HL Deb 03 July 2003 vol 650 cc983-1002

11.6 a.m.

The Lord President of the Council (Lord Williams of Mostyn)

My Lords, I beg to move the Motion standing in my name on the Order Paper. The Motion has been agreed after the usual discussions, and I think that it explains itself.

Your Lordships will have seen that the noble Lord, Lord Elton, has tabled two amendments. Perhaps it may be convenient, when I sit down and the Question on my Motion has been put, for the noble Lord, Lord Elton—I have spoken to him about it—to move the first of his amendments and to speak to them both. After your Lordships have made contributions, I shall do my best to reply to the points made. The noble Lord, Lord Elton, will then come to a conclusion on what he wishes to do about his amendments. Finally, we will decide the main Question. I beg to move.

Moved, That it is expedient that a Select Committee of 11 Lords be appointed to consider the future arrangements for the Speakership of the House in the light of the Government's announcement that it is intended to reform the office of Lord Chancellor, and to make recommendations; and that the committee shall report by the end of the Session.—(Lord Williams of Mostyn.)

Lord Elton

rose to move, as an amendment to the Motion, after "Chancellor" insert "and any undertakings given by the Government as to the future allocation of places in the Cabinet to Members of the House of Lords".

The noble Lord said: My Lords, in moving the first amendment, I shall, as the noble and learned Lord the Leader of the House suggested, speak also to the second. Your Lordships will realise that the Motions deal with separate, distinct points, so the way in which we deal with them at the end of the debate may be different.

The issues to which I ask your Lordships to give some thought concern this House and the Government. By that, I mean the whole House and all future governments, as well as the present one—not just the one that we happen to have at the moment. The need for the Motion arises from the decision of the Government to reform the office of our present Speaker, the noble and learned Lord the Lord Chancellor. By virtue of his office as Lord Chancellor, our present Speaker has a seat in Cabinet, as well as one on the Woolsack. He is one of the distinguished voices linking the House directly with the top echelon of government. The strength of that link is important to the House as a whole and is also important to any government in office.

At present, we are richly endowed with voices: we have no fewer than four. It was not always so, nor will it always be so in the future. When there is suitable talent waiting hungrily for preferment in another place, no government will be over-keen to award Cabinet seats to Peers. In the past, as my noble friend Lord Carrington pointed out before the Motion was drafted, we have often been reduced to the bare minimum number of such voices. That number has for long been two: one for the Leader of the House for the time being and the other for the Lord Chancellor for the time being, who is, ex officio, our Speaker. That is no accident. It is because of the duties that they perform that both our Leader and our Speaker have had to be members of the Cabinet. Again, it is because of the duties that they perform that they have both had to be Members of this House.

We understand—not by way of a White Paper—that the Government's intention is that the greater part of our Speaker's responsibilities in his role as Lord Chancellor and of any successor in his office will be taken away from this House. If, for instance, the judiciary is to be separated from Parliament and, specifically, from the House of Lords, there will be no obvious call for the head of the judiciary to sit in either House. There will be no more reason for a Minister of justice to sit in this House than for a Home Secretary or any other Secretary of State. Be it whispered in his august absence, if the Secretary of State for Constitutional Affairs were to fall ill or, even less imaginable, if he were to be overtaken in brilliance and usefulness by someone in another place, that person could and, indeed, would take over the job without joining this House in order to do so.

The office of Speaker and the functions of Lord Chancellor are combined in one person. It is our Lord Chancellor's powers, not his person, that secure a Cabinet seat for our Speaker. Separate the office of Speaker from the powers of the Lord Chancellor and, no matter what happens to those powers or to whom they may be given, our Speaker's claim to that seat is gone, and the barest minimum representation of the House in Cabinet will be reduced to one.

No one who has sat in a Cabinet Committee as a Peer, as I have sometimes done, let alone in Cabinet itself, as my noble friend Lord Waddington has often done—he was about to put his name to my Motion, but, apparently, that is not how such Motions are attributed—can be under any illusion that it is a very hard job to make the rest of that committee or Cabinet understand or care how this House works, what it can and cannot be persuaded to accept, or to accord some of your Lordships' opinions the value—even, dare I say it, sometimes the political value—that they deserve.

With no second voice to back him up and bear him out, the noble and learned Lord the Leader of the House could not be even half as effective in Cabinet as he now appears to be to all of us. I say that with no disrespect to him. It is a fact of committee life. We are not concerned only with today's Leader of the House; these provisions will affect all our Leaders to come, even those less able than himself. The word "even" was slipped in by mistake; there was no intention to be pejorative in that remark. The Government—all governments—would lose by that, and so would this House, in all the Sessions to come.

Some of your Lordships still think that choosing some way—any way—of appointing a Speaker to do what any Chairman or Deputy Chairman can already do in this House and, perhaps, to dress up in fancy clothes and process on state occasions, is a freestanding decision; it is not. Once we acquiesce, without any compensating gain, in the separation of these two roles, we acquiesce in the downgrading of our Speaker and of this House. The Select Committee that we are about to appoint ought not to proceed without a clear statement of its freedom to consider the implications of this and to make recommendations in that light.

I have spoken of the powers, duties and privileges of the Lord Chancellor, and that brings me to my second amendment about which I can speak much more briefly because I believe that the point is already better taken. I hope that I have already shown that we cannot really come to a conclusion about what or who to replace our present Speaker with until we know how many, and which, of the powers, duties and privileges now vested in the holder of the combined office of Speaker and Lord Chancellor will remain with our Speaker when the Lord Chancellor has gone, or has been stripped of his power.

I had thought that this would be information readily available, but I gather that the task of the Government informing themselves of what those duties, privileges and powers actually are has proved greater than they expected. There appears still to be some doubt as to what they are and some difficulty, therefore, in deciding what to do with them. I do not wish to tease the Government about this—that is not true; I do wish to but I shall refrain from so doing—but I suggest that surely at the least our committee must be given the full list of duties, privileges and powers before it is asked to come to a conclusion.

If, as is rumoured, that list runs to over a thousand in primary legislation and thousands more in secondary legislation, it may well not be ready before the end of the Session. My second amendment, therefore, seeks to delete the requirement to report before the end of the Session and to substitute it with a bar to reporting before the complete list of powers, duties and privileges has been published and considered.

My first amendment touches on the efficiency of parliamentary government and the power and authority of this House. The second addresses the need to ensure that the Select Committee is fully informed on the matter about which it is instructed to advise us before it gives that advice, which seems a pretty simple request. I await the advice of your Lordships on both matters, and I beg to move.

Moved, as an amendment to the Motion, after "Chancellor" insert "and any undertakings given by the Government as to the future allocation of places in the Cabinet to Members of the House of Lords".—(Lord Elton.)

11.15 a.m.

Lord Waddington

My Lords, I rise to speak briefly to the amendment moved by my noble friend, which I support. For some years, the Government seem to have devoted much effort to changing the working methods of the House of Commons, which has had the effect of greatly reducing its effectiveness. They have certainly succeeded to the extent that, as a result of government guillotines on all Bills, those Bills are coming over here after totally inadequate consideration in the other place.

Anyone who doubts this should look at the Criminal Justice Bill where, as was pointed out by my noble and learned friend Lord Mayhew of Twysden at Second Reading, four new clauses and two schedules received no examination at all in the other place. Let us consider the Northern Ireland Assembly Elections Bill, which received virtually no scrutiny in the Commons. As a consequence, we are left to do the work which should have been done elsewhere and we are told by Mr Hain that that is nothing to our credit, but is just an example of our filibustering habits.

I hope that, from time to time, the Leader of the House makes the point in Cabinet that we are performing an ever more important role, not least because of the dismal changes made in the Commons, and that it would be a sad and a bad thing—and inconsistent with what the noble and learned Lord the Leader of the House has said; he has spoken of his determination to see a renewal and invigoration of this place—if, having lost the Lord Chancellor—

Lord Dubs

My Lords, I thank the noble Lord for giving way. I understand what he is saying, but I cannot make the connection between his arguments and the amendment that we are now discussing.

Lord Waddington

My Lords, perhaps I may say that the noble Lord lacks patience. I have not spoken for very long and what that connection is will soon be made apparent to him.

It would be a very bad thing if, having lost the Lord Chancellor as a sturdy advocate of this place in Cabinet, we were to finish up with there being only one Member of this House in Cabinet; that is, the Leader of the House. This place would be seriously weakened vis-à-vis the Commons, and it is small wonder that my noble friend Lord Carrington expressed his concerns about this in his remarks on 25th June (at col. 298 of the Official Report). Given his wealth of experience, we should take heed of his wise words.

Of course I have no doubt that the noble and learned Lord, Lord Falconer of Thoroton, will remain in this place when his role changes. He has nowhere else to go. But there is no reason to think that a Secretary of State for Constitutional Affairs will always, or even normally, sit in the Lords. So we are entitled to some assurance from the Government that this House will not be left with only one Cabinet Minister.

Certainly the Select Committee, when considering what arrangements should be made for the Speakership of this place, should have regard to this important matter, which is the point of the amendment. With the Motion amended as suggested, the Select Committee would be able to report that, in its view, the noble and learned Lord, Lord Falconer, should continue to sit on the Woolsack until appropriate assurances are given by the Government.

Lord Craig of Radley

My Lords, first, perhaps I may welcome the proposal in the Motion in the name of the Lord President of the Council that the Speakership Select Committee should consist of 11 Peers. This will allow the Committee of Selection to consider nominations for three Cross-Bench Peers. Noble Lords will be aware that the Cross Benches have been arguing for some time that their numbers are not always fairly or proportionately represented on Select and other Committees of your Lordships' House.

The split of 4:4:2:2, or a 3:3:2:2 split, are still the default choices of the parties. But these no longer reflect the size of the Cross-Bench group and the increasing contribution to the work of this House made from these Benches or from the Bishops' Bench. I hope that your Lordships will agree that the move to form this committee of 11 members, split 3:3:2:3, is a sound one. It is right for this topic and sets a standard that should be considered and adopted on future occasions to enable the contributions that can be made from these Benches to be spread more equitably across the commitments of this House as a whole.

Turning to the amendments tabled by the noble Lord, Lord Elton, I share the concern that lies behind his first amendment. The major changes that have been made, and may continue to be made, in the functions and roles of the upper House can amount in sum to diminishing the standing and ethos of the House of Lords.

Whatever the political and legal arguments that favour a supreme court, the loss of the Law Lords as a part of this House would be highly symbolic. If the many changes made to, or in prospect for, the House are not to lead to a permanent degradation of its position as an authoritative and respected part of the legislature, of Parliament and of the nation, key features need to be identified and retained.

I share the view that for the House and Government to function in the interests of the Queen's subjects there need to be routes for the exchange of information and ideas. So I support the first amendment of the noble Lord, Lord Elton.

As to his second amendment, I take it as self-evident that the Select Committee should, as part of its remit, consider the points about the Lord Chancellor raised by the amendment. Their bearing, or their non-bearing, on the issue of a Speaker and the roles and responsibilities that go with that post should not be ignored in arriving at recommendations.

The other point in the amendment is that the time to report is no longer explicit, but is it not more important to have this major issue studied thoroughly and to get any changes right rather than to hurry it and fail to give it the consideration that it rightly deserves? We are contemplating a major change to longstanding arrangements that have stood the test of time and served the House well.

It might be that the approach that would find favour is to give the Select Committee the requirement to make a progress report to the House by the end of the Session and to estimate, if by then it is realised that it is necessary to carry out further work, how long before its complete report will become available. After three months it should be in a far better position than the House is in at the moment to judge the scope and scale of its task. I hope that the Lord President will not feel that timetable is more important than substance and will be minded to agree this modification to his approach for the Select Committee.

I remind the House that the estimate made for undertaking the Leader's Group review of working practices took more than twice as long to complete than had been originally envisaged by the Leader—and that was a far less complex task than the Speakership Select Committee is about to embark upon. The list of issues to be studied is already long and will no doubt grow as the work progresses. I wish the Select Committee well in its endeavours.

Lord Acton

My Lords, I wish to raise a point raised to me by the noble Lord, Lord Allen of Abbeydale, who has immense experience. He wanted to raise the point when the noble Lord, Lord Carrington, referred to the matter originally but he did not get to his feet.

The noble Lord tells me that it is not true that the Lord Chancellor is invariably a member of the Cabinet. When Viscount Simon, the grandfather of my noble friend, was Lord Chancellor, he was neither a member of the wartime Cabinet nor, after the coalition broke up, a member of the Churchill Cabinet thereafter. I thought it worth bringing this to your Lordships' attention.

The Earl of Onslow

My Lords, this issue is an example of the real back-of-the-envelope, cannot-think-of-anything-else-to-do syndrome, where the word "modernisation" flashed before the Prime Minster's eyes as he dashed from Iraq to Europe to somewhere else. There was no greater example of the lack of thought given to constitutional reform than the half-baked reform of your Lordships' House and the total failure to address the West Lothian question.

The brutal and licentious soldiery has a word which I would not dream of allowing to pass my lips in the House. It is a word which is used for thought or absence of thought. The Government, I suggest, use the word "modernisation" in exactly the way that the brutal and licentious soldiery use the word that I would not dream of allowing to pass my lips.

I beg the noble and learned Lord, please take a grip, agree with what my noble friend Lord Elton says and give this half-baked idea—as it seems to me at first sight—further consideration. It is unnecessary and there has been no pressure to introduce it. Perhaps the noble and learned Lord can tell us how many delegations have been banging on his door and saying, "Please, reform the Speakership of the House of Lords". Not very many, I suggest.

The noble and learned Lord said that it is unfair that he or other Ministers should say which Peers should speak. In all the 30 or so years that I have been in your Lordships' House, the late Lord Shackleton, Lord Shepherd, Lord Carrington—who is not late—the noble and learned Lord, Lord Williams, and his predecessors have all shown integrity and justice and regard for the interests of the House. There is no need for the Government now to come over all coy and introduce change for change's sake.

How many judges do the Government want to sack because they feel that the method of appointment has been wrong? Is the Bench of Judges rotten? Is it full of corruption and nepotism, with people putting fines into their own back pockets or Swiss bank accounts? Of course it is not. The Bench of Judges at the moment is of as high a standard—or so my judicial friends tell me—as it has been for 100 years. So, if it is, what on earth is wrong with the method of appointment? How many will be asked to leave because they will not be up to scratch when the supreme court is established? Could it be that when they speak on criminal matters the Government find it embarrassing to listen to views to which they are not well pleased to adhere? Is that one of the reasons they do not wish to have them in your Lordships' Chamber? The system works perfectly well. So, if we are to change it, let us give the issue proper thought and consideration.

I always know when the Government believe someone is talking right because their members start giggling between each other—and they have just started now.

After that diatribe, I welcome the support that I shall give to my noble friend Lord Elton.

Lord Dubs

My Lords, we laughed because we thought the noble Earl had made a good joke. We laughed in appreciation of his sense of humour. If that was misplaced, I owe him an apology, but that was the sense we had on these Benches.

The noble Earl having provoked me into intervening, perhaps I may very briefly make a comment. I do not understand—I bow to the experience of noble Lords who have been around a lot longer than I have and who have been in the House for many years longer—how any government can give an undertaking as to the future composition of their Cabinet. No government in history could have possibly done that. It seems to me that the first amendment is not on the mark in that respect.

As regards the second amendment, given that it refers to the office of Lord Chancellor and not to the way in which we conduct our arrangements in this House, it is a recipe for endless discussions dealing with the hundreds of years of history associated with the Lord Chancellor. The amendment appears calculated to delay matters indefinitely. I hope that the House will not be impressed by either of the amendments.

In any case, I suggest, very gently, that if we were dealing with these matters in another place—and I know that we are not—every speech, with the exception of that of my noble friend Lord Acton, and possibly mine, would have been out of order.

Lord Alexander of Weedon

My Lords, in that case I shall try to speak very briefly and mainly to the point, even in the high view of the noble Lord, Lord Dubs.

Let me make one point that I know will appeal—because I know him well—to the noble and learned Lord the Lord President. The most concerning point arising out of these proposed reforms—which I am sure all noble Lords will agree we should consider extremely carefully—is how we will preserve the independence of the judiciary. In the past that has been done—and done magnificently—by successive Lords Chancellor of each political party. No one has done that better, as I know from talks with the senior judiciary, than the noble and learned Lord, Lord Irvine of Lairg.

That will continue to be the position until we know what will be the form of any proposed independent commission on the judiciary and. crucially, which Minister will be responsible for appointing judges on the recommendation of the commission and what the criteria will be for the appointment both of the commission and the judiciary. Until that time, the Lord Chancellor carries that same responsibility. It is at least possible that some will, in time, want to explore whether a Lord Chancellor, who may not and probably should not be a Minister in the Cabinet, should still carry that responsibility.

The Lord President has spoken about reforming the role of the Lord Chancellor. We do not know what that reformed role will be. We know that his present role is complex and will have to be examined carefully before we know what the reformed role should be. I suggest to all colleagues in the House that on this crucial topic, we should not decide whether the Lord Chancellor should cease to be our Speaker until we know what responsibility he may continue to carry in the future for the independence of the judiciary and how that fits with his objective participation in the affairs of this House. That is why I passionately support the second amendment raised by my noble friend Lord Elton.

11.30 a.m.

Lord King of Bridgwater

My Lords, I pay tribute to the Lord President. He has inherited a situation that he did not create which has been quite uniquely criticised by three former Cabinet Secretaries as a disgraceful example of public administration. He has been very open to listening to views of Members of your Lordships' House and now presents a Motion which is the outcome of some of the representations made to him.

I do not know what attitude the noble and learned Lord proposes to take to the amendments to his Motion, but I urge him, in the spirit in which he has launched on the recovery programme to try to get this back on a sensible basis, to look at them very sympathetically. I say to the noble Lord, Lord Dubs, that the amendment does not actually ask the Government to come up with an answer for the Select Committee about how many members of the Cabinet shall sit in your Lordships' House. It suggests that the committee should be able to consider any representations that the Government may wish to make, although they may not make any. The committee may be able to make some helpful suggestions on this point.

I have a personal memory of this, because my own arrival in the Cabinet was postponed. The noble Baroness, Lady Thatcher, had it in mind to appoint me to a certain post in the Cabinet, at which moment those Members of your Lordships' House then present on the Government Benches deputed to the Prime Minister and said it was outrageous that their Lordships were under-represented, and I was invited to stand down while the noble Lord, Lord Cockfield, was promoted to that position. It was felt strongly at that time—and I therefore had to accept that it must have been a wise decision taken by a very intelligent Prime Minister—that your Lordships' House should be properly represented.

Having sat in the Cabinet, as I did for a number of years, and having come to your Lordships' House, I entirely accept the point which I think even the noble and learned Lord the Lord President has admitted at times—that there is a fairly stupefying ignorance in the Commons and among many Cabinet Ministers about the procedures, performance and significance of your Lordships' House. I certainly think that if there was any suggestion that the representation from this House should ever be reduced to one, that would make the position of the occupant of the post of Lord President—the Leader of the House—extremely difficult.

This is the most gentle of amendments which refers to considering any representations that might be made. It is a serious point, and I should have thought a listening government would be quite happy to hear the views of the committee. Those views will not be binding—the only suggestion the committee has to make is how that particular problem could be addressed.

Lord Peston

My Lords, I speak in support of my noble friend Lord Dubs. I had regarded myself as very open-minded on the Speakership until I heard the speeches from noble Lords opposite. I echo entirely the views of my noble friend. I am amazed that the two amendments are in order, but if the Clerks have allowed them to be put down, they must be. However, the speeches have not, in my judgment, been remotely in order. I entirely agree with my noble friend that if we had anybody resembling a Speaker, he or she would have been on their feet long before now, merely asking noble Lords to speak about the subject before them and not decide to have a major debate on a government policy which we are in no position yet to debate. I have no intention of responding to or criticising any of the speeches because that would be to add to the possibility that they were remotely within the scope of what we should be debating.

Secondly, I regard this as simply a delaying tactic to prevent the committee doing the quite minor technical job—

Noble Lords


Lord Peston

My Lords, I notice the shaking of heads, but we have been asked to consider matters such as the independence of the judiciary, the composition of the Cabinet—I have a list of all the topics that have been raised. This is not a debate about those subjects. I would be very interested to have a debate on the Government's policy when they are ready to bring it before us, and many of us will take part. But this is about the setting up of a fairly simple committee. The one good bit about this is the recognition that we have an enormous number of Cross-Benchers and that, for once, there will be three on the committee instead of two. That is the only plus that I can see in the contributions.

Can we, for once, talk about what is before us? I think the noble Earl, Lord Onslow, said that the system works perfectly well. I do not know where he has been for the past two or three years, but the system is working badly and is getting worse. We are breaking all our rules of self-government and self-regulation, and we have been doing it for far too long. That is one of the reasons why we are considering these matters. Would noble Lords be good enough to talk about the subject before us, for once, and not use this occasion as a basis for talking about everything else under the sun that concerns them. I certainly think we should reject both of the amendments on the grounds that they are not helpful in any way whatever with regard to our making some progress. When the time comes, we might well get around to debating the substantive issue when, eventually, the Government put forward their proposals and we can look at them in detail.

The Lord Bishop of Portsmouth

My Lords, I am sure that many of your Lordships will, in spite of your reservations, want to wish the work and outcome of this committee well. I am grateful that the House is proceeding along the proper course. That will go some way towards reassuring those inside this House, in another place and in the country generally about the somewhat amateurish way—if I may put it so—that the announcement was made about the Lord Chancellorship at the time of the reshuffle. I congratulate the noble and learned Lord the Lord President on the way in which he has handled the matter since then.

There are wide-ranging constitutional and symbolic implications in the proposal to abolish the Lord Chancellorship. I do not naturally think, à la "Yes, Prime Minister", that nothing must ever be done for the first time. I hope all these issues have a full and proper airing in the deliberations of the Select Committee, and I am sure they will.

I sense a certain amount of resurgent frustration being expressed in this debate which goes back to the way in which things were handled originally. We are, as the noble Lord, Lord Peston, has said, beginning to have a debate prematurely. This is a matter of process, and I think the process should be allowed to go forward.

With regard to the amendments, I follow the view of the noble and gallant Lord, Lord Craig of Radley, that the first has some sense to it. However, I think that it would tie the hands of the Select Committee unduly and would not predispose it in any particular direction. My verdict, using my Scottish blood, is "not proven", which is a nice dodge in Scottish law.

The second amendment is implicit in any committee's work in looking at the future of the Lord Chancellorship. It will be recalled that when the Joint Committee was set up last year to take further the reform of your Lordships' House, my friend and colleague, the right reverend Prelate the Bishop of Guildford, spoke for these Benches in voicing our disappointment that there was no Bishop on it. If I may say so, that resentment still stands. On this Select Committee, however, these Benches are content to register our support for what is before us in principle without predisposing either what the Select Committee comes up with or indeed the proper debate that needs to take place at a future date, with the hope that we may be able to offer assistance in the usual way to the work of that committee.

The assistance would be in two areas, the first of which would obviously be the ecclesiastical implications. I am interested to hear this gathering list of the Lord Chancellor's responsibilities, which includes patronage of 500 livings and 12 canonries—over which I doubt many noble Lords will want to lose much sleep. However, the list is quite long. I am guessing that the work of this committee will be quite onerous as the list will grow ever longer and all these issues will need to be examined, not in this debate but in the work of the committee. There are also wider implications to do with the constitution of this country. It is in that area that I hope that all Members of your Lordships' House will find ways of feeding their views into the committee's work.

I wish the Select Committee well. It feels a little like handling on the floor of a General Synod a motion about the future of the world. However, I hope that the committee comes up with some good proposals which we can then debate in the proper way.

Lord Strathclyde

My Lords, the noble Lord, Lord Peston, may have thought he was being helpful, but he has inadvertently put his finger on precisely what is the problem with this whole debate: we have not yet had a proper debate about the Government's announcement. We have had two Statements in which Back-Benchers were limited to only 20 minutes. This is the first opportunity that anyone has had to say anything outside the normal time limits. It is entirely appropriate for noble Lords on all sides of the House to wish to offer advice to the Select Committee when it is set up.

Having said that, when we debated this issue last week, I said that I greatly welcomed the decision by the noble and learned Lord the Lord President of the Council that there would be a Select Committee to debate this issue. That is infinitely preferable to setting up either a Leader's Group or a sub-committee of the Procedure Committee. That is the reason why we now have this Motion before us.

It is also a sign of the real concerns which many Members of this House have about the future role of the Speaker that so many have chosen to speak today, with perhaps even more to follow, and that two amendments have been tabled by my noble friend Lord Elton. I hope very much that the noble and learned Lord the Leader of the House will be able to give some comfort to my noble friend so that he will not need to press those amendments.

On the question of reporting back, I thought that my noble friend Lord Alexander of Weedon made a most important point. The Select Committee will be unable to come to a conclusion about all these matters until it has seen a full list of the duties and responsibilities of the Lord Chancellor. One cannot decide what the future role of the Speaker is unless one knows what the Speaker is supposed to do and what the Government intend to do with all the remaining roles of the Lord Chancellor. I therefore hope that the noble and learned Lord will be able to tell us when that list will be available and whether or not, when the Lord Chancellor comes to make his statements on the appointments commission and the future of the Lord Chancellor's role vis-à-vis the judiciary, a Statement will be made to this House.

Perhaps the noble and learned Lord can also confirm that much of this problem could have been solved if the Government had come forward right at the very beginning with a fully thought-through White Paper that could have been debated before being sent to a Select Committee.

Viscount Bledisloe

My Lords—

Lord Goodhart

My Lords—

Noble Lords


Lord Williams of Mostyn

My Lords, I do not think that we have had a contribution from the Liberal Democrats, or if we did, I missed it.

11.45 a.m.

Lord Goodhart

My Lords, we have made clear from these Benches that we are entirely in favour of the principle of the changes which the Government are proposing to make; indeed, we suggest they do not go far enough in respect of the creation of a ministry of justice. At the same time, however, we have also made clear that we are deeply unhappy with the way in which the changes have been introduced. I therefore have some understanding of why the noble Lord, Lord Elton, has chosen to table his amendments and why they have received support from Members of the House.

Of those in favour of the amendments, the speech I found the most impressive, not unexpectedly, was that of the noble Lord, Lord Alexander of Weedon. I think he makes the entirely legitimate point that these reforms should include consideration of whether someone who is a Member of your Lordships' House is given a special responsibility to act as guardian of the independence of the judiciary. That matter certainly needs to be considered at some stage. However, I do not think that it needs to be considered as part of the responsibilities of this Select Committee. It seems to me that even if it is appropriate, as it may well be, to create the role of guardian of the judiciary, there is absolutely no reason why the person performing that role should also be required to preside for half an hour a day over the sittings of your Lordships' House.

The Earl of Onslow

My Lords, is not that man called the Lord Chancellor, and does he not do it rather well already?

Lord Goodhart

My Lords, that is entirely different. The Lord Chancellor has undoubtedly acted, as the noble Lord, Lord Alexander, said, in an outstanding role as the protector of the independence of the judiciary. However, I think that his role as Speaker of your Lordships' House is one that scarcely taxed his abilities. Indeed, I suspect that he may himself have regarded it as not the most important of his functions. I therefore believe that that is an issue for another time.

On the first amendment, I understand that it is plainly desirable that the Cabinet should understand the workings of the House of Lords. It is of course true that many Ministers are Members of the House of Lords and will continue to be Ministers. I should also point out, first, as is already recognised, that the Government cannot bind any future government with any undertakings they give on this occasion. Secondly, it is also fair to point out that the role of Lord Chancellor has not always been a strongly political one. While some holders of that office such as the late Lord Hailsham had been very distinguished politicians with a previous history of sitting in the Cabinet in other posts, others such as the noble and learned Lord, Lord Mackay of Clashfern, have come with very little political experience and are widely believed to have played very little part in Cabinet outside matters of direct concern to their own department. So I do not think that what is proposed here will necessarily lead to a result that has not already happened.

On the second amendment, I agree with the right reverend Prelate the Bishop of Portsmouth, who made a very clear and very sensible speech. This proposal is, I think, necessarily implicit in the role of the Select Committee. I assume that it is not beyond the capacity of the Lord Chancellor's Department, as it was—or DCAFF, as I suppose we are now to call it—to produce a list of those functions in time for the first or at any rate the second sitting of the Select Committee.

So while we on these Benches have sympathy with the motives behind the amendments, we do not believe that they are necessary and we would not support them.

Viscount Bledisloe

My Lords, in a speech that was wholly in order and totally to the point, the noble Lord, Lord Elton, pointed out how intricately intertwined are all the various proposals that stem from the Government's desire to revise the various roles of the Lord Chancellor. I must confess that I fail to understand the urgency of changing the Speakership of the House which renders it necessary to come first. If the noble and learned Lord, Lord Falconer, is too busy to attend the House as regularly as his predecessor, no doubt leave of absence can more readily be given. However, to take that aspect on its own and sort it out without knowing where the Government are going on any of the other points is madness.

I accept that some of the points made by the noble Lord, Lord Elton, and other noble Lords relate to other functions of the Lord Chancellor. Until we know what the Government propose to do about those functions, we cannot know how they should be intertwined with the function not merely of sitting on the Woolsack, but of the representation of this House and so forth.

It is highly desirable that the Select Committee should not proceed too speedily. Not only should it wait until we have a list of the various things that the Lord Chancellor does; we should also have some idea of what the Government intend to do about those functions. Therefore, in its substance, I very much support the second amendment in the name of the noble Lord, Lord Elton.

I venture to suggest that the matter might not be as urgent as is suggested. Although the Motion in the name of the Lord President requires that the committee shall report at the end of the Session, it in no way has to be a final report. If the committee considers that it needs to investigate and know about the other functions, it can produce an interim report. The substance of the matter must be that we should not decide on the Speakership on its own until we know where the Government are going on the Lord Chancellor's other functions.

Lord Geddes

My Lords, when one rises in your Lordships' House, it is not unusual to say, "I shall be brief", only for the opposite to happen, but I shall be. I want to reinforce the points made by the noble and gallant Lord the Convenor of the Cross Benches and the right reverend Prelate the Bishop of Portsmouth.

We are talking about the role of the Speakership of the House. The present Speaker of the House is the Lord Chancellor, and I cannot conceive how we can talk about that role until we know what are the other roles of the Lord Chancellor in this context.

Lord Marlesford

My Lords, the noble Lord, Lord Dubs, will be rather pleased that I intend to focus wholly on the proposal in front of us. However, I did detect what seemed to me a rather ugly undertone in remarks made by some noble Lords suggesting that they would have liked a Speaker on the Woolsack who would have prevented this debate taking place.

Lord Peston

My Lords, I do not like the use of the word ugly, but being acerbic myself I never mind about the language. However, the noble Lord, Lord Marlesford, should not be in any doubt: I would like to have a Speaker who asks noble Lords to speak to the subject before us. That seems entirely reasonable.

Lord Marlesford

My Lords, that is what I am doing. The Motion says that the Select Committee should be set up in the light of the Government's announcement, and I quote the carefully chosen words of the Lord President, to reform the office of Lord Chancellor". It does not talk of abolishing the office of Lord Chancellor. Therefore, the only relevance of having a committee on the Speakership of this House in that context is to consider whether the Lord Chancellor will be able to continue to perform the functions of Speaker.

The noble Lord, Lord Goodhart, made a good point when he said that we should consider the burden involved. I put down a Written Question to the Leader of the House to ask how many minutes in every hour that the Woolsack is occupied it is occupied by the Lord Chancellor. That seems to me quite relevant in trying to discover how much of a burden being Speaker is on the Lord Chancellor.

Meanwhile, it is probably unnecessary to have an inquiry that goes any wider than the question of whether, while the office of Lord Chancellor exists, the Lord Chancellor will be able to continue to fulfil the functions of the Speaker. I suspect that the bigger and wider agenda is part of the general aim to disarm this House, just as the other place has been disarmed, and to have an end to the self-regulation of this House. I hope that that will not be part of the remit of the Select Committee.

Lord Ackner

My Lords—

Lord Williams of Mostyn

My Lords—

Noble Lords


Lord Ackner

My Lords, my timid and deferential observations will be very short. I back the first amendment for the reasons given by the noble and gallant Lord the Convenor. With regard to the second amendment, which, from my point of view is much more important, the Government have apparently decided not to set up a ministry of justice.

In a Written Question filed three days ago, I asked which of the Lord Chancellor's functions relative to the administration of justice—especially criminal justice—will be transferred to the Home Office or to the new Department of Environmental Affairs.

Noble Lords

Constitutional Affairs.

Lord Ackner

Constitutional Affairs, my Lords. That is of considerable importance, because there is a strong feeling, which was voiced very quietly by the noble Lord, Lord Alexander, in an admirable article three days ago in The Times supplement on the law, that one of the purposes—if not the main purpose of this legislation—is excessively to increase the powers of the Home Secretary. That is why we wish to know which of the Lord Chancellor's powers of a judicial or judicial and administrative type the Government propose to invest in either of those two departments. The second amendment really focuses very wisely on that point.

Lord Williams of Mostyn

My Lords, I am most grateful to your Lordships, not least, for the generous remarks of the noble Lord, Lord King. I shall focus on the Motion, which I know your Lordships will have read carefully. It is not, to use the phrase of the noble Lord, Lord Marlesford, my Motion. It was agreed in a meeting between the noble Lord, Lord Strathclyde, the noble Baroness, Lady Williams, the Convenor, and myself. I have been as open to views on the form of the Motion as anyone could reasonably expect.

It was also agreed that, unusually and without setting any precedent, because of the nature of this particular committee—I repeat, without setting any precedent—it would be appropriate that Cross-Bench representation should be three rather than the usual two.

That Motion having been agreed—although not by your Lordships, of course—I come to the two questions that arise distinctly from the amendments of the noble Lord, Lord Elton. I am most grateful to him for giving me advance notice of them and for our private discussion about the troubles caused to him in putting down those amendments.

First, there is the question of the representation—if I may put it that way—of this House in the Cabinet. Your Lordships may not appreciate that, since the Government came into office in 1997, the Prime Minister has specifically invited the Chief Whip—formerly the noble Lord, Lord Carter, and now the noble Lord. Lord Grocott—to attend every Cabinet meeting. On every occasion, they are asked by the Prime Minister whether they would like to contribute anything about the workings of this House or the relationship of business management in both Houses. Therefore, at the moment, your Lordships have three Cabinet Ministers and the invariable attendance of the Chief Whip at every Cabinet. We have not had three Cabinet Ministers from the House of Lords since 1989. As the noble Lord, Lord Acton, indicated—with the benefit of information from the noble Lord, Lord Allen of Abbeydale—Viscount Simon, who was Lord Chancellor for five years, was not a member of the Cabinet at all.

I know that noble Lords wished to raise this matter but I am reasonably confident that no noble Lord expects me to give any undertakings about which Cabinet Ministers should come from the Lords. I do not believe that any Prime Minister would feel able to give those undertakings. I am grateful for the assent that I see being expressed by the noble Lord, Lord King. I do not believe that the Prime Minister under whom he served, the noble Baroness, Lady Thatcher, would have looked happily on his being asked to give such an undertaking.

I believe that noble Lords recognise—this is very important—that this must properly and inevitably be a matter for the Prime Minister of the day. However—this is meant to be helpful—on its present terms of reference, the Select Committee is amply entitled to consider the matter. Noble Lords with views about that will make them known; a number of noble Lords already have done so, including the noble Lords, Lord Carrington, Lord Trefgarne and Lord Waddington, and the noble and learned Lord, Lord Mayhew of Twysden. Any noble Lord can give oral evidence, written evidence or a combination of the two to the committee.

Incidentally, I should say that my noble and learned friend Lord Falconer and I have already made it plain that we are very willing and eager to give evidence if the committee would like to hear from us. The committee can attend to the point that lies behind the first amendment and it can express views on that. In due time, we shall obviously have a full debate on the committee's recommendations.

There is also the question of, the present powers, duties and privileges of the Lord Chancellor". I absolutely agree with the noble Lord, Lord Alexander—I believe that we always have agreed on this—on the necessity for judicial independence. That is the purpose of the intended reforms. It is easy for me to say that. We must be judged in practice on the delivered outcome. I agree entirely with what the noble and learned Lord, Lord Ackner, said; that is, that judicial independence is not an additional option but a fundamental basis of the society in which we wish to conduct ourselves.

Noble Lords will know, because it has been said on a number of occasions, that consultation papers on judicial appointments and the question of the supreme court will be out quite soon: this month. The Lord Chancellor has already said—this may not have been picked up by all noble Lords—that he will publish a consultation document in September setting out the issues to be addressed in relation to the Lord Chancellor's roles that do not relate to the speakership, his functions as departmental Minister or his judicial capacity.

I can set out at least 11 categories. I shall be as brief as I can but I know that the noble Lord, Lord Elton, and other noble Lords are concerned about this matter. The 11 categories to be considered appeared to us to be: Speakership of the House of Lords; judicial appointments, conduct arid discipline in England and Wales; judicial appointments, conduct and discipline in Northern Ireland; ministerial responsibilities in relation to courts and tribunals; legal and constitutional affairs in England and Wales; ministerial responsibilities in relation to courts and legal affairs in Northern Ireland; ministerial responsibilities in relation to the national archives—that is not perhaps something that immediately springs to mind when one considers the duties of the Lord Chancellor; ministerial responsibilities in relation to the Land Registry; and responsibilities in relation to the Great Seal. The next category relates to the comments of the right reverend Prelate the Bishop of Portsmouth, to whom I was grateful, as always, for his measured contribution; it involves ecclesiastical patronage and other ecclesiastical functions—"boggle" and "mind" perhaps come to mind there. The other categories are: visitatorial jurisdiction—that is not an adjective that I had previously encountered; academic responsibilities and those and relating to royal peculiars; and, finally, non-judicial appointments, such as school governors.

Those are significant categories. I simply set them out to indicate that I have. I hope, responded as fully and promptly as I can to the amendments of the noble Lord, Lord Elton, which, as I said, we discussed privately when he told me of his concerns. All of those matters—the noble and gallant Lord, Lord Craig, was quite right—are within the remit of the committee on the present terms of reference. I do not believe that the noble Lord, Lord Elton, has done us a disservice. He raised the questions and I hope that I have been able to give the undertakings and reassurances that noble Lords reasonably wished. That being so, I invite the noble Lord not to press the amendments.

Lord Roberts of Conwy

My Lords, before the noble and learned Lord sits down, will he deal with the point made by the noble Viscount, Lord Bledisloe; namely, that this could be a preliminary or interim report rather than a final report?

Lord Williams of Mostyn

My Lords, that is a matter for the committee in the usual way, and that is the conventional role of all committees. It appears that the end of the Session is not unduly taxing in terms of the timetable. I am sure that noble Lords will be content with the representation on the committee, form their own judgment and report back to the House, as I indicated on Wednesday last week. We shall then have a full debate on the substantive issues and not, as the noble Lord, Lord Strathclyde, said, on process, about which I thought there was general agreement.

Lord Elton

My Lords, I join my noble friend Lord King in complimenting the Leader of the House on the way in which he managed the affair since it went off the rails and I thank him for the way in which he handled today's debate. I also thank those who supported me in this debate and join them in wishing the committee well.

The only moment of sadness for me was when it appeared that I had totally failed to make myself clear to the noble Lord, Lord Peston. His claim that the debate has been out of order rested on his total failure to grasp the significance of the fact that the Speakership and the Chancellorship at present are unified in one person and that that is our way into the Cabinet for one person. The committee must consider that. I see that I have yet to convince the noble Lord but he would not want me to spend more time on that matter; nor, I assume, would other noble Lords.

The noble Lord suggested that the object of the debate is to delay—if I could have his attention. I know that there are other more interesting people to listen to around him but at the moment I believe that I have the Floor.

The noble Lord suggested that the object behind all of this was delay. He picked up on a few of the soundbites that had been used long ago in the debate on the abolition of the hereditary Peers. The dramatis personae are quite different in this regard and so are the issues. This is not a party political issue, nor is it an issue between one sort of Peer and another; it is an issue about the welfare of this House. I do not apologise for taking up the time of noble Lords because I can think of no better steer to the committee than the speeches that have been made. I am most grateful to noble Lords for them.

The second of my two amendments, which received the most support in the corridors, as it were, before the debate and which was warmly supported in this debate, was answered by the point that was made by the noble Lord, Lord Goodhart, and which was endorsed by the noble and learned Lord the Leader of the House. In fact, the report that the committee is required to make before the end of the Session can perfectly well be an interim report. The second amendment is therefore unnecessary and I shall not proceed with it.

The first amendment touches on the matter on which I was unable to convince the noble Lord, Lord Peston, who vigorously nods his head. Perhaps I failed to convince other noble Lords. The arguments in favour of it—I see three heads nodding opposite—were so strongly put by many noble Lords, notably so by my noble friend Lord Alexander of Weedon, that the point has been adequately made. While I know that there is an anti-climax when one has sat through a debate in the hope of a refreshing visit to the Lobby, we can rest on the assurances that have been given. I beg leave to withdraw the amendment.

Amendment to the Motion, by leave, withdrawn.

On Question, Motion agreed to.