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Lord Howe of Aberavon: My Lords, I had not intended to intervene yet again on this topic, but I feel compelled to do so, driven logically by a phrase used
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by the noble Lord, Lord Barnett, when he said that we should be careful to allow the Commons to have the casting voice on such an amendment.
I have been thinking about what kind of amendment this is. If one looks at it in the context of the Bill as a whole, the Bill contains a substantial number of measures that have been long debated and on which there has been a large amount of agreement across the professions and across the body politic.
The establishment of a Supreme Court is a well argued case that we have examined carefully. Some of us still do not accept the necessity for it, but it is a respectable proposition. The appointment of a Judicial Appointments Commission likewise has the same quality. Those are the Bill's core measures.
But what about this kind of amendment? Where is the intellectual analysis and careful thought that has led to the emergence of this proposition? It emerged like a flash of lightening as a result of some still undisclosed controversy in No. 10 Downing Street on 11 June two years ago. If anyone until that moment had suggested that the nation's stability and the progress of the new Labour revolution, or anything else, had depended on the sweeping away of the office of the Lord Chancellor, the world would have been astonished.
So indeed was everyone when that puff of decision making emerged on our political stage. Everyone in the Lord Chancellor's Department was amazed and aghast. Ever since, it has fallen to the hapless but increasingly unhapless and confident noble and learned Lord the Lord Chancellor to defend what looked at the time indefensible. He has not made a bad job of it, but it is a case for which the burden of proof rested fairly and squarely on those who had to justify the eccentricity and unexpectedness of the Prime Minister's original decision.
Everything else can be sensibly presented, but here is a provision that we seek arguments to justify. We find ourselves living in a world in which, until the moment before the announcement was made, the Government were defending robustly and confidently in this country to every committee of both Houses and to the Council of Europe the legitimacy, the importance and the crucial nature of the Lord Chancellor's unique office.
We have come a long way since then; semi-respectable arguments have been advanced, but I have yet to see any argument that says that by making this change and throwing aside a historic office that has been of great importance in government after government we are getting any improvement. Attempts have been made. The noble Lord, Lord Barnett, used it as an excuse to launch a modest attack on my profession, saying that lawyers are not particularly well qualified to manage money.
Neither are accountants, farmers, engine drivers, doctors or trade union leaders, but people from all those groups have been appointed Ministers of the Crown and for better or for worse we have struggled to do the job as well as we can, often with the benefit
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of surveyance from someone as robust and fierce as the noble Lord, Lord Barnett. We have all had to make our best of that job.
The argument advanced on that narrow front is that this is a huge department with a budget of £3.5 billion per year; it cannot possibly be managed by anyone from this House and it is ridiculous to impose it on this House. But no one uttered a squeak when the noble Baroness, Lady Amos, was appointed in this House as Minister in charge of the Department for International Development, which has a budget of £3.5 billion-plus. No one said that that was a constitutional affront, so there is no substance in that case.
We are driven back to counsels of despair, saying that on a good day it is possible to identify some remarkably outstanding political leaders, like Roy Jenkins, who is the case always cited—no doubt there are others, even my noble friend Lord Lawson on a good day—who might have been well qualified for the job. That case was made by the noble Lord, Lord Goodhart, rather in the way in which one drafts an advertisement for the Guardian public sector pages: with all the strange preoccupations and qualifications necessary for the job, and one can make a respectable job of doing it.
However, none of this amounts to the beginning of a case for making a decision, in order to legitimise the will of an eccentric Prime Minister, to sweep away an office that has served us well with a senior lawyer and Member of this House in the job. If one looks back at all the documentation produced since that decision was initially taken, one finds almost everyone—and the House of Commons Public Administration Select Committee—saying that ideally the job is a job for a senior legal figure towards the end of his career.
Lord Lester of Herne Hill: My Lords—
Lord Howe of Aberavon: I will come to the noble Lord in a moment. Even the Runnymede Trust—or some such name—which is the disguise under which the noble Lord, Lord Lester, gave evidence to our Joint Committee on the future of the House of Lords, said that the job was best held by a senior substantial legal figure.
The case for changing that has simply not been made. If this House is not entitled to stand on the proposition that it is for the Government to produce the evidence to justify the legitimisation of a Prime Ministerial whim, then this House is of no value. It is this House's function to resist such whimsical eccentricity and such constitutional vandalism.
Lord Lester of Herne Hill: My Lords, the noble and learned Lord has a distinguished reputation going back to Harry Street's committee as being in favour of the merit principle. He has always been a staunch supporter. What is the justification for an absolute and complete exclusion of anyone except a Member of this House and a lawyer? Why should one have an absolute rule in the Bill? That is what I do not understand about his position.
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Lord Howe of Aberavon: My Lords, the simple answer is because that has been a convention of the constitution for a long time; it has been proven to work very well for a long time; and the burden of proof on this matter above almost anything else is to make the case for change. That case has not been made.
Lord Elton: My Lords, before my noble and learned friend sits down, would he not concede that anyone within reason can be made a Member of the House of Lords at the Prime Minister's whim, so there is no exclusion whatever, as the noble Lord, Lord Lester, argued?
Lord Howe of Aberavon: My Lords, I hope that I may be allowed to reach my seat again. The answer to that question is yes, certainly.
Viscount Bledisloe: My Lords, the speech of the noble Lord, Lord Morgan, made it plain—
Lord Campbell of Alloway: My Lords, I am obliged to the noble Viscount and, in gratitude, I shall be very brief. My point relates to the point made by the noble Lord, Lord Barnett, which was, with respect, in error. He referred to the powers of this House. The acknowledged function of this House, ever since Bryce, is to be, and to remain, the sole guardian of the constitution, as there is no constitutional court. As constituted today, that remains our acknowledged function. It is wholly distinct from the function of the other place.
When the noble and learned Lord the Lord Chancellor repeats, "We defer to the other place. They are the elected Chamber. They have the sovereign right", he is quite right, but we have this cardinal, vital, constitutional duty to discharge. We are asked to discharge it today by delaying the enactment of Clauses 2 and 3 in the interests of the nation, because the case has not been made out. The nation is about to go to an election and it is substantially divided. It would be quite wrong for this House, if so advised, to stand by and do nothing.
Like the noble and learned Lord, Lord Lloyd of Berwick, I thought that the Lord Chancellor's constitutional role in Cabinet—the other linchpin to which my noble friend referred—had been preserved in Clause 1. This clause reads in conflict with Clause 1. Removing the status, authority and position of the Lord Chancellor, so that he cannot discharge his functions, is another way of going back to square one and doing what the Prime Minister always intended to do, that is, in effect, to slight the office of Lord Chancellor and all its functions in so far as he could. This is a constitutional problem of vast importance that lies within the legitimate remit of this House. I shall vote to try to retain the position, pending the election.
Viscount Bledisloe: My Lords, the noble Lord, Lord Morgan, exemplified very clearly that those who speak on behalf of the Government, or in support of them, have wholly misunderstood the argument. The case for
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the Lord Chancellor being a Member of this House and a lawyer has nothing to do with finding a nice little job for decayed lawyers in the fullness of their time. The point is that the role of Lord Chancellor should be set apart from other roles in government by the fact that he is at the pinnacle of his political career. Being a member of this House and a lawyer, he is not looking for promotion up the slippery slope to become Prime Minister or to hold one of the other high offices of state. He has reached his pinnacle and therefore can give his advice with freedom, without thinking that something might put up the backs of some of his colleagues and prevent him getting promotion at the next reshuffle.
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