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Lord Goodhart: My Lords, I am most grateful to the noble Viscount. The person he has in mind would, no doubt, make a marvellous Lord Chancellor, but what compels the Prime Minister to appoint him?
Viscount Bledisloe: My Lords, nothing compels the Prime Minister to appoint any individual. People keep on saying that "X" or "Y" might have made a wonderful Lord Chancellor, even though he was not a lawyer. We are seeking to ensure that the general run of Lord Chancellors is better than it otherwise might have been. It does not seem to be a surprising proposition to say that a man is more likely to stand up for the necessary principles if he has no hope of further promotion than if he is busily trying to ascend the slippery slope of politics. For that reason, I suggest that this issue remains as important as it was on the other occasions on which we have voted on it.
That is surely demonstrated by the incredible impotence and irrelevance of the amendment offered to us in lieu. It merely states that the Lord Chancellor ought to be somebody who,
That is experience of any kind whatever. That gives us nothing. I would also have thought that—in accordance with all the principles that the Government are always enunciating about legislation—this is a remarkable principle to put on the face of a Bill. Saying that the Lord Chancellor, uniquely, must be somebody whom the Prime Minister thinks is qualified by experience is saying that all other Ministers can be people who he does not think are at all qualified by experience. Some of us think that point can be made against certain Ministers from either party. I would hope that before the Prime Minister makes appointments to ministerial office he would, on the whole, ask himself whether a person is qualified to do the job. To write this on the face of the Bill is not only totally impotent and irrelevant, but is also very dangerous.
I urge noble Lords to maintain the position they took in the previous votes. As noble Lords have said, this Government have almost everything they want in the Bill. They have provisions for a Supreme Court and the concordat. They are not going to lose them.
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We know that, if we stand firm, they will concede on at least one, if not both, of the clauses we are now debating. There is no risk of those being lost. Your Lordships have only to stand fast to get what we want.
Earl Ferrers: My Lords, I shall add a few words. I hesitated to do so, as the debate has been inundated with lawyers, but I took encouragement from the noble Lord, Lord Barnett, who said that he did not mind taking part even though he is not a lawyer. I can draw a comparison with him.
I am deeply hesitant about the Bill. The noble and learned Lord the Lord Chancellor said that this is a significant issue that will transform the role of the Lord Chancellor. So it is. But my noble and learned friend Lord Howe of Aberavon pointed out that various parts of the Bill, such as the Supreme Court and the appointment of judges, were justifiably considered, and we lost over them. That was very generous him.
I find it quite alarming that there will be a new Supreme Court, at a cost of £50 million, and that the Members of the Judicial Committee of the House of Lords will be transferred to it so that they will no longer be Members of this House and able to advise your Lordships. It was interesting that today, and on previous occasions, the noble and learned Lord the Lord Chancellor quoted the words of the noble and learned Lord the Lord Chief Justice. How could he quote those words? It was because the noble and learned Lord the Lord Chief Justice has the right to be here and speak. In future, of course, he will not be here. Those are pretty staggering changes.
Now the noble and learned Lord wants to do away with, if not the office of Lord Chancellor, then its role as we know it. In so doing, he will oblige your Lordships to have a Speaker. These are very significant changes. It is all very fine for the noble and learned Lord to say that the House of Commons has considered them and that we ought to agree to them, but I take great exception to these fundamental constitutional changes.
By this Bill, the noble and learned Lord has savaged the role of the Lord Chancellor; he has savaged the House of Lords by denying the attendance of the Law Lords in your Lordships' House; and he is forcing on your Lordships' House the office of a Speaker—as yet untried, and largely unwelcome.
The noble and learned Lord is very competent and agreeable, and he is also a thunderingly fine advocate. But the trouble with being a very good advocate is that people do not necessarily know when the cause you are justifying is good or bad. The noble and learned Lord has the ability to put a very bad case very well.
I can only offer this bit of advice, which I may already have given to your Lordships, but as it would be impertinent—indeed arrogant—to think that your Lordships would remember anything that I have ever said before, I am happy to repeat it. I am referring to what the late Lord Fisher of Canterbury said, which was that there was no unreasonable argument that could not be proved reasonable by reason.
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I suggest that this is a very unreasonable argument, even though reason has been deployed.
Lord Mackay of Clashfern: My Lords, I have not taken part in such debates for some time, but I feel that I ought to say something at this juncture in view of the fact that, thankfully, I have had some experience of the office.
It is fundamental in dealing with these matters in this House that we should have respect for the views of the other place, which should be reciprocated. I was a little stunned that it was said that this House was guilty of concerted amnesia, or something of that sort. I remember very well the changes that have been made to the role of the Lord Chancellor.
I always find the views of the noble Lord, Lord Barnett, extremely interesting—and, usually, influential. He said that he would not wish to give the management of a budget of £3 billion to a lawyer. For the past eight years or so, our country has been managed by someone whose qualifications are that of a lawyer. He had other qualifications as well, of course.
I shall deal first with the question of whether it is desirable for the Lord Chancellor to be a lawyer—in other words, whether it is a proper part of his qualifications. The noble Lord, Lord Goodhart, has made much of the fact that there are qualified people who are bad and qualified people who are good. That is not a reason for dispensing with qualifications.
One of the important roles of the Lord Chancellor in our Cabinet government is to see that legal advice is taken when necessary. He is not the government's legal adviser. That is plain, and a good Lord Chancellor respects that. Apart from anything else, if any difficulties arise, he does not have to shoulder the responsibility. He is responsible for legal advice being taken when required, so that the government do not land themselves in difficulties. You need to be a lawyer, otherwise, unless you are superhuman, you cannot detect whether legal advice is required. It is often obvious, but sometimes it is not. For very good constitutional reasons, the Attorney General is not a member of the Cabinet.
Discussions can produce a requirement for legal advice, which is one of the most important functions of the Lord Chancellor. It is a subsidiary to his general responsibility for maintaining the rule of law to see that the government take legal advice when necessary to ensure that their actions are lawful.
A good example of what can happen when that position is not obtained was shown on 12 July 2003.
Lord Falconer of Thoroton: My Lords, June 2002.
Lord Mackay of Clashfern: My Lords, it must be old age creeping in. It was June 2002.
I do not know the inner secrets of these matters, but the then Lord Chancellor was leaving office and something was to be done. Those in responsible positions in the Government thought that the office of the Lord Chancellor could be abolished overnight by
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Prime Ministerial fiat. People recognise that I had a role in those matters in the past, and many people who are neither politicians nor particularly interested in politics, have wondered how that could happen. How could it come about that the head of the Executive of this country should have been so mistaken? It shows how vital it is to have at the centre of government and part of the Cabinet someone who is responsible to see that the Cabinet do not make fools of themselves by seeking to take action that is manifestly absurd in law.
I hope that that does not happen often, but it is a pretty prominent illustration of when it did happen. To include a reference to "legal expertise" would be a wise insertion in the clause. I wonder what other relevant experience there could be. It is essential for a Lord Chancellor properly to give effect to his responsibilities in relation to the rule of law. I do not mean only in general terms, which anyone with sufficient judgment and quality could do. A number of such qualities have been mentioned today, and I would not wish to challenge them. But when it comes to advising in detail on the legal issues, the Lord Chancellor needs to have a legal background.
How old he should be is a matter of judgment. The noble and learned Lord, Lord Irvine of Lairg, was considerably younger than me when he took office, and the present Lord Chancellor is even younger. I am not absolutely certain about that, but I have that feeling. He certainly has all the vitality of youth.
With regard to being a Member of this House, I think that there is an advantage in being somewhat detached from the central assize of our nation's politics. To be at the centre is a difficult place for a Lord Chancellor to carry out his functions. I have no experience of being in the other place, but I have listened to the arguments of those who were there at the time. I have a feeling, which I put to your Lordships for what it is worth, that it will be easier and more likely for the Lord Chancellor effectively to exercise his office in protecting the independence of the judiciary and the rule of law if he is away from the white heat of political debate in the slightly less political atmosphere of this House. The noble and learned Lord the Lord Chancellor said that this House is changing. I have no doubt that that is so, but there is still a difference. Anyone who studies the two Houses will agree that there is a difference between and that difference is quite important.
I am glad to see that the noble Baroness, Lady Ramsay of Cartvale, has returned to her place, which reminds me that lawyers are not necessarily founts of wisdom. They make mistakes. I can say the same of elected people. Election is not a guarantee of infallibility; neither does nomination, which applies to most noble Lords, come with a certificate of infallibility. Sometimes the experience of those who have been properly nominated in this House may be valuable in a constitutional matter, which this undoubtedly is.
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4.30 p.m.
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