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Lord Wedderburn of Charlton: My Lords, after the speech of the noble and learned Lord, I can be even briefer than I intended to be. As usual, as this is such a funny place, I am hopelessly ill-prepared. Some of your Lordships might have thought I would take advantage of the very first proposal to put into constitutional law the special place of teachers of law in universities. I can assure your Lordships that I am not beguiled by that formula into putting aside everything else. I bow to the wisdom of my noble friend Lord Morgan about 1701—that is not a debating point—but I am more concerned with where we shall be in 2007.
I do not agree—if this is what the noble and learned Lord, Lord Lloyd, meant—that working people do not have a feeling for what we grandly talk about as the rule of law. I think there is a feeling in what Sir Ivor Jennings used to call "the man from Hoxton", which comes very close to it. I shall be corrected by Hansard if I am wrong, but I did not hear the phrase "rule of law" in the speech of the noble Lord, Lord Goodhart, today. He spoke of the European convention, but they are not necessarily exactly the same. That has been mentioned to your Lordships before.
We have to simplify what we are looking for. Surely, we are looking not merely for someone who can manage millions of pounds. I have no experience of that, but if I had to do it as a Minister I would expect to be advised by people in the Cabinet—the Chancellor of the Exchequer, who is one of the best Chancellors of the Exchequer there has been in recent and probably not so recent times. The Prime Minister would no doubt have a word with me and the Whips would have my interests at heart if I tended to stray. I shall return to that remark. It is extraordinary that someone should say—I honestly do not remember who it was—that we want someone of suitable ability. I would have thought that any debating and wise Chamber would know that that was, a priori, a requirement.
A special kind of ability is required. Everyone agrees that not everyone could be Lord Chancellor and intervene when he should on the rule of law. I believe that I am a democratic socialist because I have understood some elements of the rule of law; otherwise, I would quite likely be a very autocratic socialist indeed—they exist, as the world knows to its pain.
Surely, the Lord Chancellor, call him what you will, needs, in the realities of 2006, two things to intervene in defence of the rule of law, quite apart from suitable intelligence, which I take, again, to be common ground. First, he needs spine to stand up to people against whom it is very difficult to argue a case when they know, by the word from on high, what is to be done. He needs exceptional understanding of his own need for courage. He will not be disturbed by the House of Commons.
I hear people say that the House of Commons is always criticising the judges. No one has criticised the judges on their law more than I have. I am always
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criticising judges; that was how I acquired my chair. It is absurd to put that forward as though it were a difficulty. However, he needs spine. The people with whom he has to contend are not so much the majority of voters and electors in the constituencies, but he has to stand up to the party machine which will support those on high.
He also needs to be able to intervene at the right moment. He needs to spot the point, if possible before anyone else. That point was effectively made by the noble and learned Lord who has just spoken. For that, one probably needs a lawyer of experience. I am not saying that others cannot spot such points, but that needs to be done quickly. The noble Lord, Lord Barnett, with his experience, may be able to spot points, although I usually find I am unable to agree with accountants. That was the cause of the trouble that kept everyone up all night: people had not spotted the problems quickly enough.
Such a person requires spine plus speed. We need someone who will not be broken by conventional wisdom even from his own party Whips. He does not need to be very old but he needs to be slightly out of the political maelstrom.
Those are my reasons, although I freely admit that constitutionally my preference is to see Ministers in the House of Commons, which is the democratically elected House, whatever system of election the Liberal Democrats will one day impose on us. It is vital to have someone like that in the Cabinet.
Those are my grounds for not wishing to agree with the amendments proposed by my comrades in the democratic House, but putting aside all those reasons, I would never, ever vote for a constitutional provision such as that contained in paragraph (e), on which I believe my noble and learned friend on the Front Bench said nothing. It reads:
It is only in the interests of propriety that I do not suggest all kinds of improper experience that might legally and lawfully be taken into account. That is a preposterous constitutional provision. Therefore, sadly—I am sad because we must have a compromise on this—I shall not vote for these provisions tonight.
Lord Elton: My Lords, perhaps in one minute I can draw one matter to your Lordships' attention, and particularly to the attention of the noble Lord, Lord Barnett. Clause 2 of the European Union Bill, at present going through the House of Commons, deals with parliamentary approval for treaty changes, and subsection (4) thereof gives the House of Commons the duty to ask this House what its opinion is and reserves absolutely to the House of Commons alone the right to agree or not to agree to the treaty provisions.
That is part of a sequence of changes affecting this House, of which the present amendment is one, and which goes back to before 1999, in which government after government have sought to sap the powers of Parliament and now they are concentrating on this House. The noble Lord, Lord Goodhart, said that
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what is needed in the Lord Chancellor is something that I believe is needed now: a nose for what is constitutionally unacceptable. This is constitutionally unacceptable. I support my noble friend.
Lord Falconer of Thoroton: My Lords, we have had a good debate. The critical three points are as follows. In this House we have agreed to a fundamental change in the role of the Lord Chancellor: that he is no longer the head of the judiciary. Unlike in the past, he no longer sits in the Cabinet as the person who is actively head of the judiciary appointing all the judges and disciplining those judges who require disciplining. We should recognise that this represents a fundamental change—one that we, as a House, agreed to. Yet we also agree that we want the Lord Chancellor to be as strong as possible in the Government in the future, so that he discharges his ministerial functions properly and effectively, and is an effective defender of the independence of the judiciary and the rule of law.
In order to achieve that, I earnestly ask Members of this House to consider whether restricting the pool from which the Lord Chancellor can be chosen, and restricting him or her to this House, makes him or her a stronger or weaker voice in the Cabinet for the rule of law and independence of the judiciary. Of course, it will depend upon the individual chosen. We have all heard about the personal characteristics that may be required for that. To say that the job must always be done from the Lords and always by a lawyer, however, when that Lord and lawyer is no longer the head of the judiciary will, looking forward, inevitably undermine and weaken that great office. We all need the office to be as strong as possible from the point of view of the constitution.
There is much to be said for the detachment that comes from being in this House. Yes, this House is a bit more detached than the other place. I would respectfully suggest to noble Lords, however, that there are Members of the other place who have spine, who are not lawyers and who understand what is meant by the rule of law and the independence of the judiciary. The rule of law is a fundament of our constitution. The idea that only somebody with an arcane understanding of the provisions of the Criminal Justice Act—as the noble Lord, Lord Kingsland, said—could understand whether the rule of law was being infringed is, with the greatest of respect, wrong.
We must look at this as an important constitutional issue. We must look forward to determine whether placing the Lord Chancellor forever in the Lords, making him or her forever a lawyer—because no exceptions are permitted—will strengthen or weaken the importance of the role. I put it to you that it would weaken it.
The noble and learned Lord, Lord Howe of Aberavon, says that we have to make out the case. That is absolutely right. The noble and learned Lord is, however, completely wrong to ignore the other changes that have been made in the constitutional reform settlement that this Bill represents. In those
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circumstances, I suggest that noble Lords consider what the effects of those changes already agreed have been to this great office.
Lord Mackie of Benshie: My Lords, there is an important point that neither the noble and learned Lord the Lord Chancellor nor anyone else has commented on. Will the pension arrangements for the new Lord Chancellor be the same as they are at present? I understand they are generous and can be taken whether he retires or is sacked.
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