Lords Hansard text for 7 Dec 2004 (241207-10)

4.30 p.m.

The Lord Bishop of Salisbury: My Lords, in the current complexity of constitutional unknitting, so unlike that for which we pray in our prayers day by day—the remaking of all our common life—it seems to me that one thing needs to remain constant. Historically, we have believed that it is possible for one man—alas, rather like the occupants of these Benches, they have all been men—to combine the different powers of the Crown—judicial, legislative and executive—in one office. We have had sufficient trust to allow that to happen, to allow an eminent member of his profession and a Member of this House to hold those different reins with integrity and we have never been disappointed.

I suggest that that trust is worth preserving and, indeed, making visible: that is the belief that a noble Lord can be trusted not to be swayed by influence and prejudice, not to be corrupted, and not to have his judgment clouded. The office of Lord Chancellor, as the noble and learned Lord, Lord Lloyd of Berwick, has outlined it to us, expresses our confidence that someone can be a party man and yet exercise impartial discretion; he can be a political appointee and yet withstand the pressure of those who have appointed him; and he can speak here and yet interpret the law objectively.

Around those matters the historic office has clustered and, although I understand what the Judges Council want to put in place around the separation of powers and judicial responsibilities, the holding together of those threads in the office under one person seems to me to be important. The very existence of the office gives expression to our willingness to trust one another and, in building a common life in the country, nothing can be more important when trust is undermined everywhere by just that kind of separation.

We human beings are very complex creatures: individual compositions of different roles and functions with rich varieties of tastes and interests and responsibilities and experiences. All that is true, but we cannot be reduced to players of role or limited functions. People cannot be dissected and carved up; that way lies social disintegration and despair. Choose to relate to only the parts of people of which you approve and one will soon relate to no one at all.

As the debate on Amendment No. 1 shows, the difficulty is what happens when we try to define and divide up the roles that we have traditionally held together. Those who sit on these Benches have had recent experience of being challenged to prove our soundness in the eyes of various interest groups in the Church by indicating our support for particular groups' positions. We have resisted, refusing to be pulled about in such a way. As I have said, we are complex creatures and we relate to one another in all that complexity, or we do not relate at all.

So I urge your Lordships to think long and hard before modifying this office over-strenuously and, in particular, by making it possible to remove it from this House. The cold text of statute will now promise the

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independence of the judiciary. But, welcome though that text may be, will it really be a better protection for that independence than the presence of the Lord Chancellor, a person of enormous professional competence and utter personal unimpeachability at the very heart of government and at the very heart of your Lordships' House? In other words, are we ready to replace the personal with the propositional? We may be, but I urge the House to consider the message that that sends out about noble Lords' trust of one another before it does so, and therefore to consider seriously the amendment that the noble and learned Lord, Lord Lloyd of Berwick, has laid before us.

Lord Ackner: My Lords, it is a wise advocate who takes his best point first. I have recently had a pacemaker fitted. I am told that that should speed up the delivery of the timid and deferential submissions that I occasionally make to your Lordships.

I totally support my noble and learned friend Lord Lloyd in his recollection of what took place in the debate on 13 July. I remember well and have recorded it in a modest, little article. The first reference to the Committee on Constitutional Affairs, the majority of whose members are Labour representatives, shows the way in which it stressed the importance of the Lord Chancellor's office in maintaining the independence of the judiciary. The committee pointed out that he has,

"a special constitutional importance enjoyed by no other Member of the Cabinet and who is usually at the end of his career",

and thus no longer is available to the temptations that occur if one is still struggling up what my noble and learned friend Lord Lloyd referred to as the greasy pole of politics.

There was also reference to the anxieties expressed by the Law Lords in their written evidence to the Select Committee. They said that they were,

"very greatly concerned that the important constitutional values which the Office of the Lord Chancellor protected, should continue to be effectively protected . . .

In the past, the Lord Chancellor's role was to uphold constitutional propriety and champion judicial independence. The Constitution would be gravely weakened if that safeguard was removed".

So much for supporting what was said and what was agreed. Now, quite shortly, I come to the justification, if we have to consider the matter all over again. Towards the end of the debate my noble and learned friend Lord Falconer of Thoroton, the current Lord Chancellor, agreed with the basic proposition that his department—the Department for Constitutional Affairs—had to be strong enough to stand up to not just the Home Office—I do not know why he chose that department—but any department that might seek to infringe the rule of law.

I submit that that was an important concession because it gave high importance to the immediate question of how it was that the current Lord Chancellor—the Secretary of State—was not prepared to resist the ouster provisions of an immigration Bill which prevented total access to the courts to challenge

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the legality of an immigration tribunal. Thus, that clause was condemned by lawyers from the Lord Chief Justice downwards as being a constitutional outrage; that it should never have seen the light of day; and that it was the worst area of the law in which to prevent access to the courts because the consequences of asylum decisions often sent people to their deaths.

Those criticisms were voiced before the matter came to Parliament. They were voiced on the basis of the words in the Bill as published. From the Lord Chief Justice downwards, pressure was put upon the noble and learned Lord, Lord Falconer, not to pursue the ouster clause. That failed. The noble and learned Lord, Lord Falconer, at no stage, as far as I know, expressed any resistance to the clause. He was prepared to espouse it.

Why did he not go on espousing it? It was not because a Lord Chancellor—because none then existed—had said, "Look, you cannot do that; that is grotesquely unconstitutional". He did not have such advice from someone with such stature.

What caused him to give up, because that is what he did, was a threat by a recently sacked Lord Chancellor, who expressed silently his opposition to the Bill by putting down his name on the list of speakers in the debate to indicate that he would speak against it. That was the strength of the threat. One would have thought that a future Secretary of State, with the power and the strength of mind to which the noble and learned Lord, Lord Falconer, referred, would have said, "To hell with this; I have thought about it. I resisted criticism before the debate. I shall continue to do so". But he did not. He did not throw in his hand at the end of the debate but before the debate. Therefore, a great number of speakers gave voice to the strong criticism that they would have made if the noble and learned Lord, Lord Falconer, had adhered to his original views.

I had put my name down, also to speak hostilely, but since the matter had been dropped, it seemed a somewhat unnecessary waste of your Lordship's time. I think that that particular event justifies, more than all the other arguments put together, the fact that we need a senior member of the Cabinet and lawyer of substance and experience, who would be able to say, "Look, I am telling you now that if you adhere to what you intend to do, there will be an almighty constitutional row. You are ill advised and wrong in continuing with this approach".

I do not see that happening with someone in the Commons who is not a lawyer, who is a junior member of the Cabinet and whose future has still to be made. It is just not on. If you are going to seek to safeguard the independence of the judiciary, you need to have someone who is at least able to say that.

I appreciate that the Prime Minister can sack the Lord Chancellor the next day. It is pretty expensive to sack Lord Chancellors because they are entitled to their not inconsiderable pensions immediately on taking office. One could see forensic and non-forensic eyebrows being raised if, a Lord Chancellor having

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been fired, someone—assuming he had the stature and substance—with consistently the same view were appointed to be Lord Chancellor.

Accordingly, under the pressure of my pacemaker, I say to your Lordships that what is proposed is just not on. It is not feasible. That has been demonstrated by the attitude of the noble and learned Lord, Lord Falconer, to the ouster clause.

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