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Lord Howe of Aberavon: My Lords, it is a privilege to speak in this debate, having had the opportunity of hearing the noble and learned Lord the Lord Chief Justice make his contribution on behalf of the Judges Council, and in particular to hear his view on the two questions covered by Amendments Nos. 3 and 4. He made it quite clear that the judges are firmly of the opinion that the Lord Chancellor should be a senior lawyer, who is qualified for judicial office at a high level, and that they have a clear preference for the Lord Chancellor to be in this House. It is also most welcome that the right reverend Prelate the Bishop of Salisbury expresses the same view on that second question from his Benches.
The extent to which our debates and the evolution of the Bill have fortified the points we present in our case today is remarkable. As the noble and learned Lord, Lord Woolf, pointed out, the clarity of removing the judicial function from the Lord Chancellor's role solves that problem—if and in so far as it is a problem—because the judicial role was virtually never recognised anyway. Our view is becoming clearer that the Lord Chancellor's office is of unique importance because of the spread of its functions in relation to the legal system.
We know of the Lord Chancellor's duty to uphold traditional independence. That has already been emphasised in the debate. We have been anxious to spell out with great clarity his duty to uphold the rule of law. Not quite so frequently expressed is the role that he will continue to play in overseeing all judicial appointments. It is true that he will no longer make the appointments himself. That passed beyond the bounds of possibility in the days when the noble and learned Lord, Lord Irvine, was Lord Chancellor. The Judicial Appointments Commission existed de facto. That has been embodied in the Bill.
The Lord Chancellor will play an important and unique part in relation to judicial discipline, as the noble and learned Lord, Lord Woolf, appreciates from the terms of the compact. There are many occasions when the Lord Chancellor and the Lord Chief Justice will have to co-operate together on that. So he will play a central role in every aspect of the administration of justice. It has virtually become common ground now, and I hope it will be acknowledged by the Government, that he needs to be a lawyer of distinction. The residual question we are really focusing on with this amendment is: does he need to be in this House, as judges and others wish, and beyond that, do we need to specify that by law?
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People say—and they have said it here today—that it would be wrong to fetter the Prime Minister's discretion to have this choice open to him, but nobody has actually argued that he should appoint the Lord Chancellor from the Commons. That has been rejected on all sides from the evidence I have seen so far. The reason we need to put the issue in statute form is that of convention. For as long as memory goes back the Lord Chancellor has been in this House. That convention was dealt a most alarming blow by the events of 11 June, 18 months ago. When prime ministerial power is exercised, whether recklessly, carelessly or impulsively, in defying convention of that kind we are entitled to say that, remarkably and unusually, this is an area where we need to protect ourselves from repetition of similar conduct. We need to embody that in statute law.
Therefore, I come back to the point which others have made but which cannot be expressed too strongly in expressing the importance of giving the Lord Chancellor this unique position as senior lawyer in this House, to be distinguished from any Secretary of State. Secretaries of State do not always realise it, but their functions can be shuffled around at will. Secretaries of State are relatively small beer compared with the importance of the Lord Chancellor's position.
I want to cite two passages to explain how important it is to have that statutory guarantee of the independence of the Lord Chancellor. The noble and learned Lord, Lord Bingham, in his memorable address in July last year—the Ditchley lecture—said:
"If the office is held by senior, authoritative, respected, politically disinterested Ministers, and if those Ministers act as robust champions of constitutional propriety and judicial independence, then the core of the Lord Chancellor's office will be preserved . . . I do regard the conditions as spelled out as crucial if the safeguard of proven value, which has served us well over many centuries, is not to be lost, perhaps for ever."
That is strong language, which is perhaps not surprising coming from a former Lord Chief Justice and senior Law Lord. However, more important even than that are the comments made by the House of Commons Constitutional Affairs Committee, in its first report of 10 February. It states:
"By virtue of the office's 'great antiquity, much dignity and considerable importance', the holder has special status within Government. He has always in recent times been a lawyer. He has generally in recent times been at one remove—at least in the public eye—from the day to day activity of the Government. Often Lord Chancellors have been promoted from a career outside Parliament . . . All have been distinguished within the legal profession, to which they have displayed great loyalty".
Then there is the argument that has been advanced several times, but not quite in this form, coming from a House of Commons committee:
"There is a radical difference between on the one hand a Lord Chancellor . . . who 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 without temptations associated with possible advancement) and on the other hand a minister who is a full-time politician and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion".
That is the crucial thing. A Lord Chancellor in this House is, almost by definition—even for such a young man as the noble and learned Lord, Lord Falconer—not at the end, but at the pinnacle of his legal and political career. It is an incentive to get people who are trying to pursue the two occupations of lawyer and politician together to note that that is one office open to them at the end of their career as a possible triumphant conclusion, and it is of huge importance that that office should continue to have all those qualities attached to it and that it should be in this House.
It may have been sufficient until now to rely on the Prime Minister of the day to obey the conventions of the constitution but, after the events of that reckless press release that destroyed the horse on which the noble and learned Lord, Lord Irvine, had until then been riding, it is surely crucial for Parliament to say clearly and beyond doubt that the Lord Chancellor, with his functions defined as the noble and learned Lord, Lord Chancellor, seeks to do, should be firmly, by statute, placed in this House.
Lord Richard: My Lords, there seems to be a slight air of unreality to this debate. We have been round the course and have heard the arguments several times already. The only new evidence that there has been this afternoon has been the extraordinary speech by the Lord Chief Justice, who brought a judicial view to our proceedings that was both refreshing and novel and ought to be treated extremely seriously by the House.
When the Select Committee was considering the Bill, the noble and learned Lord, Lord Howe, took the view, I thought, that the office of Lord Chancellor should be associated with the office of Secretary of State for Constitutional Affairs—in other words, that the surviving office, if I may use that phrase, should broadly be what it is at present, as occupied by my noble and learned friend Lord Falconer. The speech that the noble and learned Lord just made seemed to indicate that he actually wanted a distinction: there would be two Ministers, one the Secretary of State for Constitutional Affairs—
Lord Howe of Aberavon: No, my Lords.
Lord Richard: Well, my Lords, I noted down the noble and learned Lord's words. He said, "the Lord Chancellor, as distinguished from the Secretary of State". If I am wrong, I am delighted to give way.
Lord Howe of Aberavon: My Lords, the last thing in the world that I want to do is to disaggregate the functions now exercised by the noble and learned Lord, Lord Falconer. I was simply making the general point that Secretaries of State can have their functions shuffled one from the other, but I do not want to disturb the present functions exercised by the noble and learned Lord.
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Lord Richard: My Lords, I thank the noble and learned Lord for what he said and now appreciate precisely what is his position. I merely say to him as a former Chancellor of the Exchequer that the proposition that someone who administers a budget of £3 billion to £4 billion per annum must sit in the House of Lords is extraordinary. In normal circumstances, it may well be that the Lord Chancellor and the Secretary of State for Constitutional Affairs would sit in the House of Lords, but I cannot imagine that any government would sensibly want to fetter their discretion in that way.
We cannot disentangle the two issues of what are the functions of the Lord Chancellor and in which of the two Houses he or she sits. If, as we have heard a great deal this afternoon, the role of the Lord Chancellor is merely to be preservation of the independence of the judiciary—although, having heard the Lord Chief Justice, it seems to me that the judiciary now feels that its independence is, on the whole, pretty well safeguarded as a result of the concordat—there is an argument for saying that he should sit in this House and should be in the Cabinet. However, a Secretary of State administering a budget of that size should prima facie be accountable in the same way as are other Secretaries of State who have a budget of major proportions. If we take away the Secretary of State functions, what is left? With respect, the answer is very little.
If the judges were coming to the House and saying collectively, through the mouth of the Lord Chief Justice, "We will feel vulnerable if the Bill goes through", then all right. One could then see at least an argument for saying that the independence of the judiciary needed protection. But when the Lord Chief Justice comes to the House to say precisely the opposite, which is that the Bill strengthens the independence of the judiciary and is in fact a major piece of legislation that defines, probably for the first time in a sensible way, the relationship between the executive, the judiciary and the legislature, the arguments that we have heard so often before and again this afternoon lose a great deal of their force.
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