and allowing someone with a drive for change and improvement, both in the substance of our criminal law and procedure, and in the way the courts and their administration deal with cases, is a good thing and is entirely consistent with judicial independence and the rule of law. Sometimes a lawyer and a Lord will be best, but sometimes not.
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To place those constraints on the job when its holder is no longer head of the judiciary is permanently to undermine the office.
Political drive does change things. It is what has changed the way much of criminal justice is done. Justice and legal aid need both political drive and independence—internally within government, to ensure that the values of our constitution are properly protected, and externally, to ensure that legitimate change occurs. Political strength should be allowed to be a factor in the decision, but it must be recognised that the independent element needs to be there as well.
The other place has listened to your Lordships' concerns. It approached the views of this House in a spirit of compromise. The amendment in lieu from the other place acknowledges that experience as a Minister and a parliamentarian is desirable, as are legal skills gained through experience. It also ensures that distinguished legal academics are not excluded, and that experience of legal practice can be judged with more accuracy than a crude and arbitrary measure of years served. It allows experience to be measured by quality as well as quantity. However, it acknowledges the value of all these factors in a way that does not exclude potentially exceptional candidates for this vital office.
The other place has twice expressed its view clearly and unequivocally. It has done so after full debate, and with no dissenting voices in the government party. Indeed, in the debate last week in the other place, it was only Members of the official Opposition who dissented from the Government's compromise amendment. Even the Scottish Nationalists supported the Government. The view of the other place had the support of the Labour and Liberal Democrat Benches here. The Tories oppose as do some, but far from all, Cross-Benchers.
This is an issue of significance. Even the Opposition's Front Bench spokesman in the other place was forced to concede in last week's debate on the Government's compromise amendment that this is an important piece of legislation, which it is desirable that we see on the statute book.
After proper debate on these remaining issues, the views of the other place should prevail.
Moved, That the House do agree with the Commons in their Amendment No. 1B.—(Lord Falconer of Thoroton.)
Lord Kingsland: rose to move Amendment No. 1BA, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1B, leave out "agree" and insert "disagree".
The noble Lord said: My Lords, I shall be speaking to all the amendments on the first line of the groupings' list; and also to the question of whether or not the Lord Chancellor should be a lawyer, which is the issue raised in the second line of amendments. The votes will deal with the issues separately. There will be one vote on whether the Lord Chancellor should be a Lord, and a second vote on whether he should be a lawyer.
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The noble and learned Lord the Lord Chancellor has made a number of remarks with which I would wish to take issue if I thought it appropriate to re-run arguments that have been run before your Lordships' House on several occasions in the past months. I think, however, that your Lordships are familiar by now with the crucial ingredients of this debate, and so I can be relatively succinct.
What we wish to do in these amendments is simply enshrine in statute what has been a constitutional convention in this country for hundreds of years—that is, that the Lord Chancellor should be both a lawyer and a Member of your Lordships' House.
Although changes have been made to the Lord Chancellor's role in the Bill, his fundamental responsibility remains the same; that is, to defend the rule of law in Cabinet against the depredations of his political colleagues. To do that, successfully, we believe that future Lord Chancellors, like past Lord Chancellors, should be both lawyers and Members of your Lordships' House.
They should be lawyers because, often, the threat to the rule of law is not immediately obvious in political terms. Rather, it is contained in the often arcane details of criminal evidence. Such, for example, is true about the rules of propensity, to which the noble and learned Lord referred earlier. The propensity provisions introduced two years ago by the Government are plainly a fundamental threat to the presumption of innocence, and raise the question of the rule of law—a question that was never answered in Cabinet.
In our view, there are two crucial components of the argument for retaining the Lord Chancellor in your Lordships' House. The first is that, unlike in another place, there are no alternative great offices in this House to which a Lord Chancellor can aspire. Consequently, he will be a political personality yet above ambition. Secondly, he is not elected on an electoral mandate. He has no conflicting responsibilities either to his party, in the context of what it was elected to do at the previous election, or to his constituents, with regard to what they wish him to do as their local Member.
As the noble and learned Lord, Lord Lloyd of Berwick, reminded us during the previous debate, a Lord Chancellor who is both Lord and lawyer will be someone steeped in the culture of the law and the judiciary—a branch of the constitution that is independent of the Executive.
That is the kernel of the issue, is it not? Underneath the question of lawyer and Lord lies the question of the appropriate checks in our constitution on the untrammelled powers of a powerful Executive dominating another place.
There are two checks against the legislative proposals that emerge from another place. The first is the delaying powers of your Lordships' House. Your Lordships have recently had the opportunity to demonstrate how important those powers are, in relation both to the ouster clause and to the Prevention
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of Terrorism Act. Indeed, so successful have your Lordships been that one reads in the newspapers of the possibility that, in the highly unlikely event that the Government are re-elected, there could be threats to the length of delay under those powers.
The other check on the Executive is a strong, independent Lord Chancellor sitting in the Cabinet. That check is under threat in this House this afternoon. The Government have tabled an amendment in another place, which reads as follows:
(1) A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.
Well, really. That means that the Prime Minister can choose anybody he wants.
The noble Lord, Lord Goodhart, and many of his Liberal Democrat colleagues have said, "Oh, but it's important to keep the door open for great men in another place such as Roy Jenkins". I would be the first to acknowledge that Roy Jenkins was a great man; but the provision would equally allow Mr Blunkett to become Lord Chancellor when the post next became vacant—a politician who, whatever his other merits, will not go down in history as someone who defended the rule of law. One must be very careful when one names great names to recall that many other people would have been or would be highly unsuitable.
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