§ 7.30 p.m.
§ The Lord Chancellor (Lord Irvine of Lairg)
My Lords, I beg to move that this Bill be now read a second time. The office of Lord Chancellor, of which I am the 258th holder, is more than 1,000 years old. The office of Permanent Secretary to the Lord Chancellor does not have quite as long a heredity. It has existed a mere 100 years or so, and the present incumbent is only the eighth holder.
Qualifications for the office of Permanent Secretary are prescribed by the Supreme Court Act 1981. Those provisions are unique for a Permanent Secretary post. They have the effect of barring from appointment any person who is neither a barrister nor solicitor of at least 10 years' standing, nor a civil servant with at least five years' experience in the Lord Chancellor's Department. The purpose of the Bill is to remove these restrictions so that future appointments may be made from as wide a field as possible from all the talents.
When the present restrictions were discussed on 5th February 1990, in Committee on the Courts and Legal Services Bill, the noble and learned Lord, Lord Ackner, described the Permanent Secretary to the Lord Chancellor as "the permanent head" of an "immensely powerful department." The noble and learned Lord added. however, that,a civil servant who has served at least five years in that department qualifies. I imagine that includes from the tea boy upwards".—[Official Report, 5/2/90; col. 631.]933 This change is necessary because the present restrictions limit unreasonably the field of candidates from which future appointments may be made. I doubt that there are tea boys as such in the Lord Chancellor's Department but the noble and learned Lord's point is well made in principle. There are over 1,000 members of the Government Legal Service, and many more members of the Lord Chancellor's Department, of whom hundreds are likely, formally, to fulfil one or both of the statutory criteria.
But the Lord Chancellor's Department itself has a staff of nearly 12,000, a budget of £2.25 billion and an estate of nearly 500 buildings. Its responsibilities are wide ranging. They include the administration of the entire court system of England and Wales; the legal aid budget; the appointment of judges and lay magistrates; and the reform and modernisation of the civil law. Also, the Lord Chancellor is responsible for the Public Record Office, the Land Registry and the Northern Ireland Court Service, whose combined staff total over 9,000. So the Lord Chancellor is ultimately responsible for 20,000 employees.
To lead this organisation, the Permanent Secretary must have the ability, experience and all the qualities required of the official head of a major department of state. Proven experience and ability in management of strategic policy development and implementation is obviously desirable; a successful track record of leadership and management at the head of a large organisation would be useful; and familiarity with, and perhaps, preferably, direct experience of, the processes of government at the highest level. There are at any time few who could qualify. But the additional requirements of 10 years' standing as a lawyer or five years' experience in the Lord Chancellor's Department reduces their number to a tiny handful.
Very few members of the Government Legal Service have the standing and experience to be contenders for this post. Nearly all of them have been exclusively occupied with pure legal work for the whole of their careers and have little or no management experience. In my own department the staggering fact is that there is only one official of the requisite experience who also meets the existing statutory criteria. I am advised that, over the whole senior Civil Service, only one other candidate has so far been identified who is similarly eligible for appointment. In years gone by, the existence of only one or two candidates might have sufficed. Successive Lord Chancellors have been served well by Permanent Secretaries, appointed subject to the existing restrictions. But nowadays it is held, rightly in my view, that a wider field of choice is necessary for so senior a post, so that there is sufficient competition to ensure that a really strong candidate is appointed.
It may turn out that the best candidate is a lawyer, who could come from the professions, or a person with five or more years' experience in the Lord Chancellor's Department. The statutory requirement that all candidates be one or the other, however, can only be justified if the duties of the post are such that they cannot properly be performed without one or other of the mandatory qualifications.
934 The Lord Chancellor's office was originally very small, comprising only five officials, and the Permanent Secretary performed many legal duties. As long as this was so, it was justifiable that the Permanent Secretary should be required to be a lawyer. After the Courts Act 1971, however, the Lord Chancellor assumed overall responsibility for the administration of the court system as a whole, and the organisation was restructured as the Lord Chancellor's Department. The department has since developed increasingly along the lines of other major departments of state. Following on further changes in the last decade, it is now structured around an administrative and policy-making core receiving advice from a separately managed group of legally qualified civil servants headed by a legal adviser answering directly to the Permanent Secretary.
The old arrangement, under which a small number of legally qualified staff undertook all duties whether legal or administrative, has disappeared. Along with it has gone the historical reason for requiring the Permanent Secretary to be a lawyer. The Permanent Secretary is no longer responsible for providing legal advice to the Lord Chancellor. This was recognised in part by changes made by the Courts and Legal Services Act 1990 which allowed a non-lawyer with at least five years' experience in the department to be considered for the post.
The Lord Chancellor is at a critical cusp in the separation of powers between Parliament, government and the judiciary. He is the natural conduit for communications between the judiciary and the executive, so that each fully understands the legitimate objectives of the other. Under the previous government the public were disturbed that the separation of powers was not alive and well because the judiciary and the executive appeared to be at war. It is for the Lord Chancellor to ensure that the public can have continuous confidence that our system, based on the separation of powers, is working. I am referring of course in particular to the well-publicised unhappy relations between the former Home Secretary and the judiciary. That kind of thing will not happen under this Government. I believe that the higher judiciary would be the first to agree that since 2nd May strong co-operative arrangements have been in place which are working well in practice.
It is also a major duty of any Lord Chancellor to uphold the independence of the judiciary upon which the rule of law depends. It is the fact that Ministers' or governments' strongly held views, and their judgment of the interests of their departments, or of the interests of government, or of the public interest, can easily conflict with the judgments of the courts within the courts' independent sphere. That is why any Lord Chancellor, supported by a Permanent Secretary who must be fully conscious of these crucial values, is the guardian within government of judicial independence.
The Permanent Secretary to the Lord Chancellor has a major role in maintaining contact between the Lord Chancellor and the judiciary. He must have a lively awareness of the unique, pivotal position of the Lord Chancellor and the importance of upholding judicial independence. The Permanent Secretary must fully comprehend legal, judicial and constitutional 935 values, as well as those of government and Parliament. No person will be appointed to be my Permanent Secretary who does not have the fullest appreciation of these traditions and values. I firmly believe, however, that this breadth of appreciation is not limited to those with legal qualifications or who have served for five years in my department. No such rigid statutory restriction exists within the department serving the judiciary in Scotland.
This vacancy is being filled under the established procedure for open competition and selection on merit. In accordance with published practice for posts of this kind, I have approved the specification of the post and the qualities required of the successful candidate. The process will be presided over by the First Civil Service Commissioner who is entirely independent. I have no doubt that he would not place as a high order candidate for this position anyone who did not possess the qualities and values which I have specified. The process will proceed independently and will result in advice to the Prime Minister. I, as the responsible Minister, will be involved and, in the last resort, I could decline to accept the lead candidate. Without interfering with the independence of the appointments process, I am therefore able to ensure that my future Permanent Secretary will have the qualities and attributes that are so essential to this important post.
There is some concern that, if the Permanent Secretary to the Lord Chancellor is not a lawyer or someone with extensive departmental experience, the Lord Chancellor and Permanent Secretary should continue to have the benefit of advice from a senior official or officials who have those qualifications. It was even suggested in another place that the Bill should be amended to introduce a statutory requirement that if the Permanent Secretary does not meet the existing statutory criteria, the Deputy Permanent Secretary should meet them.
I understand the proposal—and the thinking behind it—but it is not practicable. In the first place, there is no Deputy Permanent Secretary in the Lord Chancellor's Department. There has been no such position since the Lord Chancellor's office became a department following the Courts Act 1971. General deputies are generally regarded as contrary to modern management practice, and they are now very rare in government departments. A post of Deputy Permanent Secretary is particularly impracticable in departments of significant size and wide-ranging responsibilities, such as the Lord Chancellor's.
Also, to require any one post within the senior management structure to be held by a lawyer would put in place the very kind of shackle the Bill aims to remove. It would tie the hands of a future Permanent Secretary in seeking to appoint the best possible senior management team. It would also undermine the position of the Permanent Secretary. To require the Permanent Secretary to have a deputy who is a lawyer, simply because he himself is not a lawyer, will inevitably raise expectations that the Permanent Secretary would be second-guessed by his deputy.
936 That is not to say that I would begin to disagree with the proposition that there should be available to the Lord Chancellor and Permanent Secretary a senior team in which long-standing legal and departmental experience feature strongly. At present, five group heads, including the Legal Adviser to the Lord Chancellor, answer directly to the Permanent Secretary, together with two agency chief executives. Five of these posts are presently held by qualified lawyers. Four are held by officials with lengthy experience within the department. I do not envisage any significant change in these arrangements under me or any other Lord Chancellor. I am completely confident that there will always be a strong legal element in the upper reaches of the Lord Chancellor's Department.
The Bill operates simply by removing from Schedule 2 to the Supreme Court Act 1981 the reference to the Permanent Secretary to the Lord Chancellor and Clerk of the Crown in Chancery. This has the effect of removing from that office special provisions which are, by virtue of Sections 88 and 92 of the 1981 Act, applied to certain offices of the Supreme Court set out in Schedule 2. The provisions which are removed concern not only restrictions on appointment, but also tenure of office. The Bill will thus also bring the provisions governing the retirement age of the Lord Chancellor's Permanent Secretary into line with those applicable to other permanent secretaries.
Some concern was expressed in another place that this would result in the Permanent Secretary to the Lord Chancellor having to retire at 60 when it might be in the interests of the Lord Chancellor and the department to benefit from his experience for a longer period. I can assure the House that in these circumstances it will be possible to arrange for the Permanent Secretary to remain in post for up to another year or two with the agreement of the Head of the Civil Service. It is right that there should be this degree of flexibility, as there is for all other permanent secretaries. There is nothing inherent in the post of Permanent Secretary to the Lord Chancellor, however, which justifies its holder being given, by statute, a later retirement age than any other permanent secretary.
The Bill does not affect the office of Permanent Secretary to the Lord Chancellor in any other way. The Permanent Secretary will continue to hold the office of Clerk of the Crown in Chancery. In that capacity he will continue to be the head of the permanent staff of the Crown Office, which supports the Lord Chancellor in his capacity as Keeper of the Great Seal. The duties of that office will be unchanged. The only change for that office is that its holder will no longer be required to be a lawyer or a civil servant with experience in the Lord Chancellor's Department. That requirement arose solely because the office was joined with that of Permanent Secretary in 1885.
Finally, your Lordships may ask why this Bill commenced its passage in another place when at first blush it would certainly have been more appropriate for me to bring it before your Lordships first. I would myself have preferred it to start here had that been practicable. The reason it did not was simply one of timing. The present Permanent Secretary, who has 937 already been persuaded to remain in office longer than originally planned, is to retire next April. For his successor to be properly selected, the existing statutory restrictions must be removed by the end of the year. It was necessary, by convention, for the Bill to have passed through another place before a selection process seeking applications from a wider field of candidates could be commenced prior to the passage of the Bill. The same despatch is not required in your Lordships' House, and your Lordships will have a further opportunity to consider the Bill in Committee and on Report if appropriate. I commend the Bill to the House.
§ Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
§ 7.48 p.m.
§ Lord Woolf
My Lords, this is a Bill of modest physical dimensions, but the considerable care with which my noble and learned friend the Lord Chancellor has introduced its Second Reading perhaps indicates that it contains a point of some significance.
I fully understand the desirability of having available the widest possible pool of suitable candidates for the post of Permanent Secretary to the Lord Chancellor. There is no doubt that the modern Lord Chancellor's Department, with its increased functions and supporting a Lord Chancellor with greater responsibilities than any other Lord Chancellor in recent times, needs to have at its head a Permanent Secretary of the highest quality and experience. However, it must be remembered that the Lord Chancellor's constitutional position is unique. Nowhere in the world is there a similar office. Among his other roles, he is head of the judiciary as well as of his great department of state.
The relationships between the judiciary and the courts and government are extremely sensitive. The office of Lord Chancellor itself can be justified only if the distinction between the Lord Chancellor and other Ministers is meticulously observed. This distinction is at present supported by a statutory restriction on the person who can fulfil the role of Permanent Secretary to the Lord Chancellor. The Bill proposes to remove that statutory distinction and bring into line the permanent secretary's appointment with that of other permanent secretaries to other departments. Until 1990 the Lord Chancellor's permanent secretary had to have a 10-year legal qualification which required that he should be able to act as an advocate in the higher courts.
In 1990 the restriction was amended so that a civil servant having served at least five years in the Lord Chancellor's Department could be appointed. That statutory restriction recognised the importance of the permanent secretary of the department either having experience of the court system which service in the department would give or having a right of audience for 10 years, which would also provide experience of the court system. It recognises the need for the Lord Chancellor to have the advice of a permanent secretary who has an acute awareness of the sensitive and pivotal position which the Lord Chancellor and his department occupy in the constitution. It underlines the Lord Chancellor's unique position.
938 This Bill removes that restriction. By doing so, it will open up the field of candidates to follow in the distinguished footsteps of Sir Thomas Legg when he retires. I understand and accept the need for a successor of the highest calibre to be found. But removal of the restriction does not alter the fact that the position of permanent secretary to the Lord Chancellor is exceptional. In selecting the best possible person for this unique position, I believe that the desirability of that person having appropriate experience to enable him or her to advise the Lord Chancellor on matters affecting the relationship between the Executive and the judiciary is of great importance. I emphasise that this does not arise in relation to other permanent secretaries.
With time, a high-flying civil servant could certainly acquire the requisite experience. But it would be a disadvantage to have to acquire the experience in office rather than before taking up office. Bearing in mind the position of the Lord Chancellor as head of the judiciary, the judiciary have a real interest in who is to hold the office.
The permanent secretary is the permanent head of a department which, to use the words of the Lord Chancellor, is at the cusp of the department and its relationship with the judiciary. It is the responsibility of the holder of the office to tell the Lord Chancellor—discreetly of course—that he should remember which of his many hats he is wearing at any particular time. I am sure that in future there will be a safeguard if there is then the very close consultation that now takes place between the Lord Chancellor and the senior judiciary on all issues that can seriously affect the judiciary.
I have no doubt that the current Lord Chancellor appreciates the need for care to be taken in selecting the right person for this position. He is well aware that he is not only a minister of justice but also head of the judiciary. We are in agreement that appropriate experience will be an important factor to consider in deciding on Sir Thomas Legg's successor.
My concern is not with any appointment that is to be made through the appropriate procedures to which the Lord Chancellor has referred but with appointments in the future. Once this constitutional safeguard has been removed, it is most unlikely that it will ever be restored. To have a situation where a Lord Chancellor is without the benefit of an experienced permanent secretary with the necessary qualifications to give the appropriate advice can have serious implications for the sensitive relationship between the judiciary and the Executive.
I hope that a file will be opened in the Lord Chancellor's Department labelled "Appointment of the Permanent Secretary" and that it will have a non-removable cover that expresses the sentiments which the Lord Chancellor has recognised and which I have expressed about the importance of the constitutional position of the permanent secretary. I am opening a file in which the words that I have uttered today will be included, together with the views expressed by the Lord Chancellor. I hope that it will be passed to my successors in office and that they 939 will take the interest in the appointment to this very high office of state that I believe all members of the judiciary should take.
§ 7.55 p.m.
§ Lord Ackner
My Lords, I too should like to emphasise that the Lord Chancellor's Department is a very special department of state. It is headed by a Minister, the Lord Chancellor, with unique constitutional characteristics. He is in a very different position from Ministers who are responsible for services such as education and health matters—hence the special provision as to the qualifications of a permanent secretary.
In many common law countries the independence of the judicature is protected by a written constitution. In this country its independence depends upon a combination of rules and conventions and parliamentary practice backed by the force of public opinion and the important tradition that it is the duty of the Lord Chancellor to prevent any interference with that independence by members either of the legislature or the Executive.
Quite by chance, I came across a reference in The Times of 25th September 1963 to an address given to members of the West German Federal Court in Karlsruhe by Lord Dilhorne, then Lord Chancellor. He rebuked Mr. Harold Wilson, then Leader of the Opposition, for alleging that the British Government had improperly influenced the judiciary. He said:In my country the judges are independent of the Executive and not subject to the influences of the Executive. If I were to be asked what I thought was the Lord Chancellor's chief job I should tell you without hesitation that it was to preserve the independence of the judiciary to make absolutely certain that judges of the land are completely independent and to protect them from every attempt, however indirect, to undermine that independence".A similar note was struck by the noble and learned Lord, Lord Hailsham, the pre-eminent Lord Chancellor of the post-war years, in a lecture given by him in 1989 when he observed:The essential function of the Lord Chancellor in the working of the constitution remains the same. He is in the business of defending and preserving the independence and integrity of the judiciary. If he does it well then he is a good Lord Chancellor, whatever his other defects; if he does it ill, whatever his other qualities, he is not".Thus it would appear that everyone supports judicial independence. It is, after all, the judges and the judges alone who stand between the power of the state and the freedom of the individual under the law. But does everyone support judicial independence? That very question was answered by my noble and learned friend Lord Hailsham in the selfsame lecture in these terms:Certainly not the public or the Back-Benchers in the House of Commons, who constantly revile, frequently from inconsistent standpoints, individual judges on particular decisions, or what they imagine to be judicial qualities, and daily demand that individual judges be directed or rebuked, presumably by the Executive Government, to move in this direction or that or even that they should be removed from office; certainly not the Opposition, whatever party happens to be on the Speaker's left; certainly not party conferences of any hue, and least of all, I assure you, individual members of the Cabinet whose departmental interests from time to time basically conflict not only with the view of the judiciary where they arc entitled to differ but in the provision of the means necessary to enable the courts to discharge their functions.940 Those revealing observations give strong support to the reservations expressed by my noble and learned friend the Master of the Rolls, with whom I agree.
There are occasions when Homer himself nods, and that is why such particular care has to be taken. I remind your Lordships of a clause in the Judicial Pensions and Retirement Bill which came to be debated in this House in 1992. Under Clause 25 power was to be taken by the Lord Chancellor at his sole discretion to continue the senior judiciary in office beyond a new compulsory retirement age of 70 from year to year up to a period of five years, a system which has been described critically as "judges on contract". That proposal, which the Executive can so easily abuse to the detriment of the judges' independence, as has occurred in warmer climates, was emphatically rejected some 60 years ago by a Royal Commission, the Peel Commission, of which Sir Claud Schuster, later Lord Schuster, an outstanding Permanent Secretary in the Lord Chancellor's Department, was a member. Homer nodded. The Lord Chancellor and/or his department was apparently unaware of its existence and the views of the commission.
In the debate on the report my noble and learned friend Lord Simon expressed his astonishment "that this unconstitutional provision ever appeared in the Bill". The Lord Chancellor had second thoughts and ultimately withdrew the offending clause.
I hope that among the compulsory reading that a Sir Humphrey would wisely accept was essential if he arrived in my noble and learned friend's department at its very top without prior experience, will he this copy of today's Hansard.
§ Lord Simon of Glaisdale
My Lords, I follow three speeches of great constitutional moment with which I respectfully agree. I support the Bill as a measure of necessity in the circumstances described by my noble and learned friend the Lord Chancellor.
We often speak of the constitution being one of separation of powers. That is true of the American constitution. Strictly speaking it is not true of ours; our constitution is based on something much more delicate and much more frangible in the end, unless it is a balance of powers. At the point of balance stands the Lord Chancellor and his Permanent Secretary. That is why the post is of such importance, as has been recognised by every speech this evening.
I only desire to add one thing. The American legal system is in one respect superior to ours, namely, in the greater flexibility with which people can move from academic life to judicature, to government service, to private practice, and so on. An extreme case would be a very bright young lawyer from the Harvard Law School who might spend a few years in private practice, then go into government legal service and then on to the Bench, and then back again into the government legal service and finally end up as a judge of appeal. I do not know whether he is still in office, but quite recently the Professor of Laws at the University of San Francisco was appointed Chief Justice of California. I know that my noble and learned friend is sympathetic to that kind 941 of flexibility because he has told me so in a letter. I would, with respect, ask him to do all that he can to encourage that in our system. In the meantime, the measure proposed by my noble and learned friend the Lord Chancellor seems to be necessary.
§ Lord Hooson
My Lords, we support the Bill because it seems to he necessary and a matter of common sense. The noble and learned Lord, Lord Ackner, referred to the fact that the Lord Chancellor's Department is a unique department, and so it is, but it is also now a major department of state. It has grown as much in size during my parliamentary career as any department proportionately. It would be contrary to conventional wisdom not to have the widest choice in the selection of a future Permanent Secretary because the administrative experience and on overall appreciation of the skills that are necessary in government seem to be more important than legal background.
Having said that, the growth of the Lord Chancellor's Department is also indicative that the Bill is necessary at this time. The Master of the Rolls, the noble and learned Lord, Lord Woolf, has mentioned the problems that that situation creates.
In a wise move the noble and learned Lord the Lord Chancellor sent to various people interested in the Bill a covering letter outlining his view concerning its necessity and explaining the reasoning behind it. He said, and virtually reiterated today:No person would be appointed to be my Permanent Secretary who did not have the fullest appreciation of these traditions and values".He spelt out those traditions and values in his letter and in his speech this evening. That is a matter that is fully appreciated. No one could possibly think that he would not respect them. The concerns expressed today do not relate to what the noble and learned Lord the Lord Chancellor will do, but what might be done in the future after his day.
The noble and learned Lord, Lord Woolf, said that he was sure that safeguards would exist in the future if there were a continuation of the close consultation which now takes place between the Lord Chancellor and the senior judiciary on all issues which might seriously affect the judiciary. I understand that informal discussions take place now and that they are important. The noble and learned Lord, Lord Ackner, also referred to the conventions which have guided the Lord Chancellor and his department in their relationship with the judiciary.
The time may be approaching, if it has not already arrived, when we must consider whether some of those conventions should be institutionalised; that there should be an institutionalised meeting between the Lord Chancellor and senior members of the judiciary. If we have reached the stage where it is no longer necessary, as I do not believe that it is, for the Permanent Secretary to the LCD to be a lawyer, we may later reach a stage, with the great expansion of the LCD, when it may be argued that the Lord Chancellor himself need not be an eminent legal figure.
942 Therefore the time is rapidly approaching when we may have to rationalise the relationship between the two hats, as it were, which the Lord Chancellor wears: that which he wears as a head of an important and rapidly expanding department, and that which he wears as head of the judiciary, and as the conduit between government and the whole judicial system.
My noble friend Lord Lester of Herne Hill wanted to be here this evening. As the noble and learned Lord the Lord Chancellor knows from correspondence, he was anxious to raise the possible institutionalisation of relations with regard to certain aspects of his department. It is my party's policy, and until recently, if not still, that of the Labour Party, that there should be a judicial appointments commission. It would reassure those who have taken part in this short debate, and who approve of the move being made by the Lord Chancellor this evening, if he could indicate that there will be wider discussions on an all-party basis, and a non-party basis, to consider the LCD and what safeguards there will be, not when the department is in his hands—we know of his own dedication to the independence of the judiciary—but in the future.
§ 8.14 p.m.
§ Lord Kingsland
My Lords, in the context of the many other government initiatives in the constitutional area, this seems a remarkably modest one. I am aware that the Conservative Party, when it was in government, in 1990 introduced legislation to ensure that in future the permanent secretary need not be a lawyer. So I accept that from where I am coming in this debate, I am not in a strong position to argue that the permanent secretary's status as a lawyer should be restored. I am further aware that everything the noble Lord the Lord Chancellor said about the LCD today is true: it is a big department, employing many people, with an immense budget, and with huge administrative tasks.
The other day I glanced at the introduction of Professor Heuston's great book on the lives of the Lord Chancellors. He tells us that just before the first permanent secretary was appointed in 1885, the Lord Chancellor had four or five employees. It was customary, when each Lord Chancellor surrendered the Great Seal, that one of them should destroy all the papers in the Lord Chancellor's office on the grounds that his successor should not see the way in which his patronage was exercised. The LCD has, in that sense, now become a department of state like any other.
On the other hand, as so many noble Lords, especially the noble and learned Lord, Lord Simon of Glaisdale, have said, the LCD is constitutionally unique. It is at the hinge of the constitution, particularly in the context of the separation of powers. It seems to me that the separation of powers in our country depends upon mutual self-restraint between the legislature and the judiciary. The legislature restrains itself from interfering in the judicial process, and equally the judges restrain themselves from questioning the contents of any Bill as it works its way through Parliament. That self-restraint depends for its successful operation upon the personalities of the people who are, on the one hand, in Parliament, and, on the other hand, on the Bench. It is 943 of course the Lord Chancellor's responsibility to select those who are on the Bench; to guarantee their independence; and to ensure that the decisions they take respect our tradition of the separation of powers.
The modern Lord Chancellor is a busy man. He is a Cabinet Minister. Indeed, he is the only Cabinet Minister who can call into question any decisions that his colleagues are about to take that might breach constitutional or legal rules. He has the obligation—pleasant, I hope—of presiding over your Lordships' House. He also administers the court system and, above all, chooses our senior judges. With all those responsibilities, it is usual for the Lord Chancellor, even our present Lord Chancellor—bearing in mind that he has practised regularly at the Bar and has a good knowledge of those who are ready for promotion to the Bench—still to need good and fearless advice from his department.
I am not suggesting that members of the LCD who are not lawyers are not capable of being fearless. I make no such suggestion. But the Lord Chancellor needs fearless people in his department who know what is going on in the courts; who know what is happening at the Bar; and who know people of the stature to be promoted to the High Court Bench and above. He needs therefore high quality, able, dedicated, and, above all, independent-minded officials at a senior level to give him that good advice.
My right honourable friend the shadow Attorney-General in another place introduced an amendment which provided that if the Permanent Secretary of the Lord Chancellor's Department is not to be a lawyer, then the next senior person in that department should be a lawyer. That was an imaginative amendment but I can see the force of the objections of the noble and learned Lord the Lord Chancellor. For example, for very practical reasons, it would be difficult to ensure that at the point when the permanent secretary changed over from lawyer to non-lawyer, the deputy permanent secretary, or whatever he is to be called, changed over from non-lawyer to lawyer. Indeed, that would be undesirable because one would not wish to see a coincidence of change between the two. It would be better for one to overlap the other.
The noble and learned Lord pointed out that of the five department heads who answer to the permanent secretary, one is the department head who personally advises the noble and learned Lord. I can see that that was a reassuring point for him to make. But the person who advises the noble and learned Lord on legal matters is not the person who is responsible for judicial appointments. I wonder whether the noble and learned Lord the Lord Chancellor would consider this possible approach. I assume that one of the five people who answer to the Lord Chancellor is the head of judicial appointments. If I am right in that assumption, surely it must be right, except in the most exceptional circumstances, which I trust would need justification to your Lordships' House and indeed to another place, that that individual should be a lawyer and indeed a lawyer who has great experience of, and regular contact with, the kind of people one would expect to fill the higher reaches of the judiciary in this country.
944 I recognise the difficulties of the noble and learned Lord the Lord Chancellor in the modern world, managing his great department. I respect his judgment in this matter. I hope that in making this new appointment, which I understand will have to be made by the middle of next year, he will bear in mind the other comments made in this debate, and not just by me; in fact, perhaps less by me than by anyone else because so many noble and learned Lords have spoken with such distinction and authority. I hope that the noble and learned Lord will bear in mind the concerns which have been expressed in the way that he approaches appointments during his tenure of office.
§ Lord Ackner
My Lords, before the noble Lord sits down, I wonder whether he is aware of the extent of the consultation which goes on between the Lord Chancellor's office and the senior judiciary with regard to appointments. It would be wrong to take the view that an official in the Lord Chancellor's Department is making the major input as to who should be appointed. As I understand it, having been a judge, like other judges, who was consulted when I was a judge, that input comes from regular consultation with the senior judiciary and then further consultation with the heads of division, as I understand it, supplemented by the views of the senior presiding judge and any other judge whom the Lord Chief Justice considers should form that group.
I should not like it to be thought for one moment that the appointment owes its recommendation to an official in the Lord Chancellor's Department because that would be, as I understand it, quite wrong.
§ Lord Kingsland
My Lords, I thank the noble and learned Lord, Lord Ackner, for his very helpful intervention. He will be relieved to hear that I am aware of the extensive consultations which the noble and learned Lord the Lord Chancellor, and his predecessors, wish to take, and have taken, with senior judges. I am aware that the Master of the Rolls is here this evening.
However, I remind the noble and learned Lord that sometimes the advice which the noble and learned Lord the Lord Chancellor will receive from his senior judges will conflict; and that conflicting advice will have to be resolved in some way. I should reflect also that since the noble and learned Lord the Lord Chancellor has so many other matters to which he must devote his scarce time he will need somebody to co-ordinate the process of consultation. That figure will be aware of many matters in respect of the views of senior judges which the Lord Chancellor will need to hear from him.
Therefore, while I entirely take the point made by the noble and learned Lord, nevertheless I believe that the point which I have sought to promote in my speech remains important and one of which I hope the noble and learned Lord the Lord Chancellor will take account.
§ 8.26 p.m.
§ The Lord Chancellor
My Lords, we have had a good and important debate, to which I believe a good deal of attention will be paid in future. I can respond directly to what the noble and learned Lord, Lord Ackner said. Of course the judiciary is involved 945 as a result of quite massive and extensive consultations with it in the consideration of those who should be elevated to judicial office. Certainly the Heads of Division are involved in regular meetings. The presiding judges are involved. The judiciary in general is involved as is the profession. The fact is that one of the most impressive aspects of the work of my department which I have learned about in close detail over the past seven months is the quality and extent of that consultation.
However, any Lord Chancellor has to be very hands-on himself in relation to that process to ensure its integrity and that it is full and comprehensive and not affected by any bias of any kind at all. It is an extremely important function of a Lord Chancellor effectively to make all those judicial appointments. So far, I have been concerned in the elevation of one Law Lord, four Lords Justice, five High Court judges and 10 circuit judges, and all that in a very short space of time. As the years roll on, I dare say the turnover will become more daunting. But one is entirely dependent upon maintaining a constant flow of reliable information which must primarily come from the judges who sit daily in the courts.
I well appreciate that all your Lordships who have supported the Bill have done so, understandably, with a greater or lesser sense of caution and have given that support basically on the basis that it is a measure of necessity and common sense. Along with the noble and learned Lord, Lord Simon of Glaisdale, I could wish that there was the ease of movement within our legal profession which allowed distinguished lawyers to move easily and comfortably from practice into government, into the Civil Service at high levels and then away from the Civil Service and back into the profession, so that there was a wide pool of lawyers who were well qualified to fulfil all the obvious and natural criteria for the important office of permanent secretary. But that is simply not the way of the world which we inhabit in this country and I was faced with a very limited pool of candidates for this extremely important post.
I am enormously conscious of the constitutional significance of the office which I occupy. It can perhaps only be occupied by someone who is both a minister of justice and head of the judiciary. Otherwise, that confidence in the free flow of information in both directions so as to create mutual understanding between the judiciary and the Executive could not take place—unless through a single individual who commanded the confidence of the professional judiciary at the same time as the confidence of his Cabinet colleagues.
I believe that tonight's debate will be paid close attention to by those to whom it must naturally be most closely directed. I cannot think that the first Civil Service Commissioner himself will do anything other than pay close regard to our debate and the important statements which have been made in it about the appreciation of the constitutional significance of my office and the attendant constitutional importance of the office of Permanent Secretary to the Lord Chancellor.
I also believe that it would indeed be imprudent and highly unlikely if all those who aspire to be appointed permanent secretary were to do anything other than pay 946 close attention to this debate and the strong statements that have been made in it in support of the values which must be adhered to by any candidate who is to succeed.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.