Lords Sitting of 7 December 2004

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Salisbury.

Higher Education: Funding of Part-time Students
Baroness Lockwood Baroness Lockwood asked Her Majesty's Government:
What progress is being made in the review of the funding of part-time study in higher education, particularly as it affects Birkbeck College, University of London, and the Open University.
Lord Triesman: My Lords, the Higher Education Funding Council for England is undertaking a fundamental review of the funding methodology to support teaching in higher education institutions and plans to consult the sector on the principles of the new method in the spring. The HEFCE is separately considering the submissions from the Open University and Birkbeck about levels of support for institutions at which courses are provided predominantly for part-time students. A key discussion is expected in January and a board decision is expected in February 2005.
Baroness Lockwood: My Lords, does my noble friend recall the assurances given by the then Minister in this House on 14 June, when we debated the Higher Education Bill? She acknowledged the particular circumstances of Birkbeck and the Open University and undertook to arrange with HEFCE for the review to take place in the autumn. We are now nearing the end of the year and the Minister is advising the House that the decision will be in February. Can the Minister give us an unambiguous assurance that we will get a result in February? As is well known, these two institutions in particular have great difficulty, first, in increasing their charges, because of their clientele, and, secondly, because the nature of the Open University and Birkbeck means that they cannot cross-subsidise fees.
Lord Triesman: My Lords, I recall and have reread the assurances given by my noble friend Lady Ashton. It was genuinely hoped that all the meetings could be held by 30 November, when they were scheduled, but not everybody was available on that day, and the issue has got into the cycle that directly follows. But the assurance sought is given.
The Open University and Birkbeck are two very important institutions, but in 19 other institutions more than half the students, in full-time equivalent terms, are part-timers. So the formula worked out must be durable for all those institutions.
Baroness Boothroyd: My Lords, in view of the fact that HEFCE is directed by government, through the
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Secretary of State's letter of grant, on how its priorities should be reflected in the distribution of funds, does the Minister share my concern as chancellor of the Open University that the process seems to be taking an inordinate length of time? More especially, as the noble Baroness, Lady Lockwood, has pointed out, the former Minister said in this House:
"HEFCE will reach a decision by the autumn in respect of the Open University and Birkbeck".—[Official Report, 14/6/04; cols. 564–5.]
I recall that some related amendments were withdrawn as a result of that commitment. How many more reviews are we to have?
Lord Triesman: My Lords, I had hoped that I had emphasised in my previous response that there was a genuine desire to conclude the matter by 30 November. Through no fault on either side, it was not possible to reach a decision on that occasion, as not everyone involved could be there. It is now intended to meet in February. I believe that I am right in saying that the two institutions concerned, and the other institutions where there are significant numbers of part-time students, will be in a position to deal with their financial issues well before the major review, which will be concluded in 2006. Plainly, everybody would agree that this matter could not have waited for that review.
Lord Barnett: My Lords, I declare an interest as an honorary fellow of Birkbeck. I wish to add to what my noble friend Lady Lockwood has said. Amendments were withdrawn during the passage through your Lordships' House of the Higher Education Bill precisely because of the way in which the Minister responded. Is my noble friend aware that sympathy and reviews are fine—I welcome the review—but that priority must be given to this enormously crucial area of part-time education? Can he assure us, as my noble friend requested, that priority will be given and funds provided? It is a crucial area. It is not enough to have a review; at the end there must be an assurance that funds will be made available to maintain these vital institutions.
Lord Triesman: My Lords, the major review that HEFCE is conducting will be concluded in 2006. I have made the point—and I believe that it is an assurance—that the matters concerning the two colleges will be concluded in February next year. That will be well ahead of the others and therefore they are plainly prioritised.
If the formula for part-time students changes, it will have to change for all part-time students, not just those in the two institutions concerned. There would have to be some winners—the institutions with part-timers—and some losers, because the pot from which the money must come is finite. My noble friend Lady Ashton made that point very clearly. The process will be accelerated for the two institutions concerned.
Baroness Seccombe: My Lords, 79 science and engineering departments in universities across the UK have been forced to close due to lack of funding, affecting many part-time students. What is the Government's response to the problem?
Lord Triesman: My Lords, my right honourable friend Charles Clarke has written to the Higher Education Funding Council to ask it to ensure that there is a strategic review of the subjects of national importance. As the noble Baroness will know, aside from the science subjects, languages and mathematics subjects have also been raised in this House. Plainly there needs to be a proper strategic review.
Perhaps I may say that we have to face one rather difficult truth. The key problem is on the demand side: too few people want to take the courses. It is an uncomfortable truth that however much money is thrown at the supply side, it does not necessarily generate a single additional student on the demand side.
The real issue for the Government and your Lordships' House is to ensure that schools up their game considerably in sciences and languages to ensure that the demand side is replenished in that way.
Baroness Sharp of Guildford: My Lords, does the Minister accept that as institutions such as Birkbeck College and the Open University have to get prospectuses out, it is vitally important that those decisions should be made as quickly as possible? As the Minister pointed out, that also applies to other universities where a very large number of students—more than 50 per cent in the case of 19 universities—are part-timers.
Lord Triesman: My Lords, I wholly agree with the noble Baroness. It is my understanding that the arrangements which will come to fruition in February will not compromise the production of university prospectuses and other documentation directed at students.

European Commission
2.44 p.m.
Lord Pearson of Rannoch Lord Pearson of Rannoch asked Her Majesty's Government:
Whether they believe that the recently appointed European Commission is suitably composed to act as the initiator and executive of European Union legislation.
Baroness Crawley: My Lords, yes. The Government have every confidence in President Barroso's Commission. We can only applaud the new Commission's focus on delivery, reform and better regulation. We look forward to working with it to face some of the great common challenges—Africa, climate change and European economic reform—during our presidency next year of both the G8 and the EU.
Lord Pearson of Rannoch: My Lords, I am grateful to the noble Baroness for that admirably succinct reply. But is she aware that the new Commission contains six former communists, an agriculture
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Commissioner who benefits from the CAP, an antifraud Commissioner who has been tried for fraud, Monsieur Barrot who was found guilty of fraud but who was pardoned by President Chirac, for fairly obvious reasons, not to mention that fine example of British political probity, Mr Peter Mandelson?
Does the noble Baroness further agree that the Latvian candidate did not make it on to the Commission because she favours member states retaining their tax systems and that Signor Buttiglione was excluded because he is a good Catholic and a thoroughly decent man?
In those circumstances, can the noble Baroness tell the House why Her Majesty's Government are happy to see most of our new laws largely controlled by such people, as they now are?
Baroness Crawley: My Lords, the noble Lord is well known for his less than high regard of the European Union and its works. I was waiting for the corrupt octopus of Europe to make an entry. I would then have been able to say that it is not so much the corrupt octopus of Europe, but the tired tentacles of European scepticism which strangle coherent debate.
Lord Richard: My Lords, is my noble friend aware, although I do not see how she could be, that when I hear the noble Lord, Lord Pearson of Rannoch, talking about the European Union, I am reminded of a story about Lyndon Johnson when he was running for the presidency in 1964? In everyone's view it was an election that he was bound to win. But he was campaigning very hard and someone said to him, "You know, the trouble with you Lyndon is not only do you want everybody to vote for you but you won't be satisfied until they all write 'We love you Lyndon' on the ballot paper".
The noble Lord, Lord Pearson of Rannoch, would not be satisfied with the composition of the Commission unless they were all card-carrying members of UKIP, or the alternative continental version thereof, in which the only item on the agenda was the dissolution of the Union. Even then he would want regular checks to make sure that there was no backsliding.
Lord Willoughby de Broke: My Lords, that is all very amusing, but could we please address—
Noble Lords: The Minister.
Baroness Crawley: My Lords, I am afraid that the record of the noble Lord, Lord Pearson of Rannoch, shows that that could well be what he would like to see in the Commission.
Lord Willoughby de Broke: My Lords, I apologise for my ardour in intervening.
Lord Howell of Guildford: My Lords, does the Minister recall the advice of the late Professor Walter Hallstein who was, I think, the first president of the Commission? He warned very strongly that the

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Commissioners should not only be upright and dedicated people but that they should also concentrate on the reform and modernisation of Europe as a whole and not get bogged down in national interests too much. In particular, they should stay out of national politics and not meddle with party politics. Is that not good advice? Would the Government please repeat that advice to the incoming Commission?
Baroness Crawley: My Lords, that is extremely good advice. The noble Lord, Lord Howell, is absolutely right. The principle of subsidiarity is to the fore and very much supported by this Government. We want to see the Commission doing the job that it is intended to do, not the job of national governments or the job of local governments.
We very much agree with the noble Lord that the Commission should now focus on where it can really add value. This Commission has been in place only since 22 November, but we are extremely pleased to see that the early signs are that it is focusing on where it can add value enforcing and developing the single market, regaining the confidence of business and opening up the EU's labour market.
Lord Wallace of Saltaire: My Lords, does the Minister agree that the noble Lord, Lord Rannoch, has failed rather in his research into the defects of members of the Commission. He failed to note that one of them is a former student of mine, which I am sure he would think is worse. Does she also recognise that the Question implies that the European Commission is the sole initiator and executive of European Union legislation? For example, the communiqué for the November European Council makes it clear that the heads of government have just set out a new five-year programme for justice and home affairs and that much of the execution and implementation of EU legislation is done by national governments.
Baroness Crawley: My Lords, I could not agree more with the noble Lord, and I am pleased that one of his former students is a member of the Commission.
Baroness Royall of Blaisdon: My Lords, does my noble friend agree that while the European Commission is quite properly the executive body of the European Union, national parliaments have an important role to play? Does she further agree that the constitutional treaty for Europe is therefore welcome for the enhanced role that it gives to national parliaments?
Baroness Crawley: My Lords, absolutely. The constitutional treaty to which my noble friend referred strengthens the role of national parliaments by giving them an active voice in the whole area of subsidiarity.
Lord Willoughby de Broke: My Lords, will the noble Baroness confirm to both the House and the country that she is happy for the British taxpayer to pay £35 million a day to a complacent and corrupt
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organisation that has failed to have its accounts passed by the European Court of Auditors for 10 years in succession?
Baroness Crawley: My Lords, financially we get a good deal from our membership of the European Union, not only in the form of our rebate, which is very secure, but also in the amount of money that goes to poorer areas both within our own country and throughout the European Union.
Lord Elton: My Lords—
Lord Grocott: My Lords, we are in the sixteenth minute.

Hunting Act 2004
2.51 p.m.
Lord Willoughby de Broke Lord Willoughby de Broke asked Her Majesty's Government:
Whether the statement by Peter Bradley MP, the Parliamentary Private Secretary to the Minister for Rural Affairs, in the Sunday Telegraph of 21 November, that the Hunting Act 2004 was "not just about animal welfare and personal freedom; it was class war" represents the view of the Government.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, the article is clearly not a statement of government policy. Even so, it does make some interesting and telling points.
Lord Willoughby de Broke: My Lords, I am most grateful to the Minister for that clear reply. Did the Minister for Rural Affairs, Mr Alun Michael, see and clear the article written by his Parliamentary Private Secretary in the Sunday Telegraph before it was submitted for publication? If he did not, should Mr Bradley resign for making government policy on the hoof? However, if he did see it, perhaps Mr Michael should consider his position as he clearly misled Parliament on the purposes of the Hunting Act. It was supposed to be an animal welfare measure, although according to Mr Bradley's article was anything but that; it was about class war.
Lord Whitty: My Lords, Peter Bradley did not claim that his article was government policy. There is no requirement for a PPS to have the agreement of their Minister before they give an opinion—as is the case for any Member of Parliament. Mr Michael was aware of the article, but there was no question of him clearing it. He has made his position clear.
The noble Lord would be well advised actually to read the article rather than rely on the headline in the Sunday Telegraph. The article makes it clear that it was not the Labour Party, the House of Commons or anti-hunters declaring class war. As I have always said, we do not care whether it is a toff or a tinker who hunts

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cruelly in our countryside. "Class war" was the declaration made by some elements in this House and the hunting fraternity who decided to confront the House of Commons, the democratically elected Chamber, and threaten civil disobedience in the countryside.
Baroness Gale: My Lords, is my noble friend aware that on 25 November the Countryside Alliance held a demonstration outside a Cardiff hotel where a Labour Party event was taking place? Many people entering the event had their clothes ruined as the demonstrators threw eggs at them. Homophobic taunts were hurled at Chris Bryant, the Member of Parliament for Rhondda, who was threatened with being torn limb from limb if he went into the event. A woman police officer was subjected to racist remarks and four policemen were injured.
Does my noble friend condemn the actions of the Countryside Alliance supporters, who seem to have declared war, if not class war, on law-abiding citizens and on the police force?
Lord Whitty: Absolutely, my Lords. I condemn utterly those who organised and participated in the disruption of that event. It is a disgrace.
Lord Tebbit: My Lords, would the Minister care to invite the view of the Leader of the House of Commons on direct criminal action in support of a political objective?
Lord Whitty: My Lords, the Leader of the House of Commons has made his position clear, but we are talking about threats and violence. We are not talking about demonstrations, but about direct violence and damage caused by citizens who happen to support a particular view in the hunting debate. That is what I deplore.
Lord Dixon-Smith: My Lords, to discuss opposing points of view is like discussing chickens and eggs. However, it is a fact that for a very long time, and certainly for all my lifetime, politicians and governments have sought to diminish the issue of class warfare. Does the Minister agree that, as published, the remarks made by his honourable friend in the other place, however much they might represent only an undercurrent in the thinking of many Members of that House, are inappropriate in the first half of the 21st century, although they might have been appropriate during the first half of the 20th century?
Lord Whitty: My Lords, I have made it absolutely clear that I do not accept that description of the article. I have also made it clear that some, both in this House and elsewhere, worry about the class war only when they think they are losing it. However, hunting has
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never been about class war. It has been about cruelty—and that was the decision taken by the House of Commons.
Lord Snape: My Lords—
Baroness Mallalieu: My Lords—
Noble Lords: Baroness Mallalieu!
Baroness Mallalieu: My Lords, does my noble friend accept that the classes of people who are most likely to be hit first and hardest by this legislation are individuals and small businesses in areas that are already deprived, such as Exmoor? What do the Government propose to do to help local authorities in those areas who, even now, are setting up disaster funds to help mitigate the effects of what, on Defra's own figures, will be annually for Exmoor a £9.5 million deficiency in the economy?
Lord Whitty: My Lords, I accept that some people—relatively few—in some parts of the country will be adversely affected by the ban. But I am astonished by my noble friend and other colleagues who support her. The Government came to this House and asked for a delay which would have mitigated some of these effects. Instead, despite my clear advice that this would be the only issue decided by its vote, this House decided to adopt what I would call a kamikaze tactic—although perhaps that is unfair because the Japanese never aimed at their own side.
Lord Snape: My Lords, is my noble friend aware that Mr Peter Bradley, the politician famously responsible for the quotation in the Sunday Telegraph, is described in the Times Guide to the House of Commons as the chairman or director of a Westminster-based public relations company? Would it reassure noble Lords opposite if I tell my noble friend that, in my experience, such people are rarely to be found at the forefront of the barricades at the time of the revolution?
Lord Whitty: My Lords, clearly my noble friend has more experience of revolutions than I do. However, in my limited experience, he is absolutely right.
Lord Mackie of Benshie: My Lords, would the noble Lord care to reflect on his statement that the Hunting Act was about cruelty? All the evidence suggests that it is crueller to shoot foxes than it is to kill them with hounds.
Lord Whitty: My Lords, that was a matter of considerable debate during the passage of the Bill. It was not the view taken by the majority in the House of Commons and it is not the view I take. I think that there are serious issues of cruelty relating to hunting with hounds. That is the view of the majority of the elected House and is actually the view of the majority in the country.

Nuclear Decommissioning
2.58 p.m.
Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer asked Her Majesty's Government:
What is their response to the decision of the European Union Commission to investigate the use of public subsidy to finance the Nuclear Decommissioning Authority.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, the UK Government notified the European Commission last December of their detailed plans for taking forward nuclear clean-up. This will eventually involve putting new state resources into discharging nuclear liabilities incurred as a result of BNFL's commercial activities. We accept that this comes within the areas covered by EU state aid rules but we consider that it is compatible with EU rules under Article 87.3(c) of the EC Treaty.
Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for that reply. Does he accept that there are questions to be asked when the private sector can run an industry, walk away from the dirty legacy that it leaves, and yet still claim that it is an economic source of generation without having solved any of the waste issues? Will that not lead to confusion in the minds of taxpayers as to what are and are not economic sources of generation? Finally, as regards the Euratom loans which are to be given to allow new nuclear power station construction, it is proposed to raise the ceiling of such loans by £2 million. Is the Minister certain that this time a decommissioning and clean-up programme will be attached to them?
Lord Sainsbury of Turville: My Lords, these are past liabilities and the NDA is the proper mechanism for dealing with them. As regards future nuclear power stations, we must consider future liabilities and ensure that these are taken account of in any calculations of economic viability.
Lord Sheldon: My Lords, as the nuclear liability is estimated at £48 billion—a major public expenditure—what action does the Minister propose to take to ensure that the cost of the dismantling is taken fully into account at the time these plants are erected? What action does he suggest that we take for the immediate dismantling costs to be taken into account at the time of the erection of these plants?
Lord Sainsbury of Turville: My Lords, in this particular case the nuclear liabilities are covered by the nuclear liabilities investment portfolio, which I agree is an understatement. But it is about £3.5 billion and there will be something on top of that. As I said, this seems to be the appropriate way to deal with the par situation. As to other nuclear liabilities in other areas, it is extremely important that we have the best possible
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procedures for clean-up and make the most speed that we can in doing that. As to the future, we must ensure that these calculations are made properly from the start and provided for in the finances of the businesses.
Earl Attlee: My Lords, does the Minister accept that a very considerable proportion of the liability costs was incurred as a result of the nuclear weapons programme rather than civil nuclear power?
Lord Sainsbury of Turville: My Lords, in this case we are dealing with BNFL. The ones dealing with defence policy are quite separate from this.
Lord Tebbit: My Lords, can the Minister remind both the noble Lord, Lord Sheldon, and the noble Baroness, Lady Miller, whether the power stations which gave rise to the nuclear waste and these problems were built by the public or the private sector?
Lord Sainsbury of Turville: My Lords, these are, of course, the commercial activities of BNFL. So, as I understand it, these would have been all built and incurred as the private sector. That is why the situation arises with the EU under state aid. If I am wrong about where they were incurred, I shall write to the noble Lord and place a copy of the letter in the Library.
Baroness Miller of Hendon: My Lords, does the Minister recall that not too long ago the Royal Academy of Engineering issued a document or a statement about the relative costs of different kinds of fuel. It said that nuclear was one of the cheapest, even taking into account all the costs that had been incurred before? Under those circumstances, are a couple of the questions that have been raised not really very relevant?
Lord Sainsbury of Turville: My Lords, as I indicated at the time, there are some considerable disagreements about liabilities and costs. It seems sensible that when we come to make those decisions we do have a good understanding of what the future liabilities will be.

Information
  Statutory Instruments
    Parliamentary Broadcasting Unit Limited (PARBUL)

      Parliamentary Office of Science and Technology (POST)
      3.5 p.m.
      The Chairman of Committees (Lord Brabazon of Tara): My Lords. I beg to move the four Motions standing in my name on the Order Paper.
      Information
      Moved, That a Select Committee be appointed to consider information and communications services, including the Library and the Parliamentary Archives, within financial limits approved by the House Committee;
      That, as proposed by the Committee of Selection, the following Lords be named of the committee:

      L. Avebury,

      L. Baker of Dorking (Chairman),

      L. Brooke of Alverthorpe,

      L. Brougham and Vaux,

      L. Craig of Radley,

      L. Drayson,

      E. Erroll,

      B. Gardner of Parkes,

      B. Goudie,

      L. Haskel,

      L. Rodger of Earlsferry,

      L. Smith of Clifton;

      That the committee have leave to report from time to time.
      Statutory Instruments
      Moved, pursuant to Standing Order 74 and the resolution of the House of 16 December 1997, That, as proposed by the Committee of Selection, the following Lords be appointed to join with a committee of the Commons as the Joint Committee on Statutory Instruments:

      L. Brougham and Vaux,

      L. Dykes,

      B. Gale,

      L. Greenway,

      L. Lea of Crondall,

      L. Mancroft.

      Parliamentary Broadcasting Unit Limited (PARBUL)
      Moved, That, as proposed by the Committee of Selection, the following Lords be named as members of the Parliamentary Broadcasting Unit Limited (PARBUL):

      L. Brabazon of Tara,

      L. Burnham,

      L. Paul,

      L. Thomson of Monifieth.

      Parliamentary Office of Science and Technology (POST)
      Moved, That, as proposed by the Committee of Selection, the following Lords be appointed to serve as members of the Board of the Parliamentary Office of Science and Technology (POST):

      E. Erroll,

      L. Flowers,

      L. Oxburgh,

      L. Winston.—(The Chairman of Committees.)

      On Question, Motion agreed to.

      Constitutional Reform Bill [H.L.]
      3.6 p.m.
      Report received.
      The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton) moved Amendment No. 1:
      Before Clause 1, insert the following new clause—

      THE RULE OF LAW
      This Act is not to be construed in a way that would adversely affect—

      (a) the existing constitutional principle of the rule of law, or

      (b) the Lord Chancellor's duty (not cognisable in law) to respect that existing principle in the exercise of his functions."

      The noble and learned Lord said: My Lords, the House has on several occasions considered how to ensure that reform of the office of Lord Chancellor does not weaken the protection for the rule of law. I hope that today we can move towards a settlement of this most important of issues.
      It is trite to say that we have no codified constitution, although we have statutes of particular constitutional significance such as the European Communities Act 1972 and the Human Rights Act 1998. So we have no single source that definitively states what the place of the rule of law is in our constitution. That it has a role is undeniable.
      There is a significant measure of agreement in the House about the importance of the rule of law and the Lord Chancellor's role in relation to it. Where we have disagreed, however, is in seeking to translate those shared goals into appropriate statutory language. I completely understand the desire on the part of noble Lords to match the strength of their feelings on the issue with similarly strong language in the Bill. However, in our desire to ensure continued protection for the rule of law, we must be immensely careful that we do not inadvertently disturb other crucial arrangements of our constitution or even undermine the rule of law itself by doing away with one of its most important aspects, legal certainty.
      The Government have no problem in accepting that the rule of law must and does guide the actions of Ministers and all public officials. It is also clear that Ministers and other public officials must comply with the law. That obligation is enforceable in the courts. So, if a Minister acted beyond his powers or used them for a purpose other than that for which they were intended, he may have his actions overturned by the courts. It is now settled that Ministers can be required by the courts to take or not to take certain actions, and if the Minister disobeys such an order he can be held in contempt. With that in mind, I shall outline two fundamental issues that need to be addressed in the attempt to legislate with respect to the rule of law.
      First, the notion of the rule of law cannot be expressed in the form of an ordinary legal rule. Such a rule cannot itself determine whether the law in general always prevails. There is a paradox in trying to formulate a legal rule that determines the status of the

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      law. Such a rule must be open to the interpretation that it is referring to standards that lie outside—and, in a sense, above—the law. That leaves open the question of which prevails when the two come into conflict.
      If we are not careful, we could be taken as seeking to create a special rule with a higher status than that of the law itself, including primary legislation. That would be to limit the sovereignty of Parliament by reference to the rule of law. The question of which prevailed in the event of conflict would have to be resolved by the courts. That is something that we cannot contemplate. A rule of law can never, in our constitution, enable individual cases to be decided by the courts in such a way as to invalidate an Act of Parliament validly passed. Such a radical and fundamental constitutional change surely must not be enacted by Parliament in a Bill devoted to limited reforms relating to the Lord Chancellor and the judiciary.
      The second issue is that the success of the rule of law in our system has never been dependent on grand statutory exhortations. That success has been assured by a delicate and gradually evolved institutional balance based on a mixture of convention, practice and law. There is no single or even privileged guardian of the rule of law in our constitution. A statutory statement that singles out one of the major actors risks undermining the position of the others.
      I do not regard either of those fundamental issues as necessarily fatal to any provision in the Bill concerning the rule of law, but I think that they need to be extremely carefully thought through and resolved satisfactorily before we can commit to any amendment. We and others have been grappling with the issues for some time now and have come up with what we think is a workable and appropriate solution.
      I believe that my Amendment No. 1 would meet the objective of preserving the existing position in relation to the rule of law while avoiding broader constitutional effects, particularly in relation to parliamentary sovereignty. My amendment seeks to maintain the balance in our constitutional arrangements and to preserve the sovereignty of Parliament, while providing the clarity and reassurance that the House has rightly sought with respect to the rule of law.
      The obvious way of providing that reassurance, while properly addressing the issues I have outlined, is to keep in mind the specific issue that we are trying to address; namely, the perceived threat to the rule of law from the changes the Bill will bring about, particularly the reform of the office of Lord Chancellor.
      We should start with a proposition about what the Bill is not to be taken as doing. The proposition is that it should not be taken as detracting from the rule of law, as it is currently understood as a principle of the United Kingdom constitution. The amendment acknowledges the rule of law as a principle of the constitution of the United Kingdom. This is, to my knowledge, unique in statutory language in this country and represents a powerful statement of the Government's commitment to the rule of law. It does not, however, create any legal paradox or create
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      ambiguity with respect to other constitutional principles. Most importantly, it does not detract in any way from the principle of parliamentary sovereignty. The reference in the amendment is to the existing principle of the rule of law, which is, and will remain, subject to the sovereignty of Parliament.
      The second effect of the amendment is also to state what the Bill is not to be taken as doing, but this time with specific reference to the office of Lord Chancellor. Subsection (2) recognises that the Lord Chancellor has had, and will continue to have, a duty to respect the rule of law in the exercise of his functions, and states that the Bill cannot be interpreted as affecting that duty adversely either.
      Members of the Select Committee, many of whom I am glad to see in the Chamber today, and other followers of this debate will note that I have listened to concerns that my previous amendment was too narrowly drawn, in that it related only to those statutory functions conferred on the Lord Chancellor in the Bill. I accept that it is right that the duty should relate to all of the Lord Chancellor's functions, which would include his duty to speak up, if necessary, in Cabinet, and we have so provided in this amendment.
      I hope that it will also have been noted that this amendment also refers to the Lord Chancellor's duty to "respect" the rule of law. I have considered carefully our last debate on this issue and I accept that the term "respect" is preferable in this context, as the noble Lord, Lord Goodhart, said.
      Throughout the debates we have had on the rule of law, the contention has been that the Lord Chancellor has always had a role with regard to the rule of law and that it is important that we do not inadvertently lose or diminish that role. There has also been general, if perhaps not universal, agreement that such a duty was a political one—that it was not a duty to be enforced in the courts. My amendment seeks to give effect to both these lines of argument: it acknowledges that the Lord Chancellor has a duty with regard to the rule of law and it acknowledges that that duty is not one that is cognisable as a matter of law. It will ensure that the rule of law features in the deliberations of the reformed Lord Chancellor in the same way as it does now with the existing Lord Chancellor. But it does this in a way that does not have wider, unintended effects.
      I shall now deal with the two other amendments in this group. First, we have Amendment No. 6, tabled by the noble Viscount, Lord Bledisloe. The noble Viscount made it clear in Committee that he would return to this issue on Report. Although I fully understand his reasons for doing so, I confess to some disappointment that the amendment before us now is identical to that tabled in Committee. I recognise, however, that the noble Viscount will be similarly disappointed to hear that I remain unable to accept this amendment. It fails to engage with either of the fundamental issues that I outlined earlier. It simply assumes that a duty to uphold the rule of law can be inserted into a statute, as if we were operating in a constitutional vacuum. For that reason alone, this House should not accept it.
      This is not merely a theoretical issue. The content of the principle of the rule of law is controversial, with opposing views having been expressed over time by different judges, academics and practitioners. Under this amendment, individual Ministers could never know with certainty what was required of them. For example, there are respectable academic arguments to the effect that certain provisions in anti-terrorist legislation could be regarded as impinging upon the rule of law, in accordance with a wide interpretation of the principle. Provisions limiting the rights of terrorist suspects might be said to be within this category. The Government could not accept such an analysis. By bringing the rule of law directly into play as a legal rule in potential conflict with the law itself, the noble Viscount's amendment would create confusion and uncertainty, risk undermining parliamentary sovereignty, and risk impairing the clarity and effectiveness of the law in vital areas such as national security and the prevention of terrorism. For all these reasons, I ask the noble Viscount, Lord Bledisloe, not to move his amendment.
      3.15 p.m.
      Finally, we have Amendment No. 2, tabled by the noble Lords, Lord Kingsland and Lord Goodhart. Let me first acknowledge that the terms of this amendment represent a genuine attempt to seek consensus and to get to grips with the very important and difficult issues that I outlined earlier. I am genuinely grateful for the efforts that the noble Lords, Lord Kingsland and Lord Goodhart, have made to move the debate forward in a positive manner. It is, therefore, a bit disappointing that the Government are unable to accept Amendment No. 2 as it stands. We do, however, recognise that it contains at least a partial solution to the fundamental issues.
      But in several important respects, the amendment fails to address the concerns that I have already outlined. First, although I initially thought that a reference to parliamentary sovereignty was a good idea, I have now come to the view that such a reference would be dangerous. The problem is the need to ensure that parliamentary sovereignty remains the overriding principle. Simply mentioning it as an additional principle "together with" the rule of law would not be enough. The reference in the amendment to the rule of law and parliamentary sovereignty as central principles does not remove this problem. It says nothing about the relationship between the principles, which is the crucial issue. The amendment would leave the status of parliamentary sovereignty vis-à-vis the rule of law ambiguous, and as such would not be acceptable or clear.
      Secondly, I am concerned about the precise meaning of the "best endeavours" test in subsection (2), and how it might interact with constitutional conventions such as the Lord Chancellor's role as a Cabinet Minister. I think subsection (2) also engages the very difficult issue that I mentioned earlier about the paradox of a legal duty to ensure that others respect the rule of law. This amendment also quite seriously mis-states the current duty of the Lord Chancellor.
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      The Lord Chancellor has never been responsible for enforcing the law against others; this amendment states that he is. It is not confined by reference to the Lord Chancellor's functions; nor does it state by whom the rule of law is to be respected.
      Lastly, I understand the intention behind subsection (3) to be to render the amendment declaratory, as we all intend. But subsection (3) implies that the Lord Chancellor's duty is to some extent currently enforceable as such. That implication must surely be inaccurate.
      This amendment is a carefully crafted and well thought-out suggestion that seriously engages with the very difficult issues we are facing here. But I think the problems I have identified must be fatal to the text as it stands.
      To conclude, I have sought to listen very carefully to the views of your Lordships' House, as expressed in previous debates and in the debates in Committee, and have brought forward an amendment that seeks to give effect to all of the views that have been expressed. I believe that it gives effect to those views. I submit that Amendment No. 6 goes too far and should be rejected by the House as it would undermine parliamentary sovereignty and create confusion and uncertainty, which is surely contrary to the very rule of law that the amendment seeks to uphold. While Amendment No. 9 has much to recommend it, I cannot see that it satisfactorily resolves the issues before us. I believe that Amendment No. 1 has that effect.
      I have spoken with noble Lords about the terms of my amendment. As I have indicated, I believe that my amendment achieves what we are all seeking to achieve. I have gone through it in some detail, as it is a very important amendment. A number of noble Lords have asked me to discuss the content of my amendment with them further. I believe that it achieves what we want to do. I am happy to wait until Third Reading before I put my amendment to give effect to those further conversations, but I hope I have set out as fully as I can the reasons why I think my amendment achieves that which we all wish to achieve. I beg to move.
      Lord Kingsland: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his explanation of Amendment No. 1. I particularly welcome his statement that he is prepared to wait until Third Reading before putting forward whatever new amendment he tables at that time. I think that there is a clear difference between Amendment Nos. 1 and 2, but I do not think that, in the interim period, it will prove unbridgeable. Let me, very telegraphically, explain why I think that there is still a difference of importance.
      I agree with the noble and learned Lord the Lord Chancellor that any rule of law clause in the Bill should not be justiciable. That reflects the constitutional tradition. The rule of law is a term that is not explained in any detailed measure in our constitution; and to make it justiciable would give the judges too wide a scope to determine what our constitutional law should be. In that respect, we are ad idem.

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      I take issue with the noble and learned Lord the Lord Chancellor on his explanation of the relationship between the sovereignty of Parliament and the rule of law. The doctrine of the sovereignty of Parliament is a doctrine of the courts. Parliament is sovereign only because the courts say that it should be so. Until the middle of the 18th century, it was the view, widely held by common law judges, that the sovereignty of Parliament was subordinate to the wisdom of the common law. That doctrine fell away in the 19th century, and we all readily admit now that Parliament is sovereign. Nevertheless, that sovereignty is an expression of the courts; it is not an assertion of Parliament. So, with great respect to the noble and learned Lord the Lord Chancellor, I submit that the two match happily in the first of the three clauses of Amendment No. 2, in the name of the noble Lord, Lord Goodhart, and myself.
      The real difficulty lies in the difference between paragraph (b) in the noble and learned Lord's amendment and our proposed subsection (2). As I understand it, the noble and learned Lord's paragraph (b) binds the Lord Chancellor in relation to his own functions. Our proposed subsection (2) requires the Lord Chancellor to use his best endeavours to ensure that the rule of law is respected by Ministers other than himself. That is my understanding of what a Lord Chancellor does in Cabinet. If a Minister makes a proposal for a draft legislative measure which, in the Lord Chancellor's opinion, is about to impinge on the rule of law, it is his constitutional duty to speak up in Cabinet and say so. That is what the proposed subsection (2) of Amendment No. 2 would do. In my respectful submission, paragraph (b) of the amendment tabled by the noble and learned Lord the Lord Chancellor does not say that.
      If, in the interim period between now and Third Reading, the noble and learned Lord the Lord Chancellor can convince me that that is what his paragraph (b) says, or if there is some movement from the noble and learned Lord between now and Third Reading, then we shall happily coalesce around an agreed amendment at that time.
      Lord Goodhart: My Lords, my position is much the same as that of the noble Lord, Lord Kingsland. We have both put our names to Amendment No. 2.
      I believe that our objectives and those of the noble and learned Lord the Lord Chancellor are, in substance, identical. We both aim to preserve the Lord Chancellor's existing duties in respect of the rule of law and, in particular, to ensure that the change in the more general duties of the office of Lord Chancellor does not alter his duty—a duty not enforceable at law—to bring to the attention of other members of the Government any proposed action that may offend against the rule of law. Therefore, it is simply a question of drafting the most effective and accurate way of achieving that aim.
      It is desirable to take some further time on this. Although I am well aware that detailed discussions have been taking place with the parliamentary draftsmen and in the Department for Constitutional Affairs, the first time that the noble Lord, Lord
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      Kingsland, and I saw the amendment was last Friday. It needs time for further consideration, and there are aspects of the Government's draft, which the noble Lord has drawn to the attention of your Lordships' House, with which we are not entirely happy.
      I can also see some justice in the criticisms that the noble and learned Lord made of our draft. It would be appropriate to try to reach agreement between now and Third Reading, so that we could come back with an amendment that we could all recommend to the House as a whole and would achieve the result for which we are aiming. I therefore hope that it will not be necessary to move either of the amendments today and that they can be carried over until Third Reading.
      Viscount Bledisloe: My Lords, it was somewhat less than gracious or charitable of the noble and learned Lord to chide me for putting down the same amendment as I put down last time. The rule of law has been under debate since your Lordships' Select Committee started meeting. The noble and learned Lord's theme has continuously been, "I will come forward with an amendment to deal with the rule of law". At one stage in the Select Committee, without giving us the draft in advance, he produced a draft that was subjected to criticism from all sides. He withdrew it in haste and almost with apology. Since then, we have seen nothing from him until, as the noble Lord, Lord Goodhart, said, last Friday.
      It was therefore hardly surprising, since there was nothing on the topic, that I put down an amendment to raise the topic. It may be somewhat unkind to say so, but I have a nasty suspicion that if neither I nor anyone else had done so, we would not have seen anything from the noble and learned Lord the Lord Chancellor even now.
      If the noble and learned Lord tells us that he will take the matter away, think about it and come back, in decent time, with a draft that we can consider, I am happy not to move my amendment. Indeed, I prefer Amendment No. 2, in the names of the noble Lords, Lord Kingsland and Lord Goodhart. The noble and learned Lord has criticised that, but could he answer two simple questions? First, does he, as Lord Chancellor, regard the rule of law as a central principle of our constitution? Secondly, does he, in fact, use his best endeavours to ensure that the rule of law is respected? I shall ask him a third question: if his answer to either of those is "No", when will he resign?
      The noble and learned Lord's amendment is inadequate. First, it starts off, very undesirably, on a negative basis, saying:
      "This Act is not to be construed in a way that would adversely affect",
      the rule of law and the Lord Chancellor's duty. It does not put the matter positively; it merely puts it negatively. Secondly, in paragraph (b), the Lord Chancellor's duty is qualified by the phrase,
      "in the exercise of his functions".
      What limitation, if any, do those words put upon it? Is it part of the Lord Chancellor's functions to advise his colleagues that their proposed measures may infringe

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      the rule of law? If so, what do those words add? Is there not a nasty risk that it would be suggested that the exercise of his functions is merely the performance of his departmental duties? Would it not be much better to remove those words?
      If I get satisfactory answers to those questions, I would be content that this matter stood over till Third Reading.
      3.30 p.m.
      The Earl of Onslow: My Lords, I hesitate to intervene in the incestuous squabbles between two members of the Fountain Court Chambers, amusing though that may be. Have we not come to a rather pathetic pass when we actually have to consider putting into law that the Lord Chancellor should obey the law? To me that is horrifying. I have assumed that every Lord Chancellor whom I have ever seen, of whom Lord Simon was the first, in Churchill's Cabinet—right through from the great Lord Elwyn-Jones and Lord Hailsham, even to the present Lord Chancellor, the noble and learned Lord, Lord Falconer—was there to uphold the law. It is awful that we have even come to think of imposing, in an Act of Parliament, that the Lord Chancellor should be so bound. That is the result of mucking about with the constitution, without thinking, to which this Government are so prone.
      Baroness Carnegy of Lour: My Lords, I want to ask a question to which I am sure that I should know the answer, but other noble Lords who are not lawyers may be puzzled about it, too. Amendment No. 1 states:
      "This Act is not to be construed in a way that would adversely affect…the existing constitutional principle of the rule of law".
      Why does it say, "the existing constitutional principle"? Is that principle going to change in the next few years? Obviously, the law changes—but does the principle change? If it does not, why does it say "existing"?
      Lord Lester of Herne Hill: My Lords, I was not going to intervene until I heard the remarks of the noble Earl, Lord Onslow. I think that he was suggesting that there was something bad about the amendment, in that it suggests that the Lord Chancellor would otherwise be above the rule of law. My understanding is that the amendment is simply not designed to deal with the liability of the Lord Chancellor, like every other Minister of the Crown, to obey the law. If the Lord Chancellor were, for example, to fetter the right of access to courts, as has happened before, and was challenged by way of judicial review, as I understand the matter the amendment would not touch that situation. The Lord Chancellor would be liable, as would any other Minister, under the rule of law, in accordance with the law.
      Finally, I agree with the noble Lord, Lord Kingsland, that common law antecedes and defines the sovereignty of Parliament.
      Lord Donaldson of Lymington: My Lords, I wish briefly to raise a question about the statement by the noble and learned Lord that Parliament is always supreme. I would have agreed with him five years ago. However, the ouster clause passed by the Commons in relation to the then asylum Bill caused me to give a great deal of thought to what would have happened if it had become law. It would have excluded the right of the courts to intervene under any circumstances. Its width was quite breathtaking, and I am confident that if it had been passed, the judges would have said, "We're not having this".
      How the judges could have done that is a different matter. One possibility would be that they might have grounded their opposition, and based their insistence on taking jurisdiction, on the rule of law. We have a tripartite constitution, unwritten though it may be, under which it is not open to any two of the three components simply to close down the third. I make that point because I would not like the statement to go uncontradicted that in all circumstances Parliament is superior to the rule of law. It is in 99 out of 100 cases, yes, but not in all circumstances.
      Lord Mackay of Clashfern: My Lords, I should like to follow up the remarks of the noble Lord, Lord Lester of Herne Hill. I am not clear, although the noble and learned Lord the Lord Chancellor may help me to become clear, that paragraph (b) in his amendment is not sufficiently general to exclude attempts to challenge the Lord Chancellor's actions—based, for example, on the rule of the law in its principle that the access to the courts should not be unduly fettered. The noble and learned Lord the Lord Chancellor will know that a Lord Chancellor was successfully challenged on that, notwithstanding the fact that others supported him. When that happened, the Lord Chancellor of the day immediately accepted the judgment of the court and altered the arrangements that had been challenged.
      Grateful as I am to my noble friend Lord Onslow for believing that Lord Chancellors always obey the law, inadvertently it may happen that something goes wrong and the courts have the function to correct it. The principle on which that case was decided was the constitutional principle as part of the rule of law that access to the courts was not to be impeded. There was a particular case, and it was generally thought that legal aid would cover the point—but there was no legal aid for defamation, and therefore there was a loophole. A litigant seeking a defamation action was thought by the divisional court to have been wrongly excluded from the court by the necessity to pay fees.
      It is not clear to me that the Lord Chancellor's duty, said not to be "cognisable in law", is sufficiently constrained not to be put at jeopardy with regard to that particular type of action. I would be grateful to the noble and learned Lord the Lord Chancellor for dealing with that matter. Perhaps he will satisfy me that the provision does not deal with that kind of situation, as the noble Lord, Lord Lester, said. For my part, I feel grateful that the noble and learned Lord has

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      considered the matter and introduced the amendment. My only difficulty with it so far is the one that I mentioned.
      I agree that this is a difficult area and that we are trying to replace what was very much a matter of convention and understanding. That is because of the way in which the Government have chosen to legislate about the office of the Lord Chancellor. We are now, in view of those changes, trying to legislate for what was a delicate and important position in the past, which rested on convention and understanding.
      Lord Falconer of Thoroton: My Lords, I am grateful for all the interventions. First, I agree with the noble Lord, Lord Kingsland, that the history of how parliamentary sovereignty came to be sovereign is a matter of interest. However, I did not understand him to say that he disputed the principle that Parliament was sovereign in relation to what it did, so I believe that we start from the same proposition.
      Secondly, in relation to functions, I hope that in the remarks I made in introducing the amendment I put the noble Lord's mind at rest. I want to make it absolutely clear that the functions of the Lord Chancellor in relation to the rule of law do not just stop at his departmental functions, but include dealing with other Cabinet Ministers who put forward proposals that in his view offend against the rule of law, and offend against the rule of law in relation to areas which do not relate to his own departmental responsibilities. I believe that that deals to some extent with the point made by the noble Lord, Lord Goodhart.
      The point that has to be made, on which I believe that noble Lords agree, is that the Lord Chancellor does not traditionally have a roving, proactive brief to go to each individual Minister, see each piece of legislation and express a view on whether that legislation is sufficiently certain to comply with some people's concepts of the rule of law. The distinction that I seek to draw is that the Lord Chancellor is not like the German Minister of Justice, who has to approve every piece of legislation and every government Act in accordance with that provision. I believe that we are agreed with regard to that matter. My view is that paragraph (b) in my amendment, which the noble Lord, Lord Kingsland, believes does not deal with that point, does in fact deal with it. It is my intention that it should. My hope is that between now and the next stage, I shall be able to persuade him on that matter.
      In response to the questions asked, very tellingly, by the noble Viscount, Lord Bledisloe, I say that the rule of law is a central principle of our constitution and that I regard my role as seeking to uphold it. However, I do not regard my role in relation to the rule of law as being, for example, always to support an increase in expenditure on the police in counties where crime is going up and the number of police is going down. I believe that that would be the effect of the amendment in the name of the noble Lords, Lord Kingsland and Lord Goodhart. It is important to define what we mean in that regard.
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      I am very grateful to the noble Viscount, Lord Bledisloe, for having tabled his amendment. No doubt, it suitably chides us all into action. I hope that he will participate actively in any discussions which we have on it. As regards what the noble Earl, Lord Onslow, said. I do not think it has ever been in question that the Lord Chancellor and, indeed. every other Minister in the Government, would seek to comply with the law. The issue that we seek to deal with is the extent to which the Lord Chancellor has a particular role in government to see that the rule of law is enforced.
      In relation to the point made by the noble and learned Lord, Lord Mackay of Clashfern, I refer to the Witham case, which concerns access to justice, although I stray very diffidently into it. I had absolutely no intention of excluding—nor do I think that I have done so—the court from reaching a conclusion that what the Lord Chancellor had done inadvertently in the Witham case was to, as it were, break the law by illegally fettering access to justice. It was certainly not my intention—nor do I believe that it would be the effect of my amendment—to prevent a subsequent Lord Chancellor who did precisely the same thing being sued in the future. However, I shall certainly consider the matter in the light of what the noble and learned Lord said.
      The noble and learned Lord, Lord Donaldson of Lymington, referred to the ouster of judicial review. Assuming that an ouster of judicial review had been passed and assuming that the court concluded that it applied to the particular circumstances before it, in my view if it had been passed by Parliament it would determine what the position would be. Given the principles of parliamentary sovereignty, there would be no basis on which the courts could say, "We think this is going too far even though Parliament intended to pass it, and we can strike it down because we do not like it".
      In the light of what has been said, I do not intend to press my amendment. I hope that we can bring it back—
      Viscount Bledisloe: My Lords, before the noble and learned Lord sits down, I remind him that, no doubt inadvertently but perhaps somewhat Freudianly, he has not yet replied to my request for undertaking that his new proposal will be brought forward in good time to enable us to discuss it, rather than having it bounced upon us at the last moment.
      Lord Falconer of Thoroton: My Lords, my proposal is contained in Amendment No. 1.
      Lord Renton: My Lords, could the noble and learned Lord explain what he considers to be the legal effect of the words "not cognisable in law" in paragraph (b) of Amendment No. 1?
      Lord Falconer of Thoroton: My Lords, by that I mean that the court should not be able to say, "This is the stance that the Lord Chancellor should take in Cabinet on a particular position". 1 apologise to the

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      noble Baroness, Lady Carnegy of Lour, for not having answered her question; namely, why use the word "existing"? I think that we are all agreed that what we are seeking to do through this provision is to preserve the Lord Chancellor's existing duty, rather than to create any new one. That is why we use the word "existing". We do not intend in any way to restrict the development of the law. The duty of the Lord Chancellor that we are discussing is a general duty to seek to ensure that government complies with the rule of law.
      3.45 p.m.
      Lord Goodhart: My Lords, would the noble and learned Lord be willing to arrange meetings involving himself, the noble Lord, Lord Kingsland, the noble Viscount, Lord Bledisloe, and myself to discuss the issues, on the basis that at that stage none of us produced a new draft? We could examine the existing draft to determine what each of us regarded as the problems and whether we could work out a solution to those problems. I suggest that that might be an appropriate way to deal with the matter, rather than inviting the noble and learned Lord to come forward with a redraft before we have started discussion.
      Lord Falconer of Thoroton: My Lords, I accept that suggestion with enthusiasm. I say to the noble Viscount, Lord Bledisloe, that I would very much welcome further discussions with everyone with whom I have already had so many enjoyable discussions. I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      [Amendment No. 2 not moved.]
      Lord Lloyd of Berwick Lord Lloyd of Berwick moved Amendment No. 3:
      Before Clause 1, insert the following new clause—

      LORD CHANCELLOR: MEMBERSHIP OF THE HOUSE OF LORDS
      No person is qualified to be Lord Chancellor unless he is a member of the House of Lords."
      The noble and learned Lord said: My Lords, the amendment would give effect to what I thought the Committee had decided a few months ago, on 13 July 2004. I thought that we then decided to retain the office of Lord Chancellor with certain modifications on which we were all agreed. The Government, however, say that that is not the case and that all we decided then was to retain the name or title of Lord Chancellor, who could just as well be a Member of the House of Commons and need not be a lawyer. I cannot accept that that is a fair reading of the debate that took place in Committee on 13 July, nor of the vote that followed.
      Perhaps I should remind your Lordships of the position as it then was, starting with the Long Title of the Bill:
      "A Bill to make provision for replacing the office of Lord Chancellor, and to abolish that office".
      Clause 12 of that Bill stated:
      "The office of Lord High Chancellor of Great Britain is abolished".
      On that occasion, Amendment No. 1 was moved by the noble Lord, Lord Kingsland. That amendment inserted the words "the Lord Chancellor" in Clause 1, where they now stand. The noble Lord linked to the amendment the Question whether Clause 12 should stand part of the Bill. The issue, as defined by the noble Lord, Lord Kingsland, when he moved his amendment, was whether the office of Lord Chancellor should be retained or abolished. On that occasion, he reminded the Committee that it was common ground that if the office was retained, it should be modified. For example, the Lord Chancellor should no longer sit as a judge. That was common ground.
      It was common ground that the concordat reached between the Lord Chancellor and the Lord Chief Justice—who I am glad to see is present—should take effect under Part 3 of the Bill. As I say, all that was common ground. Part 3 contains the important provisions on the Judicial Appointments Commission, on which everyone is agreed. With those modifications, the Lord Chancellor was left with his present job of running a large department responsible for the administration of justice and with his special function of protecting and defending the independence of the judges and the rule of law. I believe that everyone agrees that the question whether he should continue as Speaker of this House is a question not for this Bill but for this House to decide in the fullness of time.
      All that, as I say again, was common ground, so what actually was the issue that detained the Committee on 13 July? The issue was, I would submit, very clear; whether the job that I have described, and which was agreed, should be performed by the Lord Chancellor in this House, or whether it could be performed by a Minister in the House of Commons. That was what the debate was actually about.
      Yet, the Lord Chancellor now says that all that was at issue was a name, a shell without the kernel, so that the Lord Chancellor would become just another name like the Lord President of the Council and the Lord Privy Seal. I cannot accept that as a fair reading of the debate that took place in Committee. I am afraid that I will have to make that good by a number of quotations from the debate. It will be somewhat tedious, but I suspect that it is one of the things that should be done when the Committee is reporting to the House.
      I start with the noble Lord, Lord Kingsland. Having set out clearly, as I hope that I have done, all that was common ground, he then stated the issues as follows:
      "First, the individual who occupies the office of the Secretary of State for Constitutional Affairs must, in our view, be a senior and experienced lawyer…Secondly…the Secretary of State will have to be in your Lordships' House. This is not only because there is a poverty of qualified lawyers coming from another place…but also because your Lordships' House is able to stand back from the hurly-burly of political life in another place and assess the constitutional implications of Bills that come to it".—[Official Report, 13/7/04; col. 1144–45.]

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      In support of that argument, he quoted the evidence given by Professor Robert Hazell. That was the way in which the question was defined by the noble Lord who moved the amendment.
      Then I come to the noble and learned Lord, Lord Howe. Again, he described the job as I have described it, and went on as follows:
      "Three things follow from that analysis, which are quite familiar. First, we need to have in that office a distinguished senior figure",
      he went on to explain that he meant a senior legal figure,
      "at the end of his career … The second proposition, which is again familiar to the Committee, is that the holder of the office should be in this House".
      His third conclusion related to the title of the office.
      "If the office holder is to have the qualifications of a senior lawyer and Member of this House, with the duties imposed on him as we are all agreed, one comes back to that old phrase that if it looks like a duck".—[Official Report, 13/7/04; cols. 1153–4.]
      I think that I will improve his quotation slightly. If it looks like a duck, and if it quacks like a duck, it probably is a duck. The noble and learned Lord used the expression "walks like a duck"; I think "quacks" is better. What is important there is that the question of the title came third. That was the third conclusion, and it was derivative from the other two conclusions; that he should be in the House of Lords and should be a senior lawyer.
      I know that one should never quote oneself, but if I may:
      "I therefore come to the fourth and last argument that has been advanced. It is said that the Prime Minister should be free to appoint whoever he wants to run the courts—free to appoint a Member of the other place who is not a lawyer and could be quite junior in Cabinet ranking. That is the real difference between the two sides in this debate. In my view, the task of defending judicial independence in the Cabinet is one of such critical importance that it should be given to a senior judge or lawyer who is a Member of this House and not to a politician on his way up the greasy pole".—[Official Report, 13/7/04; col. 1148.]
      I do not see the noble Lord, Lord Carter, in his place. Having referred to the removal of certain functions from the office of the Lord Chancellor, on which we were all agreed, he went on to say:
      "Even if those functions are removed, all the amendments in this group are intended to ensure that there is a senior lawyer and a Member of the House of Lords in the Cabinet to protect the independence of the judiciary and the rule of law".—[Official Report, 13/7/04; col. 1164.]
      Of course, the noble Lord, Lord Carter, went on to say that in his view, that function could be performed equally well by a Member of the House of Commons. But, the point that I stress is that he too regarded that as being the issue in debate. The same is true of the noble Lord, Lord Richard, and how he put the issue. He said:
      "'Where should the Minister sit?', the automatic reaction of anyone who has been connected with politics would be, 'Down the other end'. I am not saying that the Lord Chancellor has to sit down the other end, but I am saying that you cannot rule it out".—[Official Report, 13/7/04, col. 1176.]
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      The same point was made by the noble Lord, Lord Brennan. He said:
      "It would certainly be undemocratic to require such a Minister to be a lawyer and from this House".—[Official Report, 13/7/04; col. 1160.]
      The noble Viscount, Lord Bledisloe, perhaps put it clearest of all, when towards the end of the debate he said:
      "The Government say that we are to have an ordinary, run-of-the mill House of Commons politician in the middle of his career looking for promotion, with no particular knowledge of the law and its workings, hoping to keep the Prime Minister's good will and get promotion and move upwards, sideways or perhaps, if he is difficult, outwards, in a very short time.
      Contrariwise, we say that there should be somebody in the traditional mould of a Lord Chancellor who has served the British constitution in an evolving way for many centuries. It should be a senior lawyer in this House, bound by an oath to the duties imposed on him by Clause 1. It should be somebody—and this is the key perhaps—at the ceiling of his career, who has nothing to hope for by way of promotion and who therefore is in a stronger—I only say stronger—position".—[Official Report, 13/7/04; col. 1180.]
      All those speeches were all one way. There was only one contrary voice, and that was voice of the noble Lord, Lord Goodhart. He said that the only issue in the debate was the title, the name. He said that that was all that we would be voting on, not where he should sit; not whether he should be a lawyer or not. There may have been special reasons why he took that particular example.
      Nobody followed that line in that debate, and it was specifically repudiated by the noble Lord, Lord Crickhowell, from the Conservative Benches, and by the noble Lord, Lord Skidelsky, from the Cross Benches. Nor was that line—and this is perhaps the most significant point of all—adopted by the noble and learned Lord the Lord Chancellor when he replied. He never once mentioned the speech made by the noble Lord, Lord Goodhart. On the contrary, he described the question for the debate in exactly the same way as had been described by everyone else:
      "But the question is, should the Prime Minister be constrained to have a senior lawyer in the House of Lords?"—[Official Report, 13/7/04; col. 1189.]
      That was said just before the vote was taken. A little later, he said:
      "Returning to the heart of the debate, the only grounds on which the amendments in this group can be supported is either that the office of Lord Chancellor is not abolished, or, if it is, that the name is retained".—[Official Report, 13/7/04; col. 1190.]
      In the event, of course, the office of Lord Chancellor was not abolished, so the question whether the name should be retained simply did not arise.
      It would seem to me that that vote having been taken, the contrast having been made so clearly by the Lord Chancellor, and the vote having gone against him as it did, the amendment that I am putting before your Lordships is simply unnecessary, because the Committee has already decided the point. One can make that good by looking now at the new Long Title, which states:
      "A Bill to Make provision for modifying the office of Lord Chancellor, and to make provision relating to the functions of that office".

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      So the question that now arises is what are the modifications to which the Long Title refers? They are those that are spelt out in the Bill. They are those upon which we are all agreed, that the Lord Chancellor should no longer sit as a judge and that he should be bound by the concordat made between him and the Lord Chief Justice.
      It seems that the Lord Chancellor is introducing further modifications to the office of Lord Chancellor which are nowhere to be found in the Bill as it stands. The Lord Chancellor has always been a Member of this House and he has always been a lawyer. That convention is as strong as any law and will remain until it is amended by statute.
      4 P.m.
      Lord Goodhart: My Lords, could the noble and learned Lord, Lord Lloyd of Berwick, explain why he has tabled the amendment, if, as his argument seems to be, it is unnecessary to consider this question because it has already been decided by the vote in Committee.
      Lord Lloyd of Berwick: My Lords, if the Lord Chancellor wished to ensure that the Lord Chancellor need not be a Member of the House of Lords, it would have been be for the Lord Chancellor to table that amendment, not us. That is why I am saying that our amendment is not, strictly speaking, necessary. But, having been once misunderstood, it seemed better now that we should table this amendment to make it clear once and for all and, I hope, with as large a majority as was registered on the last occasion, that we should ensure that the Lord Chancellor is a Member of this House and a senior lawyer—as he has always been. I would answer the noble Lord, Lord Goodhart, simply with the words, "once bitten, twice shy". On this occasion I hope that we shall make absolutely clear what we want.
      I have spoken much too long already. I have not advanced any of the reasons that should be advanced—I hope that that will be done by others—regarding why it is so necessary for the Lord Chancellor to be a Member of this House. The evidence given in Select Committee was almost overwhelmingly in favour of that—the views expressed by the Law Society; those expressed very firmly by the House of Commons Constitutional Affairs Committee; the views expressed by the noble and learned Lord, Lord Bingham, on many occasions on behalf of the judges, when he was Lord Chief Justice; and in the Law Lords' evidence to the Select Committee, and so on. All of that points to ensuring that the Lord Chancellor should be a Member of this House.
      I know that I have trespassed on your Lordships' time, but perhaps I may repeat, because it is something that many of your Lordships may not have heard, a speech by the noble and learned Lord, Lord Cooke of Thorndon, which explains the view of the Lord Chancellor's office from the other side of the world—
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      indeed, from all around the world. Those who heard the speech will never forget it and I hope that your Lordships will pay due attention to it. He said:
      "What is the greatest legal office in the world? Before the Bill was conceived, there could have been little doubt that it was that of the Lord Chancellor. In a non-Gilbertian sense, he embodied the law of England. His—and it could be her—high status has been an enduring symbol of the commitment of the United Kingdom to the rule of law and the independence of the judiciary. That was not primarily because he sometimes sat as a judge—a practice which was falling into desuetude and is now being abandoned. That was incidental. It was because he was a senior Member of the House of the Lords and of Cabinet—an illustrious and universally respected lawyer who was able to speak with authority for all that the law represents. He was a kind of guarantor or watchdog of legality at the heart of the constitution".—[Official Report, 11/10/04; col. 38.]
      I beg to move.
      Lord Campbell of Alloway: My Lords, we seem to have been speaking to Amendment No. 4 as well as this amendment. I shall be brief. One asks a simple question: does not the substance of concern about qualifications for appointment to the office of Lord Chancellor relate exclusively to the due discharge of his functions? One of those is the due discharge of the constitutional advisory role in Cabinet; and I am grateful to the noble and learned Lord for acknowledging that function twice today. Assuredly, that function may be discharged only by a Lord Chancellor who, on appointment, is or becomes a Member of this House and has requisite legal expertise.
      Another point has arisen recently, to which the noble Lord, Lord Goodhart, referred. Does one need to table amendments if the extant conventions would continue to operate in any event? That is right, up to a point, because they would—and I have been advised that they would. But was that advice right? Should one take that on trust? Is that not a fundamental question on which this House now, at this stage, should know where it stands and have this matter resolved on the face of the Bill?
      I have always said that the constitutional function is the only other matter for which I would go to the stake. That function has been acknowledged. It has not yet been expressly acknowledged on the face of the Bill—and I hope that that will be the case in the revised draft. But whether it is or is not does not affect the points made by the noble and learned Lord, Lord Lloyd of Berwick, regarding the "once bitten, twice shy" and "empty shell" arguments, which hang over our heads. It is best to have this matter resolved.
      Finally, membership of this House affirms entitlement to a Writ of Summons to attend, to speak and to vote.
      Lord Phillips of Sudbury: My Lords, once the principle of maintaining the ancient and esteemed office of Lord Chancellor has been accepted, and I give the Government some credit for accepting the verdict of this House last July, the issue of whether or not he or she should be a Member of this place revolves for

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      me around whether or not that will strengthen his or her ability in Cabinet to uphold the rule of law and the independence of the judiciary.
      Consider the circumstances against which that vital role is to be carried out in 2004. Government is becoming ever more presidential and concentrated. It is also becoming more centralised year by year. Above all, with the continuing breakdown of community life and ever more mobility, the sinews of our society are increasingly those of statute law, which we are churning out at the rate of more than 12,000 pages of new law per year. That means ever more, and more contentious, work for the judges.
      Why should a lawyer sitting in this place be more likely to have more experience, prestige and authority as Lord Chancellor than a lawyer in the other place? For the purposes of this amendment, I have assumed that the Lord Chancellor, whether he or she be there or here, should be a lawyer.
      A small but not insignificant point is that we would probably have to abandon the title of Lord Chancellor if he or she was in the Commons, which would be damaging to public recognition. It would be a complete anomaly to have a Lord sitting in the Commons. However, the substantial point is that the Commons, year by year, is a more partisan assembly, made up of professional politicians—men and women who have done little if anything but pursue a political career. I say that with no disparagement at all.
      We know, for example, that the Government have not lost a single whipped vote since they came to power in 1977.
      A noble Lord: 1997.
      Lord Phillips of Sudbury: My Lords, I am sorry. I meant 1997, although it seems more like 1977.
      That record contrasts with an average of two or three defeats in the Lobbies per week in this place. The greater independence of Members of this place is not just a function of having a fifth of our Members sitting on the Cross Benches; it is also because most Members of this House have long and often distinguished histories—they have worked and led in the big wide world, which tends to bring with it a singular independence of judgment and action. There are also few financial or other inducements to stifle honest dissent, as the infinitely more diverse voting record of Members in this place manifests.
      Added to that is the presence here of many senior lawyers. Again, that is wholly unlike the other place these days. Even though the Law Lords may, after reform, cease to sit here while still on the Bench, many will come here after retirement and so continue to contribute richly to our deliberations, not least by trenchant comment on the discharge of his or her office by the Lord Chancellor of the day. I am convinced that all that will be of the greatest support to future Lord Chancellors, no less than to those in the past. I must say in passing that the argument that we should abandon the status quo because some Lord
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      Chancellors have been less than independent and effective is an argument for the abolition of every office in the state.
      I turn to my final point. The provision of Clause 1 for the independence of the judiciary to be the duty of not just the Lord Chancellor but also other members of the Cabinet seems to be—how shall I put it?—virtuous but useless. If virtue could be attained simply by the passing of a provision of a statutory enactment, Parliament would have been out of business long ago. The reality is that the convention or constitutional principle of the independence of the judiciary and of the rule of law is a function of our political culture. It is lodged in hearts and minds more than in the annals of the law. It is significantly bound up with the role of the Lord Chancellor, which, in its turn, is intrinsically dependent on his or her status as a senior lawyer in this House.
      4.15 p.m.
      Lord Woolf: My Lords, I rise to address your Lordships primarily with regard to Amendment No. 3, but I hope your Lordships will forgive me if I stray outside that purpose, because the primary reason that I am before the House today is to express the views of the Judges' Council, of which I am chairman. Those views apply to other groups of amendments and it may be convenient for your Lordships to hear what I have to say on its behalf all at one go, so to speak, because that will probably save time later.
      As I understand the Bill, it is intended to promote two extremely important constitutional principles. The first principle is that the independence of the judiciary must be preserved. This is essential, not for the benefit of the judiciary, but for the benefit of the public. A healthy parliamentary democracy cannot function satisfactorily without an independent judiciary. That principle is a long-established part of our unwritten constitution.
      The second principle is that there should be separation between the different arms of government. This principle is commonly known as the separation of powers. It has not previously been a part of our constitutional arrangements, although it is well observed in most other western democracies.
      Significant changes have been made to the Bill since it was originally presented to the House. From the point of view of the judiciary, the most important of these changes has been the amendment which provides for the title—here I use my words carefully—but not all the functions of the Lord Chancellor to be retained.
      I have always personally regarded the historic office of Lord Chancellor as a bulwark for the independence of the judiciary, but I recognise that its existence demonstrated a total disregard for the principle of the separation of powers when the Lord Chancellor performed his traditional functions. However, the office as now proposed in the Bill is in accord with that principle.
      The critical distinction between what has existed and what is now proposed is that the Lord Chancellor is no longer to be the head of the judiciary or a judge.

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      His former responsibilities, in the concordat mentioned by the noble and learned Lord, Lord Lloyd, have been reallocated so that he will exercise only functions appropriate to a government Minister, while those functions which should properly be under the control of the judiciary will be exercised by the Chief Justice. Functions that are properly matters for both the executive and the judiciary will, under the Bill, be exercised jointly by the Lord Chancellor and the Chief Justice, although the fact they have jointly to exercise those powers means that if they do not agree, they cannot be exercised.
      By changing the functions of the office while retaining the title, it appears to me that the House has managed to square the circle. The House has respected our historic traditions while acknowledging the principle of the separation of powers that has become the symbol of modern democracies.
      Before the Bill was introduced, the judiciary had approved the concordat reached between the Lord Chancellor and myself. As the noble and learned Lord, Lord Lloyd, said, the concordat now forms a substantial part of the Bill. As I understand it, all parts of the House accept that the concordat establishes a modern framework for the future relationship between the legislature, the executive and the judiciary.
      A strength of the concordat is that it ensures the continuation of the working relationship between the different arms of government. It does this in a manner that furthers both the principles to which I referred at the outset. Indeed, in addition to respecting the separation of powers, the concordat ensures that the judiciary's independence will be fully protected in the future.
      However, it is important that the House should hear the views of the Judges' Council on this Bill in its present form. After all, the Judges' Council is the one body that consists of members from, and representing, every level of the judiciary, including the Master of the Rolls, whom I am pleased to see in his place today, supporting what I say. The Judges' Council is in the best position to speak for the judiciary as a whole. Even though it is for the protection of the public that we value the independence of the judiciary so highly, the serving judiciary's collective view on how the Bill will affect its independence is surely worthy of close attention.
      At a meeting on 24 November last, the Judges' Council unanimously approved the Bill, subject to the concerns on which I must now address your Lordships. The first concern is that there should be a clear statement on the face of the Bill that the holder of my office will be the head of the judiciary. Without this amendment to the Bill, the Judges' Council is concerned that the retention of the title of Lord Chancellor could send a confusing message as to the role of the holder of my office in the future. The noble and learned Lord the Lord Chancellor recognises the validity of that point and is proposing Amendment No. 11 to Clause 3, which of course I support.
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      Subject to that clarification, the Judges' Council would welcome the retention of an office called "the Lord Chancellor". It would like to see a requirement that the holder should be a lawyer, ideally with similar qualifications to those required before a person can be appointed a High Court judge. The Lord Chancellor will not be a judge, however, and so he should not take the judicial oath. But, again, there is a proposal for a different form of oath in one of the groups of amendments.
      The Judges' Council recognised that there were difficulties in fettering the Prime Minister's discretion as to his choice of Lord Chancellor. Therefore, the council considered it preferable, but not vital, that the Lord Chancellor should be a Member of this House.
      The second concern is that there should be some way of compensating for the fact that the Chief Justice of the day will no longer be a Member of this House and thus entitled to draw to your Lordships' attention matters of importance to the judiciary. I hope that in due course noble Lords will consider that Amendment No. 24, as tabled by me and my noble and learned friend Lord Cullen of Whitekirk, meets this need.
      The third and final concern of the Judges' Council is with the provisions of the Bill dealing with the creation of the Supreme Court and the consequences of its creation. The Judges' Council considers that the provisions of the Bill relating to the Supreme Court should not come into force until a suitable prestigious building is ready for occupation. The Judges' Council recognises that that concern could be met by an appropriately drafted sunrise clause. The council has not itself drafted a clause but is happy to leave its approval to the senior Law Lord, who, I believe, has already seen and approved a draft.
      In the past, I personally have not been vocal in support of a Supreme Court. However, I recognise that it would have very real advantages over the Appellate Committee. It would make our final court of appeal more accessible to the public; it would be more in accord with the separation of powers; and its role would be more understandable to the public.
      My coolness to what should be an exciting innovation in this jurisdiction was primarily financial. Would the new court be housed in a building worthy of a Supreme Court and would it take money away from the existing courts? My coolness was limited in that direction because I understand that the Supreme Court's powers will be virtually identical to those of the Appellate Committee.
      Here, I recognise that a sunrise clause could go a considerable way towards meeting my reservations. My noble and learned friend Lord Bingham of Cornhill and his fellow Lords of Appeal have made clear the nature of a building that would be worthy of a Supreme Court. In addition, the practicalities involved in the creation of the court mean that, almost inevitably, it will be delayed for a sufficient number of years for the necessary resources to be made available without unduly prejudicing the existing overstretched court budget. Accordingly, subject to there being a

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      suitable sunrise clause, the creation of a Supreme Court will have my support and that of the Judges' Council.
      Those concerns apart, the Bill has the strong support of myself and the Judges' Council. Of course, there is some tidying up still to do and no doubt there are parts of the Bill that do not match individual preferences.
      However, as a whole, the Bill marks a gigantic step forward in our constitutional arrangements. Above all, it means that the future independence of the judiciary will be safer than it has ever been. That independence will no longer be dependent on the hope that there will be in the future, as there has been in the past, a benevolent Lord Chancellor or Prime Minister who is prepared to mount his steed and ride to the rescue of the judiciary.
      We must recognise, however, that the world has changed and that today the pressures on the judiciary are of a different order from those of the past. The temptations for an administration, irrespective of its political hue, to select a route that impinges on access to justice can be enormous. The danger to the judiciary will not, in this country, come from a single fatal blow but from the more insidious effect of a thousand cuts. Against that, the concordat will provide protection.
      I urge your Lordships to recognise that, if we value an independent judiciary and its task in protecting our personal freedoms, we should ensure that this Bill reaches the statute book. The time available for that to happen is limited. Delay could result in its loss. We must not, in order to achieve a short-term advantage, miss the window of opportunity that the Bill still has for this new constitutional settlement to be entrenched in statute.
      The Bill's conception may have been in unfortunate circumstances. Fortunately, thanks to an extraordinary amount of effort by the Department for Constitutional Affairs and a small team of the judiciary led by Lady Justice Arden, and thanks also to the improvements made during its passage through this House, particularly in the Select Committee, the Bill has developed into a piece of great reforming legislation. If it is given life, it will rank in importance with the great constitutional instruments of the past. We must ensure that that happens.
      Lord Lloyd of Berwick: My Lords, before the noble and learned Lord sits down, would he say that the principle of the separation of powers has anything to do with whether the Lord Chancellor should sit in this House or in the House of Commons?
      Lord Woolf: My Lords, I fear that I failed to make myself clear. The separation of powers has nothing to do with whether the Lord Chancellor sits in this House or the other place. As I indicated, the view of the Judges' Council was that it was preferable that the Lord Chancellor should sit in this House. But, for reasons that I also explained, the Judges' Council said, and was of the opinion, that this was not vital.
      4.30 p.m.
      The Lord Bishop of Salisbury: My Lords, in the current complexity of constitutional unknitting, so unlike that for which we pray in our prayers day by day—the remaking of all our common life—it seems to me that one thing needs to remain constant. Historically, we have believed that it is possible for one man—alas, rather like the occupants of these Benches, they have all been men—to combine the different powers of the Crown—judicial, legislative and executive—in one office. We have had sufficient trust to allow that to happen, to allow an eminent member of his profession and a Member of this House to hold those different reins with integrity and we have never been disappointed.
      I suggest that that trust is worth preserving and, indeed, making visible: that is the belief that a noble Lord can be trusted not to be swayed by influence and prejudice, not to be corrupted, and not to have his judgment clouded. The office of Lord Chancellor, as the noble and learned Lord, Lord Lloyd of Berwick, has outlined it to us, expresses our confidence that someone can be a party man and yet exercise impartial discretion; he can be a political appointee and yet withstand the pressure of those who have appointed him; and he can speak here and yet interpret the law objectively.
      Around those matters the historic office has clustered and, although I understand what the Judges Council want to put in place around the separation of powers and judicial responsibilities, the holding together of those threads in the office under one person seems to me to be important. The very existence of the office gives expression to our willingness to trust one another and, in building a common life in the country, nothing can be more important when trust is undermined everywhere by just that kind of separation.
      We human beings are very complex creatures: individual compositions of different roles and functions with rich varieties of tastes and interests and responsibilities and experiences. All that is true, but we cannot be reduced to players of role or limited functions. People cannot be dissected and carved up; that way lies social disintegration and despair. Choose to relate to only the parts of people of which you approve and one will soon relate to no one at all.
      As the debate on Amendment No. 1 shows, the difficulty is what happens when we try to define and divide up the roles that we have traditionally held together. Those who sit on these Benches have had recent experience of being challenged to prove our soundness in the eyes of various interest groups in the Church by indicating our support for particular groups' positions. We have resisted, refusing to be pulled about in such a way. As I have said, we are complex creatures and we relate to one another in all that complexity, or we do not relate at all.
      So I urge your Lordships to think long and hard before modifying this office over-strenuously and, in particular, by making it possible to remove it from this House. The cold text of statute will now promise the

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      independence of the judiciary. But, welcome though that text may be, will it really be a better protection for that independence than the presence of the Lord Chancellor, a person of enormous professional competence and utter personal unimpeachability at the very heart of government and at the very heart of your Lordships' House? In other words, are we ready to replace the personal with the propositional? We may be, but I urge the House to consider the message that that sends out about noble Lords' trust of one another before it does so, and therefore to consider seriously the amendment that the noble and learned Lord, Lord Lloyd of Berwick, has laid before us.
      Lord Ackner: My Lords, it is a wise advocate who takes his best point first. I have recently had a pacemaker fitted. I am told that that should speed up the delivery of the timid and deferential submissions that I occasionally make to your Lordships.
      I totally support my noble and learned friend Lord Lloyd in his recollection of what took place in the debate on 13 July. I remember well and have recorded it in a modest, little article. The first reference to the Committee on Constitutional Affairs, the majority of whose members are Labour representatives, shows the way in which it stressed the importance of the Lord Chancellor's office in maintaining the independence of the judiciary. The committee pointed out that he has,
      "a special constitutional importance enjoyed by no other Member of the Cabinet and who is usually at the end of his career",
      and thus no longer is available to the temptations that occur if one is still struggling up what my noble and learned friend Lord Lloyd referred to as the greasy pole of politics.
      There was also reference to the anxieties expressed by the Law Lords in their written evidence to the Select Committee. They said that they were,
      "very greatly concerned that the important constitutional values which the Office of the Lord Chancellor protected, should continue to be effectively protected…
      In the past, the Lord Chancellor's role was to uphold constitutional propriety and champion judicial independence. The Constitution would be gravely weakened if that safeguard was removed".
      So much for supporting what was said and what was agreed. Now, quite shortly, I come to the justification, if we have to consider the matter all over again. Towards the end of the debate my noble and learned friend Lord Falconer of Thoroton, the current Lord Chancellor, agreed with the basic proposition that his department—the Department for Constitutional Affairs—had to be strong enough to stand up to not just the Home Office—I do not know why he chose that department—but any department that might seek to infringe the rule of law.
      I submit that that was an important concession because it gave high importance to the immediate question of how it was that the current Lord Chancellor—the Secretary of State—was not prepared to resist the ouster provisions of an immigration Bill which prevented total access to the courts to challenge
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      the legality of an immigration tribunal. Thus, that clause was condemned by lawyers from the Lord Chief Justice downwards as being a constitutional outrage; that it should never have seen the light of day; and that it was the worst area of the law in which to prevent access to the courts because the consequences of asylum decisions often sent people to their deaths.
      Those criticisms were voiced before the matter came to Parliament. They were voiced on the basis of the words in the Bill as published. From the Lord Chief Justice downwards, pressure was put upon the noble and learned Lord, Lord Falconer, not to pursue the ouster clause. That failed. The noble and learned Lord, Lord Falconer, at no stage, as far as I know, expressed any resistance to the clause. He was prepared to espouse it.
      Why did he not go on espousing it? It was not because a Lord Chancellor—because none then existed—had said, "Look, you cannot do that; that is grotesquely unconstitutional". He did not have such advice from someone with such stature.
      What caused him to give up, because that is what he did, was a threat by a recently sacked Lord Chancellor, who expressed silently his opposition to the Bill by putting down his name on the list of speakers in the debate to indicate that he would speak against it. That was the strength of the threat. One would have thought that a future Secretary of State, with the power and the strength of mind to which the noble and learned Lord, Lord Falconer, referred, would have said, "To hell with this; I have thought about it. I resisted criticism before the debate. I shall continue to do so". But he did not. He did not throw in his hand at the end of the debate but before the debate. Therefore, a great number of speakers gave voice to the strong criticism that they would have made if the noble and learned Lord, Lord Falconer, had adhered to his original views.
      I had put my name down, also to speak hostilely, but since the matter had been dropped, it seemed a somewhat unnecessary waste of your Lordship's time. I think that that particular event justifies, more than all the other arguments put together, the fact that we need a senior member of the Cabinet and lawyer of substance and experience, who would be able to say, "Look, I am telling you now that if you adhere to what you intend to do, there will be an almighty constitutional row. You are ill advised and wrong in continuing with this approach".
      I do not see that happening with someone in the Commons who is not a lawyer, who is a junior member of the Cabinet and whose future has still to be made. It is just not on. If you are going to seek to safeguard the independence of the judiciary, you need to have someone who is at least able to say that.
      I appreciate that the Prime Minister can sack the Lord Chancellor the next day. It is pretty expensive to sack Lord Chancellors because they are entitled to their not inconsiderable pensions immediately on taking office. One could see forensic and non-forensic eyebrows being raised if, a Lord Chancellor having

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      been fired, someone—assuming he had the stature and substance—with consistently the same view were appointed to be Lord Chancellor.
      Accordingly, under the pressure of my pacemaker, I say to your Lordships that what is proposed is just not on. It is not feasible. That has been demonstrated by the attitude of the noble and learned Lord, Lord Falconer, to the ouster clause.
      4.45 p.m.
      Lord Howe of Aberavon: My Lords, it is a privilege to speak in this debate, having had the opportunity of hearing the noble and learned Lord the Lord Chief Justice make his contribution on behalf of the Judges Council, and in particular to hear his view on the two questions covered by Amendments Nos. 3 and 4. He made it quite clear that the judges are firmly of the opinion that the Lord Chancellor should be a senior lawyer, who is qualified for judicial office at a high level, and that they have a clear preference for the Lord Chancellor to be in this House. It is also most welcome that the right reverend Prelate the Bishop of Salisbury expresses the same view on that second question from his Benches.
      The extent to which our debates and the evolution of the Bill have fortified the points we present in our case today is remarkable. As the noble and learned Lord, Lord Woolf, pointed out, the clarity of removing the judicial function from the Lord Chancellor's role solves that problem—if and in so far as it is a problem—because the judicial role was virtually never recognised anyway. Our view is becoming clearer that the Lord Chancellor's office is of unique importance because of the spread of its functions in relation to the legal system.
      We know of the Lord Chancellor's duty to uphold traditional independence. That has already been emphasised in the debate. We have been anxious to spell out with great clarity his duty to uphold the rule of law. Not quite so frequently expressed is the role that he will continue to play in overseeing all judicial appointments. It is true that he will no longer make the appointments himself. That passed beyond the bounds of possibility in the days when the noble and learned Lord, Lord Irvine, was Lord Chancellor. The Judicial Appointments Commission existed de facto. That has been embodied in the Bill.
      The Lord Chancellor will play an important and unique part in relation to judicial discipline, as the noble and learned Lord, Lord Woolf, appreciates from the terms of the compact. There are many occasions when the Lord Chancellor and the Lord Chief Justice will have to co-operate together on that. So he will play a central role in every aspect of the administration of justice. It has virtually become common ground now, and I hope it will be acknowledged by the Government, that he needs to be a lawyer of distinction. The residual question we are really focusing on with this amendment is: does he need to be in this House, as judges and others wish, and beyond that, do we need to specify that by law?
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      People say—and they have said it here today—that it would be wrong to fetter the Prime Minister's discretion to have this choice open to him, but nobody has actually argued that he should appoint the Lord Chancellor from the Commons. That has been rejected on all sides from the evidence I have seen so far. The reason we need to put the issue in statute form is that of convention. For as long as memory goes back the Lord Chancellor has been in this House. That convention was dealt a most alarming blow by the events of 11 June, 18 months ago. When prime ministerial power is exercised, whether recklessly, carelessly or impulsively, in defying convention of that kind we are entitled to say that, remarkably and unusually, this is an area where we need to protect ourselves from repetition of similar conduct. We need to embody that in statute law.
      Therefore, I come back to the point which others have made but which cannot be expressed too strongly in expressing the importance of giving the Lord Chancellor this unique position as senior lawyer in this House, to be distinguished from any Secretary of State. Secretaries of State do not always realise it, but their functions can be shuffled around at will. Secretaries of State are relatively small beer compared with the importance of the Lord Chancellor's position.
      I want to cite two passages to explain how important it is to have that statutory guarantee of the independence of the Lord Chancellor. The noble and learned Lord, Lord Bingham, in his memorable address in July last year—the Ditchley lecture—said:
      "If the office is held by senior, authoritative, respected, politically disinterested Ministers, and if those Ministers act as robust champions of constitutional propriety and judicial independence, then the core of the Lord Chancellor's office will be preserved…I do regard the conditions as spelled out as crucial if the safeguard of proven value, which has served us well over many centuries, is not to be lost, perhaps for ever."
      That is strong language, which is perhaps not surprising coming from a former Lord Chief Justice and senior Law Lord. However, more important even than that are the comments made by the House of Commons Constitutional Affairs Committee, in its first report of 10 February. It states:
      "By virtue of the office's 'great antiquity, much dignity and considerable importance', the holder has special status within Government. He has always in recent times been a lawyer. He has generally in recent times been at one remove—at least in the public eye—from the day to day activity of the Government. Often Lord Chancellors have been promoted from a career outside Parliament…All have been distinguished within the legal profession, to which they have displayed great loyalty".
      Then there is the argument that has been advanced several times, but not quite in this form, coming from a House of Commons committee:
      "There is a radical difference between on the one hand a Lord Chancellor…who has a special constitutional importance enjoyed by no other member of the Cabinet and who is usually at the end of his career (and thus without temptations associated with possible advancement) and on the other hand a minister who is a full-time politician and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion".

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      That is the crucial thing. A Lord Chancellor in this House is, almost by definition—even for such a young man as the noble and learned Lord, Lord Falconer—not at the end, but at the pinnacle of his legal and political career. It is an incentive to get people who are trying to pursue the two occupations of lawyer and politician together to note that that is one office open to them at the end of their career as a possible triumphant conclusion, and it is of huge importance that that office should continue to have all those qualities attached to it and that it should be in this House.
      It may have been sufficient until now to rely on the Prime Minister of the day to obey the conventions of the constitution but, after the events of that reckless press release that destroyed the horse on which the noble and learned Lord, Lord Irvine, had until then been riding, it is surely crucial for Parliament to say clearly and beyond doubt that the Lord Chancellor, with his functions defined as the noble and learned Lord, Lord Chancellor, seeks to do, should be firmly, by statute, placed in this House.
      Lord Richard: My Lords, there seems to be a slight air of unreality to this debate. We have been round the course and have heard the arguments several times already. The only new evidence that there has been this afternoon has been the extraordinary speech by the Lord Chief Justice, who brought a judicial view to our proceedings that was both refreshing and novel and ought to be treated extremely seriously by the House.
      When the Select Committee was considering the Bill, the noble and learned Lord, Lord Howe, took the view, I thought, that the office of Lord Chancellor should be associated with the office of Secretary of State for Constitutional Affairs—in other words, that the surviving office, if I may use that phrase, should broadly be what it is at present, as occupied by my noble and learned friend Lord Falconer. The speech that the noble and learned Lord just made seemed to indicate that he actually wanted a distinction: there would be two Ministers, one the Secretary of State for Constitutional Affairs—
      Lord Howe of Aberavon: No, my Lords.
      Lord Richard: Well, my Lords, I noted down the noble and learned Lord's words. He said, "the Lord Chancellor, as distinguished from the Secretary of State". If I am wrong, I am delighted to give way.
      Lord Howe of Aberavon: My Lords, the last thing in the world that I want to do is to disaggregate the functions now exercised by the noble and learned Lord, Lord Falconer. I was simply making the general point that Secretaries of State can have their functions shuffled one from the other, but I do not want to disturb the present functions exercised by the noble and learned Lord.
      Lord Richard: My Lords, I thank the noble and learned Lord for what he said and now appreciate precisely what is his position. I merely say to him as a former Chancellor of the Exchequer that the proposition that someone who administers a budget of £3 billion to £4 billion per annum must sit in the House of Lords is extraordinary. In normal circumstances, it may well be that the Lord Chancellor and the Secretary of State for Constitutional Affairs would sit in the House of Lords, but I cannot imagine that any government would sensibly want to fetter their discretion in that way.
      We cannot disentangle the two issues of what are the functions of the Lord Chancellor and in which of the two Houses he or she sits. If, as we have heard a great deal this afternoon, the role of the Lord Chancellor is merely to be preservation of the independence of the judiciary—although, having heard the Lord Chief Justice, it seems to me that the judiciary now feels that its independence is, on the whole, pretty well safeguarded as a result of the concordat—there is an argument for saying that he should sit in this House and should be in the Cabinet. However, a Secretary of State administering a budget of that size should prima facie be accountable in the same way as are other Secretaries of State who have a budget of major proportions. If we take away the Secretary of State functions, what is left? With respect, the answer is very little.
      If the judges were coming to the House and saying collectively, through the mouth of the Lord Chief Justice, "We will feel vulnerable if the Bill goes through", then all right. One could then see at least an argument for saying that the independence of the judiciary needed protection. But when the Lord Chief Justice comes to the House to say precisely the opposite, which is that the Bill strengthens the independence of the judiciary and is in fact a major piece of legislation that defines, probably for the first time in a sensible way, the relationship between the executive, the judiciary and the legislature, the arguments that we have heard so often before and again this afternoon lose a great deal of their force.
      Lord Crickhowell: My Lords, I intervene briefly to take us back to the opening speech by the noble and learned Lord, Lord Lloyd, but, just before doing so, I comment to the noble Lord, Lord Richard, who often prayed in aid the Lord Chief Justice, that the Lord Chief Justice after all told us that the Judges' Council thought that it would be preferable, but not essential, for the Lord Chancellor to sit in this House.
      I return to the points made by the noble and learned Lord. Lord Lloyd, when he spelt out what happened last time and what the House was voting about last time. I do so because I was struck by the remarkable evidence given only six weeks ago by the noble and learned Lord the Lord Chancellor to the Select Committee on the Constitution. Right at the beginning, he was asked by the chairman whether the

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      position that he held as Lord Chancellor was to remain in place. The noble and learned Lord the Lord Chancellor replied:
      "Well, I have made no such statement to that effect. The position in relation to the Constitutional Reform Bill remains that the Government's position is that they wish to replace the role of the Lord Chancellor with the Secretary of State for Constitutional Affairs".
      A little later, when talking about the defence of the rule of law, the noble and learned Lord said that he envisaged that role being performed by the Secretary of State for Constitutional Affairs. He said:
      "You all know well that there is a very considerable issue joined in the House of Lords whether, accepting that one wants the office-holder to fulfil that role, is it more effectively performed by the new office of Secretary of State for Constitutional Affairs or is it better performed by somebody who continues to hold the historic office of Lord Chancellor because the historic office of Lord Chancellor carries with its status, history and values that have persisted a long period of time. There is that very, very important debate going on".
      He was pressed on whether he thought that we should have a Secretary of State for Constitutional Affairs or a Lord Chancellor. He said that either was possible, depending on how the debate which I have indicated is resolved. He added that, although the Lord Chancellor could be in the House of Lords, he much preferred that he should be in the House of Commons.
      I make those points because I believe that this House knew what it was voting about in Committee. It seems remarkable that only six weeks ago, in an important committee, the Lord Chancellor said that he did not accept the House's position, that he still hoped that we would revert to having a Secretary of State for Constitutional Affairs and that he should be in the Commons. If there is no other reason for pressing this amendment, it is to ensure that the will of the House, expressed so clearly in Committee, is carried into effect and not challenged again only a few weeks later by the Lord Chancellor.
      Lord Brennan: My Lords, today's debate has been notable for the contribution of the noble and learned Lord the Lord Chief Justice. If intelligence, objectivity and wisdom are the marks of a good judge, he has them all. The manner in which he addressed this House about matters as fundamental as the independence of the judiciary surely reassures us all that we have an independent judiciary, and we should be astute to ensure that its independence is properly maintained in the Bill.
      The noble and learned Lord, Lord Lloyd, relied on the sentiment of this legislature during its last debate in Committee. I am afraid that I favour clarity in legislation to sentiment. The Bill makes no provision for the Lord Chancellor to be a Member of this House; that is why this amendment was required. It must therefore be considered as a constitutional proposition. The Bill is a new written chapter in the constitution of the United Kingdom. Why must one part of it say that a particular Minister must be a Member of this House? Why is it constitutionally necessary? For those who look to the benefits of yesterday, there might be many reasons, but the Lord Chancellor of yesterday has not survived this
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      Bill. He is no longer the head of the judiciary; the concordat makes the Lord Chief Justice its head. If the Bill needs to state it explicitly, so be it. The Lord Chancellor does not sit as a judge henceforth. He shall not directly involve himself in disciplining judges, because Chapter 3 of the Bill makes it clear that he is likely to delegate that function to the Lord Chief Justice and the judiciary.
      Only one role of yesterday is extant: the need to protect the independence of the judiciary and to promote the rule of law. Clause 1 of this constitutional chapter guarantees that independence by requiring not just the Lord Chancellor but every Minister to uphold those principles as a constitutional duty. How can it be plausibly suggested that it is better not to have such a written protection but corridor negotiations conducted in secret, the success of which, in the hands of any Lord Chancellor, will depend on his personal strength and capacity as a Minister?
      The choice for those who think of tomorrow for the constitution is: put it in writing; write it clearly; make our protections plain to our country. If this is the reforming purpose of the Bill, which of that Minister's roles requires him to be in this House in the future constitution? Is it appropriate that, with a budget of some £3 billion, he is not in the elected Chamber? Is it appropriate that, because of the need to protect the independence of the judiciary, as is supposed, he must be in this Chamber?
      What is the logic? If the logic is that we will look to a senior person no longer fired with political ambition to take up the role, I am afraid that that is yesterday's thinking. There is but a handful of practising lawyers in the other place and in this place. The future Lord Chancellor may be a lawyer; one hopes that he is, but it is not a constitutional requirement. In particular, it is not a requirement that he be from this Chamber. Nobody thus far has advanced a cogent reason under the Bill for the Lord Chancellor to be a Member of this House. All the arguments have been based on what we were used to in the past; they do not take into account the Bill as it stands.
      I close by offering great deference to the views of the Judges' Council. It is very careful in its words but, if the best that it chooses to use is that it would be preferable to have the Lord Chancellor in this Chamber, I disagree. I think it preferable that it be a person from either Chamber, according to ability and circumstance. The protection of the judiciary under the Bill, if Amendment No. 24 is agreed, will be far stronger. The Lord Chief Justice will have the right to make representations to Parliament directly. What stronger and more public protection could there be?
      When the noble and learned Lord, Lord Lloyd of Berwick, quoted from the previous debate, his advocacy was so persuasive that I had to ask for Hansard to be brought. It appears to be suggested that I had expected the Lord Chancellor to continue in some form in his previous role. Before the few

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      sentences that the noble and learned Lord quoted about it not being democratic to have a Minister here, I said:
      "To continue the role would be to preserve a name. It would be confusing and unhelpful. It would certainly be undemocratic".—[Official Report, 13/7/04; col. 1160.]
      The House must consider the Bill as it is, the reform as it will be, and not hark back to yesterday.
      Lord Renton: My Lords, I wish briefly to clarify the application of the principle of separation of powers. In reference to the speech of the noble and learned Lord the Lord Chief Justice, we must all concede that, since time immemorial, the higher levels of the judiciary have been left completely alone and have not been interrupted in their work or influenced by politicians. But surely there is a danger of our carrying the principles of the separation of powers too far.
      I am now in my 60th year of being in Parliament. I became a Queen's Counsel 50 years ago. When I was a Back-Bencher in the other place, I used to do part-time judicial work. A number of other noble Lords have had the same experience. We managed to do our judicial work without applying any parliamentary principles or sympathies. We had to, and did.
      For us to carry the principle too far would be a disadvantage—for the following reason. We are legislators in both Houses. It is best that legislators should have had plenty of useful experience. Among the useful experience is having done part-time judicial work. Of course, there are other noble Lords who have been in Parliament and in the Cabinet. That is not a conflict. The separation of powers does not apply to them.
      We must realise that if we wish our legislation to be practical and acceptable to the people, it is a very valuable factor, when it is being considered, to have the opinions of representatives of the people and, perhaps I may dare to say, more mature representatives of the kind that we find in your Lordships' House.
      So although the separation of powers is to be considered and respected, it should not be carried too far. I wish to support the views expressed by the noble and learned Lord, Lord Lloyd of Berwick. I wonder whether there is any hope that it could be maintained that we continue to have the advantage in your Lordships' House of the Law Lords. They can help in a positive and learned way to improve our legislation.
      Lord Goodhart: My Lords, I speak for my party as well as for myself. The Lord Chancellor should not be required by law to be a Member of your Lordships' House. We have had the advantage of a remarkable speech by the noble and learned Lord the Lord Chief Justice. I agree with him—I welcome his endorsement of it—that this Bill is an enormous constitutional step forward.
      I recognise that other things being equal there are indeed some advantages in having the Lord Chancellor in your Lordships' House. There is a
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      developing tendency to put senior legal figures into your Lordships' House rather than into the other place. Since 1997, we have continuously had one of the Law Officers in this House.
      Until now the Lord Chancellor has in practice had to be a Member of your Lordships' House. If one goes far enough back in history one can find Lord Chancellors who were not, but for the past two or three centuries, the Lord Chancellor has had to be a Member of your Lordships' House because of his important judicial functions and, in particular, his chairmanship of the Appellate Committee of your Lordships' House.
      It is now widely accepted that the Lord Chancellor should not continue to be the head of the judiciary or to sit as a judge. If those duties are removed, there is no reason as a matter of constitutional law why the Lord Chancellor should be bound to be a Member of your Lordships' House any more than is the Lord Privy Seal or the Lord President.
      Amendment No. 3 would require the Lord Chancellor to be a Member of your Lordships' House, so one needs to look at the duties and powers of the Lord Chancellor that make that membership necessary. First, and in day-to-day work, the most important duty is to act as head of the Department for Constitutional Affairs, which is now a substantial spending department with a large number of staff. Certainly, for departmental purposes, it is better to be in the House of Commons, especially when it comes to the annual fight for money against the Chancellor of the Exchequer.
      Secondly, the Lord Chancellor will have powers of some importance under Part 3 of the Bill. Those include a limited power of veto over the recommendations of the Judicial Appointments Commission and a concern with the disciplinary process. But under the concordat there is a double-lock procedure: it cannot be exercised without the agreement of both the Lord Chancellor and the Lord Chief Justice.
      5.15 p.m.
      Thirdly and finally, there is a continuing duty to protect the independence of the judiciary and uphold the rule of law. That of course does not involve giving legal advice to the Government; that is the duty of the Attorney-General. But it is recognised as the duty of the Lord Chancellor to draw the attention of his Cabinet colleagues to proposed legislation or exercise of the prerogative that may infringe the rule of law. As a duty it is also recognised that it is not enforceable by law.
      It is the last of those duties that is mainly relied on as the grounds for keeping the Lord Chancellor in your Lordships' House by law and at all times. It is said that the Lord Chancellor must be a senior figure with no hope of promotion, so that he is able to act independently and without fear of damage to his career.
      I have to say that I regard those arguments as unrealistic. First, I accept that under constitutional conventions a Lord Chancellor in your Lordships' House has no prospect of promotion. But if he has no ambition for promotion he will at least have an ambition to stay in his job. Cabinet office involves power, prestige and a stimulating job, and there are few people who will want to give that up even with a decent pension to compensate.
      Secondly, it is far from clear how effective that duty is under the existing practices. The noble and learned Lord, Lord Ackner, has referred to the issue of the Asylum and Immigration (Treatment of Claimants, etc.) Bill, on which I will touch no further. My noble friends Lady Williams of Crosby and Lord Rodgers of Quarry Bank, who sat in Labour Cabinets in the 1970s, have, I am sorry to say, no recollection of Lord Elwyn-Jones—the noble and learned Lord—having raised issues of the rule of law with his colleagues at the time when he was Lord Chancellor. The real pressure often comes more from the judiciary and other outsiders than from the Lord Chancellor, as indeed the Asylum and Immigration (Treatment of Claimants, etc.) Bill shows.
      Thirdly, requiring the Lord Chancellor to be a Member of your Lordships' House will not ensure that we will get an effective defender of the rule of law and may exclude the person best fitted for the office. The Lord Chancellor is and will continue to be appointed by the Prime Minister. If the Prime Minister wants to find a compliant Lord Chancellor, he will find one inside or outside your Lordships' House.
      The noble and learned Lord, Lord Howe, relied on the events of 12 June 2003 as grounds for saying that the Lord Chancellor must remain in your Lordships' House. I am afraid that I draw the opposite conclusion. Those events show that even a powerful and highly respected Lord Chancellor, a Member of your Lordships' House, is vulnerable to being sacked at a moment's notice and that membership of your Lordships' House is no defence.
      The protection given by membership of your Lordships' House is an illusion. I hope and indeed expect that the Lord Chancellor in future will frequently be a Member of your Lordships' House. But there will be times when if the Lord Chancellor has to be a Member of your Lordships' House, the Prime Minister may have to appoint someone parachuted in from outside with little or no ministerial or parliamentary experience or appoint a Member of your Lordships' House with a distinguished past who has become an extinct volcano.
      If there is a Minister in the other place who would do the job admirably, why should the Prime Minister not be entitled to appoint that Minister and leave him or her in the House of Commons? Insisting that the Lord Chancellor must be a Member of your Lordships' House is no guarantee at all that we will end up with the best person for the job. What it does do is guarantee that, from time to time, the best person for the job will be ruled out. Independence of mind can be found in Ministers in your Lordships' House and in
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      Ministers in the House of Commons. We will get a strong and effective Lord Chancellor if, and only if, the Prime Minister is willing to appoint a strong and effective person to that office, whether the person is a Member of your Lordships' House or of the other place.
      Lord Mackay of Clashfern: My Lords, before the noble Lord sits down, can he tell us on what experience does he base his view that a Member of your Lordships' House has less of a chance of success in the annual financial negotiations than someone who is not a Member of this House?
      Lord Goodhart: My Lords, the noble and learned Lord may well have had great success himself—he had previously held ministerial office—but it is a matter of considerable importance that whoever holds the office should be familiar with the operations of the annual carve-up of the cake, and that someone who comes to your Lordships' House with no parliamentary experience is unlikely to have that skill and is unlikely to do as good a job as he would have done if he had a background in the House of Commons.
      Lord Kingsland: My Lords, I know that your Lordships' are awaiting the speech of the noble and learned Lord the Lord Chancellor with keen anticipation, and so I shall be extremely brief. First, I pay tribute to the speech of the noble and learned Lord, Lord Lloyd of Berwick. He marshalled his facts and arguments in such a compelling way that I know noble Lords will have been extremely impressed by the force of his logic.
      We are delighted to see both the noble and learned Lord the Lord Chief Justice and the noble and learned Lord the Master of the Rolls in their places today. I should like to say to them both that, so far as this side of the House is concerned, we accept entirely the architecture of the Constitutional Reform Bill. We accept the concordat; we accept the Judicial Appointments Commission; and we accept the context in which the new relationship between the Lord Chief Justice and the Lord Chancellor will unfold. The debate today is solely about what kind of person the Lord Chancellor should be.
      I should like to say, in particular to the noble and learned Lord the Lord Chief Justice, that when this Bill becomes law, neither his successors, the successors to the noble and learned Lord the Master of the Rolls, the successors to senior Scottish or Irish judges, nor those to any of the Lords of Appeal in Ordinary will sit in your Lordships' House. There is, therefore, a real danger that the judiciary will become isolated from both government and the legislature unless there is a link between the judges and the other branches of government which the judges respect and trust. That is why the position of Lord Chancellor will be so crucial under these new arrangements.
      As always, I listened with great interest to the noble Lord, Lord Richard, but I must say to him that I did not understand his argument about the importance of someone leading a large government department being a

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      Member of another place rather than your Lordships' House. While it is true that the Lord Chancellor leads a department which now spends something in the order of £3 billion a year, the relationship between the Lord Chief Justice, the Lord Chancellor and the judges is not like the relationship between a Minister and other civil servants. The Lord Chancellor cannot instruct the judges to behave in a certain way. It is not like a normal departmental relationship. Quite often it will be the judges who tell the Lord Chancellor what to do. So, with great respect to the noble Lord, I think the analogy is—I hesitate to use the word "facile", so I shall substitute it with "misplaced".
      Lord Richard: My Lords, I thank the noble Lord for giving way. The point I was trying to make—if it was facile, I apologise; perhaps I did not make it properly—is that if the Secretary of State for Constitutional Affairs and the Lord Chancellor are merged into one office, there are pressures in two different directions. There is the pull, which has been vigorously expressed this afternoon, that, given the nature of the Lord Chancellor's part of the job, he should be in this House and there is the immense pull that comes from the other end with an annual budget of £3 billion to £4 billion. The reason for that is simple. It is because Members of the House of Commons will wish to hold him to direct account rather than to indirect account, which is what would happen if he was up here.
      Lord Kingsland: My Lords, it is clear that there is a fundamental incompatibility. Someone who is a Member of the House of Lords is elected by a political party on a mandate to fulfil a series of political objectives through the instrument of parliamentary sovereignty.
      Noble Lords: The House of Commons.
      Lord Kingsland: My Lords, I beg your Lordships' pardon. I meant to say that a Member of another place is elected to fulfil a particular electoral mandate. Such Ministers are responding to the popular will: the will of the majority. The responsibility to protect the rule of law is all about protecting minorities; and, in particular, protecting individuals against majorities that abuse the law. That is why, in my submission to the noble Lord, Lord Richard, it would be wholly inappropriate for a Lord Chancellor to be a Member of another place. As the noble and learned Lord, Lord Falconer, has accepted in his first amendment today, the Lord Chancellor is there to protect the rule of law: the individual against the state, the minority against the majority. Yet the whole force of election to another place is to represent the majority and to fulfil the majority's wishes. Therefore I submit that it is wholly incompatible for a Lord Chancellor to be a Member of another place.
      We have had a long debate and all the arguments have been well canvassed by noble Lords. It is now the task of the noble and learned Lord the Lord Chancellor to respond.
      Lord Falconer of Thoroton: My Lords, this is a very important debate and, to some extent, the issues are agreed. Although that is not necessarily the case as regards the answer, but the issues are agreed. In July 2004 there is no doubt that this House voted not only to preserve the title of Lord Chancellor, but also to preserve the office, and I accept that.
      The office of Lord Chancellor carries with it values, history and status. I also accept that since 1760, when the kinsman of the noble Lord, Lord Henley, finally got into the House of Lords, it has been a matter of convention that every single Lord Chancellor has been in this House. So there is plainly a convention that, since 1760, the Lord Chancellor should be in the House of Lords.
      Why has the Lord Chancellor always been in this House? First, and most obviously, it is because he has had to be a judge and the House of Lords deals with legal matters. Since the end of the 19th century the Judicial Committee of the House of Lords is a committee of the Lords and is the final court of appeal. As judges, successive Lord Chancellors have chaired it. So the Lord Chancellor has had to be in the House of Lords both in recent times and in times gone by.
      I anticipate that there is also agreement around this House on what the new role of the Lord Chancellor should be. He should be a Minister at the ministerial end of the concordat—to use a form of shorthand—and he should be responsible for protecting the independence of the judiciary and preserving the rule of law within government. We have also heard during the course of this debate that, as a Minister, the Lord Chancellor will be responsible for a budget of around £3 billion, the administration of the courts, legal aid and various other issues. Those matters could be dealt with by a Minister either in the Lords or in the Commons.
      It is important to remember that these matters have a huge impact on people's daily lives. I do not refer just to those who actually go to court—although they certainly affect them—and not just to those who receive legal aid, but also to those in the community who look to the courts to provide them with standards and protections. That is quintessentially a role for someone accountable in the normal way.
      Turning to the ministerial end of the concordat, perhaps I may quote the noble and learned Lord the Lord Chief Justice in his evidence to the Select Committee:
      "My firm support for the concordat reflects the fact that I see no difficulty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional Affairs by the concordat. I do not consider that such a Minister requires any enhanced status or particular title to enable him or her to exercise those functions".
      The concordat was negotiated on the basis that the work could be performed by a Minister. Those two roles are vital parts of the post of Lord Chancellor under the new arrangements, which I think we all agree. Although we all focus strongly on the independence of the judiciary and the rule of law, it would be wrong, first, to forget those two functions,

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      and secondly, to forget that those two functions will be the ones that the Minister most performs on a day-to-day basis.
      As to the third function—namely, ensuring the independence of the judiciary and the rule of law, which is vital—it is impossible to ignore the speech of the noble and learned Lord, Lord Woolf. He has made it clear that the new arrangements which he specifically put to the House—and which do not include as a condition that the Lord Chancellor should be in this House—provide better protection for the independence of the judiciary than the current arrangements.
      The proposition on which the whole argument depends is that one will always be better off with a Member of this House than with someone in the Commons to protect the rule of law. The basis for that proposition is faulty. In many cases one will be much better off having someone in this House, but surely the right course is not to restrict the holder of the office to this House but to make clear what we expect from that office holder. We expect the office holder to be a competent Minister, to perform the ministerial end of the concordat responsibly, and to be a guardian of the rule of law and the independence of the judiciary.
      With the greatest respect to the House, it is misplaced to say that only we can do it. To take up the words of the right reverend Prelate, it is "mistrustful" of the other place to say that it could never produce anyone as good as someone from our place to perform that function. That is not understanding that the role has changed—and changed in a way that we want it to change.
      The force of the speeches of the noble and learned Lords, Lord Lloyd and Lord Howe, expressed an arrangement which, by the agreement of the House, we have changed. We should accept that it has changed and that what we are seeking to achieve is not something which is good for this House but something which is in the best interests of the nation as a whole. Surely it is in the best interests of the nation that the Prime Minister should accept the basis on which the person who holds the office is appointed, and that that person should be someone who will be good at all three functions I have identified. We should accept that that does not necessarily mean that in every case the office holder has to come from here.
      I am quite sure that either in a short time or a medium time we will come to the conclusion that, as a result of accepting the amendment of the noble and learned Lord, Lord Lloyd, we may have deprived the nation of the best person for the job. I invite noble Lords to reject the noble and learned Lord's amendment.
      Lord Lloyd of Berwick: My Lords, I am grateful to the noble and learned Lord the Lord Chief Justice for coming to the House and expressing the preference of the Judges' Council that the Lord Chancellor should be a Member of this House.
      The issue before your Lordships is very simple: if the Lord Chancellor is to do his job properly as a bridge or intermediary between the judiciary and the
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      executive, he must have the confidence not only of the Prime Minister but of the judges. He will have the full confidence of the judges only if he is a senior lawyer and a Member of this House—not for the good of the House but for the good of the nation. I wish to test the opinion of the House.
      5.35 p.m.
      On Question, Whether the said amendment (No. 3) shall be agreed to?
      Their Lordships divided: Contents, 229; Not-Contents, 206.

      Division No. 1

      CONTENTS

      Ackner, L.

      Dundee, E.

      Alton of Liverpool, L.

      Eccles of Moulton, B.

      Anelay of St Johns, B.

      Eden of Winton, L.

      Arran, E.

      Elles, B.

      Astor, V.

      Elliott of Morpeth, L.

      Astor of Hever, L.

      Elton, L.

      Attlee, E.

      Erroll, E.

      Baker of Dorking, L.

      Falkland, V.

      Beaumont of Whitley, L.

      Feldman, L.

      Bell, L.

      Ferrers, E.

      Belstead, L.

      Finlay of Llandaff, B.

      Biffen, L.

      Fookes, B.

      Blackwell, L.

      Forsyth of Drumlean, L.

      Blaker, L.

      Fraser of Carmyllie, L.

      Blatch, B.

      Freeman, L.

      Bledisloe, V.

      Freyberg, L.

      Bramall, L.

      Gardner of Parkes, B.

      Bridge of Harwich, L.

      Garel-Jones, L.

      Bridgeman, V.

      Geddes, L.

      Brittan of Spennithorne, L.

      Gilmour of Craigmillar, L.

      Brooke of Sutton Mandeville, L.

      Glentoran, L.

      Brougham and Vaux, L.

      Goschen, V.

      Burnham, L.

      Greenway, L.

      Buscombe, B.

      Griffiths of Fforestfach, L.

      Byford, B.

      Habgood, L.

      Caithness, E.

      Hanham, B.

      Cameron of Lochbroom, L.

      Hanningfield, L.

      Campbell of Alloway, L.

      Harris of Peckham, L.

      Carey of Clifton, L.

      Hayhoe, L.

      Carlisle of Bucklow, L.

      Henley, L.

      Carnegy of Lour, B.

      Heseltine, L.

      Carr of Hadley, L.

      Higgins, L.

      Carrington, L.

      Hodgson of Astley Abbotts, L.

      Cavendish of Furness, L.

      Hogg, B.

      Chadlington, L.

      Home, E.

      Chalker of Wallasey, B.

      Hooper, B.

      Chilver, L.

      Howard of Rising, L.

      Chorley, L.

      Howe, E.

      Cobbold, L.

      Howe of Aberavon, L.

      Colwyn, L.

      Howe of Idlicote, B.

      Cope of Berkeley, L. [Teller]

      Howell of Guildford, L.

      Courtown, E.

      Hunt of Wirral, L.

      Craig of Radley, L.

      Hurd of Westwell, L.

      Craigavon, V.

      Hylton, L.

      Crathorne, L.

      Imbert, L.

      Crawford and Balcarres, E.

      Jellicoe, E.

      Crickhowell, L.

      Jenkin of Roding, L.

      Cuckney, L.

      Jopling, L.

      Dahrendorf, L.

      Kalms, L.

      Darcy de Knayth, B.

      Kimball, L.

      Dean of Harptree, L.

      King of Bridgwater, L.

      Dearing, L.

      Kingsdown, L.

      Denham, L.

      Kingsland, L.

      Dixon-Smith, L.

      Kirkham, L.

      Donaldson of Lymington, L.

      Laidlaw, L.

      777

      Laing of Dunphail, L.

      Quinton, L.

      Laird, L.

      Quirk, L.

      Lamont of Lerwick, L.

      Rawlings, B.

      Lindsay, E.

      Reay, L.

      Listowel, E.

      Rees, L.

      Liverpool, E.

      Rees-Mogg, L.

      Lloyd of Berwick, L. [Teller]

      Renton, L.

      London, Bp.

      Renton of Mount Harry, L.

      Lucas, L.

      Roberts of Conwy, L.

      Luke, L.

      Rogan, L.

      McAlpine of West Green, L.

      Ryder of Wensum, L.

      Macfarlane of Bearsden, L.

      Saatchi, L.

      MacGregor of Pulham Market, L.

      Sainsbury of Preston Candover, L.

      Mackay of Clashfern, L.

      St John of Fawsley, L.

      MacLaurin of Knebworth, L.

      Salisbury, Bp.

      Maginnis of Drumglass, L.

      Saltoun of Abernethy, Ly.

      Manchester, Bp.

      Sanderson of Bowden, L.

      Mancroft, L.

      Sandwich, E.

      Mar, C.

      Seccombe, B.

      Marlesford, L.

      Selborne, E.

      Masham of Ilton, B.

      Selsdon, L.

      Mayhew of Twysden, L.

      Sharples, B.

      Miller of Hendon, B.

      Shaw of Northstead, L.

      Monro of Langholm, L.

      Sheppard of Didgemere, L.

      Monson, L.

      Skelmersdale, L.

      Montagu of Beaulieu, L.

      Slim, V.

      Montrose, D.

      Soulsby of Swaffham Prior, L.

      Moore of Lower Marsh, L.

      Steinberg, L.

      Moran, L.

      Sterling of Plaistow, L.

      Morris of Bolton, B.

      Stevens of Ludgate, L.

      Moser, L.

      Stewartby, L.

      Mowbray and Stourton, L.

      Stoddart of Swindon, L.

      Moynihan, L.

      Strange, B.

      Murton of Lindisfarne, L.

      Strathclyde, L.

      Naseby, L.

      Sutherland of Houndwood, L.

      Neill of Bladen, L.

      Swinfen, L.

      Newton of Braintree, L.

      Taylor of Warwick, L.

      Nickson, L.

      Tebbit, L.

      Noakes, B.

      Tenby, V.

      Northbourne, L.

      Thatcher, B.

      Northbrook, L.

      Thomas of Gwydir, L.

      Northesk, E.

      Thomas of Swynnerton, L.

      Norton of Louth, L.

      Trumpington, B.

      Norwich, Bp.

      Tugendhat, L.

      Onslow, E.

      Ullswater, V.

      Palmer, L.

      Vinson, L.

      Park of Monmouth, B.

      Waddington, L.

      Parkinson, L.

      Wade of Chorlton, L.

      Patten, L.

      Wakeham, L.

      Pearson of Rannoch, L.

      Waldegrave of North Hill, L.

      Peel, E.

      Walker of Worcester, L.

      Perry of Southwark, B.

      Walton of Detchant, L.

      Peyton of Yeovil, L.

      Warnock, B.

      Phillips of Sudbury. L.

      Wilcox, B.

      Pilkington of Oxenford, L.

      Williamson of Horton, L.

      Platt of Writtle, B.

      Wilson of Tillyorn, L.

      Plumb, L.

      Windlesham, L.

      Plummer of St. Marylebone, L.

      Wolfson, L.

      Portsmouth, Bp.

      Wright of Richmond, L.

      Young of Graffham, L.

      NOT-CONTENTS

      Addington, L.

      Bhattacharyya, L.

      Ahmed, L.

      Billingham, B.

      Alderdice, L.

      Bonham-Carter of Yarnbury, B.

      Alli, L.

      Borrie, L.

      Andrews, B.

      Bragg, L.

      Archer of Sandwell, L.

      Brennan, L.

      Ashton of Upholland, B.

      Brett, L.

      Avebury, L.

      Brooke of Alverthorpe, L.

      Barker, B.

      Brookman, L.

      Barnett, L.

      Brooks of Tremorfa, L.

      Bassam of Brighton, L.

      Burlison, L.

      Berkeley, L.

      Campbell-Savours, L.

      778

      Carlile of Berriew, L.

      Layard, L.

      Carter, L.

      Lea of Crondall, L.

      Carter of Coles, L.

      Leitch, L.

      Chandos, V.

      Lester of Herne Hill, L.

      Chester, Bp.

      Linklater of Butterstone, B.

      Christopher, L.

      Lipsey, L.

      Clarke of Hampstead, L.

      Livsey of Talgarth, L.

      Clement-Jones, L.

      Lockwood, B.

      Clinton-Davis, L.

      Lofthouse of Pontefract, L.

      Condon, L.

      McDonagh, B.

      Corbett of Castle Vale, L.

      Macdonald of Tradeston, L.

      Crawley, B.

      McIntosh of Haringey, L.

      David, B.

      McIntosh of Hudnall, B.

      Davies of Coity, L.

      MacKenzie of Culkein, L.

      Dholakia, L.

      Mackenzie of Framwellgate, L.

      Dixon, L.

      McKenzie of Luton, L.

      Drayson, L.

      Mackie of Benshie, L.

      D'Souza, B.

      Maclennan of Rogart, L.

      Dubs, L.

      McNally, L.

      Dykes, L.

      Maddock, B.

      Elder, L.

      Mar and Kellie, E.

      Evans of Parkside, L.

      Marsh, L.

      Evans of Temple Guiting, L.

      Mason of Barnsley, L.

      Falconer of Thoroton, L. (Lord Chancellor)

      Massey of Darwen, B.

      Maxton, L.

      Falkender, B.

      Merlyn-Rees, L.

      Falkner of Margravine, B.

      Methuen, L.

      Farrington of Ribbleton, B.

      Miller of Chilthorne Domer, B.

      Faulkner of Worcester, L.

      Mitchell, L.

      Fearn, L.

      Morgan, L.

      Fellowes, L.

      Morgan of Drefelin, B.

      Fyfe of Fairfield, L.

      Morgan of Huyton, B.

      Gale, B.

      Morris of Aberavon, L.

      Garden, L.

      Neuberger, B.

      Giddens, L.

      Newby, L.

      Golding, B.

      Northover, B.

      Goldsmith, L.

      Oakeshott of Seagrove Bay, L.

      Goodhart, L.

      Parekh, L.

      Goudie, B.

      Patel of Blackburn, L.

      Gould of Brookwood, L.

      Pendry, L.

      Gould of Potternewton, B.

      Peston, L.

      Graham of Edmonton, L.

      Plant of Highfield, L.

      Grantchester, L.

      Ponsonby of Shulbrede, L.

      Greengross, B.

      Prosser, B.

      Gregson, L.

      Prys-Davies, L.

      Griffiths of Burry Port, L.

      Radice, L.

      Grocott, L. [Teller]

      Ramsay of Cartvale, B.

      Hamwee, B.

      Randall of St. Budeaux, L.

      Harris of Haringey, L.

      Razzall, L.

      Harris of Richmond, B.

      Rea, L.

      Harrison, L.

      Redesdale, L.

      Hart of Chilton, L.

      Rendell of Babergh, B.

      Haskel, L.

      Rennard, L.

      Haskins, L.

      Richard, L.

      Haworth, L.

      Roberts of Llandudno, L.

      Hayman, B.

      Robertson of Port Ellen, L.

      Henig, B.

      Rodgers of Quarry Bank, L.

      Hilton of Eggardon, B.

      Rooker, L.

      Hogg of Cumbernauld, L.

      Roper, L.

      Hollis of Heigham, B.

      Rosser, L.

      Hooson, L.

      Rowlands, L.

      Howarth of Breckland, B.

      Royall of Blaisdon, B.

      Howells of St. Davids, B.

      Russell-Johnston, L.

      Howie of Troon, L.

      Sainsbury of Turville, L.

      Hoyle, L.

      Sawyer, L.

      Hughes of Woodside, L.

      Scott of Needham Market, B.

      Hunt of Kings Heath, L.

      Sewel, L.

      Hutchinson of Lullington, L.

      Sharman, L.

      Inge, L.

      Sharp of Guildford, B.

      Janner of Braunstone, L.

      Sheldon, L.

      Jay of Paddington, B.

      Shutt of Greetland, L.

      Jones, L.

      Simon, V.

      Judd, L.

      Smith of Clifton, L.

      Kennedy of The Shaws, B.

      Smith of Gilmorehill, B.

      King of West Bromwich, L.

      Smith of Leigh, L.

      Kirkhill, L.

      Steel of Aikwood, L.

      779

      Stern, B.

      Uddin, B.

      Symons of Vernham Dean, B.

      Vallance of Tummel, L.

      Taverne, L.

      Varley, L.

      Temple-Morris, L.

      Wall of New Barnet, B.

      Thomas of Macclesfield, L.

      Wallace of Saltaire, L.

      Thomas of Walliswood, B.

      Walmsley, B.

      Thomson of Monifieth, L.

      Warner, L.

      Thornton, B.

      Weatherill, L.

      Tomlinson, L.

      Wedderburn of Charlton, L.

      Tope, L.

      Whitaker, B.

      Tordoff, L.

      Whitty, L.

      Triesman, L. [Teller]

      Wilkins, B.

      Truscott, L.

      Williams of Crosby, B.

      Tunnicliffe, L.

      Williams of Elvel, L.

      Turner of Camden, B.

      Winston, L.

      Woolmer of Leeds, L.

      Resolved in the affirmative, and amendment agreed to accordingly.
      5.51 p.m.
      Lord Kingsland Lord Kingsland moved Amendment No. 4:
      Before Clause 1, insert the following new clause—

      LORD CHANCELLOR: FURTHER QUALIFICATION FOR APPOINTMENT
      (1) A person is not qualified to be appointed Lord Chancellor unless he has at any time—

      (a) held high judicial office for a period of at least 2 years; or

      (b) practised as a qualifying practitioner (as defined in section 16) for at least 12 years.

      (2) For the avoidance of doubt, a person serving as a law officer of the Crown is practising as a qualified practitioner."
      The noble Lord said The noble Lord said: My Lords, much of the ground of this amendment was covered in the previous debate. The issue is, very simply, whether the Lord Chancellor should, in addition to being a Lord, be a lawyer.
      The responsibilities of the Lord Chancellor in relation to the Judicial Appointments Commission, the concordat and the rule of law are, in my submission, reason enough for all future Lord Chancellors to be either judges who have held high judicial office or senior lawyers of practising experience of at least 12 years. I understand that this view is endorsed by the noble and learned Lord the Lord Chief Justice and the Judges' Council. I intend to say no more than that in introducing the amendment.
      Viscount Bledisloe: My Lords, Amendment No. 5, in my name, is grouped with Amendment No. 4. I am more than happy not to move it in favour of the greater wisdom, as always, of the noble Lord, Lord Kingsland.
      The noble and learned Lord the Lord Chancellor spent a lot of time in the previous debate praying in aid the fact that the noble and learned Lord the Lord Chief Justice was not adamant about the Lord Chancellor being a Member of this House. However, I point out that he is adamant about him being a lawyer. So I hope that your Lordships will find no difficulty in supporting this amendment.
      Lord Maclennan of Rogart: My Lords, the previous debate has, to some extent, foreshadowed the debate on this amendment. Indeed, some of the steam may have gone out of the debate, following the result of the
      780
      vote. But it has not reflected the balance of evidence which was put before the Select Committee. It was clearly divided between those who, weighing past experience of the duties of Lord Chancellor, saw the appropriateness of a lawyer discharging that role; but equally weighty evidence was presented by those on the other side, notably from Justice and a number of individuals.
      The strongest argument for not confining the choice of Lord Chancellor to someone with legal experience is that in balancing the qualities, weight is given to one, which may be important, but which could outweigh all the others, pointing to the suitability of a particular candidate. In the decisions which have to be taken within Cabinet, I submit that the most important quality is the gravitas of the individual, which derives most commonly from long political experience. Such political experience normally leads to promotion and helps to clinch arguments when there is debate within government.
      Undoubtedly, the new job of Lord Chancellor is not as it was before. He will no longer sit as a judge, he will no longer be the head of the judiciary and he will not speak for the judiciary. That job has been assigned, and will be clearly underpinned by the Bill, to the Lord Chief Justice. There is no compelling reason why a lawyer's training should be thought the most essential requirement for this weighty office.
      The House has tonight decided that this job must be discharged by someone sitting in this House. It will always be possible to find a suitable person who is a lawyer, ennoble him or her and bring them into this House for the purpose. But if that happens, such a person will not have long political experience and the gravitas that that brings. I think that going down that route would be a profound error of judgment.
      When I think back to my experience of those who spoke out in defence of human rights, civil liberties and the rule of law in governments in which I have served and which I have witnessed at close hand, it is not always the lawyers who spring to mind as the people who have been the most profoundly effective advocates on these issues. If I may be extremely personal, the man who seemed to me most readily and effectively to protect those liberties and values was the former Home Secretary, Roy Jenkins. I doubt whether anyone could have argued that he was unsuitable to be Lord Chancellor because he was not legally qualified.
      Two of the amendments before us suggest that a lawyer should have 12 years of practice and experience, and the other proposes 15 years. Such provisions would certainly rule out many lawyers who have been elected to the House of Commons on the grounds of inadequate time spent doing the hard graft of a lawyer. They would certainly have ruled me out; I resigned my practice when I became a junior Minister at the age of, I think, 33, although my experience at the English Bar was enough to cause the late Lord Elwyn-Jones to offer me the job of Lord Advocate at the Scottish Office, for which I was wholly unfitted.
      There seems to be no reason of principle being deployed behind the argument for the choice of a lawyer for this job. I submit that no good reason of

      781
      principle could be found. It is certainly evident that we have had lawyers in that role but, as was explained in the previous debate, that was because of the legal function which the Lord Chancellor exercised and which he will not, in his new incarnation, be required to exercise.
      6 p.m.
      It is not as though in the British Isles we are without experience of a Minister of Justice—that is in effect what the Lord Chancellor is—who is not a qualified lawyer. The Scottish Executive began their life with a lawyer as Minister of Justice. I do not know whether I can refer to him as my friend, but my colleague, Mr Jim Wallace, took that role. But he was succeeded in that role by Mrs Jamieson, who is not a lawyer but who is effectively discharging the job of Minister of Justice. It seems to me that there is no good reason for ranking legal experience above all others in choosing the most suitable person for the job. I hope that we shall not limit in that unfortunate way the discretion of the Prime Minister in choosing a Lord Chancellor.
      I do not believe that the last word has been said on the issue of whether the Lord Chancellor should sit in this House or in another place, but it is perfectly clear that, as things stand, if there were any possibility that he might sit in another place, there would be too small a pool of suitable candidates for the job. I beg to suggest that there might even be too small a pool in this House for the job in future. The attractions of this House to people who are suitable will diminish with the changing nature of the job, because the Lord Chancellor's functions will be so profoundly different under the new arrangements to which we have given our support.
      I cannot conclude my remarks without noting the profoundly important speech made by the noble and learned Lord the Lord Chief Justice in the earlier debate. Nor can I ignore his reporting of the views of the Judges' Council on the issue under discussion. I simply say that those of us who have had experience of government have a different perspective from members of the judiciary on how government works and of the standing that lawyers have in government. To some extent, they are regarded as technicians. They are not regarded as the voice of the people, as other Ministers are. They are, to my mind, regarded as perhaps innately conservative, and that may be a useful function in government. They are also regarded as advocates, which is something that, by its nature, does not lie easily with the ideal that they are in some peculiar way above the battle.
      Lawyers are never regarded as free of political taint by those who make the decisions. In the debates that we have had, there has been a slight tendency to idealise the objectivity of lawyers. I am bound to say that I believe that we should have a more realistic view of what their role and function has been and would be.
      782
      Above all, I beg the House not to make the mistake of so confining the pool of talent for the job as the amendment would do.
      Lord Mackay of Clashfern: My Lords, as the noble Lord said, the Scottish Executive originally had a Minister of Justice who was a lawyer and now has a Minister of Justice who is not a lawyer. Would he comment on the fact that the Scottish Executive includes, ex officio, the Lord Advocate, who is a lawyer? So the Scottish Executive includes a lawyer as part of the constitution of the executive.
      Lord Maclennan of Rogart: My Lords, that is undoubtedly true. Our own United Kingdom Government can call on the services of the law officers to perform a broadly similar role to that described by the noble and learned Lord, Lord Mackay, in the context of the Scottish Executive.
      Lord Howe of Aberavon: My Lords, very briefly I wish to intervene again, because the noble Lord asked for any arguments in support of the proposition that the Lord Chancellor should be a senior lawyer. I shall quote two brief statements made by Her Majesty's Government in the past two years, which set out that case clearly.
      First, a document submitted by the Lord Chancellor's Department two years ago to the Council of Europe, explaining the position of the Lord Chancellor, states:
      "The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with full understanding of legal culture and the rule of law. His tripartite role enables him to act as both a link and bulwark between the judiciary and the executive and the legislature. He can explain, defend and interpret each to the other".
      Most importantly, the noble Lord, Lord Macdonald of Tradeston, speaking in this House on 7 March 2003, said—I draw attention to the first half of his sentence—that,
      "the Lord Chancellor's position as head of the judiciary also has the effect of ensuring that only an experienced and senior professional lawyer can be appointed to the position. It is not enough to have a legal qualification; the holder must be practising as a lawyer. A review of the outstanding attributes of the present and former Lord Chancellors underlines the achievement of successive Prime Ministers in appointing only practising lawyers held in high regard".—[Official Report, 7/3/03; col. 1096.]
      The first half of that first sentence speaks of the Lord Chancellor's position of the head of the judiciary also having the effect of ensuring those beneficial consequences. We know now that the Lord Chancellor will not be head of the judiciary, so the insurance policy on which the Government relied only 18 months ago in this House has been withdrawn. We need to replace that with a statutory insurance policy now.
      Lord Carlisle of Bucklow: My Lords, as a member of the Select Committee, I must say that the whole of our discussion during the weeks when that committee met were based on the assumption that if the Lord Chancellor were to remain he would be a senior lawyer. Indeed, I believe that the present Lord

      783
      Chancellor would agree that that was implicit in much of what was said in those debates. It is the job for a lawyer, modified as it is, as it involves defending the independence of the judiciary, advising the Cabinet on the effect on the rule of law of their decisions and having a part at least still to play in appointments, as the Minister who decides whether a person put up by the Appointments Commission should be proposed for membership of the judiciary. Those are all jobs that should be done by a lawyer, and I cannot see why the Government should apparently be unwilling to accept that that is so.
      Lord Phillips of Sudbury: My Lords, in response to my noble friend's extremely cogent case for not necessarily having a lawyer in the post, I refer him to Amendment No. 26, which contains Schedule 4 and which the noble and learned Lord, Lord Falconer, will shortly introduce. It describes the other functions of the Lord Chancellor and the organisation of the courts. There are 348 functions itemised, every one of them having a strong legal component. Although it is obviously the case that there are many non-lawyers who could make good Lord Chancellors—my noble friend cited Lord Jenkins of Hillhead—none the less what we are dealing with here is the norm.
      We need to be cautious in assuming that for evermore Prime Ministers will appoint the person most fitted to the traditional role of upholding the independence of the judiciary and the rule of law. Caution in that regard is proper, notwithstanding the point made by the right reverend Prelate about trust, which was an important point. In that regard, the balance falls clearly on the side of having a lawyer in this legally concentrated role.
      Lord Falconer of Thoroton: My Lords, this may be ground that we have gone over before. The effect of the provision is yet again to restrict further the pool from which this important office holder can be taken. In the light of the decision made earlier this afternoon he must now be a Lord. If noble Lords vote in favour of his being also a lawyer of 12 or 15 years' practice, inevitably the pool diminishes.
      As ever, the noble and learned Lord, Lord Howe, accurately put his finger on how the issue arises by quoting the excellent speech of the noble Lord, Lord Macdonald of Tradeston. If the relevant person is no longer to be a judge and constitute the head of the judiciary the issue arises whether the compulsion for this man or woman to be a lawyer is in the interests of the public and of the nation. Very often it will be in the interests of the nation to have someone undertaking this job who is a lawyer, but I ask noble Lords to consider what the job consists of. First of all, he is a Minister with responsibility for a £3 billion budget. His role in that respect, as everyone would agree, is to deliver a good service to the public regarding the courts and legal aid. Are lawyer Lords always the best people to be in charge of driving either the running of those functions or their reform? Sometimes they will be and sometimes they will not. One should not be driven by populism but what would the public say to
      784
      the proposition that the people who are in charge of that £3 billion must always be in the Lords and must always be lawyers? I think that their answer might be to ask: why do you not choose the right person for the job who might well be a lawyer Lord but would not have to be?
      The concordat was negotiated on the basis that it could be undertaken by someone who was not a lawyer. For example, input into the role of appointing judges would be provided by the Judicial Appointments Commission. The Minister's role would be to be accountable in that respect. Similarly, as regards the disciplining and financing of the judiciary, the Minister's role would not be that of a lawyer, but that of a Minister performing a ministerial function.
      Finally, I turn to the independence of the judiciary and the rule of law. It is very difficult to rebut the proposition of the noble Lord, Lord Maclennan, that sometimes someone who is not a lawyer will be braver, stronger and more focused on those issues than a lawyer. During the course of the past century no Lord Chancellor ever resigned even though at one stage the then government procured that the Lord Chief Justice sign a letter of resignation in blank which the government could operate at any date they wished. The Lord Chancellor at that time was a senior lawyer.
      I do not think that the right course is to restrict the pool yet further. I do not think that would carry confidence. The right course is to allow the Prime Minister of the day, whoever he or she may be, to choose the right person for the job who can best protect the values of justice, the rule of law and the independence of the judiciary that we all hold so dear.
      Lord Howe of Aberavon: My Lords, I hope that the noble and learned Lord will answer one question. Is not the answer to his argument about restricting the pool immediately apparent when one contemplates what has happened already under this Government? The Prime Minister had no difficulty in enlarging the pool when he appointed Lord Williams of Mostyn as Attorney-General, later a distinguished Leader of this House, and when he appointed the noble and learned Lord, Lord Goldsmith, as Attorney-General. The merit of having the appointment in this House is that the pool may be enlarged in that way, and the argument about the pool effectively disappears.
      6.15 p.m.
      Lord Falconer of Thoroton: My Lords, with respect that demonstrates the gulf between us. Lord Williams of Mostyn, who is much missed in this House, was an excellent lawyer. The noble and learned Lord, Lord Goldsmith, who is much respected in this House, is an excellent lawyer. In practice they were both selected straight from the Bar to hold high office. Do noble Lords think that the person who is to be responsible for a ministerial budget of £3 billion should be selected—or has to be selected—only from among people whose previous experience comprises simply that of being excellent barristers?

      785
      Being a barrister is of great assistance as regards some of the functions that the Minister performs. However, as regards quite a few of those functions, I modestly believe that my seven years' ministerial experience is much more significant and has made me much more effective in this role. If I had not spent seven years as a Minister I would not have been remotely able to perform that part of the role. I say with the greatest respect to the noble and learned Lord, Lord Howe, who has himself had a most distinguished ministerial career, that the idea that a member of the Bar can simply pick up the job with no experience of any kind of political or ministerial office is illustrative of the extent to which the pool would be limited by the measure that we are discussing.
      Lord Kingsland: My Lords, we have had another extremely interesting debate on an aspect of the Lord Chancellor's character—this time on whether or not he should be a lawyer. I was particularly struck by the noble and learned Lord's illustration that no Lord Chancellor in the 20th century had resigned from office. I regard that as a measure of the success of successive Lord Chancellors in ensuring that the rule of law was respected in Cabinet.
      The noble and learned Lord, Lord Woolf, brought us a message from the Judges' Council that it was appropriate that the Lord Chancellor should be a lawyer. Your Lordships heard the noble and learned Lord, Lord Ackner, talk about what I think the vast majority of your Lordships consider to be the biggest threat to the rule of law in recent years; namely, the issue of the ouster clause. I simply do not see how anyone other than a Lord Chancellor who had a good grasp of the law could possibly have dealt with this issue in Cabinet.
      That goes for all the rule of law issues that are likely to be disputed in the Cabinet or in Cabinet committees. The fact of the matter is that, as with so many other problems in politics, the devil is in the detail. If you have to get into the detail of the rule of law, you have to be a lawyer to understand it. I believe that our case is incontestable. I wish to test the opinion of the House.
      6.17 p.m.
      On Question, Whether the said amendment (No. 4) shall be agreed to?
      Their Lordships divided: Contents, 215; Not-Contents, 175.

      Division No. 2

      CONTENTS

      Ackner, L.

      Beaumont of Whitley, L.

      Alton of Liverpool, L.

      Bell, L.

      Ampthill, L.

      Belstead, L.

      Anelay of St Johns, B.

      Biffen, L.

      Astor, V.

      Blackwell, L.

      Astor of Hever, L.

      Blaker, L.

      Attlee, E.

      Bledisloe, V.

      Baker of Dorking, L.

      Bramall, L.

      786

      Bridge of Harwich, L.

      Hurd of Westwell, L.

      Bridgeman, V.

      Hylton, L.

      Brooke of Sutton Mandeville, L.

      Imbert, L.

      Brougham and Vaux, L.

      Jellicoe, E.

      Burnham, L.

      Jenkin of Roding, L.

      Buscombe, B.

      Jopling, L.

      Byford, B.

      Kalms, L.

      Caithness, E.

      Kimball, L.

      Cameron of Lochbroom, L.

      King of Bridgwater, L.

      Campbell of Alloway, L.

      Kingsland, L.

      Carey of Clifton, L.

      Kirkham, L.

      Carlisle of Bucklow, L.

      Laidlaw, L.

      Carnegy of Lour, B.

      Laing of Dunphail, L.

      Carr of Hadley, L.

      Lamont of Lerwick, L.

      Carrington, L.

      Lindsay, E.

      Cavendish of Furness, L.

      Linklater of Butterstone, B.

      Chadlington, L.

      Listowel, E.

      Chalker of Wallasey, B.

      Liverpool, E.

      Chester, Bp.

      Livsey of Talgarth, L.

      Chilver, L.

      Lloyd of Berwick, L.

      Chorley, L.

      London, Bp.

      Colwyn, L.

      Lucas, L.

      Cope of Berkeley, L. [Teller]

      Luke, L.

      Courtown, E.

      McAlpine of West Green, L.

      Craig of Radley, L.

      Macfarlane of Bearsden, L.

      Craigavon, V.

      MacGregor of Pulham Market, L.

      Crathorne, L.

      Crickhowell, L.

      Mackay of Clashfern, L.

      Cuckney, L.

      Maginnis of Drumglass, L.

      Dahrendorf, L.

      Mancroft, L.

      Darcy de Knayth, B.

      Mar, C.

      Dean of Harptree, L.

      Marlesford, L.

      Denham, L.

      Masham of Ilton, B.

      Dixon-Smith, L.

      Mayhew of Twysden, L.

      Donaldson of Lymington, L.

      Miller of Hendon, B.

      D'Souza, B.

      Monro of Langholm, L.

      Dundee, E.

      Monson, L.

      Eccles of Moulton, B.

      Montagu of Beaulieu, L.

      Eden of Winton, L.

      Montrose, D.

      Elles, B.

      Moore of Lower Marsh, L.

      Elliott of Morpeth, L.

      Morris of Bolton, B.

      Elton, L.

      Moynihan, L.

      Erroll, E.

      Murton of Lindisfarne, L.

      Falkland, V.

      Naseby, L.

      Falkner of Margravine, B.

      Neill of Bladen, L.

      Feldman, L.

      Neuberger, B.

      Ferrers, E.

      Newton of Braintree, L.

      Finlay of Llandaff, B.

      Nickson, L.

      Fookes, B.

      Noakes, B.

      Forsyth of Drumlean, L.

      Northbourne, L.

      Fraser of Carmyllie, L.

      Northbrook, L.

      Freeman, L.

      Northesk, E.

      Gardner of Parkes, B.

      Norton of Louth, L.

      Garel-Jones, L.

      Norwich, Bp.

      Geddes, L.

      Onslow, E.

      Gilmour of Craigmillar, L.

      Palmer, L.

      Glentoran, L.

      Park of Monmouth, B.

      Goschen, V.

      Parkinson, L.

      Greenway, L.

      Pearson of Rannoch, L.

      Griffiths of Fforestfach, L.

      Peel, E.

      Hanham, B.

      Perry of Southwark, B.

      Harris of Peckham, L.

      Peyton of Yeovil, L.

      Hayhoe, L.

      Phillips of Sudbury, L.

      Henley, L.

      Pilkington of Oxenford, L.

      Higgins, L.

      Platt of Writtle, B.

      Hodgson of Astley Abbotts, L.

      Plumb, L.

      Hogg, B.

      Plummer of St. Marylebone, L.

      Home, E.

      Portsmouth, Bp.

      Hooper, B.

      Rawlings, B.

      Hooson, L.

      Rees, L.

      Howard of Rising, L.

      Rees-Mogg, L.

      Howe, E.

      Renton, L.

      Howe of Aberavon, L.

      Renton of Mount Harry, L.

      Howe of Idlicote, B.

      Roberts of Conwy, L.

      Howell of Guildford, L.

      Rogan, L.

      Hunt of Wirral, L.

      Ryder of Wensum, L.

      787

      Saatchi, L.

      Taylor of Warwick, L.

      Sainsbury of Preston Candover, L.

      Tebbit, L.

      Thatcher, B.

      St John of Fawsley, L.

      Thomas of Gwydir, L.

      Salisbury, Bp.

      Thomas of Swynnerton, L.

      Saltoun of Abernethy, Ly.

      Thomas of Walliswood, B.

      Sanderson of Bowden, L.

      Trefgarne, L.

      Sandwich, E.

      Trumpington, B.

      Seccombe, B. [Teller]

      Tugendhat, L.

      Selborne, E.

      Ullswater, V.

      Selsdon, L.

      Vinson, L.

      Sharples, B.

      Wade of Chorlton, L.

      Shaw of Northstead, L.

      Wakeham, L.

      Sheppard of Didgemere, L.

      Waldegrave of North Hill, L.

      Skelmersdale, L.

      Walker of Worcester, L.

      Slynn of Hadley, L.

      Walmsley, B.

      Steinberg, L.

      Walton of Detchant, L.

      Sterling of Plaistow, L.

      Warnock, B.

      Stern, B.

      Wilcox, B.

      Stevens of Ludgate, L.

      Williams of Crosby, B.

      Stewartby, L.

      Williamson of Horton, L.

      Strange, B.

      Wilson of Tillyorn, L.

      Strathclyde, L.

      Windlesham, L.

      Swinfen, L.

      Wright of Richmond, L.

      Young of Graffham, L.

      NOT-CONTENTS

      Addington, L.

      Fearn, L.

      Ahmed, L.

      Fyfe of Fairfield, L.

      Andrews, B.

      Gale, B.

      Archer of Sandwell, L.

      Garden, L.

      Ashton of Upholland, B.

      Giddens, L.

      Avebury, L.

      Gilbert, L.

      Barker, B.

      Golding, B.

      Barnett, L.

      Goldsmith, L.

      Bassam of Brighton, L.

      Goodhart, L.

      Berkeley, L.

      Goudie, B.

      Bhattacharyya, L.

      Gould of Brookwood, L.

      Billingham, B.

      Gould of Potternewton, B.

      Blackstone, B.

      Graham of Edmonton, L.

      Bonham-Carter of Yarnbury, B.

      Grantchester, L.

      Borrie, L.

      Griffiths of Burry Port, L.

      Brennan, L.

      Grocott, L. [Teller]

      Brett, L.

      Hamwee, B.

      Brooke of Alverthorpe, L.

      Harris of Haringey, L.

      Brookman, L.

      Harris of Richmond, B.

      Brooks of Tremorfa, L.

      Harrison, L.

      Burlison, L.

      Hart of Chilton, L.

      Campbell-Savours, L.

      Haskel, L.

      Carter, L.

      Haskins, L.

      Carter of Coles, L.

      Haworth, L.

      Chandos, V.

      Hayman, B.

      Christopher, L.

      Henig, B.

      Clarke of Hampstead, L.

      Hilton of Eggardon, B.

      Clement-Jones, L.

      Hogg of Cumbernauld, L.

      Clinton-Davis, L.

      Hollis of Heigham, B.

      Cohen of Pimlico, B.

      Howarth of Breckland, B.

      Condon, L.

      Howie of Troon, L.

      Corbett of Castle Vale, L.

      Hoyle, L.

      Crawley, B.

      Hughes of Woodside, L.

      David, B.

      Hunt of Kings Heath, L.

      Davies of Coity, L.

      Jay of Paddington, B.

      Dholakia, L.

      Jones, L.

      Dixon, L.

      Judd, L.

      Drayson, L.

      King of West Bromwich, L.

      Dubs, L.

      Kirkhill, L.

      Dykes, L.

      Lea of Crondall, L.

      Elder, L.

      Leitch, L.

      Evans of Parkside, L.

      Lipsey, L.

      Evans of Temple Guiting, L.

      Lockwood, B.

      Falconer of Thoroton, L. (Lord Chancellor)

      Lofthouse of Pontefract, L.

      Macdonald of Tradeston, L.

      Falkender, B.

      McIntosh of Haringey, L.

      Farrington of Ribbleton, B.

      MacKenzie of Culkein, L.

      Faulkner of Worcester, L.

      Mackenzie of Framwellgate, L.

      788

      McKenzie of Luton, L.

      Royall of Blaisdon, B.

      Mackie of Benshie, L.

      Russell-Johnston, L.

      Maclennan of Rogart, L.

      Sainsbury of Turville, L.

      McNally, L.

      Sawyer, L.

      Maddock, B.

      Sewel, L.

      Mar and Kellie, E.

      Sharp of Guildford, B.

      Mason of Barnsley, L.

      Shutt of Greetland, L.

      Massey of Darwen, B.

      Simon, V.

      Merlyn-Rees, L.

      Smith of Clifton, L.

      Miller of Chilthorne Domer, B.

      Smith of Gilmorehill, B.

      Mitchell, L.

      Smith of Leigh, L.

      Morgan, L.

      Snape, L.

      Morgan of Drefelin, B.

      Steel of Aikwood, L.

      Morris of Aberavon, L.

      Sutherland of Houndwood, L.

      Newby, L.

      Symons of Vernham Dean, B.

      Northover, B.

      Temple-Morris, L.

      Oakeshott of Seagrove Bay, L.

      Tenby, V.

      Parekh, L.

      Thomas of Macclesfield, L.

      Patel of Blackburn, L.

      Thornton, B.

      Pendry, L.

      Tomlinson, L.

      Peston, L.

      Tope, L.

      Pitkeathley, B.

      Tordoff, L.

      Plant of Highfield, L.

      Triesman, L. [Teller]

      Ponsonby of Shulbrede, L.

      Truscott, L.

      Prosser, B.

      Tunnicliffe, L.

      Prys-Davies, L.

      Turner of Camden, B.

      Ramsay of Cartvale, B.

      Uddin, B.

      Razzall, L.

      Vallance of Tummel, L.

      Rea, L.

      Varley, L.

      Redesdale, L.

      Wall of New Barnet, B.

      Rendell of Babergh, B.

      Wallace of Saltaire, L.

      Rennard, L.

      Warner, L.

      Richard, L.

      Weatherill, L.

      Roberts of Llandudno, L.

      Wedderburn of Charlton, L.

      Robertson of Port Ellen, L.

      Whitaker, B.

      Rodgers of Quarry Bank, L.

      Whitty, L.

      Rooker, L.

      Wilkins, B.

      Roper, L.

      Williams of Elvel, L.

      Rosser, L.

      Woolmer of Leeds, L.

      Rowlands, L.

      Young of Norwood Green, L.

      Resolved in the affirmative, and amendment agreed to accordingly.
      6.29 p.m.
      [Amendments Nos. 5 and 6 not moved.]
      The Deputy Speaker (Baroness Gould of Potternewton): My Lords, before calling Amendment No. 7, I have to inform your Lordships that if Amendment No. 7 is agreed to I cannot call Amendments Nos. 8 or 9 for reasons of pre-emption.
      Viscount Bledisloe Viscount Bledisloe moved Amendment No. 7:
      Page 1, line 13, leave out subsections (4) to (6).
      The noble Viscount said The noble Viscount said: My Lords, this relates to the strength of the duty imposed on the Lord Chancellor and other Ministers to uphold the independence of the judiciary. Your Lordships will see that that duty is set out forthrightly and cogently in Clause 1(1), which states:
      "The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary".

      789
      That is an admirable statement and an admirable principle. But the trouble is that in subsections (4), (5) and (6) that duty is considerably watered down. Subsection (5) states that:
      "Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary".
      Ministers of the Crown should not seek to influence particular judicial decisions by any means whatever, other than by making representations to the judge who is hearing those proceedings. The restrictions should not be only on special access to the judiciary, leaving it all right for them to say, "If the judges' decisions continue to go against me, they won't do very well in the next salary review", or something of that kind. Subsection (6) then states that:
      "The Lord Chancellor…must have regard to…the need to defend that independence".
      That is infinitely weaker and wetter than a duty to uphold the continuing independence of the judiciary.
      In Committee, there were elaborate amendments designed to modify subsections (4), (5) and (6). I think that the noble Lord, Lord Brennan, suggested that it would be much simpler just to concentrate on the duty in Clause 1(1) that the Lord Chancellor,
      "must uphold the continued independence of the judiciary",
      and to take away the subsequent provisions that water that down. The amendment seeks to do that. I beg to move.
      Lord Kingsland: My Lords, I simply wish to endorse everything that the noble Viscount, Lord Bledisloe, has said.
      Lord Mackay of Clashfern: My Lords, I would like to ask a question regarding subsection (5). I have had this thought previously, but I felt that I should mention it. Those who propose a certificate of public interest immunity have a special access in that sense to the judiciary, which is different from the way in which the judiciary deals with other matters. Perhaps it might be necessary to consider whether that requires some special provision.
      Lord Falconer of Thoroton: My Lords, Amendment No. 7, tabled by the noble Viscount, Lord Bledisloe, to which the noble Lord, Lord Kingsland, has also put his name, seeks to remove the majority of Clause 1 altogether. As noble Lords are aware, Clause 1(4) to (6), which the amendment and Amendment No. 9 seek respectively to remove and to amend, are important aspects of the protections put in place for judicial independence in the Bill. These provisions flow directly from the opening sections of the concordat with the Lord Chief Justice. They were put in because of the concordat and reflect in part, I should imagine, the protection of the independence of the judiciary to which the noble and learned Lord, Lord Woolf, referred earlier.
      790
      The subsection (5) duty, to which the noble Viscount, Lord Bledisloe, referred, makes it absolutely clear that Ministers must not seek to influence judicial decisions other than by means open to other litigants before the courts. That would include the ability to make an application for a PII certificate. where appropriate, because it would not be special access, in accordance with litigation rules.
      The subsection (6) duties on the Lord Chancellor are particularly important. They make it clear that he has a special position regarding judicial independence, that he must ensure that the judiciary has the resources it requires, and that he ensures the public interest is properly taken into account in matters relating to the judiciary or the administration of justice.
      I have no doubt that the noble Viscount and the noble Lord agree to the fundamental importance of the need to protect judicial independence. Indeed, they may seek to remove the existing provisions in Clause 1 on the grounds that they are not satisfied that they are expressed with the degree of force with which some noble Lords would wish.
      Let us be clear that the Bill is not saying that the particular duties set out in these subsections mark the outer boundaries of the overall duty to uphold judicial independence. The subsections draw out particularly important duties that must necessarily be met. But that is not the end of the matter. Just because the particular duties have been met does not guarantee that the Lord Chancellor has met the overall duty to uphold judicial independence, which will apply in respect of everything he does. But the spelling out of the particular duties gives prominence to some very important matters of particular concern to the judiciary. To delete the whole of this section of the provision, as proposed by Amendment No. 7, does not seem to be a useful way forward.
      Amendment No. 9 would undermine two principles that form a relevant part of our institutions: first, that Ministers have to submit many of their decisions to collective decision of the Cabinet and are subject to constraints imposed by other Ministers and Parliament: and secondly, that the fulfilment of the general objectives of a Minister's portfolio is not a matter to be settled by substantive judicial review in the courts, but is the subject of political accountability and the Minister's obligation to resign if he is unable to support a collective decision.
      Amendment No. 9 would undermine both those principles by applying a positive statutory standard of conduct across a wide range of the Lord Chancellor's major activities, and beyond. The reference to the rule of law in particular, to which I will return, would extend the scope of the positive duty well beyond the bounds of the Lord Chancellor's current portfolio, imposing the threat of illegality over what he should and should not be saying and doing in respect of other Ministers' areas of responsibility, and even matters completely outside government. This is fundamentally inconsistent with existing notions of ministerial accountability in our constitution and goes well beyond the purpose of codifying the Lord Chancellor's

      791
      existing roles in statute. Also well beyond that purpose would be the result secured by Amendment No. 9 that major objectives of the Lord Chancellor's portfolio would become matters of substantive judicial review.
      Of course we accept, and have included in the Bill, a positive statutory obligation on all Ministers to uphold the independence of the judiciary. But that is binding on all Ministers at once, so does not create significant problems with the constitutional background of collective responsibility. Nor does it open up a large field of substantive judicial review of policy matters. It is confined to securing the already accepted and existing boundary between two branches of government, and we think it accurately reflects the existing constitutional background in this respect also.
      There is one further example of how Amendment No. 9 does not take proper account of a crucial part of the broader constitutional picture. It fails to take account of the role of the Lord Chancellor as a Member of one or other House of Parliament. The absolute legal duty created by the amendment would apply to the Lord Chancellor when he was exercising functions in connection with parliamentary proceedings. As the duty would be in absolute terms, with no reference to such proceedings, questions could arise as to the legality of the Lord Chancellor's actions in Parliament, including his position on Bills and the content of his speeches. I am sure that that is not the intention of the noble Lords who have tabled the amendment, but it illustrates the real difficulties in imposing absolute, unqualified duties on a particular Minister without properly taking into account the entirety of his constitutional role.
      To sum up, it would seem that Amendment No. 7 is based on a misunderstanding of the clause which it seeks to amend and it would remove important aspects of the protections that exist for judicial independence. The alternative solution that is proposed by Amendment No. 9 also makes no attempt to accommodate itself to the rest of our constitutional fabric, proceeding as if in a vacuum. In consequence, both amendments are misconceived and I ask noble Lords not to press them.
      Viscount Bledisloe: My Lords, the noble and learned Lord has spent much time responding to Amendment No. 9, which has not been moved and not been spoken to. I do not think that it is intended to be moved.
      So far as concerns the noble and learned Lord's opposition to Amendment No. 7, he has not dealt with the basic point that subsections (5) and (6) are a great deal weaker than subsection (1), which sets out the Lord Chancellor's fundamental duty.
      Lord Falconer of Thoroton: My Lords, I had assumed that the noble Viscount moved his amendment because he wanted to replace subsections (4) and (6) with his positive duties. I apologise if I have got that wrong. I dealt briefly with his main point.
      792
      Clause 1(1) is not in any way diluted by subsections (4) to (6). Subsections (4) to (6) are in the Bill because they were agreed in the concordat. The position cannot be made worse once Clause 1(1) is in place. I ask the noble Viscount to respect the concordat and leave the position alone.
      Viscount Bledisloe: My Lords, with respect, the noble and learned Lord must be entirely wrong. If one has a general principle and then some detailed provisions, in matters which are covered by the detailed provisions, they will prevail over the general statement. We just cannot have a provision in the Bill which states that Ministers must not influence judicial decisions through any special access. That would make it plain that it is perfectly all right for them to influence judicial decisions by anything other than special access, which is the most appalling constitutional impropriety.
      If Ministers are merely obliged to uphold the continued independence of the judiciary, they cannot seek to influence judicial decisions in any way other than by making representations in court. If they are under an absolute duty to uphold the continued independence of the judiciary, there is no need for a provision which states that they must have regard to the need to defend that. Subsections (5) and (6) quite plainly water down subsection (1) and are undesirable. I will test the opinion of the House.
      Lord Phillips of Sudbury: My Lords, before the noble Viscount sits down, could he please explain something, because I am certainly muddled now? Amendments Nos. 7 and 9 were grouped. Is the noble Viscount saying that without Amendment No. 9 being agreed to, it is satisfactory to remove subsections (4) to (6)?
      Viscount Bledisloe: I am, my Lords. Indeed, we were told by the Deputy Speaker that if Amendment No. 7 were passed, Amendment No. 9 could not be moved by reason of pre-emption. Let us stick to one amendment.
      Lord Falconer of Thoroton: My Lords—
      Viscount Bledisloe: My Lords, let me just respond to one question first. It is perfectly satisfactory to stick to Clause 1(1) and not to have detailed, weaker provisions.
      Lord Falconer of Thoroton: My Lords, it is entirely a matter for the noble Viscount. As I made clear in my remarks, subsections (4) to (6) neither water down nor are intended to water down Clause 1(1). They are in the Bill to help the judiciary. To knock them out now would have precisely the reverse effect of that which the noble Viscount intends.
      Viscount Bledisloe: My Lords, we must agree to differ and see which view the House prefers.
      6.43 p.m.
      On Question, Whether the said amendment (No. 7) shall be agreed to?
      Their Lordships divided: Contents, 128; Not-Contents, 178.

      Division No. 3

      CONTENTS

      Anelay of St Johns, B.

      Liverpool, E.

      Astor of Hever, L.

      Lloyd of Berwick, L.

      Attlee, E.

      Lucas, L.

      Biffen, L.

      Luke, L.

      Bledisloe, V. [Teller]

      Macfarlane of Bearsden, L.

      Bridgeman, V.

      MacGregor of Pulham Market, L.

      Brooke of Sutton Mandeville, L.

      Brougham and Vaux, L.

      Maginnis of Drumglass, L.

      Burnham, L.

      Mancroft, L.

      Buscombe, B.

      Mar, C.

      Byford, B.

      Marlesford, L.

      Caithness, E.

      Masham of Ilton, B.

      Cameron of Lochbroom, L.

      Mayhew of Twysden, L.

      Campbell of Alloway, L.

      Miller of Hendon, B.

      Carlile of Berriew, L.

      Monro of Langholm, L.

      Carlisle of Bucklow, L.

      Monson, L.

      Carnegy of Lour, B.

      Montrose, D.

      Chadlington, L.

      Morris of Bolton, B.

      Chorley, L.

      Moynihan, L.

      Colwyn, L.

      Murton of Lindisfarne, L.

      Cope of Berkeley, L. [Teller]

      Naseby, L.

      Courtown, E.

      Nickson, L.

      Craig of Radley, L.

      Noakes, B.

      Crathorne, L.

      Northbourne, L.

      Crickhowell, L.

      Northbrook, L.

      Dean of Harptree, L.

      Northesk, E.

      Denham, L.

      Norton of Louth, L.

      Dixon-Smith, L.

      Onslow, E.

      Donaldson of Lymington, L.

      Palmer, L.

      Dundee, E.

      Park of Monmouth, B.

      Eccles of Moulton, B.

      Pearson of Rannoch, L.

      Eden of Winton, L.

      Peel, E.

      Elton, L.

      Perry of Southwark, B.

      Erroll, E.

      Peyton of Yeovil, L.

      Feldman, L.

      Pilkington of Oxenford, L.

      Ferrers, E.

      Plummer of St. Marylebone, L.

      Fookes, B.

      Rawlings, B.

      Forsyth of Drumlean, L.

      Rees, L.

      Fraser of Carmyllie, L.

      Renton, L.

      Garel-Jones, L.

      Roberts of Conwy, L.

      Geddes, L.

      Rogan, L.

      Glentoran, L.

      Saatchi, L.

      Goschen, V.

      St John of Fawsley, L.

      Greenway, L.

      Saltoun of Abernethy, Ly.

      Hanham, B.

      Sanderson of Bowden, L.

      Hayhoe, L.

      Seccombe, B.

      Henley, L.

      Selborne, E.

      Higgins, L.

      Selsdon, L.

      Hogg, B.

      Sharples, B.

      Home, E.

      Shaw of Northstead, L.

      Howard of Rising, L.

      Skelmersdale, L.

      Howe, E.

      Skidelsky, L.

      Howe of Aberavon, L.

      Slynn of Hadley, L.

      Howell of Guildford, L.

      Steinberg, L.

      Hunt of Wirral, L.

      Strange, B.

      Jopling, L.

      Strathclyde, L.

      Kilclooney, L.

      Swinfen, L.

      Kimball, L.

      Taylor of Warwick, L.

      Kingsland, L.

      Thatcher, B.

      Laidlaw, L.

      Thomas of Gwydir, L.

      Laing of Dunphail, L.

      Thomas of Swynnerton, L.

      Lindsay, E.

      Trefgarne, L.

      794

      Tugendhat, L.

      Wilcox, B.

      Ullswater, V.

      Windlesham, L.

      Wakeham, L.

      NOT-CONTENTS

      Addington, L.

      Haskel, L.

      Ahmed, L.

      Haworth, L.

      Ampthill, L.

      Hayman, B.

      Andrews, B.

      Henig, B.

      Archer of Sandwell, L.

      Hilton of Eggardon, B.

      Ashton of Upholland, B.

      Hogg of Cumbernauld, L.

      Avebury, L.

      Hollis of Heigham, B.

      Barker, B.

      Hooson, L.

      Bassam of Brighton, L.

      Howarth of Breckland, B.

      Bhattacharyya, L.

      Howe of Idlicote, B.

      Billingham, B.

      Howie of Troon, L.

      Blackstone, B.

      Hoyle, L.

      Bonham-Carter of Yarnbury, B.

      Hughes of Woodside, L.

      Borrie, L.

      Hunt of Kings Heath, L.

      Brennan, L.

      Janner of Braunstone, L.

      Brett, L.

      Jay of Paddington, B.

      Brooke of Alverthorpe, L.

      Jones, L.

      Brookman, L.

      Judd, L.

      Brooks of Tremorfa, L.

      Kennedy of The Shaws, B.

      Burlison, L.

      King of West Bromwich, L.

      Campbell-Savours, L.

      Kirkhill, L.

      Carter, L.

      Layard, L.

      Carter of Coles, L.

      Lea of Crondall, L.

      Chandos, V.

      Leitch, L.

      Chester, Bp.

      Lester of Herne Hill, L.

      Christopher, L.

      Linklater of Butterstone, B.

      Clarke of Hampstead, L.

      Lipsey, L.

      Clement-Jones, L.

      Lockwood, B.

      Clinton-Davis, L.

      Lofthouse of Pontefract, L.

      Cohen of Pimlico, B.

      McDonagh, B.

      Corbett of Castle Vale, L.

      McIntosh of Haringey, L.

      Crawley, B.

      McIntosh of Hudnall, B.

      Davies of Coity, L.

      MacKenzie of Culkein, L.

      Dholakia, L.

      Mackenzie of Framwellgate, L.

      Dixon, L.

      McKenzie of Luton, L.

      Drayson, L.

      Mackie of Benshie, L.

      D'Souza, B.

      Maclennan of Rogart, L.

      Dubs, L.

      McNally, L.

      Dykes, L.

      Maddock, B.

      Elder, L.

      Mar and Kellie, E.

      Evans of Parkside, L.

      Mason of Barnsley, L.

      Evans of Temple Guiting, L.

      Massey of Darwen, B.

      Falconer of Thoroton, L. (Lord Chancellor)

      Miller of Chilthorne Domer, B.

      Mitchell, L.

      Falkland, V.

      Morgan, L.

      Falkner of Margravine, B.

      Morgan of Drefelin, B.

      Farrington of Ribbleton, B.

      Morris of Aberavon, L.

      Faulkner of Worcester, L.

      Neuberger, B.

      Fearn, L.

      Newby, L.

      Finlay of Llandaff, B.

      Northover, B.

      Fyfe of Fairfield, L.

      Oakeshott of Seagrove Bay, L.

      Gale, B.

      Parekh, L.

      Garden, L.

      Patel of Blackburn, L.

      Giddens, L.

      Pendry, L.

      Gilbert, L.

      Peston, L.

      Golding, B.

      Phillips of Sudbury, L.

      Goldsmith, L.

      Pitkeathley, B.

      Goodhart, L.

      Plant of Highfield, L.

      Goudie, B.

      Prosser, B.

      Gould of Brookwood, L.

      Ramsay of Cartvale, B.

      Gould of Potternewton, B.

      Randall of St. Budeaux, L.

      Graham of Edmonton, L.

      Razzall, L.

      Grantchester, L.

      Redesdale, L.

      Griffiths of Burry Port, L.

      Rendell of Babergh, B.

      Grocott, L. [Teller]

      Rennard, L.

      Hamwee, B.

      Richard, L.

      Harris of Haringey, L.

      Roberts of Llandudno, L.

      Harris of Richmond, B.

      Robertson of Port Ellen, L.

      Harrison, L.

      Rodgers of Quarry Bank, L.

      Hart of Chilton, L.

      Rooker, L.

      795

      Roper, L.

      Tomlinson, L.

      Rosser, L.

      Tope, L.

      Rowlands, L.

      Tordoff, L.

      Royall of Blaisdon, B.

      Triesman, L. [Teller]

      Russell-Johnston, L.

      Truscott, L.

      Sainsbury of Turville, L.

      Tunnicliffe, L.

      Sawyer, L.

      Turner of Camden, B.

      Scott of Needham Market, B.

      Uddin, B.

      Sewel, L.

      Vallance of Tummel, L.

      Sharp of Guildford, B.

      Wall of New Barnet, B.

      Shutt of Greetland, L.

      Wallace of Saltaire, L.

      Simon, V.

      Walmsley, B.

      Smith of Clifton, L.

      Warner, L.

      Smith of Leigh, L.

      Whitaker, B.

      Snape, L.

      Whitty, L.

      Symons of Vernham Dean, B.

      Wilkins, B.

      Temple-Morris, L.

      Williams of Crosby, B.

      Thomas of Walliswood, B.

      Williams of Elvel, L.

      Thornton, B.

      Williamson of Horton, L.

      Young of Norwood Green, L.

      Resolved in the negative, and amendment disagreed to accordingly.
      6.54 p.m.
      Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 8:
      Page 2, line 1, at beginning insert "The Lord Chancellor and other"
      The noble and learned Lord said The noble and learned Lord said: My Lords, the amendment will clarify the respective positions of the Lord Chancellor and the Lord Chief Justice. It was referred to in the speech by the noble and learned Lord, Lord Woolf. Traditionally, the Lord Chancellor has been referred to as the head of the judiciary. That has always been a non-statutory title, flowing from the Lord Chancellor's position as the most senior judge in the United Kingdom.
      As all sides now appear to have accepted, it is inappropriate for the Lord Chancellor to hold judicial office or to be the head of the judiciary. The Bill already provides that the Lord Chief Justice is to assume the new additional title of President of the Courts of England and Wales. The amendment will provide further in the Bill that the Lord Chief Justice should also be acknowledged explicitly as the head of the judiciary of England and Wales. That will put beyond all conceivable doubt the rightful position of the Lord Chief Justice as the leader of the judges in the jurisdiction. It will also put beyond doubt the fact that the Lord Chancellorship is no longer to be a judicial office.
      It is also my intention to table another amendment to provide in the Bill that the Lord Chief Justice of Northern Ireland is the head of the judiciary in that jurisdiction. As justice is a devolved matter in Scotland, we have left the position in that jurisdiction to be dealt with by the Scottish Parliament. As the noble and learned Lord, Lord Woolf, has already said, the amendment is supported by him on behalf of the Judges' Council and it is a useful clarification. I beg to move.
      On Question, amendment agreed to.
      [Amendments Nos. 9 and 10 not moved.]
      Clause 3 [President of the Courts of England and wales]:
      Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 11:
      Page 3, line 14, at end insert "and is Head of the Judiciary of England and Wales"
      The noble and learned Lord said The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
      Lord Mackay of Clashfern: My Lords, I think that the noble and learned Lord's explanation of the previous amendment in fact related to Amendment No. 11. My only question is: what will be the position of the President of the Supreme Court? Will he be the head of the judiciary for the United Kingdom as a whole?
      Lord Falconer of Thoroton: My Lords, he will not be the head of the judiciary for the United Kingdom as a whole; he will simply be the President of the Supreme Court. Therefore, he will be the chief judge in the Supreme Court but he will have no function as the head of the judiciary in any of the jurisdictions in the United Kingdom.
      Lord Mackay of Clashfern: My Lords, if the Lord Chief Justice happens to sit, as he may be entitled to do, in the Supreme Court, who will preside?
      Lord Falconer of Thoroton: My Lords, that will be a matter to be agreed between the President of the Supreme Court and the Lord Chief Justice of England and Wales or the Lord President in Scotland or the Lord Chief Justice in Northern Ireland if he were able to sit there.
      Lord Phillips of Sudbury: My Lords, perhaps I may ask the noble and learned Lord when, if at all, the Lord Chief Justice will be referred to as the President of the Courts?
      Lord Falconer of Thoroton: My Lords, he will still be the president of all the courts of England and Wales. The purpose of calling him the President of the Courts of England and Wales is to make it absolutely clear that he is now in charge of all the courts, including the magistrates' courts.
      Lord Phillips of Sudbury: My Lords, does that mean that the Lord Chief Justice will generally be called Lord Chief Justice hereafter?
      Lord Falconer of Thoroton: My Lords, I am sure that he will continue to be called Lord Chief Justice. "Mr President" may not suit him.
      Lord Goodhart: My Lords, I seek clarification of one point. If the Lord Chief Justice is invited to sit as a judge of the Supreme Court, surely he will then be an

      797
      acting judge, invited there by the President of the Supreme Court, and surely it will be the President of the Supreme Court who will preside.
      Lord Falconer of Thoroton: My Lords, that sounds exactly right to me, but it seems that it is for the President of the Supreme Court to decide how he deals with the matter.
      On Question, amendment agreed to.
      7 p.m.
      Clause 4 [Head and Deputy Head of Criminal Justice]:
      The Duke of Montrose The Duke of Montrose moved Amendment No. 12:
      Page 3, line 36, at end insert "in England and Wales"
      The noble Duke said The noble Duke said: My Lords, in moving Amendment No. 12, I wish to speak also to Amendments Nos. 13 and 14. The amendment makes clear the territorial limitation of the new office of Head of Criminal Justice. The creation of new offices such as Head of Criminal Justice and Deputy Head of Criminal Justice creates the opportunity for clarity and transparency. The clause applies only in England and Wales, and so the territorial and jurisdictional limitations of the new office should be clearly stated.
      Clause 3 clearly states that it deals with the President of the Courts of England and Wales, and subsection (1) defines the Lord Chief Justice as President of the Courts of England and Wales. This maintains the clarity as against the Lord President of the Court of Session in Scotland—a post that has been in existence since 1532. When we come to Clause 4, it seems logical that the Head of Criminal Justice and the Deputy Head of Criminal Justice should also be so distinguished.
      The Law Society of Scotland, which initiated this set of amendments, has let me know that on many occasions it has experienced misconceptions in the media generated because the jurisdictional limits of certain bodies in the various constituent legal systems in the United Kingdom are not clear enough.
      I also wish to speak to Amendment No. 15, and to Amendments Nos. 16 and 17. Amendment No. 15 makes clear the similar territorial limitation of the new office of the Head of Family Justice. It is easy to see that the newspapers in Scotland might light on a judgment by Lady Justice Butler-Sloss as president of the Family Division and speak of such-and-such a ruling in family law in Scotland, whereas in fact we have jealously managed to guard the difference in the law between the two countries. Practically, none of us now knows where we stand on the matter of smacking children.
      These amendments to Clauses 4 and 5 are designed to reinforce the clarity and to ensure that there is no opportunity for confusion if commentators or reporters seek to explain the decisions of the Head of Criminal Justice or the Head of Family Justice or their deputies. There are some occasions when the aspects of the legal system are denominated on the basis of
      798
      jurisdiction; for example, the Council on Tribunals has its Scottish committee; the Scottish Solicitors' Discipline Tribunal is distinguished from the Discipline Tribunal; and there is a Lands Tribunal and a Lands Tribunal for Scotland. As one can see, the distinction between the main England and Wales body and the Scottish body needs to be kept clear.
      This Bill presents an ideal opportunity to ensure that there is both clarity and a lack of confusion over the new and important offices created by the Bill. I beg to move.
      Baroness Carnegy of Lour: My Lords, there has been a long history of confusion of this kind, where a body or an officer has had jurisdiction over only England and Wales but the title does not say so. An example is the Highways Agency. It is called the Highways Agency, but it has nothing to do with highways in Scotland. Very often people in Scotland write to the Highways Agency and want to know about their highways, but it has nothing to do with them. That is an important point in relation to clarity.
      I hope that the alacrity with which the noble and learned Lord leapt up means that he will accept the amendments. They are important. Such jobs should say whether they apply to England and Wales or to England or to the whole of the United Kingdom. I hope that he will accept the amendments.
      Lord Mackay of Clashfern: My Lords, I support the amendment. On the nature of the clause, I feel rather sad that the Lord Chief Justice is to be the Head of Criminal Justice. In my submission, the Lord Chief Justice is the head of all justice; in my view, he is the senior judge in criminal and civil matters. I feel that crime should be given a particular place in relation to the Lord Chief Justice appointment. I take only a marginal interest in the matter, but I wonder whether the president of the Queen's Bench Division would not be a better Head of Criminal Justice, leaving the Lord Chief Justice as the fountain of all justice in England and Wales.
      Lord Falconer of Thoroton: My Lords, I can see the Lord Chief Justice looking at the noble and learned Lord warmly in relation to that comment. I shall reply to the points made by the noble Duke and the noble Baroness in a moment. On the role of the Lord Chief Justice, Clause 4(2) says:
      "The Head of Criminal Justice is—

      (a) the Lord Chief Justice, or

      (b) if the Lord Chief Justice appoints another person, that person".

      Whatever other functions the Lord Chief Justice has, traditionally in England and Wales he has been the face of the criminal justice system as far as the judiciary is concerned. We believe that the Bill should reflect that, but it allows the Lord Chief Justice, if he so wishes, to appoint someone else to be the Head of Criminal Justice. That judgment will be made at the time. I am not unsympathetic to the point that has

      799
      been made. Let us start from the proposition that he is the Head of Criminal Justice, but if he or she does not want to be, he or she has the means to change that.
      On the points made by the noble Duke and the noble Baroness, I believe that it is accepted implicitly in what they say that the extent of the appointment is only in England and Wales. That is clear from Clause 106 of the Bill, which makes it absolutely explicit that the Head of Criminal Justice and the Head of Family Justice are to apply only to England and Wales.
      With the greatest of respect, the most optimistic hope of the noble Duke and the noble Baroness is that when newspapers refer to the Head of Criminal Justice hereinafter they will put in the words "of England and Wales". Sadly, they very rarely say the "Lord Chief Justice of England and Wales", which is the official title of the Lord Chief Justice. I see very little merit in making the Bill even longer in the fond hope that English newspapers—it would not be in the Scottish newspapers—will hereinafter put in the words "of England and Wales".
      While I am very sympathetic to the point made, I fear that the proposal does not address the particular problem once one accepts that Clause 106 makes it clear that the ambit of the jobs is only England and Wales. With sympathy. I am sorry.
      The Duke of Montrose: My Lords, I am very disappointed to have that response from the Lord Chancellor. This is exactly the kind of point we are on. I do not wish to denigrate the powers of the press in Scotland, but not all of them will penetrate Bills to the level of Clause 106. This is the precise experience that we have had on numerous other points. The question of a title is rather important. We have been through this in relation to one or two other matters, such as on the reform of the House of Lords when the title given to the Earl Marshal was curtailed. He was not called the Earl Marshal of England, which would have made his position clearer in the event of further developments in Parliament.
      In this case I would like to see the formal title include those words, but in the mean time I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      [Amendments Nos. 13 and 14 not moved.]
      Clause 5 [Head and Deputy Head of Family Justice]:
      [Amendments Nos. 15 to 17 not moved.]
      Schedule 1 [Powers to make rules]:
      Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 18:
      Page 47, line 29, leave out "204(2)" and insert "129(2)"
      On Question, amendment agreed to.
      Clause 8 [Transfer of appointment functions]:
      Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 19:
      Leave out Clause 8 and insert the following new Clause—

      TRANSFER OF APPOINTMENT FUNCTIONS TO HER MAJESTY
      Schedule (Transfer of appointment functions to Her Majesty) provides for—

      (a) Her Majesty instead of the Lord Chancellor to make appointments to certain offices, and

      (b) the modification of enactments relating to those offices."

      On Question, amendment agreed to.
      Schedule 3 [Appointment functions]:
      Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 20:
      Leave out Schedule 3 and insert the following new Schedule—

      TRANSFER OF APPOINTMENT FUNCTIONS TO HER MAJESTY
      District Judges
      1 (1) For section 6 of the County Courts Act 1984 (c. 28) substitute—
      "6 DISTRICT JUDGES
      (1) Her Majesty may, on the recommendation of the Lord Chancellor, appoint district judges.
      (2) The Lord Chief Justice, after consulting the Lord Chancellor—

      (a) must assign each district judge to one or more districts;

      (b) may change an assignment so as to assign the district judge to a different district or districts.

      (3) A reference in any enactment or other instrument to the district judge for a district or of a county court is a reference to any district judge assigned to the district concerned.
      (4) Every district judge is, by virtue of his office, capable of acting in any district whether or not assigned to it. but may do so only in accordance with arrangements made by or on behalf of the Lord Chief Justice.
      (5) A district judge is to be paid such salary as may be determined by the Lord Chancellor with the concurrence of the Treasury.
      (6) A salary payable under this section may be increased but not reduced by a determination or further determination under this section."
      (2) That section as substituted applies to a district judge holding office by virtue of an appointment made before the commencement of sub-paragraph (1) as if he had been assigned to the district or districts for which he was appointed.
      2 (1) For sections 100 and 101 of the Supreme Court Act 1981 (c. 54) substitute—
      "100 DISTRICT JUDGES
      (1) The Lord Chief Justice, after consulting the Lord Chancellor—

      (a) may assign a district judge to one or more district registries;

      (b) may change an assignment so as to assign the district judge to a different district registry or registries (or to no district registry).

      (2) A reference in any enactment or other instrument to the district judge of a district registry is a reference to any district judge assigned to the registry concerned.
      (3) Every district judge is, by virtue of his office, capable of acting in any district registry whether or not assigned to it, but may do so only in accordance with arrangements made by or on behalf of the Lord Chief Justice.
      (4) Whilst a district judge is assigned to one or more district registries in accordance with subsection (1) he is a district judge of the High Court."
      (2) That section as substituted applies to a district judge holding office by virtue of an appointment made before the commencement of sub-paragraph (1) as if he had been assigned to the district registry or registries for which he was appointed.
      (3) In section 102 of that Act (deputy district judges) for subsection (4) substitute—
      "(4) A person appointed to be a deputy district judge in a district registry has, while acting under this section, the same jurisdiction as a district judge assigned to that registry."
      High Court Masters and Registrars
      3 (1) Section 89 of the Supreme Court Act 1981 (c. 54) (masters and registrars) is amended as follows.
      (2) In subsection (1), for the words from "the Lord Chancellor" to the end substitute "Her Majesty."
      (3) After that subsection insert—
      "(1A) The maximum number of appointments under subsection (1) is such as may be determined from time to time by the Lord Chancellor with the concurrence of the Treasury."
      (4) For subsection (3) substitute—
      "(3) Her Majesty shall, on the recommendation of the Lord Chancellor, appoint a person to each office listed in the first column of the table in subsection (3C) ("a senior office").
      (3A) A person may be appointed to a senior office only if—

      (a) he holds the office in the corresponding entry in the second column of that table ("the qualifying office"), or,

      (b) he does not hold the qualifying office but could be appointed to it in compliance with section 88.

      (3B) Where a person who is to be appointed to a senior office meets the condition in subsection (3A)(b) he shall, when appointed to the senior office, also be appointed to the qualifying office.
      (3C) This is the table referred to in subsections (3) and (3A)—

      Senior office

      Qualifying office

      Senior Master of the Queen's

      Master of the Queen's Bench

      Bench Division

      Division

      Chief Chancery Master

      Master of the Chancery Division

      Chief Taxing Master

      Taxing master of the Supreme Court

      Chief Bankruptcy Registrar

      Registrar in bankruptcy of the High Court

      Senior District Judge of the Family Division

      Registrar of the Principal Registry of the Family Division"

      (5) Before subsection (8) insert—
      "(7A) A person appointed under subsection (1) is to be paid such salary, and a person appointed to a senior office is to be paid such additional salary, as may be determined by the Lord Chancellor with the concurrence of the Treasury.
      (7B) A salary payable under or by virtue of this section—

      (a) may in any case be increased, but

      (b) may not, in the case of a salary payable in respect of an office listed in column 1 of Part 2 of Schedule 2 or of a senior office, be reduced,

      by a determination or further determination under this section."
      4 In section 93(2) of the Mental Health Act 1983 (c. 20) (Court of Protection) for "the Lord Chancellor" substitute "Her Majesty".
      Senior District Judge (Chief Magistrate)
      5 In section 23 of the Courts Act 2003 (c. 39) (Senior District Judge (Chief Magistrate))—

      (a) for "The Lord Chancellor" substitute "Her Majesty";

      (b) for "he" substitute "she".

      6 In section 10A(2) of the Justices of the Peace Act 1997 (c. 25) (until the coming into force of the repeal of that Act by the Courts Act 2003) for "The Lord Chancellor" substitute "Her Majesty"."
      On Question, amendment agreed to.
      Clause 9 [Other judiciary-related functions and organisation of the courts]:
      Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 21:
      Leave out Clause 9 and insert the following new Clause—
      "OTHER FUNCTIONS OF THE LORD CHANCELLOR AND ORGANISATION OF THE COURTS
      Schedule (Other functions of the Lord Chancellor and organisation of the courts) provides for—

      (a) the transfer of certain functions of the Lord Chancellor,

      (b) the modification of other functions of the Lord Chancellor,

      (c) the modification of enactments relating to those functions, and

      (d) the modification of enactments relating to the organisation of the courts."

      On Question, amendment agreed to.
      The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland) moved Amendment No. 22:
      After Clause 9, insert the following new clause—
      "LORD CHANCELLOR'S OATH
      (1) In the Promissory Oaths Act 1868 (c. 72) after section 6 insert—
      "6A LORD CHANCELLOR'S OATH
      (1) The oath set out in subsection (2) shall be tendered to and taken by the Lord Chancellor, after and in the same manner as the official oath, as soon as may be after his acceptance of office.
      (2) The oath is—
      "I, do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of

      803
      resources for the efficient and effective support of the courts for which I am responsible. So help me God."."
      (2) The section inserted by subsection (1) does not apply in the case of acceptance of office before the coming into force of this section."
      The noble Baroness said The noble Baroness said: My Lords, there has been significant interest from noble Lords in how best to give recognition to those aspects of the office of Lord Chancellor which would remain unique to the office, despite the proposed reforms, acting as constant principles for all future office holders. Responsibility to defend judicial independence, respect for the rule of law, and support of an efficient court system are duties that are distinct from those of any other Minister.
      To provide for the above responsibilities in statute, in the form of an official Lord Chancellor's oath, would be a clear means of cementing their continuing importance in the face of reform of the office. I am greatly indebted to the noble Viscount, Lord Bledisloe, for drawing attention to the importance of giving official recognition to the special duties of the Lord Chancellor, and for his former and current proposals for the form of the Lord Chancellor's oath. This initiative is supported by the noble and learned Lord, Lord Howe, who has given his approval to the amendment of the noble Viscount, Lord Bledisloe, and put forward a further proposal for the Lord Chancellor's oath.
      I shall deal with government Amendment No. 22. It covers the three principle areas—the rule of law, judicial independence, and the running of the courts—which all sides appear to agree are key to the office of Lord Chancellor.
      The oath is constructed in such a way as to ensure that it can be distinguished from: first, the official oath and the oath of allegiance; and secondly, the judicial oath. In recognising the importance of the principles of judicial independence, the rule of law and the maintenance of an effective court system, I believe that the proposed oath meets the requirements that have led to the call for such an oath. In essence, it fulfils the same purpose as the oaths proposed by the noble Lords, but avoids the problem of overlap with the official and judicial oaths.
      I turn to the other formulations of the oath proposed by the noble Viscount, Lord Bledisloe, and the noble and learned Lord, Lord Howe of Aberavon, in Amendments Nos. 33, 44 and 45. My main concern with these oaths is that they both borrow some phraseology from the judicial oath. We believe it is important that the new oath bears no resemblance to the judicial oath, which could risk ambiguity in the reformed status of the office of Lord Chancellor in relation to the judiciary.
      The oath proposed by the noble and learned Lord, Lord Howe, also borrows language from the official oath. It seems to me that that is unnecessary and may give rise to confusion about the content of the various oaths. We should avoid overlap if at all possible.
      On Amendment No. 33, I appreciate the recognition of the noble Viscount, Lord Bledisloe, that the Bill should provide that the Lord Chancellor will no longer
      804
      be required to take the judicial oath. That is already provided for in Schedule 14 to the Bill by omitting reference to the Lord Chancellor in the Schedule to the Promissory Oaths Act 1868.
      The only distinction between the various oaths that I seek to highlight is that in our amendment we have consciously avoided a statutory duty to,
      "uphold the administration of justice".
      The reason is that such terminology could, perversely, be seen to contravene the principle of judicial independence. To administer justice is a judicial function. It is important, therefore, that "administration", in the sense of a business organisation, is not confused with the administering of justice in the judicial sense.
      I note that the oath proposed by the noble and learned Lord, Lord Howe, in Amendment No. 45, omits this particular phrase, thereby avoiding the issue I have just mentioned. On the other hand, I do not think it is appropriate for the oath to make no mention of the Lord Chancellor's particular responsibilities in relation to the provision of effective support for the court system. If the purpose of the Lord Chancellor's oath is to set out the essential responsibilities of the office, this vital area of duty should not be overlooked.
      I anticipate that the content of the oath I have proposed should help to alleviate the concerns of noble Lords who fear that the reforms to the office of the Lord Chancellor may diminish his authority in having regard to judicial independence and the rule of law. I beg to move.
      Viscount Bledisloe: My Lords, as the noble Baroness said, in Committee an amendment requiring the Lord Chancellor to take a special oath was tabled in my name. In my absence, it was very kindly and ably moved by the noble Lord, Lord Windlesham. Both he and I—the noble Lord is unable to be here today—are very grateful to the noble and learned Lord the Lord Chancellor for having taken on board the idea of a separate Lord Chancellor's oath and has provided for one.
      There are three versions of the oath before your Lordships' House. As noble Lords would expect, the one drafted by the noble and learned Lord, Lord Howe of Aberavon, is undoubtedly the best. If we were to have a choice, I would vote for that. I shall leave to the noble and learned Lord, Lord Howe, whether the differences between the three oaths are matters which need to detain the House on a vote. If he chooses to divide the House on his version, I shall support it, but if he considers that we have the bulk of what we want in the amendment of the noble and learned Lord the Lord Chancellor, I will happily bow to his decision.
      Lord Howe of Aberavon: My Lords, I wondered at one point whether I should declare a long-deceased interest as the son of a Commissioner for Oaths. My father used to make 6s 8d from the occasions people swore oaths before him. I think that that is probably past history.
      On the substance of the matter, I had hoped that by tabling the amendment one was contributing to the possibility of even more elegance in the form adopted

      805
      by the Lord Chancellor. I do not feel very anxious to retain phrases like "faithfully" and "at all times" and end the oath with,
      "in accordance with the laws and usages of this Realm".
      They somehow hark back to a discreditable era, but they seem to me to give a sense of continuity which is desirable. I am certainly not going to press this linguistic point to a Division.
      However, I hope that the Lord Chancellor may be prepared to have a powwow with the noble Viscount, Lord Bledisloe, and myself if, on reflection, he feels that it would be possible to produce an even more elegant and apt oath than the one he has produced.
      7.15 p.m.
      Baroness Ashton of Upholland: My Lords, I am sure that my noble and learned friend would relish the prospect of a powwow and that it would contribute to the elegance of the oath.
      I recognise the genuine consensus between us in what we seek to achieve. There are differences between us. First, the amendment of the noble and learned Lord, Lord Howe, does not refer to the role of the court system, which we think is important. I am sure that the noble and learned Lord will agree with that. Secondly, we do not underestimate that overlapping terminology can cause some difficulties. We have been anxious to avoid that, which is the principle reason for not wishing to use the other oaths.
      I hope that noble Lords will agree to accept the government amendment with the condition that a powwow, should it be requested, will be freely and willingly given.
      On Question, amendment agreed to.
      Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 23:
      After Clause 9, insert the following new clause—
      "Committee on Administration of Justice and the Legal Professions
      (1) There is to be a committee of members of both Houses of Parliament, to be known as the Committee on Administration of Justice and the Legal Professions ("the Committee"), to examine, review and report to Parliament upon—

      (a) the discharge of the duties imposed by section 1;

      (b) the exercise of the functions of Ministers of the Crown under any enactment so far as those functions concern the legal professions or the administration of justice (but not in relation to any particular set of legal, disciplinary or other proceedings);

      (c) the exercise by the Judicial Appointments Commission, and any commission convened under section 20, of their functions under this Act (but not the merits of any particular decision about the selection of a person for office);

      (d) consistently with the duty imposed by section 1(1), any other matter relating to the legal professions or the administration of justice which either House resolves to refer to the Committee or which the Committee thinks appropriate.

      (2) The Committee is also to facilitate the exercise by the President of the Courts of England and Wales of his functions under section 2(2)(a) in relation to Parliament.
      (3) The Committee is to consist of—

      (a) five members of the House of Lords, nominated by the Speaker of that House; and

      (b) five members of the House of Commons, nominated by the Speaker of that House,

      but is not to include a Minister of the Crown.
      (4) The members of the Committee are to be appointed—

      (a) on the coming into force of this section to serve for the duration of the present Parliament; and

      (b) subsequently at the commencement of each Parliament to serve for the duration of that Parliament.

      (5) A casual vacancy resulting from the death, resignation or incapacity of a member of the Committee is to be filled by nomination of a member by the Speaker of the relevant House.
      (6) The Committee may—

      (a) exercise its functions by any six of its members; and

      (b) sit and transact business whether Parliament is sitting or not, and despite any casual vacancy in the membership of the Committee,

      but otherwise may regulate its own procedure."
      The noble and learned Lord said The noble and learned Lord said: My Lords, the amendment is intended to deal with a particular situation. If the Bill is enacted, Lords of Appeal in Ordinary and senior judges, who, hitherto, have held Life Peerages in this House, will no longer have the opportunity to bring to the House concerns that they have about the administration of justice and matters affecting the appointment of judges or the legal profession. As has been pointed out, they often did that in the past with great effect and sometimes with considerable emphasis.
      The Bar Council of England and Wales, on considering this change, and on the footing that it was going to become the law, felt that the concerns of the profession were capable of being attended to by a committee on the administration of justice and the legal professions, as set out in the detail of the amendment. The draft of the amendment was kindly provided to me by the Bar Council.
      It seems to me that something along these lines is certainly appropriate. I should be very glad to know that at least the spirit of the amendment would be acceptable to the noble and learned Lord the Lord Chancellor. I beg to move.
      Lord Maclennan of Rogart: My Lords, I support the amendment moved by the noble and learned Lord, Lord Mackay of Clashfern, at least in principle. It is a constitutional innovation to set in statute a provision to establish a Joint Committee of our two Houses. That may not be considered to be appropriate, but it is certainly appropriate to recognise that there should be as much transparency as possible in representations made to Parliament about the administration of justice and the legal professions. It is one of the underlying objectives of this legislation, through the separation of the legislative arm from the judicial arm, to ensure that there is complete openness about the concerns of the judiciary and those who are essential to the discharge of the legal system.
      The drafting seems to me to be pretty good, as is perhaps not surprising when one acknowledges its provenance. However, being a constitutional

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      innovation, it ought also to be considered in that context. There are a number of proposals of constitutional importance, such as that we should have such a committee to review treaties before they are ratified, which is a matter of high importance. We should not have to wait on the enactment of legislation to provide for such committees. However, in general, I indicate our support.
      Lord Henley: My Lords, I offer the support of these Benches to my noble and learned friend Lord Mackay of Clashfern. Like the noble Lord, Lord Maclennan, I accept that it would be a constitutional innovation to put the matter in statute, in a Bill. I certainly agree strongly with him that there ought to be a committee. Whether the committee should be exactly as suggested by my noble and learned friend, with five Members from this House nominated by the Speaker and five Members from another place nominated by the Speaker, and whether their tenure should he exactly as he suggests—for the length of one Parliament—or something else, is another matter, and one that it might be possible to consider later. For the moment, having offered our support, we would like to hear what the Government have to say about the matter and whether they can at least show some sympathy to the principle behind what my noble and learned friend has proposed, even if they cannot accept the full detail of the amendment and the prescriptive nature of setting up a committee of both Houses.
      Lord Falconer of Thoroton: My Lords, I think that all of us would agree that proper communication and representation of views between the legislature and the judiciary is clearly very important. The Bill will greatly assist such communication by providing far greater clarity about the respective responsibilities of the Executive and the judiciary, which will facilitate relationships between the judiciary and the legislature.
      The new committee that the noble and learned Lord, Lord Mackay of Clashfern, proposes would overlap greatly with existing committees. I do not dispute for one moment the great importance of there being a channel of communication between the judges and Select Committees of this House or another place, or a Joint Committee of both Houses. However, we all know that other committees already have responsibility for many of the functions that the amendment proposes for a new committee.
      To give but one example, the responsibilities of the Minister as the head of the Department for Constitutional Affairs—including, of course, functions relating to the legal professions and the administration of justice—are already scrutinised by the Select Committee on Constitutional Affairs. That committee has several times invited senior members of the judiciary to appear before it. There has been no difficulty in senior members appearing before the committee, with both sides clearly respecting what is a sensible area of inquiry and what is not.
      My main concern with the amendment of the noble and learned Lord, Lord Mackay of Clashfern, is, therefore, not the principle of representation behind
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      it—namely, that there should be a committee that connects with the judiciary—but the particular mechanism that the amendment adopts to provide for that. As the noble Lord, Lord Henley, said, a statutory committee would be a constitutional innovation. It would not allow us to build on existing arrangements. Flexibility for the arrangements to evolve over time would be lost. A statutory committee ties us to one very specific way of working. The Select Committee on the Bill recognised that when it stated that,
      "the advantages of a statutory Committee were not obvious to the Committee".
      It is very important for effective mechanisms for representation to be found, but it is equally important for the mechanism to be flexible enough for us to develop communication with the judiciary as we learn from our experiences. It is for Parliament to regulate its own proceedings, but not to bind future Parliaments through a statutory provision such as this. It is right that it is Parliament that determines with the judiciary how they can best represent their views. As I said, this is not an issue about the detail; it is an issue about the principle—we should have committees. Whether they should be the existing ones or new ones, Parliament should decide and amend as time goes on. It would not be right for the representation that we all want to occur under an amendment of that sort. I therefore invite the noble and learned Lord, Lord Mackay of Clashfern, to withdraw the amendment.
      While I am on my feet, it is worth saying that the noble and learned Lord, Lord Woolf, the Lord Chief Justice, has tabled a later amendment, Amendment No. 24, which proposes that the judges have the right to lay documents before Parliament. I will say a little about that when we reach it. That seems to me to be an innovation that we should consider. I do not say what is my view about it, but that might contribute to how the Lord Chief Justice represents his views to Parliament.
      Lord Donaldson of Lymington: My Lords, I support both amendments, but only on the assumption which I see being made and which I think is very regrettable, that the Lords of Appeal in Ordinary, the Lord Chief Justice, of course, and possibly the Master of the Rolls should not have a right of direct access to this House. It would be in accordance with modern thought that they should not have a right to vote but, in my view, it is very important that they should have a right to advise.
      My recollection is that the Writ of Summons issued not only to them but to all judges in England and Wales, down to High Court judges, requires them to drop everything—it has some rather better language—and come to the House at once in order to advise its Members. When I was sworn in and Lord Gardiner gave me the Writ of Summons, he said, "For goodness' sake, take no notice of it". But the idea of advising the House is of very long standing and if the Lord Chief Justice was to have no right of audience here, we should be deprived of speeches such as we have heard today, which would be a great loss. I asked him

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      whether he intended to go on to the "Today" programme but he assured me that he had no immediate plans to do so.
      Lord Mackay of Clashfern: My Lords, I am grateful for the support of the noble Lord, Lord Maclennan of Rogart, and my noble friend Lord Henley on the principle behind my amendment and the approach taken by the noble and learned Lord the Lord Chancellor. As I sought to do at the beginning, I make it absolutely clear that the amendment is on the assumption that the provisions that exclude the Lords of Appeal in Ordinary and the senior judges, who are by virtue of life peerages Members of this House, are carried. The amendment is intended to replace that. Obviously, if that does not happen, it is not intended to come into effect.
      I understand perfectly the problem about flexibility and so on. All that I am concerned about is that what is being proposed by the Government is to withdraw the present method for the judges to make their representations. I should certainly like an undertaking that, in substitution for that if it is to go forward, something of this kind, although not necessarily this particular format—the presently existing committees, such as the Constitutional Affairs Committee, a Select Committee of this House or a combination of both—will be considered in substitution for the rights that the judges presently have as Members of this House to give their views. Those views have often been given considerable publicity because expressed in this House. It is important that under the new arrangements, if they are carried into effect, there should be effective means of communication, and that an undertaking to that effect should be given before we are asked to approve the other proposals.
      In the mean time, I am happy to withdraw my amendment. I know that the next amendment, Amendment No. 24, deals substantially with the same matter and will reveal what I have to say in that connection. I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      7.30 p.m.
      Lord Woolf Lord Woolf moved Amendment No. 24:
      After Clause 9, insert the following new clause—
      "JUDGES' REPRESENTATIONS TO PARLIAMENT
      If the Lord Chief Justice of England and Wales, the Lord President of the Court of Session in Scotland or the Lord Chief Justice of Northern Ireland wishes to make a representation to Parliament on a matter of importance relating to the judiciary or otherwise to the administration of justice, he may make such a representation in writing. Such a representation shall be laid before either or both Houses, as the Judge making the representation shall specify."
      The noble and learned Lord said The noble and learned Lord said: My Lords, the amendment is tabled in my name and that of the noble and learned Lord, Lord Cullen of Whitekirk. Regrettably, he cannot be here because of his judicial duties.
      The amendment is related to the previous one, but I emphasise that it is an addition not a substitute or alternative to it. The inspiration for the amendment was the fact that the nature of the office of Lord Chancellor will change. Because of that deficit, it was thought particularly important that it be possible to devise a procedure which allowed not only the Lord Chief Justice of England and Wales, who traditionally has been a Member of this House, but also the Lord President, who often is not a Member, at least for part of the period that he holds that very distinguished office, and the Lord Chief Justice of Northern Ireland to put before the House material thought to be of such serious significance to the administration of justice that this House and the other place should be aware of it.
      Obviously, having had the privilege of addressing noble Lords directly, I know that that has singular advantages. What is proposed in the amendment would not have that advantage. However, having explored all the possible alternatives, I must confess that, even after consulting the most experienced advisers, I have not been able to find a method of presenting a way in which it is possible for the holder of my office and the other two offices to which I referred to address this House directly. The advantage of Amendment No. 24 is that it would allow all three heads of the judiciary in the three jurisdictions immediately to place before one or both Houses of Parliament something of real significance to the judiciary or the administration of justice. That would be an immense advantage. It is why I have tabled the amendment.
      I know that the noble and learned Lord the Lord Chancellor has had a limited opportunity to consider the amendment, and I understand that he would like further time to do so. I hope that he will consider it favourably, because such a clause would be of the greatest importance to the independence of the judiciary. It is consistent with the separation of powers. It would be valued in Northern Ireland and north of the border in Scotland. That being the situation, I hope that it will be thoroughly considered by the House and the noble and learned Lord the Lord Chancellor. I beg to move.
      Lord Maclennan of Rogart: My Lords, I support the amendment tabled by the noble and learned Lord the Lord Chief Justice. The problem that he has outlined is extremely significant. It would not be wholly resolved by the establishment of a Joint Committee, as provided for in the earlier amendment, because the initiative on whether to mount an inquiry would lie with the committee and not the judiciary. Consequential upon the expectation that the senior judiciary will not be seated in this House, provision must be made to enable their views to be directly represented to Parliament. No doubt, if such representations were laid as proposed, they could be referred like a petition to the appropriate committee for consideration. Neither House of Parliament would

      811
      ignore such a public statement of position. That must be very much in line with the wishes and purposes of the Government in the Bill.
      Lord Kingsland: My Lords, until now, if the noble and learned Lord the Lord Chief Justice or the noble and learned Lord the Lord President had something to say to your Lordships' House, they would come down and say it. That will no longer be possible under the new arrangements. As the noble and learned Lord, Lord Mackay of Clashfern, has indicated, your Lordships' House will have to find another way of communicating with the heads of the respective jurisdictions. I see no reason why the proposals of the noble and learned Lords, Lord Woolf and Lord Mackay of Clashfern, should be mutually exclusive; there is a role for both.
      I would have preferred to follow the suggestion of the noble and learned Lord, Lord Donaldson, and rely on the old tradition that, from time to time, your Lordships' House has invited the judges to come and give advice on a matter. That traditional process could be adapted to modern circumstances. However, I understand that there is some learning in your Lordships' House that this may no longer be appropriate. Therefore the proposal in Amendment No. 24 is wholly apposite and is one that I urge on the noble and learned Lord the Lord Chancellor.
      Lord Falconer of Thoroton: My Lords, the practice of calling the Law Lords down to give advice to the House fell into desuetude approximately 200 years ago. I assume that the noble and learned Lord, Lord Donaldson of Lymington, regularly takes the opportunity of addressing us through the "Today" programme because he is so worried that he may not be asked to come down sufficiently frequently to advise us. Much as it pains us, therefore, we must face up to the fact that we must try to find an alternative to asking the Law Lords to give advice to the House.
      I hope that the message that I gave in response to the amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, was that we needed to try to find a committee. I am simply saying that Parliament should decide whether it is an existing committee or one crafted specially. One of the purposes of those committees—or that committee, if it be only one—is that the Lord Chief Justice or a senior judicial figure of any of the jurisdictions, such as the President of the Family Division, should be able, if he or she thinks it appropriate, to come and give evidence to the committee on an issue. Do we also need the ability for judges to lay written material before Parliament? It could be a useful adjunct. I need to look at the other circumstances in which that can occur and think about where one would get to in setting up a committee.
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      I shall come back to the matter at Third Reading. Frankly, I do not think that by then we will have made much progress on what the committees are. That is a longer-term discussion, but I hope that I will be able to return to it at Third Reading.
      Lord Woolf: My Lords, in the circumstances, I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      Lord Evans of Temple Guiting: My Lords, beg to move that further consideration on Report be now adjourned. In moving this Motion I suggest that the Report stage begin again not before 8.40 p.m.
      Moved accordingly, and, on Question, Motion agreed to.

      Borough Freedom (Family Succession) Bill [H.L.]
      7.40 p.m.
      Lord Graham of Edmonton: My Lords, I beg to move that this Bill be now read a second time. I am indeed flattered to find so many of your Lordships in their place to pay attention to the Bill that I have pleasure in presenting today. As I do so, I feel obligated to offer some insight into the whys and wherefores as background. For much of that I am indebted to the noble and learned Lord, Lord Mustill, who piloted the self-same Bill through your Lordships' House in 2002. When he did that, he earned what I hope will be my fate today; support from the Conservative and Liberal Democrat Benches and no opposition from the Government, which is par for the course for a private Bill.
      If I have any interest to declare, it could be that, as my home town is Newcastle upon Tyne, I have a clear memory of the influence of the place of freemen in such a great city as Newcastle. One of the jewels in its crown is Town Moor, a place with fond memories for me. It is where the annual fair, known as "The Hoppings" and associated with the running of the Pitman's Derby on the Gosforth race course took place. It is where a new home for the Magpies—Newcastle United—was mooted recently. The power and influence of the freemen of Newcastle was and is such that they could and did withstand the power of that famous football team.
      The noble and learned Lord, Lord Mustill, set out the arguments cogently and, in my opinion, persuasively. I am deeply indebted to him for allowing me to use his arguments today. He wishes the Bill well.
      This Bill will eliminate a gender anomaly, which I shall present under the five following headings. First, what are borough freedoms? Secondly, what is their legal status? Thirdly, what is the anomaly that the Bill seeks to correct? Fourthly, why should that be done by Parliament rather than in some other way? Fifthly, what will be the effect of the Bill?

      813
      First, I turn to the borough freedoms. One has to go back to medieval times to understand this ancient institution. It is probably the oldest legal institution that exists in the United Kingdom today. The control of local trade and local government was in the hands of a body of freemen, so called because they were free of the restrictions on trade and other activities that applied to persons outside the liberties.
      Parliamentary suffrage was also limited to freemen, who were the burghers of the boroughs. Those privileges became a source of abuse and were sharply restricted by the Municipal Corporations Act 1835 and by the opening up of the parliamentary suffrage that was going on at the same time.
      It would have been possible at any time during the past 160 years for Parliament simply to abolish the freedoms, but it never chose to do so. Instead, it recognised and preserved their status by a succession of Acts of Parliament, beginning with the 1835 Act and continuing until the Local Government Act 1972.
      By the present day, the tangible benefits of the membership of a freedom have been reduced, so much so that in some boroughs they are non-existent. I need not take up time by giving illustrations of the modest benefits which exist because all the freedoms are different and it would take a long time to describe them across the board.
      Nowadays, the reason that people still wish to become freemen is not personal gain but because it identifies the member with the local community in a way that is much more intimate, continuous and longstanding than the exercise of the local government franchise or election to local councils. The freemen are not competitors of councillors and aldermen. The two systems exist in parallel and in harmony.
      Secondly, what is the legal status of the freedoms? They are creatures of ancient custom—very ancient indeed. As I said, they are probably the oldest legal institutions in this country. They are creatures of custom not of statute. Although statute has recognised their existence, it has not created them or provided mechanisms enabling the freemen to bring them up to date by their own consent. Some ancient charters contained such mechanisms but, for reasons with which I shall not trouble the House as it would take some time to explain and would not be very illuminating, those powers have not survived the successive reforms of local government. So those ancient customs remain frozen in the state in which they were when they first came into existence hundreds of years ago.
      Thirdly, what is the wrong that the Bill seeks to remedy? The answer lies in the fact that the customs are frozen in their ancient forms. Since changes were made at the time of great reforms 160 years ago, persons can only become freemen by descent from a parent freeman. In a substantial proportion of boroughs, that descent can take place only in the male line. Daughters are thus barred, for no valid reason, from the benefits—largely intangible but benefits none the less—of succeeding to this ancient status.
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      Fourthly, assuming this to be wrong—I hope that the House will assume it to be wrong—why take up the time of Parliament in putting it right? Are there no other ways in which the courts could perhaps provide a solution with the aid of the antidiscrimination provisions of the human rights legislation? Unfortunately, the answer seems to be "no". I say "seems" because the legal status of these institutions is strange and lost in the mists of history. I can say, however, that legal research suggests that even through the courts the remedy is at the very best speculative and almost certainly non-existent. So it falls back on Parliament to put the matter right. That is why I propose this Second Reading.
      What is the effect of the Bill? It is primarily, as will appear from its wording, to insert a provision enabling the daughter of a freeman to be admitted as a freeman of a city or town notwithstanding her gender. That will put right across the board, once and for all, the need for each borough freedom individually to embark on the costly and highly speculative task of trying to find some solution of a different nature.
      In Clause 1(2) of the Bill there is a correction of the absurdity that a person can only be a freeman if born within the precincts of the borough. There is brief reference to the fact that the Act does not bear on the City of London, the freemen of which are governed by a completely different regime.
      This Bill has nothing to do with honorary freemen. When one reads in the newspapers that someone has been made a freeman of a borough, that is an entirely different matter, with which this Bill is not concerned. The fact that it is not a great matter does not prevent it from being wrong. It is something which, in the absence of any other means, Parliament can fittingly put right.
      Finally, I plead in aid some correspondence that I recently received. Enclosed in a letter from a freeman of Newcastle was a copy of an article in the newspaper of the Guild of Freemen in Newcastle, which states:
      "When, or should I say if, the Borough Freedom (Family Succession) Bill becomes Law, the daughters of Freemen throughout the land will have the right to become Freemen themselves, as will their own sons and daughters…The Freemen of Newcastle upon Tyne Stewards' Committee are very keen to legally introduce Lady Freemen into our City, as is the Newcastle City Council".
      I am told that the national body of freemen of England and Wales also give their support.
      This is a modest measure, which is in line with current thinking. This House can approve it, although it failed three years ago because it was introduced very late in the Session. My problem may be that the next Session may end somewhat quicker than any of us had hoped. However, our job is to give this a fair wind. It will then be my responsibility to find someone in the other place to take it on. I beg to move.
      Moved, That the Bill be now read a second time.—(Lord Graham of Edmonton.)
      7.48 p.m.
      The Earl of Mar and Kellie: My Lords, it is not often that I rise to intervene on a Bill that includes the words:
      "This Act extends to England and Wales only".
      I must confess that I would prefer to see the spelling in the Scots form of "burgh".
      I declare my interests. Apart from being a life Peer, I am also a hereditary Earl; I am the Hereditary Keeper at Stirling Castle; I am a liveryman of the Worshipful Company of Cordwainers of the City of London and, hence, a freeman of the City of London. In addition, my honourable Scottish friends have just abolished me as a feudal superior. Obviously, I am a blatant beneficiary of male primogeniture. Fortunately, my sister is younger than me. However, the Bill is not about primogeniture. It is about female inheritance, which I applaud.
      Noble Lords on these Benches will welcome the explanation of the Bill made by the noble Lord, Lord Graham of Edmonton. He makes a good case for these two changes to inheritance practice—in particular that of female inheritance, which is slowly becoming more prevalent, especially as it reduces discrimination against women. However, knowing full well that short of an Act of Parliament to change our inheritance laws, no lady can inherit the earldom of Mar and Kellie, clearly there is a long way to go.
      I hope that the noble Lord, Lord Bassam of Brighton, will be able to promise more active support than that offered by the noble Lord, Lord Filkin, in response to the Bill brought forward by the noble and learned Lord, Lord Mustill, in 2002.
      In conclusion, I presume that, if and when enacted, this Bill will produce many more male and female freemen.
      7.51 p.m.
      Lord Dixon-Smith: My Lords, it is a pleasure to thank the noble Lord, Lord Graham, for his explanation of the Bill. I congratulate him on bringing a Bill before the House that fits on to one page—unlike the main business being considered today. That Bill comprises many pages. A short Bill makes life a great deal simpler and more comprehensible.
      This is an interesting measure. The noble Earl, Lord Mar and Kellie, mentioned that it endorsed the hereditary principle, albeit in a somewhat limited way. None the less, we are considering the rights of succession to a title. While it may not involve members of the legislature, the principle is the same.
      For the sake of the noble Earl, Lord Mar and Kellie, perhaps I should mention en passant that the last person to introduce a Bill in this House on the issue of inheritance was the noble Lord, Lord Archer of Weston-Super-Mare. His Bill would have done precisely what the noble Earl has advocated by giving females the right to inherit hereditary titles where they do not normally have that right. But that is now simply a matter of record.
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      It is a simple Bill, which would give many local groups and local people a great deal of pleasure. I know that that is the motivation lying behind it and, in that spirit, we support it.
      7.52 p.m.
      Lord Bassam of Brighton: My Lords, your Lordships' House is always at its best when discussing the hereditary principle. It is a bit ironic that my noble friend Lord Graham of Edmonton has volunteered to take a Bill advocating that principle through this House, but no matter. I understand entirely why that is the case. Moreover, we have a distinguished if rather small audience gathered to hear the Government's response. Indeed, it is most impressive that we have in their places to support the Bill a freeman who is a member of the Worshipful Company of Cordwainers and, on reading the CV of my noble friend Lord Graham, I see that he is a freeman of the Worshipful Company of Butchers. Between the two, I am sure that they will advocate the case with great enthusiasm, and that the noble Lord, Lord Dixon-Smith, will add his slice of interest and introduce a little extra flavour to the debate.
      Lord Dixon-Smith: My Lords, the noble Lord has reminded me that I should have declared an indirect interest as a member of the Farmers' Company. I am a freeman of the City of London.
      Lord Bassam of Brighton: My Lords, this is a "Have I Got News For You" moment: I am the odd one out. I am not a freeman, honorary or otherwise.
      As my noble friend Lord Graham has explained, the Bill seeks to modernise the succession rights to the title of freeman by providing that the title and the property rights that go with it can be handed down through the female line as well as the male.
      The Government are enthusiastically neutral on the measure. I cannot go as far as the noble Earl, Lord Mar and Kellie, would like, but we certainly do not wish any kind of ill wind on this legislation. We are happy for it to go on its course, and we understand the importance of bringing it forward.
      When I collected my briefing, I thought that this would be a minor matter, which is always an error. I was then presented with some background information that encouraged my interest in the subject. I can see that, historically, the freemen of boroughs were gentlemen who performed important duties of governance in their local areas.
      In expressing a view, we should make clear for the record the difference between freemen and honorary freemen. There is sometimes an element of confusion in the public mind. Many of us will know of honorary freemen from our time in local government. Many of my friends, male and female, in my borough have become honorary freemen to mark the distinction with which they have served as councillors. That important honour needs to be better understood, and I am glad that people still receive the honorary title because it is a useful mark of local recognition of their work. Both

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      of the terms, "freeman" and "honorary freeman", are dealt with by the Local Government Act 1972 and, as I have said, the similarity of the titles often causes confusion. This Bill will deal only with the title of "freeman".
      Section 249(5) of the 1972 Act provides that a London borough or a district council having the status of a city, borough or royal borough, can admit any person to be an honorary freeman of that place. The decision is entirely at the discretion of the council, who can make any person an honorary freeman regardless of gender, race, age, disability or sexual orientation, provided that the individual is a person of distinction or, in the opinion of the council, has rendered eminent service to the city, borough or royal borough. The title is honorific and, beyond the distinction it confers on the individual to whom it is awarded, it confers no other rights or duties. Moreover, it is a title that is bestowed for life only. It cannot be inherited by the individual's heirs.
      The Bill brought forward by my noble friend Lord Graham does not affect the right of local authorities to bestow honorary freedom on individuals. Instead, the Bill deals solely with the more ancient right to be a freeman of a town or city. As my noble friend explained, such rights have their origin in the Middle Ages in the craft and merchant guilds that comprised the governance of medieval towns and cities. The right to be a freeman was intimately bound up with the rights of admission to the guilds and, in its present form, is an inherited right.
      As my noble friend made clear, the Municipal Corporations Act 1835 first reorganised the governance of local authorities along modern lines. The Act provided for the election of mayors, aldermen and councillors on a vote of those who occupied property in the municipality. In doing so, it swept away the existing arrangements that gave freemen special rights in the election and governance of the pre-1835 corporate boroughs. As a class, freemen of the old corporate boroughs also enjoyed the exclusive right to benefit from the rents and profits of certain corporate land and property. The 1835 Act preserved those rights and since then, successive local government Acts, including the Local Government Act 1972, have reconfirmed that position.
      The 1835 Act and its successors did more than preserve the rights of the freemen of towns and cities. Between them, they also froze the basis on which a person could be admitted to be a freeman. Such rights of admission vary from place to place, given that they are based on established local custom and Royal Charter. They provide for a right of succession so that a freeman can pass on his title and property rights to his heirs. However, reflecting their antecedence, they are often based on patrimony and therefore cannot be passed from father to daughter.
      The Borough Freedom (Family Succession) Bill seeks to remedy that anachronism. It would do so by amending Section 248 of the Local Government Act
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      1972, which reconfirmed the rights of freemen, first preserved under the Municipal Corporations Act 1835.
      I hope that that brief history and explanation will be helpful in our deliberations. The Government cannot take a formal view for or against the Bill, nor will we take any steps to oppose its progress through your Lordships' House. We will give it a fair wind but we cannot give it active and proactive support. We certainly understand and recognise the important principle that lies behind the small but significant Bill introduced by the noble Lord, Lord Graham of Edmonton. We wish it well.
      8 p.m.
      Lord Graham of Edmonton: My Lords, I have been in this place long enough to realise that the less I say the better at this stage. Speakers from all Benches have done the issue proud. I sense that they know what they are talking about because they are all well versed in local government.
      There will be some places where the Bill is of no moment at all, but there will be others where this little easement will be viewed with delight. Beverley in Yorkshire has been prominent in asking for this to be done, and other towns may welcome it as well. I am sure that if the Bill progresses from this place to another place and is received warmly there, it will do a great deal for the wisdom of Parliament in putting this matter right. Its time has come.
      On Question, Bill read a second time, and committed to a Committee of the Whole House.
      Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 8.40 p.m.
      Moved accordingly, and, on Question, Motion agreed to.
      [The Sitting was suspended from 8.2 to 8.40 p.m.]

      Constitutional Reform Bill [H.L.]
      Consideration of amendments on Report resumed.
      Schedule 4 [Other judiciary-related functions and organisation of the courts]:
      Lord Goodhart Lord Goodhart moved Amendment No. 25:
      Page 112, line 4, at end insert—
      "270A (1) Schedule 4 (authorised bodies) is amended as follows.
      (2) For "each of the designated judges" in each place substitute "the Lord Chief Justice".
      (3) In paragraph (5) (advice of designated judges)—

      (a) in sub-paragraph (4), for "give such advice to the Secretary of State as he thinks fit" substitute "notify the Secretary of State whether he concurs with the application";

      (b) after sub-paragraph (4) insert—

      "(5) If the Lord Chief Justice does not concur the Secretary of State shall not grant the application."
      (4) In paragraph (6) (decision by Secretary of State), in subparagraph (1) at beginning insert "If the Lord Chief Justice has concurred with the application and".
      (5) In paragraph (6)(1), omit paragraph (c)."
      The noble Lord said The noble Lord said: My Lords, we seem to be a little short-handed at the moment, so I shall speak very slowly until a few more people come in.
      Amendment No. 25 has been brought back from Committee. It amends Schedule 4 to the Courts and Legal Services Act 1990, as amended by the Access to Justice Act 1999 or, to be strictly accurate, it amends, not the whole of Schedule 4, but Part 1 of that schedule, because similar amendments would be needed to Parts 2, 3 and 4.
      Under Schedule 4 to the 1990 Act, the Lord Chancellor has power to designate professional bodies whose members have rights of audience in the courts and the right to conduct litigation, and to revoke that designation. The Lord Chancellor has power to approve alterations of rules made by the designated bodies, and can impose rule changes on them. The Lord Chancellor must consult the heads of division but, unlike the situation between 1990 and 1999, there is no need for the heads of division in the courts of England and Wales to concur.
      These are extremely extensive powers that relate to the independence of the legal profession, which is a matter of very great importance. Indeed, it is almost, although perhaps not quite, of equal importance to the independence of the judiciary because, plainly, an independent professional service, willing to act for people whose causes are popular or unpopular, and willing to act without fear of the consequences, is of the greatest importance in achieving a society that recognises and follows the rule of law.
      The judicial concordat, which we discussed a good deal earlier today, provides that in relation to the judiciary a number of powers previously exercised by the Lord Chancellor on his own can only be exercised by the Lord Chancellor with the concurrence of the Lord Chief Justice. That is because, as a result of the Bill, the Lord Chancellor is seen more as a political figure and less as a judicial figure than was previously the case. It is therefore thought by the judiciary to be appropriate that there should be a double lock, and that forms part of the concordat. Of course, the concordat does not extend to the legal profession, as opposed to the judiciary, but it seems to us that the same principle should apply. We should have a similar double lock to ensure the continued independence of the legal profession.
      This amendment provides for a double lock. It has the support of both the president of the Law Society and the chairman of the Bar Council. I believe that the appropriate keyholder of the second lock is the Lord Chief Justice. The Lord Chief Justice should be able to block the exercise by the Lord Chancellor of powers in the schedule if the Lord Chief Justice feels that the way in which the Lord Chancellor is proposing to exercise those powers is a threat to the independence of the legal profession.
      It is obvious that the powers given to the Lord Chancellor under this Bill are such that if we had a Lord Chancellor who was determined to undermine the independence of the legal profession—and we certainly hope that that will never happen—the Bill, as it stands, would give the Lord Chancellor power to do just that. I beg to move.
      Lord Kingsland: My Lords, I think I am right in saying that the mischief to which the noble Lord, Lord Goodhart, addresses himself was created by the Access to Justice Act 1999. Am I right about that?
      Lord Goodhart: Yes, my Lords, it was indeed created by the Access to Justice Act 1999. We protested at the time, but the problem has become more acute because the Lord Chancellor is losing his judicial functions and becoming more of a political animal, if one can put it that way.
      Lord Kingsland: My Lords, I now recall that in the course of that Bill's consideration, we united with the Liberal Democrats in an attempt to see off the attempt by the predecessor of the noble and learned Lord the Lord Chancellor to remove what, in effect, was a veto by the designated judges on the Lord Chancellor's ability to change the rules of the professions.
      I wholly support what the noble Lord, Lord Goodhart, is seeking to do in this amendment. I think that it provides us with an opportunity to redress a wrong that was established in the 1999 Act and to ensure that the Lord Chief Justice has, as the noble Lord, Lord Goodhart, puts it, a second lock on any future initiative by the Lord Chancellor to change the rules of both professions—the Bar and the solicitors. I feel sure that in the spirit of the separation of powers approach to this new legislation, the noble and learned Lord the Lord Chancellor will feel entirely at ease with this amendment.
      Lord Falconer of Thoroton: My Lords, the noble Lord, Lord Goodhart, puts the matter incredibly clearly, as ever. The arrangements set out in the amendment relate to the consideration of applications from a body to grant its members rights of audience or rights to conduct litigation or applications from organisations such as the Bar Council, the Law Society, or other similar organisations, for approval of changes to their qualification regulations or rules of conduct. It is very important, because the regulation of the legal profession in this respect is of considerable importance to the independence of the judiciary and, separately, to access to justice for individual members of the public.
      The amendment of the noble Lord, Lord Goodhart, would reverse Parliament's decision in 1999 to place the determinative role for dealing with these applications with a Minister accountable to it. The amendment is not out of line with the concordat. but it is not in line with any specific provision in relation to it.

      821
      Under the 1999 Act, the role that the Minister plays is quite complicated in the sense that it can be carried out only through a transparent statutory process, and he is under a duty to consult the Legal Services Consultative Panel, the Director General of Fair Training and each of the four designated senior judges. The panel and the OFT have a duty to publish their advice; the Minister has a duty to send their advice to the designated judges, and he makes his decision while balancing the advice that he receives from the panel, the OFT and the judges.
      The objective that Parliament has given him is to make provision for new or better ways in which to provide legal services and a wider choice of person providing them, while maintaining the proper and efficient administration of justice. There is plainly an issue about the extent to which one wants either a Minister or the judges to have a complete lock on the issue, because there is an issue about how the public are best served, in relation to both the independent judiciary and the provision of legal services.
      As noble Lords are aware, and as I said on 14 July, in July 2003 I announced a review of the framework of legal services regulation, which is being led by Sir David Clementi. I gave Sir David wide terms of reference and he is considering the whole regulatory framework and the roles and responsibilities within it. The consultation paper issued by his review team earlier this year asked questions about regulatory models and, specifically, about a regulator and the role of the judiciary—in particular, though not exclusively, the role of the Master of the Rolls, who has a particularly significant role in relation to the regulation of solicitors.
      The noble Lord's amendment makes it clear that what is sought is to restore the judicial veto to ensure adequate protection for the legal professions so that their independence is upheld. There is an issue about the extent to which the judges want such a veto, as coming with such a veto is an obligation to be involved in a whole series of quite complex and detailed issues.
      The role of the judiciary in the regulation of the legal professions is one of the factors that Sir David has been bearing in mind. He intends to publish his report in the week commencing 13 December. I suggest that it would be unwise to alter the existing arrangements until I have received and considered his report. It is extraordinarily unlikely that, having received his report in the week beginning next Monday, the Government would come to a conclusion before either the Third Reading of the Bill in this House or, probably, the completion of its passage through the Commons.
      I suggest to the noble Lord, while understanding that the position of a new Lord Chancellor will be different from that of the old one, in the sense that the new Lord Chancellor would not be a judge as the old one was, that nevertheless it would be unwise to impose a judicial veto at this stage, when the issue of the regulation of the legal profession is under review by Sir David Clementi. I can give him the clearest possible
      822
      undertaking that in exercising my powers under the 1999 arrangements, I shall exercise them with a view to ensuring that neither the independence of the judiciary nor access to justice is adversely affected. I hope that, in the light of that reassurance, the noble Lord will feel able to wait until Sir David's report and what the Government do in relation to it.
      Lord Goodhart: My Lords, I should say that we recognise the need for the Lord Chancellor to have the powers that he is given by Schedule 4 to the 1990 Act as amended. We recognise that the Law Society and the Bar Council act as a form of trade union and, like other trade unions, are sometimes concerned with the interests of their members to the detriment of the interests of the general public. Therefore, it is clear that there should be some outside body which is capable of imposing rule changes on them in appropriate circumstances.
      We certainly do not seek to restore the veto to the form in which it existed from 1990 to 1999, in which there were four senior judges, each of whom had a separate and independent veto. However, at the same time we believe that it is undesirable to leave the second lock uninstalled for an indefinite period of time. It is certainly my concern that if we do not put something into this Bill, the second lock will never be introduced because there would be no incentive whatever for the Government to go ahead with it.
      I accept that it is unrealistic to press this matter to a vote at this time of night. I also accept that it is at least worth waiting to see the Clementi report, which will be issued before we reach Third Reading, even if, as I hope will be the case, we reach Third Reading on 20 December. However, unless a quick scan of the Clementi report persuades me that there is some reason to the contrary, I am likely to bring this amendment back at Third Reading. Having said that, I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 26:
      Leave out Schedule 4 and insert the following new Schedule—
      "OTHER FUNCTIONS OF THE LORD CHANCELLOR AND ORGANISATION OF THE COURTS
      PART 1 AMENDMENTS
      Habeas Corpus Act 1679 (c. 2)
      1 The Habeas Corpus Act 1679 is amended as follows.
      2 In section 1 (bringing before Lord Chancellor or other judges) omit "the lord chauncelior or lord keeper of the great seale of England for the time being or".
      3 In section 2 (appeal to Lord Chancellor or other judges) omit—

      (a) "the lord chauncellour or lord keeper or" in each place;

      (b) "lord chauncellor lord keeper";

      (c) "the said lord chauncellor or lord keeper or" in the first and second places;

      (d) "lord chauncellor or lord keeper or" in the last place.

      4 In section 9 (Lord Chancellor or other judge unduly denying writ) omit "the said lord chauncellor or lord keeper or".
      Cestui que Vie Act 1707 (c. 72)
      5 Any reference to the Lord Chancellor and keeper or commissioners for the custody of the great seal of Great Britain for the time being in section 1 of the Cestui que Vie Act 1707 is to be construed as a reference to a judge of the Chancery Division of the High Court.
      British Law Ascertainment Act 1859 (c. 63)
      6 In section 5 of the British Law Ascertainment Act 1859 (interpretation) omit "the Lord Chancellor,".
      Promissory Oaths Act 1871 (c. 48)
      7 (1) Section 2 of the Promissory Oaths Act 1871 (persons before whom oaths to be taken) (as amended by paragraph 51 of Schedule 8 to the Courts Act 2003 (c. 39)) is amended as follows.
      (2) In the paragraph beginning "In England and Wales" for "Lord Chancellor" substitute "Lord Chief Justice of England and Wales".
      (3) After that paragraph insert—
      "(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under the preceding paragraph."
      Stannaries Court (Abolition) Act 1896 (c. 45)
      8 (1) Section 1 of the Stannaries Court (Abolition) Act 1896 (abolition of Vice-Warden's Court) is amended as follows.
      (2) In subsection (1) after "may" insert ", after consulting the Lord Chief Justice,".
      (3) After subsection (2) insert—
      "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Judicial Committee Act 1915 (c. 92)
      9 (1) Section 1 of the Judicial Committee Act 1915 (power of Judicial Committee of the Privy Council to sit in more than one division at the same time) is amended as follows.
      (2) In subsection (1) for "Lord Chancellor" substitute "President of the Supreme Court of the United Kingdom".
      Administration of Justice Act 1925 (c. 28)
      10 (1) Section 22 of the Administration of Justice Act 1925 (registration of deeds of arrangement) is amended as follows.
      (2) in subsection (5) for "by the Lord Chancellor with the concurrence" substitute "by the Lord Chief Justice with the concurrence of the Lord Chancellor and".
      (3) After subsection (5) insert—
      "(5A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (5)."
      Children and Young Persons Act 1933 (c. 12)
      11 (1) Section 45 of the Children and Young Persons Act 1933 (youth courts) (as amended by section 50 of the Courts Act 2003 (c. 39)) is amended as follows.
      (2) In subsection (3) for "Lord Chancellor or a person acting on his behalf" substitute "Lord Chief Justice, with the concurrence of the Lord Chancellor,".
      (3) In subsection (4) for "Lord Chancellor may" substitute "Lord Chief Justice may, with the concurrence of the Lord Chancellor,".
      (4) In subsection (5) after "Lord Chancellor" insert "or Lord Chief Justice".
      (5) After subsection (8) insert—
      "(9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (3) or (4) or his powers under rules under subsection (4)."
      Compensation (Defence) Act 1939 (c. 75)
      12 (1) The Compensation (Defence) Act 1939 is amended as follows.
      (2) For the title to section 9 substitute "Incidental powers of tribunals and rules of procedure".
      (3) Omit section 9(1)(a) (incidental powers of tribunals to make rules of procedure).
      (4) After section 9(1) insert—
      "(1A) Rules prescribing the procedure for notifying, presenting and hearing claims and all matters incidental thereto may be made in relation to each of the tribunals constituted under this Act.
      (1B) Such rules are to be made as follows—

      (a) if the rules relate to proceedings in England and Wales, they are to be made by the Lord Chancellor;

      (b) if the rules relate to proceedings in Scotland, they are to be made by the Lord President of the Court of Session;

      (c) if the rules relate to proceedings in Northern Ireland, they are to be made by the Lord Chief Justice of Northern Ireland."

      (5) In subsection (2) for the words from the beginning to "subsection" substitute "Such rules".
      (6) After subsection (3) insert—
      "(4) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this section.
      (5) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      London Building Acts (Amendment) Act 1939 (c. xcvii)
      13 (1) Section 109 of the London Building Acts (Amendment) Act 1939 (constitution etc of tribunal appeal) is amencled as follows.
      (2) In subsection (1)(i) for "if he thinks fit" substitute ", if he thinks fit and if the Lord Chief Justice agrees,".
      (3) After subsection (2) insert—
      "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Pensions Appeal Tribunals Act 1943 (c. 39)
      14 The Pension Appeal Tribunals Act 1943 is amended as follows.
      15 (1) Section 6 (constitution, jurisdiction and procedure of Pensions Appeal Tribunals) is amended as follows.
      (2) In subsection (2) for "by the Lord Chancellor" substitute "by the Lord Chief Justice of England and Wales, after consulting the Lord Chancellor,".
      (3) After subsection (4) insert—
      "(5) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)."
      16 (1) Section 13 (application to Scotland) is amended as follows.
      (2) In paragraph (a) for "Lord Chancellor" substitute "Lord Chief Justice of England and Wales".
      (3) In paragraph (b) after "Lord Chancellor" insert "or the Lord Chief Justice of England and Wales".
      17 In section 14 (application to Northern Ireland), after "Schedule)" insert "or to the Lord Chief Justice of England and Wales".
      18 (1) The Schedule (constitution, jurisdiction and procedure of Tribunals) is amended as follows.
      (2) In paragraph 1 (constitution of Tribunals)—

      (a) that paragraph becomes sub-paragraph (1) of paragraph 1;

      (b) in that sub-paragraph after "determine" in each place insert "after consulting the Lord Chief Justice of England and Wales";

      (c) after that sub-paragraph insert—

      "(2) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph."
      (3) In paragraph 2 (membership)—

      (a) in sub-paragraph (3) after "fit" insert "and if the Lord Chief Justice of England and Wales agrees";

      (b) after sub-paragraph (4) insert—

      "(5) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph."
      Agriculture Act 1947 (c. 48)
      19 The Agriculture Act 1947 is amended, or has effect, as follows.
      20 In section 73 (establishment, constitution and procedure of Agricultural Land Tribunals), in subsection (1) for the words before "by order" substitute "For the purposes of this section the Lord Chancellor shall, after consulting the Chairman of the Agricultural Land Tribunals,".
      21 (1) The functions of the Lord Chancellor under section 75 (provisions as to land lying partly in one area and partly in another) are exercisable only after consultation with the Lord Chief Justice.
      (2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of this Act) to exercise his functions under sub-paragraph (1).
      22 In section 108 (regulations and orders), in subsection (1) omit "by the Minister" in the second place.
      23 (1) Schedule 9 (constitution of Agricultural Land Tribunals) is amended as follows.
      (2) In paragraph 13 (chairman of each Tribunal), in subparagraph (4)—

      (a) for "is" substitute "and Lord Chief Justice are both";

      (b) after "may" insert ", with the concurrence of the Lord Chief Justice,".

      (3) In paragraph 16A (discharge of chairman's duties)—

      (a) that paragraph becomes sub-paragraph (1) of paragraph 16A;

      (b) in that sub-paragraph for "Lord Chancellor" substitute "Lord Chief Justice, after consulting the Lord Chancellor";

      (c) after that sub-paragraph insert—

      "(2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subparagraph (1)."
      Lands Tribunal Act 1949 (c. 42)
      24 (1) Section 2 of the Lands Tribunal Act 1949 (members, officers and expenses of Lands Tribunal) is amended as follows.
      (2) In subsection (3) for "Lord Chancellor may" substitute "Lord Chief Justice of England and Wales may, after consulting the Lord Chancellor,".
      (3) In subsection (4) after "Lord Chancellor" insert "and the Lord Chief Justice of England and Wales".
      (4) In subsection (9)(a) after "Lord Chancellor" insert "and the Lord Chief Justice of England and Wales".
      (5) After subsection (10) insert—
      "(11) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsections (3) and (9A)."
      Registered Designs Act 1949 (c. 88)
      25 The Registered Designs Act 1949 is amended as follows.
      26 (1) Section 27 (meaning of the court) is amended as follows.
      (2) In subsection (2) for "Lord Chancellor may select" substitute "Lord Chief Justice of England and Wales may, after consulting the Lord Chancellor, select".
      (3) After subsection (2) insert—
      "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)."
      27 (1) Section 28 (the Appeal Tribunal) is amended as follows.
      (2) In subsection (2)(a) for "by the Lord Chancellor" substitute "by the Lord Chief Justice of England and Wales after consulting the Lord Chancellor".
      (3) After subsection (10) insert—
      "(11) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)(a)."
      Courts-Martial (Appeals) Act 1951 (c. 46)
      28 The Courts-Martial (Appeals) Act 1951 is amended as follows.
      29 In section 28 (provisions with respect to office of Judge Advocate of fleet), after subsection (3) insert—
      "(3A) The Lord Chancellor may make a recommendation under subsection (3) only with the concurrence of all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland."

      30 In section 32 (tenure of office of Judge Advocate General and assistants), after subsection (1) insert—
      "(1A) The Lord Chancellor may make a recommendation, or remove a person from office, under subsection (1) only with the concurrence of all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland."

      Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 (c. 65)
      31 (1) Section 5 of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 (appropriate courts and procedure) is amended as follows.
      (2) After subsection (5) insert—
      "(5A) The Lord Chancellor must consult the Lord Chief Justice before making rules under subsection (1).
      (5B) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (5A)."
      (3) In subsection (6) for "this section" substitute "subsection (1)".
      Pharmacy Act 1954 (c. 61)
      32 (1) In Schedule 1C to the Pharmacy Act 1954 (appeal tribunals), paragraph 3 (appointments) is amended as follows.
      (2) In sub-paragraph (4) for "by the Lord Chancellor and" substitute "by the Lord Chief Justice, after consulting the Lord Chancellor, and by".
      (3) After sub-paragraph (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph."
      Mines and Quarries Act 1954 (c. 70)
      33 (1) Section 170 of the Mines and Quarries Act 1954 (provisions as to references upon notices) is amended as follows.
      (2) In subsection (9) after "Lord Chancellor" insert ", the Lord Chief Justice".
      (3) After subsection (9) insert—
      "(10) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (9)."
      Land Powers (Defence) Act 1958 (c. 30)
      34 (1) Schedule 2 to the Land Powers (Defence) Act 1958 (provisions with respect to making certain orders under the Act) is amended as follows.
      (2) In paragraph 4 (inquiries into objections)—

      (a) in sub-paragraph (1) for "by the Lord Chancellor" substitute "by the Lord Chief Justice of England and Wales, after consulting the Lord Chancellor,";

      (b) after sub-paragraph (4) insert—

      "(5) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under sub-paragraph (1)."
      (3) In paragraph 10 (application of Schedule to land in Scotland), in paragraph (a) for the words from the beginning to "Chancellor" substitute "in paragraph 4(1) the words "after consulting the Lord Chancellor" shall be omitted, and for the reference there to the Lord Chief Justice of England and Wales and the reference to the Lord Chancellor in paragraph 4(4)";
      (4) In paragraph 11 (application of Schedule to land in Northern Ireland), in paragraph (a) for the words from the beginning to "Chancellor" substitute "in paragraph 4(1) the words "after consulting the Lord Chancellor" shall be omitted, and for the reference there to the Lord Chief Justice of England and Wales and the reference to the Lord Chancellor in paragraph 4(4)".
      Agriculture Act 1958 (c. 71)
      35 In the Agriculture Act 1958, in section 5 (functions under section 73 of the Agriculture Act 1947) for "by the Lord Chancellor and not by the Minister" substitute "as provided for in that section".
      Mental Health Act 1959 (c. 72)
      36 In section 145 of the Mental Health Act 1959 (general provisions as to regulations, orders and rules) omit "or the Lord Chancellor".
      Administration of Justice Act 1960 (c. 65)
      37 In section 14 of the Administration of Justice Act 1960 (procedure on application for habeas corpus), in subsection (2) omit "; and no such application shall in any case be made to the Lord Chancellor".
      Transport Act 1962 (c. 46)
      38 The Transport Act 1962 is amended as follows.
      39 (1) Section 74 (Minister's power to make orders about pensions) is amended as follows.
      (2) In subsection (6)(c) after "Lord Chancellor" insert "and the Lord Chief Justice of England and Wales".
      (3) After subsection (9) insert—
      "(10) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      40 (1) Section 81 (compensation to officers and servants of the Commission) is amended as follows.
      (2) In subsection (4)(b) after "Lord Chancellor" insert "and the Lord Chief Justice of England and Wales".
      (3) After subsection (10) insert—
      "(11) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      41 (1) In Schedule 7 (transitional provisions) paragraph 17 is amended as follows.
      (2) In sub-paragraph (3) after "Lord Chancellor" insert "and the Lord Chief Justice of England and Wales".
      (3) After sub-paragraph (6) insert—
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph."
      City of London (Courts) Act 1964 (c. iv)
      42 (1) Section 15 of the City of London (Courts) Act 1964 (oaths) is amended as follows.
      (2) That section becomes subsection (1) of section 15.
      (3) In that subsection for "Lord Chancellor" substitute "Lord Chief Justice".
      (4) After that subsection insert—
      "(2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1)."
      Finance Act 1966 (c. 18)
      43 (1) In Schedule 1 to the Finance Act 1966 (reliefs for shipbuilders), paragraph 6 is amended as follows.
      (2) In sub-paragraph (2) after "Lord Chancellor" insert "with the concurrence of the Lord Chief Justice of England and Wales".
      (3) After sub-paragraph (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph."
      Courts-Martial (Appeals) Act 1968 (c. 20)
      44 (1) Section 5 of the Courts-Martial (Appeals) Act 1968 (constitution of court for particular sittings) is amended as follows.
      (2) In subsection (4) after "expedient to do so" insert "after consulting the Lord Chief Justice".
      (3) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Taxes Management Act 1970 (c. 9)
      45 The Taxes Management Act 1970 is amended as follows.
      46 In section 2 (General Commissioners), after subsection (6) insert—
      "(6A) The Lord Chancellor must consult the Lord Chief Justice of England and Wales or, in Northern Ireland, the Lord Chief Justice of Northern Ireland before exercising any function conferred on him by subsection (1) or (6).
      (6B) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section.
      (6C) The Lord Chief Justice of Northern Ireland may nominate one of the following to exercise his functions under this section—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      47 (1) Section 4 (Special Commissioners) is amended as follows.
      (2) After subsection (4) insert—
      "(4A) The Lord Chancellor may designate a person under subsection (3) or remove a person from office under subsection (4) only with the concurrence of all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland."

      (3) After subsection (7) insert—
      "(8) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (4A) so far as they relate to the designation of a person under subsection (3).
      (9) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under subsection (4A) so far as they relate to the designation of a person under subsection (3).
      (10) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under subsection (4A) so far as they relate to the designation of a person under subsection (3)—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      Administration of Justice Act 1970 (c. 31)
      48 (1) Section 10 of the Administration of Justice Act 1970 (temporary additional judges of the Registered Designs Appeal Tribunal) is amended as follows.
      (2) For subsection (1) substitute—
      "(1) This section applies if both of the following conditions are met—

      (a) the Lord Chancellor thinks that it is expedient, having regard to the state of business pending before the Registered Designs Appeal Tribunal and after consulting the Lord Chief Justice, for a person to be appointed to sit and act as an additional judge of the Tribunal (either alone or with a judge of the High Court who is a judge of the Tribunal);

      (b) the Lord Chancellor requests the Lord Chief Justice to make such an appointment.

      (1A) The Lord Chief Justice may, after consulting the Lord Chancellor, appoint one of the following persons as mentioned in subsection (1)(a)—

      (a) a judge of the Court of Appeal;

      (b) a person who has held office as a judge of the Court of Appeal or of the High Court;

      (c) one of Her Majesty's Counsel.

      (1B) An appointment under this section is—

      (a) for such period, or

      (b) for the purpose of hearing such appeals,

      as the Lord Chief Justice determines, after consulting the Lord Chancellor."
      (3) After subsection (4) insert—
      "(4A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Courts Act 1971 (c. 23)
      49 The Courts Act 1971 is amended as follows.
      50 In section 17 (retirement, removal and disqualification of Circuit judges), in subsection (4) after "fit" insert "and if the Lord Chief Justice agrees".
      51 In section 21 (appointment of Recorders), in subsection (6) after "fit" insert "and if the Lord Chief Justice agrees".
      52 (1) Section 22 (oaths to be taken by Circuit judges and Recorders) is amended as follows.
      (2) In subsection (2) for "Lord Chancellor" substitute "Lord Chief Justice".
      (3) After subsection (3) insert—
      "(3A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)."
      53 (1) Section 24 (deputy Circuit judges and assistant Recorders) is amended as follows.
      (2) In subsection (1)—

      (a) for "the Lord Chancellor" substitute "him";

      (b) omit ", he may";

      (c) in paragraph (a), before "appoint" insert "the Lord Chief Justice may, with the concurrence of the Lord Chancellor,", and omit the word "or" in the last place where it occurs;

      (d) in paragraph (b), before "appoint" insert "the Lord Chancellor may".

      (3) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1)(a)."
      54 In the table in paragraph 2 of Schedule 8 (general rules of construction), in the second column of entry 7 and of entry 14 for "Lord Chancellor" in each place substitute "Lord Chief Justice".
      55 In Schedule 10 (transitional provisions), omit paragraphs 3 and 4.
      Land Charges Act 1972 (c. 61)
      56 In section 16 of the Land Charges Act 1972 (general rules), in subsection (2) omit "of the Lord Chancellor, with the concurrence of the Secretary of State,".
      Matrimonial Causes Act 1973 (c. 18)
      57 (1) Section 10A of the Matrimonial Causes Act 1973 (proceedings after decree nisi: religious marriage) is amended as follows.
      (2) In subsection (6) after "Lord Chancellor" insert "after consulting the Lord Chief Justice".
      (3) After subsection (7) insert—
      "(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Juries Act 1974 (c. 23)
      58 The Juries Act 1974 is amended as follows.
      59 In section 5 (panels of persons summoned as jurors), after subsection (4) insert—
      "(5) The Lord Chancellor must consult the Lord Chief Justice before giving any direction under subsection (1).
      (6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      60 (1) Section 9AA (requirement to issue guidance) is amended as follows.
      (2) In subsection (1) after "shall" insert ", after consulting the Lord Chief Justice,".
      (3) After subsection (2) insert—
      "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Industry Act 1975 (c. 68)
      61 (1) Schedule 3 to the Industry Act 1975 (tribunals to arbitrate disputes relating to vesting and compensation orders) is amended as follows.
      (2) In paragraph 4 (constitution and sittings)—

      (a) that paragraph becomes sub-paragraph (1) of paragraph 4;

      831

      (b) in that sub-paragraph after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland,";

      (c) after that sub-paragraph insert—

      "(2) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph.
      (3) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      (3) In paragraph 5 (Scottish proceedings) for "paragraph 4" substitute "paragraph 4(1)".
      (4) In paragraph 8(a) (meaning of "appointor") for "paragraph 4" substitute "paragraph 4(1)".
      (5) After paragraph 8 insert—
      "8A Where the appointor is, by virtue of paragraph 8(a), the Lord Chancellor, the power conferred by paragraph 6(1)(b) may be exercised only with the concurrence of the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland."
      Armed Forces Act 1976 (c. 52)
      62 (1) Section 6 of the Armed Forces Act 1976 (establishment of Standing Civilian Courts) is amended as follows.
      (2) After subsection (3) insert—
      "(3A) The Lord Chancellor may give approval to an order under subsection (3) only after consulting the relevant judges."
      (3) After subsection (4) insert—
      "(4A) The Lord Chancellor may make an appointment under subsection (4) only with the concurrence of the relevant judges."
      (4) In subsection (7) after "Lord Chancellor" insert "and the relevant judges".
      (5) After subsection (8) insert—
      "(8A) The Lord Chancellor may give his approval under section (8) only with the concurrence of the relevant judges."
      (6) After subsection (11) insert—
      "(11A) The Lord Chancellor may give his approval to the removal of a member under subsection (11) only with the concurrence of the relevant judges."
      (7) After subsection (17) insert—
      "(18) References in this section to the relevant judges are references to all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland.

      (19) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section, except his functions in relation to the removal of a member under subsection (11).
      (20) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this section, except his functions in relation to the removal of a member under subsection (11).
      (21) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section, except his functions in relation to the removal of a member under subsection (11)—
      832

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      Race Relations Act 1976 (c. 74)
      63 (1) Section 67 of the Race Relations Act 1976 (sheriff courts and designated county courts) is amended as follows.
      (2) In subsection (1) after "Lord Chancellor" insert "with the concurrence of the Lord Chief Justice".
      (3) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Rent (Agriculture) Act 1976 (c. 80)
      64 In section 26 of the Rent (Agriculture) Act 1976 (jurisdiction and procedure), omit subsection (5).
      Aircraft and Shipbuilding Industries Act 1977 (c. 3)
      65 (1) Section 42 of the Aircraft and Shipbuilding Industries Act 1977 (the arbitration tribunal) is amended as follows.
      (2) After subsection (2) insert—
      "(2A) The arbitration tribunal shall either sit as a single tribunal or sit in two or more divisions, as the Lord Chancellor may direct after consulting all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland."

      (3) In subsection (3) for the words from the beginning to "consist of" substitute "For the hearing of any proceedings, the arbitration tribunal shall, subject to subsection (4) below, consist of".
      (4) After subsection (8) insert—
      "(8A) Where the appointor is, by virtue of subsection (8)(a), the Lord Chancellor, the power conferred by subsection (5)(b) may be exercised only with the concurrence of the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland."
      (5) At the end insert—
      "(11) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2A)(a).
      (12) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under subsection (2A)(b).
      (13) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under subsection (2A)(c)—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      Patents Act 1977 (c. 37)
      66 The Patents Act 1977 is amended as follows.
      67 (1) Section 97 (appeals from the comptroller) is amended as follows.
      (2) In subsection (2) for "or on behalf of the Lord Chancellor" substitute "the Lord Chief Justice of England and Wales after consulting the Lord Chancellor".
      (3) After subsection (3) insert—
      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)."
      68 (1) Section 102A (right of audience etc in proceedings on appeal from the comptroller) is amended as follows.
      (2) In subsection (3) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice of England and Wales,".
      (3) After subsection (6) insert—
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Administration of Justice Act 1977 (c. 38)
      69 (1) Section 23 of the Administration of Justice Act 1977 (jurisdiction of ancient courts) is amended as follows.
      (2) In subsection (4) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (3) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Rent Act 1977 (c. 42)
      70 Omit section 142 of the Rent Act 1977 (rules as to procedure).
      National Health Service Act 1977 (c. 49)
      71 In Schedule 9A to the National Health Service Act 1977 (Family Health Services Appeal Authority), in paragraph 5 (appointment of members of Authority) after "by the Lord Chancellor" insert ", with the concurrence of the Lord Chief Justice,".
      Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22)
      72 (1) Section 2 of the Domestic Proceedings and Magistrates' Courts Act 1978 (powers of court to make orders for financial provision) is amended as follows.
      (2) In subsection (3) omit the second paragraph.
      (3) After subsection (3) insert—
      "(4) An order made by the Lord Chancellor under this section—

      (a) shall be made only after consultation with the Lord Chief Justice;

      (b) shall be made by statutory instrument and be subject to annulment in pursuance of a resolution of either House of Parliament.

      (5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Customs and Excise Management Act 1979 (c. 2)
      73 In Schedule 3 to the Customs and Excise Management Act 1979 (provisions relating to forfeiture), after paragraph 17(4) insert—
      "(5) The Lord Chancellor may make an appointment under sub-paragraph (4) only with the concurrence—

      (a) where the proceedings referred to in sub-paragraph (1) were taken in England and Wales, of the Lord Chief Justice of England and Wales;

      (b) where those proceedings were taken in Scotland, of the Lord President of the Court of Session;

      (c) where those proceedings were taken in Northern Ireland, of the Lord Chief Justice of Northern Ireland.

      (6) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph.
      (7) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this paragraph.
      (8) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this paragraph—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      Tobacco Products Duty Act 1979 (c. 7)
      74 (1) Section 5 of the Tobacco Products Duty Act 1979 (retail price of cigarettes) is amended as follows.
      (2) In subsection (4) for the words from "by the Lord Chancellor" to the end substitute "in accordance with subsections (7) to (9)."
      (3) After subsection (6) insert—
      "(7) The Lord Chancellor is to appoint the referee.
      (8) The appointment is to be made only with the concurrence of—

      (a) the Lord Chief Justice of England and Wales, if the determination of the Commissioners was made in relation to England and Wales;

      (b) the Lord President of the Court of Session, if the determination was made in relation to Scotland; or

      (c) the Lord Chief Justice of Northern Ireland, if the determination was made in relation to Northern Ireland.

      (9) None of the following may be appointed—

      (a) an official of any government department;

      (b) an office holder in, or a member of the staff of, the Scottish Administration.

      (10) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section.
      (11) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this section.
      (12) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      Magistrates' Courts Act 1980 (c. 43)
      75 The Magistrates' Courts Act 1980 is amended as follows.
      76 (1) Section 3B (transfer of trials of summary offences) is amended as follows.
      (2) In subsection (3) for "Lord Chancellor may" substitute "Lord Chief Justice may, with the concurrence of the Lord Chancellor,".
      (3) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (3)."
      77 (1) Section 67 (Family Proceedings Courts) (as substituted by section 49(1) of the Courts Act 2003 (c. 39)) is amended as follows.
      (2) In subsection (3) for "Lord Chancellor or a person acting on his behalf" substitute "Lord Chief Justice".
      (3) In subsection (4) for "Lord Chancellor may by rules" substitute "Lord Chief Justice may, after consulting the Lord Chancellor, by rules".
      (4) In subsection (5) for "Lord Chancellor" substitute "Lord Chief Justice".
      (5) After subsection (8) insert—
      "(9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (3) or (4) or the powers conferred on him by rules under subsection (4)."
      78 (1) Section 144 (rule committee and rules of procedure) is amended as follows.
      (2) Before subsection (1) insert—
      "(A1) The Lord Chancellor may appoint a rule committee for magistrates' courts."
      (3) In subsection (1)—

      (a) for the words from the beginning to "and may on" substitute "The Lord Chief Justice may on";

      (b) after "consultation with the rule committee" insert " and with the concurrence of the Lord Chancellor,".

      (4) After subsection (1) insert—
      "(1A) If the Lord Chancellor does not agree rules made by the Lord Chief Justice, the Lord Chancellor must give the Lord Chief Justice and the rules committee written reasons for doing so."
      (5) In subsection (2) for "he may determine" substitute "he may, after consulting the Lord Chief Justice, determine".
      (6) After subsection (4) insert—
      "(4A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      79 After section 144 insert—
      "144A RULES TO BE MADE IF REQUIRED BY LORD CHANCELLOR
      (1) This section applies if the Lord Chancellor gives the Lord Chief Justice written notice that he thinks it is expedient for rules made under section 144 to include provision that would achieve a purpose specified in the notice.
      (2) The Lord Chief Justice must make such rules as he considers necessary to achieve the specified purpose.
      (3) Those rules must be—

      (a) made within a reasonable period after the Lord Chancellor gives notice to the Lord Chief Justice;

      (b) made in accordance with section 144.

      (4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Housing Act 1980 (c. 51)
      80 In section 86 of the Housing Act 1980 (jurisdiction of county court), omit subsections (4) to (6) (rules and directions).
      Judicial Pensions Act 1981 (c. 20)
      81 The Judicial Pensions Act 1981 is amended as follows.
      82 In section 1 (interpretation) in the entry beginning "Judge of the Supreme Court" in the first column of the table omit ", other than the Lord Chancellor".
      83 (1) Section 5 (Circuit Judge in England and Wales) is amended as follows.
      (2) After subsection (1) insert—
      "(1A) The Lord Chancellor must consult the Lord Chief Justice of England and Wales before making a recommendation in a case that falls within subsection (1)(b) or (c)."
      (3) After subsection (6) insert—
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      84 (1) Section 7 (stipendiary magistrates in England and Wales) is amended as follows.
      (2) After subsection (1) insert—
      (1A) The Lord Chancellor must consult the Lord Chief Justice before making a recommendation in a case that falls within subsection (1)(b)."
      (3) After subsection (6) insert—
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      85 (1) Section 13 (Social Security Commissioners) is amended as follows.
      (2) After subsection (1) insert—
      "(1 A) The Lord Chancellor must consult the Lord Chief Justice before making a recommendation in a case that falls within subsection (1)(6) or (c)."
      (3) After subsection (6)—
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Supreme Court Act 1981 (c. 54)
      86 The Supreme Court Act 1981 is amended as follows.
      87 (1) Section 2 (membership of the Court of Appeal) is amended as follows.
      (2) In subsection (2)—

      (a) omit paragraph (a);

      (b) in paragraph (b) for "has been Lord Chancellor" substitute "was Lord Chancellor before 12 June 2003";

      (c) for paragraphs (f) and (g) substitute—

      "(f) the President of the Queen's Bench Division;

      (g) the President of the Family Division;

      (h) the Chancellor of the High Court;"

      (d) for "Lord Chancellor's request" substitute "request of the Lord Chief Justice".

      (3) After subsection (2) insert—
      "(2A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his function under subsection (2) of making requests to persons within paragraphs (b) and (c) of that subsection."
      (4) After subsection (4) insert—
      "(4A) It is for the Lord Chancellor to recommend to Her Majesty the making of an Order under subsection (4)."
      (5) In subsection (6)—

      (a) omit "Lord Chancellor,";

      (b) for "President of the Family Division or Vice-Chancellor" substitute "President of the Queen's Bench Division, President of the Family Division or Chancellor of the High Court".

      88 (1) Section 3 (Divisions of Court of Appeal) is amended as follows.
      (2) In subsection (3) for "Lord Chancellor may" substitute "Lord Chief Justice may, after consulting the Lord Chancellor".
      (3) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (3)."
      89 (1) Section 4 (membership of the High Court) is amended as follows.
      (2) In subsection (1)—

      (a) omit paragraph (a);

      (b) for paragraphs (c) and (d) substitute—

      "(ba) the President of the Queen's Bench Division;

      (c) the President of the Family Division;

      (d) the Chancellor of the High Court;".

      (3) After subsection (4) insert—
      "(4A) It is for the Lord Chancellor to recommend to Her Majesty the making of an Order under subsection (4)."
      (4) In subsection (6)—

      (a) omit "Lord Chancellor,";

      (b) for "President of the Family Division, Vice-Chancellor" substitute "President of the Queen's Bench Division, President of the Family Division, Chancellor of the High Court".

      90 (1) Section 5 (divisions of the High Court) is amended as follows.
      (2) In subsection (1)(a) for the words from "the Lord Chancellor" to "vice-president thereof," substitute "the Chancellor of the High Court, who shall be president thereof,".
      (3) In subsection (1)(b) for "who shall be president thereof" substitute ", the President of the Queen's Bench Division".
      (4) In subsection (2) for "of the Lord Chancellor" in each place substitute "given by the Lord Chief Justice after consulting the Lord Chancellor".
      (5) In subsection (3) for the words from "with the concurrence of" to the end substitute "with the concurrence of both of the following—

      (a) the senior judge of the Division to which the judge is attached;

      (b) the senior judge of the Division of which the judge is to act as an additional judge."

      (6) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)."
      91 (1) Section 6 (the Patents, Admiralty and Commercial Courts) is amended as follows.
      (2) In subsection (2) for "Lord Chancellor may" substitute "Lord Chief Justice may, after consulting the Lord Chancellor,".
      (3) After subsection (2) insert—
      "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)."
      92 (1) Section 7 (power to alter Divisions etc) is amended as follows.
      (2) In subsection (1) after "recommendation of insert "the Lord Chancellor and".
      (3) In subsection (2)—

      (a) omit "the Lord Chancellor,";

      (b) for "the President of the Family Division and the Vice-Chancellor" substitute "the President of the Queen's Bench Division, the President of the Family Division and the Chancellor of the High Court".

      93 (1) Section 9 (assistance for transaction of judicial business of Supreme Court) is amended as follows.
      (2) In subsection (2)—
      (a) for the definition of "the appropriate authority" substitute—
      ""the appropriate authority" means—

      (a) the Lord Chief Justice or a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) nominated by him to exercise his functions under this section, or

      (b) at any time when the Lord Chief Justice or the nominated judicial office holder is unable to make such a request himself, or there is a vacancy in the office of Lord Chief Justice, the Master of the Rolls;"

      (b) omit the words after the definition of "relevant court".

      (3) After subsection (2) insert—
      "(2A) The power of the appropriate authority to make a request under subsection (1) is subject to subsections (2B) to (2D).
      (2B) In the case of a request to a person within entry 1, 3, 5 or 6 in column 1 of the Table, the appropriate authority may make the request only after consulting the Lord Chancellor.
      (2C) In any other case the appropriate authority may make a request only with the concurrence of the Lord Chancellor.
      (2D) In the case of a request to a Circuit judge or Recorder to act as a judge of the High Court, the appropriate authority may make the request only with the concurrence of the Judicial Appointments Commission."
      (4) In subsection (4)—

      (a) for "appears to the Lord Chancellor" substitute "appears to the Lord Chief Justice, after consulting the Lord Chancellor,";

      (b) for "Lord Chancellor thinks fit" substitute "Lord Chief Justice may, after consulting the Lord Chancellor, think fit".

      (5) After subsection (8) insert—
      "(9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (4)."
      94 (1) Section 10 (appointment of judges of Supreme Court) is amended as follows.
      (2) In subsection (1)—

      (a) for "President of the Family Division or Vice-Chancellor" substitute "President of the Queen's Bench Division, President of the Family Division or Chancellor of the High Court";

      (b) after "may" insert ", on the recommendation of the Lord Chancellor,".

      (3) In subsection (2) after "may" insert ", on the recommendation of the Lord Chancellor,".
      (4) In subsection (3)(a) for "President of the Family Division or Vice-Chancellor" substitute "President of the Queen's Bench Division, President of the Family Division or Chancellor of the High Court".
      (5) For subsection (4) substitute—
      "(4) A person appointed—

      (a) to any of the offices mentioned in subsection (1),

      (b) as a Lord Justice of Appeal, or

      (c) as a puisne judge of the High Court,

      shall take the required oaths as soon as may be after accepting office.
      (5) In the case of a person appointed to the office of Lord Chief Justice, the required oaths are to be taken in the presence of all of the following—

      (a) the Master of the Rolls;

      (b) the President of the Queen's Bench Division;

      (c) the President of the Family Division;

      (d) the Chancellor of the High Court.

      (6) Where subsection (5) applies but there is a vacancy in one or more (but not all) of the offices mentioned in that subsection, the required oaths are to be taken in the presence of the holders of such of the offices as are not vacant.
      (7) In the case of a person appointed other than to the office of Lord Chief Justice, the required oaths are to be taken in the presence of—

      (a) the Lord Chief Justice, or

      (b) a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) nominated by him for this purpose.

      (8) In this section "required oaths" means—

      (a) the oath of allegiance, and

      (b) the judicial oath,

      as set out in the Promissory Oaths Act 1868."
      95 (1) Section 11 (tenure of office) is amended as follows.
      (2) After subsection (3) insert—
      "(3A) It is for the Lord Chancellor to recommend to Her Majesty the exercise of the power of removal under subsection (3)."
      (3) In subsection (9)(a) for "the President of the Family Division and the Vice-Chancellor," substitute "the President of the Queen's Bench Division, the President of the Family Division and the Chancellor of the High Court,".
      96 In section 12 (salaries etc of judges of Supreme Court), in subsection (1) omit ", other than the Lord Chancellor,".
      97 (1) Section 13 (precedence of judges of Supreme Court) is amended as follows.
      (2) For subsections (2) and (3) substitute—
      "(2) Subject to subsection (1)(b), the President of the Queen's Bench Division shall rank next after the Master of the Rolls.
      (2A) The President of the Family Division shall rank next after the President of the Queen's Bench Division.
      (3) The Chancellor of the High Court shall rank next after the President of the Family Division."
      (3) In subsection (4) for "Vice-Chancellor" substitute "Chancellor of the High Court".
      98 In section 44 (extraordinary functions of judges of High Court), in subsection (2) omit "the Lord Chancellor,".
      99 In section 56B (allocation of cases in criminal division), in subsection (1) for "with the concurrence of the Lord Chancellor" substitute "after consulting the Lord Chancellor".
      100 (1) Section 57 (Court of Appeal: sittings and vacations) is amended as follows.
      (2) In subsection (2) after "Lord Chancellor" insert "after consulting the Lord Chief Justice".
      (3) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      101 (1) Section 61 (distribution of business among Divisions) is amended as follows).
      (2) In subsection (3)—

      (a) for "Lord Chancellor may" substitute "Lord Chief Justice may, with the concurrence of the Lord Chancellor,";

      (b) in paragraph (b) for "appears to him" substitute "appears to the Lord Chief Justice and the Lord Chancellor".

      (3) After subsection (8) insert—
      "(9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (3)."
      102 (1) Section 63 (business assigned to specially nominated judges) is amended as follows.
      (2) In subsection (1) for "by the Lord Chancellor" substitute "by the Lord Chief Justice after consulting the Lord Chancellor".
      (3) In subsection (2) for "Lord Chancellor" substitute "Lord Chief Justice, after consulting the Lord Chancellor, to be".
      (4) After subsection (3) insert—
      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1) or (2)."
      103 (1) Section 68 (exercise of jurisdiction of High Court otherwise than by judges of that court) is amended as follows.
      (2) In subsection (1)(a) for "Lord Chancellor may" substitute "Lord Chief Justice may, after consulting the Lord Chancellor,".
      (3) In subsection (6) for "by the Lord Chancellor" substitute "by the Lord Chief Justice after consulting the Lord Chancellor".
      (4) After subsection (7) insert—
      "(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsections (1)(a) and (6)."
      104 (1) Section 71 (High Court: sittings and vacations) is amended as follows.
      (2) In subsection (2) after "Lord Chancellor" insert "after consulting the Lord Chief Justice".
      (3) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      105 (1) Section 74 (appeals and committals for sentence) is amended as follows.
      (2) After subsection (5) insert—
      "(5A) Before exercising any functions under subsection (4), the Lord Chancellor must consult the Lord Chief Justice."
      (3) After subsection (7) insert—
      "(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      106 (1) Section 78 (Crown Court: sittings) is amended as follows.
      (2) In subsection (3) after "Lord Chancellor" insert "after consulting the Lord Chief Justice".
      (3) After subsection (3) insert—
      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      107 (1) Section 82 (duties of officers of Crown Court) is amended as follows.
      (2) In subsection (1) after "Lord Chancellor" insert "after consulting the Lord Chief Justice".
      (3) After subsection (2) insert—
      "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      108 Omit section 84(8) (rules of court for Crown Court etc to be made by statutory instrument).
      109 (1) Section 86 (the Crown Court Rule Committee) is amended as follows.
      (2) In subsection (1) for "by the Lord Chancellor together with any four or more of the following persons, namely—" substitute "by a committee known as the Crown Court Rule Committee, which is to consist of the following persons—".
      (3) For subsections (2) to (4) substitute—
      "(2) The members of the Crown Court Rule Committee, other than those eligible to act by virtue of their office, are appointed under subsection (3) or (4).
      (3) The Lord Chief Justice must appoint the persons referred to in paragraphs (b), (c) and (e) of subsection (1), after consulting the Lord Chancellor.
      (4) The Lord Chancellor must appoint the persons referred to in paragraphs (f) and (g) of subsection (1), after consulting the following—

      (a) the Lord Chief Justice;

      (b) any authorised body with members who are eligible for appointment under the relevant paragraph.

      (5) A person is to be appointed under subsection (3) or (4) for such period as the Lord Chancellor determines after consulting the Lord Chief Justice.
      (6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      110 After section 86 insert—

      86A PROCESS FOR MAKING RULES OF COURT UNDER SECTION 84
      (1) Crown Court rules must be—

      (a) signed by a majority of the members of the Crown Court Rule Committee, and

      (b) submitted to the Lord Chancellor.

      (2) The Lord Chancellor may allow or disallow rules so made.
      (3) If the Lord Chancellor disallows rules, he must give the Committee written reasons for doing so.
      (4) Rules so made and allowed by the Lord Chancellor—

      (a) come into force on such day as the Lord Chancellor directs, and

      (b) are to be contained in a statutory instrument to which the Statutory Instruments Act 1946 applies as if the instrument contained rules made by a Minister of the Crown.

      (5) A statutory instrument containing Crown Court rules is subject to annulment in pursuance of a resolution of either House of Parliament.
      (6) In this section and section 86B "Crown Court rules" means rules of court made under section 84.
      86B RULES TO BE MADE IF REQUIRED BY LORD CHANCELLOR
      (1) This section applies if the Lord Chancellor gives the Crown Court Rule Committee written notice that he thinks it is expedient for Crown Court rules to include provision that would achieve a purpose specified in the notice.
      (2) The Committee must make such Crown Court rules as it considers necessary to achieve the specified purpose.
      (3) Those rules must be—

      (a) made within a reasonable period after the Lord Chancellor gives notice to the Committee;

      (b) made in accordance with section 86A."

      111 (1) Section 91 (deputies and temporary appointments) is amended as follows.
      (2) In subsection (1)—

      (a) for "Lord Chancellor" in the first place substitute "Lord Chief Justice, after consulting the Lord Chancellor,";

      (b) in paragraph (a) omit "or III";

      (c) for "Lord Chancellor thinks fit" substitute "Lord Chief Justice may, after consulting the Lord Chancellor, think fit".

      (3) After subsection (1) insert—
      "(1A) If it appears to the Lord Chancellor that it is expedient to do so in order to facilitate the disposal of business in the Supreme Court, he may appoint a person—

      (a) to act as a deputy for any person holding an office listed in column 1 of Part 3 of Schedule 2; or

      (b) to act as a temporary additional officer in any such office,

      during such period or on such occasions as the Lord Chancellor may think fit."
      (4) After subsection (6) insert—
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1)."
      112 (1) Section 92 (tenure of office) is amended as follows.
      (2) In subsection (5) after "Lord Chancellor" insert "with the concurrence of the Lord Chief Justice".
      (3) In subsection (6) after "also" insert ", with the concurrence of the Lord Chief Justice.".
      (4) After subsection (7) insert—
      "(8) It is for the Lord Chancellor to recommend to Her Majesty the exercise of any power under subsection (7)."
      113 For section 96 (Central Office) substitute—
      "96 CENTRAL OFFICE
      The Central Office of the Supreme Court shall perform such business as it performed immediately before the commencement of this Act."
      114 In section 98 (judges' clerks and secretaries), in subsection (1) for "the President of the Family Division and the Vice-Chancellor" substitute "the President of the Queen's Bench Division, the President of the Family Division and the Chancellor of the High Court".
      115 (1) Section 99 (district registries) is amended as follows.
      (2) In subsection (1) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (3) After subsection (2) insert—
      "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      116 (1) Section 104 (district probate registries) is amended as follows.
      (2) In subsection (1) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (3) After subsection (2) insert—
      "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      117 (1) Section 131 (conveyancing counsel of Supreme Court) is amended as follows.
      (2) In subsection (2) after "Lord Chancellor" insert "with the concurrence of the Lord Chief Justice".
      (3) After subsection (2) insert—
      "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      118 In section 151 (interpretation), in subsection (1) for the definition of "senior judge" substitute—
      ""senior judge", where the reference is to the senior judge of a Division, means the president of that Division;".
      Administration of Justice Act 1982 (c. 53)
      119 The Administration of Justice Act 1982 is amended as follows.
      120 (1) Section 25 (regulations as to deposit and registration of wills) is amended as follows.
      (2) In subsection (4) after "Lord Chancellor" insert "after consulting the Lord Chief Justice of England and Wales".
      (3) After subsection (8) insert—
      "(9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (4)."
      Representation of the People Act 1983 (c. 2)
      121 In section 161 of the Representation of the People Act 1983 (justices of the peace guilty of corrupt practice)—

      (a) after "Lord Chancellor" insert "and the Lord Chief Justice";

      (b) after "Scotland," insert "to".

      Mental Health Act 1983 (c. 20)
      122 The Mental Health Act 1983 is amended as follows.
      123 In section 65 (Mental Health Review Tribunals), in subsection (3) omit "by the Lord Chancellor".
      124 (1) Section 93 (judicial authorities and Court of Protection) is amended as follows.
      (2) In subsection (1) for "Lord Chancellor shall" substitute "Lord Chief Justice shall, after consulting the Lord Chancellor,".
      (3) In subsection (3) for "Lord Chancellor" substitute "Lord Chief Justice".
      (4) In subsection (4) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".
      (5) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1), (3) or (4)."
      125 In section 94 (exercise of the judge's functions: the patient), in subsection (1) omit "by the Lord Chancellor or".
      126 In section 96 (powers of the judge as to the patient's property and affairs), in subsection (3) omit "the Lord Chancellor or".
      127 In section 104 (general powers of the judge with respect to proceedings), in subsection (3) omit "the Lord Chancellor or" in both places.
      128 In section 105 (appeals), in subsection (2) omit "from any decision of the Lord Chancellor or".
      129 (1) Section 108 (general provisions as to rules under Part 7) is amended as follows.
      (2) For subsection (1) substitute—
      "(1) Rules under section 106(5) are to be made by the Lord Chancellor after consulting the Lord Chief Justice."
      (3) After subsection (2) insert—
      "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      (4) Paragraph 16 of Schedule 1 also amends section 108.
      130 (1) Section 111 (construction of references in other Acts) is amended as follows.
      (2) In subsection (1) omit "by the Lord Chancellor or".
      (3) In subsection (2) omit "the Lord Chancellor,".
      (4) In subsection (4)—

      (a) in paragraph (a) omit "the Lord Chancellor or";

      (b) in paragraph (b) omit "the Lord Chancellor,".

      Car Tax Act 1983 (c. 53)
      131 In the Car Tax Act 1983, in section 3(5) (ombudsman) after "Lord Chancellor" insert "with the concurrence of the Lord Chief Justice".
      County Courts Act 1984 (c. 28)
      132 The County Courts Act 1984 is amended as follows.
      133 (1) Section 2 (county court districts etc) is amended as follows.
      (2) In subsection (1) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (3) In subsection (3) after "given" insert ", after consulting the Lord Chief Justice,".
      (4) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1) or (3)."
      134 (1) Section 3 (places and times of sittings) is amended as follows.
      (2) In subsection (1) after "given" insert ", after consulting the Lord Chief Justice,".
      (3) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1)."
      135 (1) Section 5 (judges of county courts) is amended as follows.
      (2) In subsection (1) for "Lord Chancellor shall" substitute "Lord Chief Justice shall, after consulting the Lord Chancellor,".
      (3) In subsection (2) for "or on behalf of the Lord Chancellor" substitute "the Lord Chief Justice after consulting the Lord Chancellor".
      (4) In subsection (3) for "Lord Chancellor considers desirable" substitute "Lord Chief Justice considers desirable after consulting the Lord Chancellor".
      (5) In subsection (4)(a) for "Lord Chancellor may direct" substitute "Lord Chief Justice may, after consulting the Lord Chancellor, direct".
      (6) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      136 (1) Section 11 (tenure of office) is amended as follows.
      (2) In subsection (5) after "by the Lord Chancellor" insert ", but only with the concurrence of the Lord Chief Justice".
      (3) In subsection (6) after "Lord Chancellor may" insert with the concurrence of the Lord Chief Justice,".
      137 In section 12 (records of proceedings to be kept by district judges), after subsection (2) insert—
      "(3) The Lord Chancellor must consult the Lord Chief Justice before making regulations under this section.
      (4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      138 (1) Section 26 (districts for Admiralty purposes) is amended as follows.
      (2) In subsection (1)—

      (a) after "Lord Chancellor" insert "and the Lord Chief Justice";

      (b) for "him" substitute "the Lord Chancellor".

      (3) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      139 (1) Section 61 (right of audience by direction) is amended as follows.
      (2) In subsection (1) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".
      (3) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      140 In section 145 (power to raise monetary limits), after subsection (2) insert—
      "(2A) It is for the Lord Chancellor to recommend to Her Majesty the making of an Order under subsection (1)."
      Matrimonial and Family Proceedings Act 1984 (c. 42)
      141 The Matrimonial and Family Proceedings Act 1984 is amended as follows.
      142 (1) Section 33 (jurisdiction of county courts in matrimonial cases) is amended as follows.
      (2) In subsections (1) and (4) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".
      (3) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      143 (1) Section 36 (assignment of circuit judges to family proceedings) is amended as follows.
      (2) That section becomes subsection (1) of section 36.
      (3) In that subsection, for "Lord Chancellor may direct" substitute "Lord Chief Justice may, after consulting the Lord Chancellor, direct".
      (4) After that subsection insert—
      "(2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 92(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      144 (1) Section 42 (county court proceedings in principal registry of Family Division) is amended as follows.
      (2) In subsection (2)(a) for "may direct" substitute "may, after consulting the Lord Chief Justice, direct".
      (3) After subsection (6) insert—
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Transport Act 1985 (c. 67)
      145 (1) Schedule 4 to the Transport Act 1985 (constitution, powers and proceedings of the Transport Tribunal) is amended as follows.
      (2) In paragraph 3 (tenure of office), in sub-paragraph (3) after "fit" insert "and if the Lord Chief Justice agrees".
      (3) In paragraph 10 (the president)—

      (a) in sub-paragraph (1) for "the Lord Chancellor may direct" substitute "the Lord Chief Justice may, after consulting the Lord Chancellor, direct";

      (b) after sub-paragraph (3) insert—

      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under sub-paragraph (1)."
      Housing Act 1985 (c. 68)
      146 The Housing Act 1985 is amended as follows.
      147 Omit section 111 (secure tenancies: county court rules and directions).
      148 In section 181 (right to buy: jurisdiction of county court), omit subsections (4) and (5) (rules and directions).
      149 In section 572 (assistance for owners of defective housing: jurisdiction of county court), omit subsections (4) to (6) (rules and directions).
      Insolvency Act 1986 (c. 45)
      150 The Insolvency Act 1986 is amended as follows.
      151 (1) Section 117 (High Court and county court jurisdiction) is amended as follows.
      (2) In subsection (4) for "may by order" substitute "may, with the concurrence of the Lord Chief Justice, by order".
      (3) After subsection (7) insert—
      "(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      152 (1) Section 374 (insolvency districts) is amended as follows.
      (2) In subsection (1) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".
      (3) In subsection (2) after "Lord Chancellor" insert "and the Lord Chief Justice".
      (4) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      153 (1) Section 411 (company insolvency rules) is amended as follows.
      (2) For subsection (1) substitute—
      "(1) The Lord Chancellor may make rules for the purpose of giving effect to Parts 1 to 7 of this Act.
      (1A) The Lord Chancellor may make different rules under subsection (1) in relation to—

      (a) England and Wales, and

      (b) Scotland.

      (1B) Rules that affect court procedure in England and Wales may be made under subsection (1) only with the concurrence of the Lord Chief Justice."
      (3) In subsection (2)(b) for the words from "may appear" to the end substitute "may appear necessary or expedient to the Lord Chancellor".
      (4) After subsection (6) insert—
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      154 (1) Section 412 (individual insolvency rules (England and Wales) is amended as follows.
      (2) For subsection (1) substitute—
      "(1) The Lord Chancellor may make rules for the purpose of giving effect to Parts 8 to 11 of this Act.
      (1A) Rules that affect court procedure in England and Wales may be made under subsection (1) only with the concurrence of the Lord Chief Justice."
      (3) In subsection (2)(b) for the words from "may appear" to the end substitute "may appear necessary or expedient to the Lord Chancellor".
      (4) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      155 (1) Section 413 (Insolvency Rules committee) is amended as follows.
      (2) In subsection (3) for "by the Lord Chancellor" substitute "in accordance with subsection (3A) or (3B)".
      (3) After subsection (3) insert—
      "(3A) The Lord Chief Justice must appoint the persons referred to in paragraphs (a) to (d) of subsection (3), after consulting the Lord Chancellor.
      (3B) The Lord Chancellor must appoint the persons referred to in paragraphs (e) to (g) of subsection (3), after consulting the Lord Chief Justice."
      (4) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      156 (1) Section 420 (insolvent partnerships) is amended as follows.
      (2) In subsection (1) after "Secretary of State" insert "and the Lord Chief Justice".
      (3) In subsection (2) after "Lord Chancellor" insert "and the Lord Chief Justice".
      (4) After subsection (3) insert—
      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      157 (1) Section 421 (insolvent estates of deceased persons) is amended as follows.
      (2) In subsection (1) after "Secretary of State" insert "and the Lord Chief Justice".
      (3) In subsection (2) after "Lord Chancellor" insert "and the Lord Chief Justice".
      (4) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Coroners Act 1988 (c. 13)
      158 The Coroners Act 1988 is amended as follows.
      159 (1) Section 3 (terms on which coroners hold office) is amended as follows.
      (2) For subsection (4) substitute—
      "(4) The Lord Chancellor may, with the agreement of the Lord Chief Justice, remove any coroner from office for inability or misbehaviour."
      (3) In subsection (5) for ", wilful neglect of his duty or misbehaviour in the discharge of his duty" substitute "or wilful neglect of his duty".
      160 In section 33 (savings), in subsection (2)(a) omit "the Lord Chancellor or".
      Criminal Justice Act 1988 (c. 33)
      161 (1) In Schedule 12 to the Criminal Justice Act 1988 (assessors of compensation for miscarriages of justice), paragraph 6 (power of removal) is amended as follows.
      (2) That paragraph becomes sub-paragraph (1) of paragraph 6.
      (3) After that sub-paragraph insert—
      "(2) The Lord Chancellor may give consent under subparagraph (1)(a) only with the concurrence of all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord Chief Justice of Northern Ireland."

      Copyright, Designs and Patents Act 1988 (c. 48)
      162 The Copyright, Designs and Patents Act 1988 is amended as follows.
      163 In section 146 (membership of the Copyright Tribunal), after subsection (6) insert—
      "(7) The Lord Chancellor may exercise his powers under subsection (3) only with the concurrence of all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland."

      164 (1) Section 287 (patents county courts: special jurisdiction) is amended as follows.
      (2) In subsection (1) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".
      (3) After subsection (5) insert—
      "(6) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      165 (1) Section 291 (proceedings in patents county court) is amended as follows.
      (2) In subsection (1) for "Lord Chancellor shall" substitute "Lord Chief Justice shall, after consulting the Lord Chancellor,".
      (3) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1)."
      166 (1) Section 292 (rights and duties of registered patent agents in relation to proceedings in patents courts) is amended as follows.
      (2) After subsection (2) insert—
      "(2A) The Lord Chancellor may make regulations under subsection (2) only with the concurrence of the Lord Chief Justice."
      (3) After subsection (6) insert—
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Children Act 1989 (c. 41)
      167 The Children Act 1989 is amended as follows.
      168 (1) Section 7 (welfare reports) is amended as follows.
      (2) In subsection (2) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (3) After subsection (5) insert—
      (6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)."
      169 (1) Section 92 (jurisdiction of the courts) is amended as follows.
      (2) In subsection (9) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (3) In subsection (10) after "Lord Chancellor thinks expedient" insert ", after consulting the Lord Chief Justice,".
      (4) After subsection (10) insert—
      "(10A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (9) or (10)."
      170 (1) Section 94 (appeals) is amended as follows.
      (2) In subsection (10) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (3) After subsection (11) insert—
      "(12) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (10)."
      171 In section 96 (evidence given by, or with respect to, children), in subsection (3) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".
      172 (1) In section 97 (privacy for children involved in certain proceedings).
      (2) In subsection (4) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".
      (3) After subsection (8) insert—
      "(9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (4)."
      173 (1) In Schedule 1 (financial provision for children), paragraph 5 (maximum lump sum payable for maintenance of child by order of magistrates court) is amended as follows.
      (2) In sub-paragraph (2) after "Lord Chancellor may" substitute ", after consulting the Lord Chief Justice,".
      (3) After sub-paragraph (6) insert—
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph."
      174 (1) Schedule 11 (jurisdiction) is amended as follows.
      (2) In paragraph 1 (commencement of proceedings) after "Lord Chancellor may" in each place insert ", after consulting the Lord Chief Justice,".
      (3) In paragraph 2 (transfer of proceedings)—

      (a) in sub-paragraph (1) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,";

      (b) in sub-paragraph (5) after "Lord Chancellor thinks appropriate" insert ", after consulting the Lord Chief Justice,".

      (4) In paragraph 3 (hearings by a single justice), in subparagraph (1) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (5) In paragraph 4 (general)—

      (a) in sub-paragraph 5(a) after "Lord Chancellor considers expedient" insert ", after consulting the Lord Chief Justice,".

      (b) after sub-paragraph (5) insert—

      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this Part of this Schedule."
      Courts and Legal Services Act 1990 (c. 41)
      175 The Courts and Legal Services Act 1990 is amended as follows.
      176 (1) Section 1 (allocation of business between High Court and county courts) is amended as follows.
      (2) After subsection (1) insert—
      "(1A) An order under subsection (1)(a) or (b) may be made only with the concurrence of the Lord Chief Justice."
      (3) In subsection (9) for "the President of the Family Division, the Vice-Chancellor" substitute "the President of the Queen's Bench Division, the President of the Family Division, the Chancellor of the High Court".
      (4) After subsection (12) insert—
      "(13) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      177 In section 9 (allocation of family proceedings which are within the jurisdiction of the county courts), in subsection (1) for the words from the beginning to "Family Division," substitute "The President of the Family Division may, after consulting the Lord Chancellor,".
      178 (1) Section 11 (representation in certain county court cases) is amended as follows.
      (2) In subsection (1) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".
      (3) Omit subsection (10).
      (4) After subsection (11) insert—
      "(12) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1) or (2)."
      179 (1) Section 73 (delegation of certain administrative functions of Master of the Rolls) is amended as follows.
      (2) In subsection (3)—

      (a) for "Lord Chancellor may" substitute "Lord Chief Justice may, with the concurrence of the Lord Chancellor,";

      (b) for "Lord Chancellor considers" substitute "Lord Chief Justice and Lord Chancellor consider".

      (3) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (3)."
      180 In section 119 (interpretation), in subsection (1) in the definition of "designated judge" for "the President of the Family Division or the Vice-Chancellor" substitute "the President of the Queen's Bench Division, the President of the Family Division or the Chancellor of the High Court".
      Armed Forces Act 1991 (c. 62)
      181 (1) In Schedule 1 to the Armed Forces Act 1991 (assessors of compensation for miscarriages of justice), paragraph 6 (power of removal) is amended as follows.
      (2) That paragraph becomes sub-paragraph (1) of paragraph 6.
      (3) After that sub-paragraph insert—
      "(2) The Lord Chancellor may give consent under subparagraph (1)(a) or (1)(c) only with the concurrence of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord Chief Justice of Northern Ireland.

      "Child Support Act 1991 (c. 48)
      182 The Child Support Act 1991 is amended as follows.
      183 (1) Section 8 (role of the courts with respect to maintenance of children) is amended as follows.
      (2) After subsection (5) insert—
      "(5A) The Lord Chancellor may make an order under subsection (5) only with the concurrence of the Lord Chief Justice."
      (3) After subsection (11) insert—
      "(12) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      184 In section 45 (jurisdiction of courts in certain proceedings under the Act), after subsection (7) insert—
      "(8) The functions of the Lord Chancellor under this section may be exercised only after consultation with the Lord Chief Justice.
      (9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      185 In Schedule 4 (Child Support Commissioners), in paragraph 1 (tenure of office) after sub-paragraph (3) insert—
      "(3A) The Lord Chancellor may remove a Child Support Commissioner under sub-paragraph (3) only with the concurrence of—

      (a) the Lord Chief Justice of England and Wales, and

      (b) the Lord President of the Court of Session."

      Land Drainage Act 1991 (c. 59)
      186 (1) Section 31 of the Land Drainage Act 1991 (composition and incidental powers of the Agricultural Land Tribunal) is amended as follows.
      (2) After subsection (1) insert—
      "(1A) Before drawing up, or revising, a panel under subsection (1), the Lord Chancellor must consult the Lord Chief Justice."
      (3) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Tribunals and Inquiries Act 1992 (c. 53)
      187 (1) In section 7 of the Tribunal and Inquiries Act 1992 (concurrence required for removal of members of certain tribunals), subsection (1) is amended as follows.
      (2) Omit ", other than the Lord Chancellor,".
      (3) In paragraphs (a) to (c) after "Lord Chancellor" in each place insert "(unless he is the Minister terminating the person's membership), the Lord Chief Justice of England and Wales,".
      (4) In paragraph (d) after "Lord Chancellor" insert "(unless he is the Minister terminating the person's membership) and the Lord Chief Justice of England and Wales".
      Judicial Pensions and Retirement Act 1993 (c. 8)
      188 The Judicial Pensions and Retirement Act 1993 is amended as follows.
      189 (1) Section 2 (the judicial officer's entitlement to a pension) is amended as follows.
      (2) In subsection (3)(b) after "by means of a medical certificate" insert "(and, where the appropriate Minister is the Lord Chancellor, after consulting the Lord Chief Justice of England and Wales)".
      (3) After subsection (8) insert—
      "(9) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      190 (1) Section 26 (retirement date for holders judicial offices) is amended as follows.
      (2) For "appropriate minister" in each place substitute "appropriate person".
      (3) In subsection (7)—

      (a) in paragraph (a) omit ", unless he is Chancellor";

      (b) in paragraph (b) omit ", unless he is Chancellor".

      (4) In subsection (12), after the definition of "appointed day" insert—
      ""the appropriate person" means—

      (a) the appropriate Minister in a case which falls within paragraph (a) of the definition of the expression in section 30;

      (b) in any other case, the Lord Chief Justice of England and Wales;".

      (5) After subsection (12) insert—
      "(13) Where the Lord Chief Justice is the appropriate person, he must obtain the concurrence of the Lord Chancellor before exercising any functions under this section.
      (14) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      191 In Schedule 1 (offices which may be qualifying judicial offices) in Part 1 (judges) for the entries "President of the Family Division" and "Vice-Chancellor" substitute—

      "President of the Queen's Bench Division

      President of the Family Division

      Chancellor of the High Court".

      192 In Schedule 5 (retirement provisions: the relevant offices), in the second entry omit ", other than the Lord Chancellor".
      Bail (Amendment) Act 1993 (c. 26)
      193 In section 1 of the Bail (Amendment) Act 1993 (prosecution right of appeal), in subsection (12) in the definition of "magistrates' court" and "court" for "designated" to the end substitute "designated in accordance with section 67 or section 139 of the Extradition Act 2003".
      Welsh Language Act 1993 (c. 38)
      194 (1) Section 23 of the Welsh Language Act 1993 (oaths and affirmations) is amended as follows.
      (2) That section becomes subsection (1) of section 23.
      (3) In that subsection after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice of England and Wales,".
      (4) After that subsection insert—
      "(2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Local Government (Wales) Act 1994 (c. 19)
      195 (1) Section 55 of the Local Government (Wales) Act 1994 (magistrates' courts, justices of the peace etc) is amended as follows.
      (2) In subsection (1)—

      (a) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,";

      (b) for "he thinks necessary or expedient" substitute "the Lord Chancellor thinks necessary or expedient, after consulting the Lord Chief Justice,".

      (3) In subsection (3)—

      (a) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,";

      (b) for "appears to him expedient" substitute "appears to the Lord Chancellor to be expedient, after consulting the Lord Chief Justice,".

      196 After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Value Added Tax Act 1994 (c. 23)
      197 The Value Added Tax Act 1994 is amended as follows.
      198 (1) Section 86 (appeals to the Court of Appeal) is amended as follows.
      (2) In subsection (1) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice of England and Wales,".
      (3) After subsection (2) insert—
      "(2A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 92 of the Constitutional Reform Act 2004) to exercise his functions under this section."
      199 (1) Schedule 12 (constitution and procedure of VAT tribunals) is amended as follows.
      (2) In paragraph 3 (tenure of office of President)—

      (a) after sub-paragraph (5) insert—

      "(5A) The Lord Chancellor may remove a person from office under sub-paragraph (4), or designate a person under sub-paragraph (5), only with the concurrence of all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland.";

      (b) after sub-paragraph (8) insert—

      "(9) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 92 of the Constitutionah Reform Act 2004) to exercise his functions under sub-paragraph (5A) in relation to the designation of a person under sub-paragraph (5).

      (10) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under subparagraph (5A) in relation to the designation of a person under sub-paragraph (5).

      (11) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under sub-paragraph (5A) in relation to the designation of a person under sub-paragraph (5)—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      (3) In paragraph 4—

      (a) that paragraph becomes sub-paragraph (1) of paragraph 4;

      (b) after that sub-paragraph insert—

      "(2) The powers of the Lord Chancellor under subparagraph (1) may be exercised—

      (a) in relation to England and Wales only after consulting the Lord Chief Justice of England and Wales;

      (b) in relation to Northern Ireland only after consulting the Lord Chief Justice of Northern Ireland.

      (3) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph.
      (4) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      (4) In paragraph 7 (membership of panels), after subparagraph (7) insert—
      "(7A) Where the appropriate authority is the Lord Chancellor, the power conferred by sub-paragraph (7) may be exercised only with the concurrence of the Lord Chief Justice of England and Wales."
      Trade Marks Act 1994 (c. 26)
      200 In section 77 of the Trade Marks Act 1994 (persons appointed to hear and determine appeals), after subsection (4) insert—
      "(5) The Lord Chancellor may remove a person from office under subsection (3)(c) only with the concurrence of all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session

      (c) the Lord Chief Justice of Northern Ireland."

      Merchant Shipping Act 1995 (c. 21)
      201 In section 297 of the Merchant Shipping Act 1995 (wreck commissioners), after subsection (3) insert—
      "(3A) The Lord Chancellor may remove a wreck commissioner from office only with the concurrence of—

      (a) the Lord Chief Justice of England and Wales, or

      (b) if the commissioner was appointed to act in Northern Ireland, the Lord Chief Justice of Northern Ireland."

      Reserve Forces Act 1996 (c. 14)
      202 (1) Section 92 of the Reserve Forces Act 1996 (membership of tribunals etc) is amended as follows.
      (2) In subsection (1) for "by the Lord Chancellor" substitute "by the Lord Chief Justice of England and Wales, after consulting the Lord Chancellor,".
      (3) After subsection (3) insert—
      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1)."
      Employment Tribunals Act 1996 (c. 17)
      203 The Employment Tribunals Act 1996 is amended as follows.
      204 (1) Section 22 (membership of appeal tribunal) is amended as follows.
      (2) In subsection (1)(a)—

      (a) for "by the Lord Chancellor" substitute "by the Lord Chief Justice, after consulting the Lord Chancellor,";

      (b) omit "(other than the Lord Chancellor)".

      (3) In subsection (2) for "the Lord Chancellor and the Secretary of State" substitute "the person or persons appointing them".
      (4) In subsection (3)—

      (a) for "Lord Chancellor" substitute "Lord Chief Justice";

      (b) after "consultation with" insert "the Lord Chancellor and".

      (5) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      205 (1) Section 23 (temporary membership) is amended as follows.
      (2) In subsection (1) for "Lord Chancellor" substitute "Lord Chief Justice".
      (3) In subsection (2)(a) for "Lord Chancellor" substitute "Lord Chief Justice".
      (4) After subsection (5) insert—
      "(6) The functions conferred on the Lord Chief Justice by the preceding provisions of this section may be exercised only after consulting the Lord Chancellor.
      (7) The functions conferred on the Lord Chancellor by subsection (3) may be exercised only after consultation with the Lord Chief Justice.
      (8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      206 (1) Section 24 (temporary additional judicial membership) is amended as follows.
      (2) For subsection (1) substitute—
      "(1) This section applies if both of the following conditions are met—

      (a) the Lord Chancellor thinks that it is expedient, after consulting the Lord Chief Justice, for a qualified person to be appointed to be a temporary additional judge of the Appeal Tribunal in order to facilitate in England and Wales the disposal of business in the Appeal Tribunal;

      (b) the Lord Chancellor requests the Lord Chief Justice to make such an appointment.

      (1A) The Lord Chief Justice may, after consulting the Lord Chancellor, appoint a qualified person as mentioned in subsection (1)(a).
      (1B) An appointment under this section is—

      (a) for such period, or

      (b) on such occasions,

      as the Lord Chief Justice determines, after consulting the Lord Chancellor."
      (3) In subsection (2) for "subsection (1)" substitute "this section".
      (4) After subsection (3) insert—
      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      207 In section 25 (tenure of appointed members) in subsection (4) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".
      Arbitration Act 1996 (c. 23)
      208 In section 105 of the Arbitration Act 1996 (jurisdiction of High Court and county court), after subsection (3) insert—
      "(3A) The Lord Chancellor must consult the Lord Chief Justice of England and Wales or the Lord Chief Justice of Northern Ireland (as the case may be) before making an order under this section.
      (3B) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section.
      (3C) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      Criminal Procedure and Investigations Act 1996 (c. 25)
      209 In section 19 of the Criminal Procedure and Investigations Act 1996 (rules of court), in subsection (3) for the words from "with any modifications" to the end substitute "or such provision with modifications".
      Family Law Act 1996 (c. 27)
      210 The Family Law Act 1996 is amended as follows.
      211 (1) Section 57 (jurisdiction of the courts) is amended as follows.
      (2) In subsections (3), (4) and (5) after "Lord Chancellor may" insert after consulting the Lord Chief Justice,".
      (3) In subsection (7) after "Lord Chancellor thinks appropriate" insert ", after consulting the Lord Chief Justice".
      (4) In subsection (9) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (5) In subsection (10) after "Lord Chancellor thinks expedient" insert ", after consulting the Lord Chief Justice,".
      (6) After subsection (11) insert—
      "(12) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      212 (1) Section 61 (appeals) is amended as follows.
      (2) In subsection (5) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (3) After subsection (6) insert—
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Defamation Act 1996 (c. 31)
      213 In section 9 of the Defamation Act 1996 (meaning of summary relief), after subsection (2) insert—
      "(2A) The Lord Chancellor must consult the Lord Chief Justice of England and Wales before making any order under subsection (1)(c).
      (2B) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Housing Act 1996 (c. 52)
      214 The Housing Act 1996 is amended as follows.
      215 In section 138 (introductory tenancies: jurisdiction of county court), omit subsections (4) to (6) (rules and directions).
      216 In section 143N (demoted tenancies: jurisdiction of county court), omit subsections (5) to (7) (rules and directions).
      Education Act 1996 (c. 56)
      217 In section 334 of the Education Act 1996 (Special Educational Needs Tribunal: President and members), in subsection (3)—

      (a) after "Lord Chancellor" in the first place insert "and of the Lord Chief Justice";

      (b) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".

      Deregulation (Model Appeal Provisions) Order 1996 (S.I. 1996/1678)
      218 In the Schedule (model rules for appeals) to the Deregulation (Model Appeal Provisions) Order 1996, after paragraph 6(3) insert—
      "(3A) The Lord Chancellor may exercise his power under subparagraph (3) to remove a person appointed to the panel of chairmen for England and Wales only with the concurrence of the Lord Chief Justice."
      Civil Procedure Act 1997 (c. 12)
      219 The Civil Procedure Act 1997 is amended as follows.
      220 (1) Section 2 (Civil Procedure Rule Committee) is amended as follows.
      (2) For subsection (1) substitute—
      "(1) Civil Procedure Rules are to be made by a committee known as the Civil Procedure Rule Committee, which is to consist of the following persons—

      (a) the Head of Civil Justice;

      (b) the Deputy Head of Civil Justice (if there is one);

      (c) the persons currently appointed in accordance with subsections (1A) and (1B).

      (1A) The Lord Chief Justice must appoint the persons falling within paragraphs (a) to (d) of subsection (2).
      (1B) The Lord Chancellor must appoint the persons falling within paragraphs (e) to (g) of subsection (2)."
      (3) In subsection (2) for "The Lord Chancellor must appoint" substitute "The persons to be appointed in accordance with subsections (1A) and (1B) are".
      (4) For subsection (3) substitute—
      "(3) Before appointing a person in accordance with subsection (1A), the Lord Chief Justice must consult the Lord Chancellor."
      (5) In subsection (4) for "under paragraph (e) or (f) of subsection (2), the Lord Chancellor must consult" substitute "in accordance with subsection (1B), the Lord Chancellor must consult the Lord Chief Justice and, if the person falls within paragraph (e) or (f) of subsection (2), must also consult".
      (6) After subsection (8) insert—
      "(9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      221 (1) Section 2A (power to change certain requirements relating to Committee) is amended as follows.
      (2) In subsection (1) for paragraph (a) substitute—
      "(a) amend section 2(2), (3) or (4), and".
      (3) For subsection (2) substitute—
      "(2) The Lord Chancellor may make an order under this section only with the concurrence of the Lord Chief Justice.
      (2A) Before making an order under this section the Lord Chancellor must consult the following persons—

      (a) the Head of Civil Justice;

      (b) the Deputy Head of Civil Justice (if there is one).

      (2B) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      222 (1) Section 3 (process for making Civil Procedure rules) (as amended by section 85 of the Courts Act 2003 (c. 39)) is amended as follows.
      (2) For subsections (3) and (4) substitute—
      "(3) The Lord Chancellor may allow or disallow Rules so made.
      (4) If the Lord Chancellor disallows Rules, he must give the Committee written reasons for doing so."
      (3) In subsection (5) for ", as allowed or altered" substitute "and allowed".
      (4) In subsection (6) omit "Subject to subsection (7),".
      (5) Omit subsection (7).
      223 After section 3 insert—
      "3A RULES TO BE MADE IF REQUIRED BY LORD CHANCELLOR
      (1) This section applies if the Lord Chancellor gives the Civil Procedure Rules Committee written notice that he thinks it is expedient for Civil Procedure Rules to include provision that would achieve a purpose specified in the notice.
      (2) The Committee must make such Rules as it considers necessary to achieve the specified purpose.
      (3) Those rules must be—

      (a) made within a reasonable period after the Lord Chancellor gives notice to the Committee;

      (b) made in accordance with section 3."

      224 (1) Section 4 (power to make consequential amendments) (as amended by section 85 of the Courts Act 2003 (c. 39)) is amended as follows.
      (2) In subsections (1) and (2) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (3) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1) or (2)."
      225 (1) Section 6 (Civil Justice Council) is amended as follows.
      (2) After subsection (2) insert—
      "(2A) The Lord Chancellor must decide the following questions—

      (a) how many members of the Council are to be drawn from each of the groups mentioned in subsection (2);

      (b) how many other members the Council is to have.

      (2B) It is for—

      (a) the Lord Chief Justice to appoint members of the judiciary to the Council;

      (b) the Lord Chancellor to appoint other persons to the Council."

      (3) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Plant Varieties Act 1997 (c. 66)
      226 (1) Schedule 3 to the Plant Varieties Act 1997 (Plant Varieties and Seeds Tribunal) is amended as follows.
      (2) In paragraph 5 (duration of appointment), after subparagraph (5) insert—
      "(5A) Where the appointing authority is the Lord Chancellor, the power conferred by sub-paragraph (5) may be exercised only with the concurrence of the Lord Chief Justice of England and Wales."
      (3) In paragraph 7 (the panels), in sub-paragraph (2) for the words in brackets substitute "(which makes it necessary to obtain the concurrence of the Lord Chancellor and certain judicial office holders to dismissals in certain cases)".
      Social Security Act 1998 (c. 14)
      227 The Social Security Act 1998 is amended as follows.
      228 In section 6 (panel for appointment to appeal tribunals), in subsection (5) for "A person may be removed from the panel by the Lord Chancellor" substitute "The Lord Chancellor may, with the concurrence of the Lord Chief Justice and the Lord President of the Court of Session, remove a person from the panel".
      229 In Schedule 1 (Appeal Tribunals: supplementary provisions), in paragraph 1(3) (tenure of office) after "by the Lord Chancellor" insert ", with the concurrence of the Lord Chief Justice,".
      230 In Schedule 4 (Social Security Commissioners), in paragraph 5 (removal) after sub-paragraph (1) insert—
      "(1A) The Lord Chancellor may remove a person under subparagraph (1) only with the concurrence of the following—

      (a) the Lord Chief Justice;

      (b) the Lord President of the Court of Session."

      Data Protection Act 1998 (c. 29)
      231 (1) Schedule 6 to the Data Protection Act 1998 (appeal proceedings) (as amended by paragraph 2 of Schedule 4 to the Freedom of Information Act 2000 (c.36)) is amended as follows.
      (2) In paragraph 2 (designation of persons to hear appeals in national security cases), after sub-paragraph (2) insert—
      "(3) The Lord Chancellor may make, or revoke, a designation under this paragraph only with the concurrence of all of the following—

      (a) the Lord Chief Justice;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland.

      (4) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under sub-paragraph (3) so far as they relate to a designation under this paragraph.
      (5) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under sub-paragraph (3) so far as they relate to a designation under this paragraph.
      (6) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under sub-paragraph (3) so far as they relate to a designation under this paragraph—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      (3) In paragraph 3 (constitution of Tribunal in national security cases) (as substituted by paragraph 2 of Schedule 4 to the Freedom of Information Act 2000 (c. 36))—

      (a) that paragraph becomes sub-paragraph (1) of paragraph 3;

      (b) after that sub-paragraph insert—

      "(2) The Lord Chancellor may designate a person to preside under this paragraph only with the concurrence of all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland.

      (3) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph.
      (4) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this paragraph.
      (5) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this paragraph—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      Crime and Disorder Act 1998 (c. 37)
      232 The Crime and Disorder Act 1998 (powers of magistrates' courts exercisable by single justice etc) is amended as follows.
      233 (1) Section 10 (appeals against parenting orders) is amended as follows.
      (2) In subsection (6) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".
      (3) After subsection (7) insert—
      "(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 92 of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Human Rights Act 1998 (c. 42)
      234 (1) Section 18 of the Human Rights Act 1998 (appointment to ECHR) is amended as follows.
      (2) In subsection (7), after "considers appropriate" insert "(in the case of the Lord Chancellor, after consulting the Lord Chief Justice of England and Wales)".
      (3) After subsection (7) insert—
      "(7A) Before making an order under subsection (7) the Lord Chancellor must consult the Lord Chief Justice of England and Wales.
      (7B) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Access to Justice Act 1999 (c. 22)
      235 The Access to Justice Act 1999 is amended as follows.
      236 (1) Section 56 (power to prescribe alternative destination of appeals) is amended as follows.
      (2) In subsection (4) for paragraphs (c) and (d) substitute—
      "(c) the President of the Queen's Bench Division,
      (d) the President of the Family Division, and
      (e) the Chancellor of the High Court."
      (3) After subsection (7) insert—
      "(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      237 (1) Section 68 (judges holding office in European or international courts) is amended as follows.
      (2) In the definition of "relevant international court" in subsection (2), for paragraph (b) substitute—
      "(b) any international court (apart from the European Court of Human Rights) which—

      (i) is designated in relation to the holder of any United Kingdom judicial office specified in paragraph (a) or (c) of the definition in subsection (2) by the Lord Chancellor, or

      (ii) is designated in relation to the holder of any United Kingdom judicial office specified in paragraph (b) of the definition in subsection (2) by the Secretary of State.

      (3) After subsection (7) insert—
      "(8) The Lord Chancellor may exercise functions conferred on him by this section only after consulting the Lord Chief Justice of England and Wales.
      (9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (8)."
      238 (1) Section 69 (Vice-President of Queen's Bench division) is amended as follows.
      (2) In subsection (1) for "Lord Chancellor may" substitute "Lord Chief Justice may, after consulting the Lord Chancellor,".
      (3) After subsection (1) insert—
      "(1A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1)."
      Immigration and Asylum Act 1999 (c. 33)
      239 The Immigration and Asylum Act 1999 is amended as follows.
      240 (1) Section 53 (applications for bail in immigration cases) is amended as follows.
      (2) After subsection (6) insert—
      "(6A) Before giving his approval under subsection (6) the Lord Chancellor must consult the Lord Chief Justice of England and Wales."
      (3) For subsection (7) substitute—
      "(7) Subsection (6A) does not apply insofar as regulations under this section relate to the sheriff or the Court of Session; but in such a case the Lord Chancellor must obtain the consent of the Scottish Ministers before giving his approval under subsection (6)."
      (4) After subsection (7) insert—
      "(8) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      241 In Schedule 7 (Immigration Services Tribunal), in paragraph 3 (terms and conditions of appointment of members) after sub-paragraph (4) insert—
      "(5) The Lord Chancellor may dismiss a person under subparagraph (4) only with the concurrence of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland."

      Financial Services and Markets Act 2000 (c. 8)
      242 (1) Schedule 13 (Financial Services and Markets Tribunal) of the Financial Services and Markets Act 2000 is amended as follows.
      (2) In paragraph 2 (president of the tribunal), after sub-paragraph (7) insert—
      "(8) The Lord Chancellor may appoint a person under sub-paragraph (7)(b) only after consulting the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland.

      (9) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph.
      (10) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this paragraph.
      (11) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this paragraph—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      (3) In paragraph 4 (terms of office), after sub-paragraph (2) insert—
      "(2A) The Lord Chancellor may remove a person under sub-paragraph (2) only with the concurrence of the following

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland."

      (4) In paragraph 8 (sittings) after "Lord Chancellor may" insert ", after consulting the President of the Financial Services and Markets Tribunal,".
      Terrorism Act 2000 (c. 11)
      243 The Terrorism Act 2000 is amended as follows.
      244 (1) In Schedule 3 (Proscribed Organisations Appeal Commission), paragraph 4 (sittings) is amended as follows.
      (2) In sub-paragraph (1) after "direct" insert "after consulting the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland".

      (3) After sub-paragraph (3) insert—
      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph.
      (5) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this paragraph.
      (6) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this paragraph—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      245 (1) Schedule 8 (detention) is amended as follows.
      (2) In paragraph 29 (warrants of further detention)—

      (a) in sub-paragraph (4)(a) for "by the Lord Chancellor" substitute "by the Lord Chief Justice of England and Wales after consulting the Lord Chancellor";

      (b) after sub-paragraph (4) insert—

      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under sub-paragraph (4)(a)."
      Local Government Act 2000 (c. 22)
      246 (1) Section 76 of the Local Government Act 2000 (case tribunals and interim case tribunals) is amended as follows.
      (2) In subsection (9) for "Lord Chancellor" substitute "Lord Chief Justice".
      (3) After subsection (9) insert—
      "(9A) The Lord Chief Justice must consult the Lord Chancellor before specifying a member of the Panel in accordance with subsection (9)."
      (4) In subsection (12) after "Lord Chancellor must" insert "consult the Lord Chief Justice and".
      (5) After subsection (14) insert—
      "(15) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Criminal Justice and Court Services Act 2000 (c. 43)
      247 (1) Schedule 1 of the Criminal Justice and Court Services Act 2000 (local probation boards) is amended as follows.
      (2) In paragraph 2 (membership)—

      (a) in sub-paragraph (2) for "Lord Chancellor" substitute "Lord Chief Justice, after consulting the Lord Chancellor";

      862

      (b) after sub-paragraph (7) insert—

      "(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subparagraph (2)."
      (3) In paragraph 3 (tenure of members), after sub-paragraph (3) insert—
      "(3A) The power conferred by sub-paragraph (3) may be exercised by the Lord Chancellor to remove a person appointed by him by virtue of paragraph 2(2) only with the concurrence of the Lord Chief Justice."
      International Criminal Court Act 2001 (c. 17)
      248 Section 26 of the International Criminal Court Act 2001 (definitions) is amended as follows—

      (a) that section becomes subsection (1) of section 26;

      (b) in that subsection for "by the Lord Chancellor" substitute "by the Lord Chief Justice of England and Wales after consulting the Lord Chancellor";

      (c) after that subsection insert—

      "(2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      Anti-terrorism, Crime and Security Act 2001 (c. 24)
      249 (1) In Schedule 6 to the Anti-terrorism, Crime and Security Act 2001 (Pathogens Access Appeal Commission), paragraph 4 (sittings) is amended as follows.
      (2) In sub-paragraph (1) after "direct" insert "after consulting the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland."

      (3) After sub-paragraph (3) insert—
      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under sub-paragraph (1).
      (5) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under sub-paragraph (1).
      (6) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under sub-paragraph (1)—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c.26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      Land Registration Act 2002 (c. 9)
      250 The Land Registration Act 2002 is amended as follows.
      251 (1) Section 127 (exercise of powers) is amended as follows.
      (2) In subsection (2)(a) for "Lord Chancellor" substitute "Lord Chief Justice, or a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) nominated by him, after consulting the Lord Chancellor".
      (3) In subsection (2)(h) after "consumer affairs" insert "nominated by the Lord Chancellor".
      252 In Schedule 9 (the Adjudicator), in paragraph 1 (holding of office), in sub-paragraph (2) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".
      Enterprise Act 2002 (c. 40)
      253 The Enterprise Act 2002 is amended as follows.
      254 (1) Section 268 (disqualification from office: general) is amended as follows.
      (2) In subsection (7) for "Lord Chancellor" substitute "Lord Chief Justice of England and Wales".
      (3) After subsection (15) insert—
      "(16) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (7)."
      255 In paragraph 2 of Schedule 2 (tenure of members of Competition Appeal Tribunal), after sub-paragraph (4) insert—
      "(5) The Lord Chancellor may remove a person from office under sub-paragraph (4) only with the concurrence of all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland."

      Finance Act 2003 (c. 14)
      256 (1) Schedule 17 to the Finance Act 2003 (stamp duty land tax: General and Special Commissioners, appeals and other proceedings) is amended as follows.
      (2) In paragraph 2 (regulations about determination of disputes), after sub-paragraph (1) insert—
      "(1A) The Lord Chancellor may make regulations under this paragraph only after consulting all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland.

      (1B) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph.
      (1C) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this paragraph.
      (1D) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this paragraph—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      (3) In paragraph 3 (regulations about jurisdiction of General or Special Commissioners), after sub-paragraph (3) insert—
      "(4) The Lord Chancellor may make regulations under this paragraph only after consulting all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland.

      (5) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph.
      (6) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this section.
      (7) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      (4) In paragraph 5 (regulations about quorum)—

      (a) that paragraph becomes sub-paragraph (1) of paragraph 5;

      864

      (b) after that sub-paragraph—

      "(2) The Lord Chancellor may make regulations under this paragraph only after consulting all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland.

      (3) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph.
      (4) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this section.
      (5) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      (5) In paragraph 11 (regulations), for sub-paragraph (1) substitute—
      "(1) Any power to make regulations under this Schedule is exercisable—

      (a) only with the consent of the Scottish Ministers;

      (b) subject to any other provision of this Schedule."

      Courts Act 2003 (c. 39)
      257 The Courts Act 2003 is amended as follows.
      258 (1) In section 2 (Court officers, staff and services), in subsection (7) for paragraphs (c) and (d) substitute—
      "(c) the President of the Queen's Bench Division,
      (d) the President of the Family Division, and
      (e) the Chancellor of the High Court."
      259 (1) Section 4 (establishment of courts boards) is amended as follows.
      (2) After subsection (5) insert—
      "(5A) Before making any order under subsection (2) or (4), the Lord Chancellor must consult the Lord Chief Justice."
      (3) After subsection (7) insert—
      "(7A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      260 (1) Section 5 (functions of courts boards) is amended as follows.
      (2) In subsection (5) after "Lord Chancellor must" insert ", after consulting the Lord Chief Justice,".
      (3) In subsection (7) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (4) After subsection (8) insert—
      "(9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      261 (1) Section 8 (local justice areas) is amended as follows.
      (2) After subsection (5) insert—
      "(5A) Before making any order under subsection (2) or (4), the Lord Chancellor must consult the Lord Chief Justice."
      (3) After subsection (7) insert—
      "(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      262 (1) Section 10 (appointment of lay justices etc) is amended as follows.
      (2) In subsection (2) for "Lord Chancellor" substitute "Lord Chief Justice".
      (3) In subsection (3) for "or on behalf of the Lord Chancellor" substitute "Lord Chief Justice".
      (4) After subsection (5) insert—
      "(6) The functions conferred on the Lord Chief Justice by subsections (2) and (3) may be exercised only after consulting the Lord Chancellor.
      (7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2) or (3)."
      263 In section 11 (resignation and removal of lay justices), in subsection (2)—

      (a) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,";

      (b) in paragraph (b) after "Lord Chancellor" insert "with the concurrence of the Lord Chief Justice".

      264 (1) Section 13 (entry of names in the supplemental list) is amended as follows.
      (2) In subsection (3) for "Lord Chancellor may" substitute "Lord Chief Justice may, with the concurrence of the Lord Chancellor,".
      (3) In subsection (5) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".
      (4) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (3)."
      265 In section 14 (removal of names from the supplemental list), in subsection (2)(b) after "Lord Chancellor" insert ", with the concurrence of the Lord Chief Justice,".
      266 (1) Section 15 (lay justices' allowances) is amended as follows.
      (2) In subsection (7) for "Lord Chancellor" substitute "Lord Chief Justice".
      (3) After subsection (8) insert—
      "(9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (7)."
      267 In section 16 (records of lay justices), after subsection (3) insert—
      "(4) The Lord Chancellor must consult the Lord Chief Justice before—

      (a) appointing a person under subsection (1), or

      (b) giving a direction under subsection (2).

      (5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      268 (1) Section 17 (chairman and deputy chairmen) is amended as follows.
      (2) In subsection (3) for "Lord Chancellor, or a person acting on his behalf, may" substitute "Lord Chief Justice may, with the concurrence of the Lord Chancellor,".
      (3) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      269 (1) Section 19 (training, development and appraisal of lay justices) is amended as follows.
      (2) In subsection (2) for "Lord Chancellor" in each place substitute "Lord Chief Justice".
      (3) In subsection (3)—

      (a) for "Lord Chancellor" substitute "Lord Chief Justice";

      (b) for "appropriate training and training materials" substitute "training and training materials that appear to him, after consulting the Lord Chancellor, to be appropriate".

      (4) After subsection (3) insert—
      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      270 (1) Section 20 (rules) is amended as follows.
      (2) In subsection (1) for "Lord Chancellor" substitute "Lord Chief Justice".
      (3) In subsection (2)—

      (a) for "Lord Chancellor" substitute "Lord Chief Justice";

      (b) before paragraph (a) insert—

      "(za) the Lord Chancellor,".
      (4) After subsection (2) insert—
      "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions of making the rules referred to in this section."
      271 (1) Section 21 (duty to consult lay justices on matters affecting them etc) is amended as follows.
      (2) That section becomes subsection (1) of section 21.
      (3) In that subsection after "Lord Chancellor" insert "and the Lord Chief Justice".
      (4) After that subsection insert—
      "(2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      272 In section 22 (appointment of District Judges (Magistrates' Courts)), in subsection (5) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".
      273 In section 24 (Deputy District Judges (Magistrates' Courts)), in subsection (4) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice.".
      274 (1) Section 25 (District Judges (Magistrates' Courts) as justices of the peace) is amended as follows.
      (2) In subsection (2), leave out "or on behalf of the Lord Chancellor" and insert "the Lord Chief Justice, after consulting the Lord Chancellor".
      (3) After subsection (2) insert—
      "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)."
      275 (1) Section 27 (justices' clerks and assistant clerks) is amended as follows.
      (2) In subsection (1)(b) after "Lord Chancellor" insert ", after consulting the Lord Chief Justice,".
      (3) In subsection (3)—

      (a) in paragraph (a) after "must" insert ", after consulting the Lord Chief Justice,";

      (b) in paragraph (b) for "subsection (4)" substitute "subsections (4A) to (4C)".

      (4) For subsection (4) substitute—
      "(4A) The Lord Chancellor may change an assignment of a justices' clerk so that he is no longer assigned to a local justice area ("the relevant area") only if the conditions in subsections (4B) and (4C) are met.
      (4B) Before changing the assignment, the Lord Chancellor must consult—

      (a) the chairman of the lay justices assigned to the relevant area, or

      (b) if that is not possible or not practicable, the deputy chairman or such of the lay justices assigned to or acting in the relevant area as it appears to the Lord Chancellor appropriate to consult.

      (4C) The Lord Chief Justice must agree to the change."
      (5) After subsection (6) insert—
      "(6A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      276 (1) Section 28 (functions) is amended as follows.
      (2) In subsection (8) after "Lord Chancellor" insert "with the concurrence of the Lord Chief Justice".
      (3) After subsection (9) insert—
      "(10) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      277 (1) Section 30 (places, dates and times of sittings) is amended as follows.
      (2) In subsection (1) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (3) In subsection (7) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (4) After subsection (8) insert—
      (9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1) or (7)."
      278 (1) Section 34 (costs in legal proceedings) is amended as follows.
      (2) In subsection (5) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (3) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      279 For section 62 substitute—
      "62 HEAD AND DEPUTY HEAD OF CIVIL JUSTICE
      (1) The Master of the Rolls is Head of Civil Justice.
      (2) The Lord Chief Justice may appoint a person to be Deputy Head of Civil Justice.
      (3) The Lord Chief Justice must not appoint a person under subsection (2) unless these conditions are met—

      (a) the Lord Chief Justice has consulted the Lord Chancellor;

      (b) the person to be appointed is one of the following—

      (i) the Chancellor of the High Court;

      (ii) an ordinary judge of the Court of Appeal.

      (4) A person appointed as Deputy Head of Civil Justice holds that office in accordance with the terms of his appointment.
      (5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      280 (1) Section 64 (power to alter judicial titles) is amended as follows.
      (2) In subsection (2)—

      (a) omit "Vice-Chancellor";

      (b) insert at the appropriate place—

      (i) "Chancellor of the High Court";

      (ii) "Deputy Head of Civil Justice";

      (iii) "Deputy Head of Criminal Justice";

      (iv) "Deputy Head of Family Justice";

      (v) "Head of Civil Justice";

      (vi) "Head of Criminal Justice";

      (vii) "Head of Family Justice";

      (viii) "President of the Courts of England and Wales";

      (ix) "President of the Queen's Bench Division".

      (3) After subsection (3) insert—
      "(3A) The Lord Chancellor may make an order under this section only with the concurrence of the Lord Chief Justice "
      (4) In subsection (4)—

      (a) omit paragraph (a);

      (b) for paragraphs (c) arid (d) substitute—

      "(ba) the President of the Queen's Bench Division,

      (c) the President of the Family Division, and

      (d) the Chancellor of the High Court."

      (5) After subsection (6) insert—
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      281 (1) Section 70 (Criminal Procedure Rule Committee) is amended as follows.
      (2) In subsection (1) for paragraph (b) substitute—
      "(b) the persons currently appointed in accordance with subsections (1A) and (1B)."
      (3) After subsection (1) insert—
      "(1A) The Lord Chief Justice must appoint the persons falling within paragraphs (a) to (e) of subsection (2).
      (1B) The Lord Chancellor must appoint the persons falling within paragraphs (f) to (k) of subsection (2)."
      (4) In subsection (2) for "The Lord Chancellor must appoint" substitute "The persons to be appointed in accordance with subsections (1A) and (1B) are".
      (5) For subsection (3) substitute—
      "(3) Before appointing a person in accordance with subsection (1A), the Lord Chief Justice must consult the Lord Chancellor.
      (3A) Before appointing a person in accordance with subsection (1B), the Lord Chancellor must consult the Lord Chief Justice."
      (6) After subsection (5) insert—
      "(5A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      282 (1) Section 71 (power to change certain requirements relating to Committee) is amended as follows.
      (2) In subsection (1) for paragraph (a) substitute—
      "(a) amend section 70(2) or (3A), and".
      (3) For subsection (2) substitute—
      "(2) The Lord Chancellor may make an order under this section only with the concurrence of the Lord Chief Justice.
      (3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      283 (1) Section 72 (process for making Criminal Procedure Rules) is amended as follows.
      (2) For subsections (3) and (4) substitute—
      "(3) The Lord Chancellor may, with the concurrence of the Secretary of State, disallow rules so made.
      (4) If the Lord Chancellor disallows rules, he must give the Committee written reasons for doing so."
      (3) In subsection (5) for ", as allowed or altered" substitute "and allowed".
      284 After section 72 insert—
      "72A RULES TO BE MADE IF REQUIRED BY LORD CHANCELLOR
      (1) This section applies if the Lord Chancellor gives the Criminal Procedure Rules Committee written notice that he thinks it is expedient for Criminal Procedure Rules to include provision that would achieve a purpose specified in the notice.
      (2) The Committee must make such rules as it considers necessary to achieve the specified purpose.
      (3) Those rules must be—

      (a) made within a reasonable period after the Lord Chancellor gives notice to the Committee;

      (b) made in accordance with section 72."

      285 (1) Section 73 (power to amend legislation in connection with Criminal Procedure Rules) is amended as follows.
      (2) That section becomes subsection (1) of section 73.
      (3) In that subsection after "Secretary of State" insert "and after consulting the Lord Chief Justice".
      (4) After that subsection insert—
      "(2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      286 (1) Section 77 (Family Procedure Rule Committee) is amended as follows.
      (2) In subsection (1) for paragraph (b) substitute—
      "(b) the persons currently appointed in accordance with subsections (1A) and (1B)."
      (3) After subsection (1) insert—
      "(1A) The Lord Chief Justice must appoint the persons falling within paragraphs (a) to (e) of subsection (2).
      (1B) The Lord Chancellor must appoint the persons falling within paragraphs (f) to (o) of subsection (2)."
      (4) In subsection (2) for "The Lord Chancellor must appoint" substitute "The persons to be appointed in accordance with subsections (1A) and (1B) are".
      (5) In subsection (3) for "under subsection (2), Lord Chancellor must consult" substitute "in accordance with subsection (1A), the Lord Chief Justice must consult the Lord Chancellor and".
      (6) Omit subsection (4).
      (7) In subsection (5) for "under subsection (2)(h) to (m), the Lord Chancellor must consult" substitute "in accordance with subsection (1B), the Lord Chancellor must consult the Lord Chief Justice and, if the person falls within any of paragraphs (h) to (m) of subsection (2), must also consult".
      (8) After section (6) insert—
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      287 (1) Section 78 (power to amend certain requirements relating to Committee) is amended as follows.
      (2) In subsection (1)(a) after "Lord Chancellor" insert "or Lord Chief Justice".
      (3) After subsection (1) insert—
      "(1A) The Lord Chancellor may make an order under this section only with the concurrence of the Lord Chief Justice."
      (4) After subsection (2) insert—
      "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      288 (1) Section 79 (process for making Family Procedure Rules) is amended as follows.
      (2) For subsections (3) and (4) substitute—
      "(3) The Lord Chancellor may disallow rules so made.
      (4) If the Lord Chancellor disallows rules, he must give the Committee written reasons for doing so."
      (3) In subsection (5) for ", as allowed or altered" substitute "and allowed".
      289 After section 79 insert—
      "79A RULES TO BE MADE IF REQUIRED BY LORD CHANCELLOR
      (1) This section applies if the Lord Chancellor gives the Family Procedure Rules Committee written notice that he thinks it is expedient for Family Procedure Rules to include provision that would achieve a purpose specified in the notice.
      (2) The Committee must make such rules as it considers necessary to achieve the specified purpose.
      (3) Those rules must be—

      (a) made within a reasonable period after the Lord Chancellor gives notice to the Committee;

      (b) made in accordance with section 79."

      290 (1) Section 80 (power to amend legislation in connection with the rules) is amended as follows.
      (2) That section becomes subsection (1) of section 80.
      (3) In that subsection after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (4) After that subsection insert —
      "(2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      291 In section 83 (Civil Procedure Rule Committee), omit subsection (3).
      292 In section 92 (fees), in subsection (5) for paragraphs (c) and (d) substitute—
      "(ba) the President of the Queen's Bench Division;
      (c) the President of the Family Division;
      (d) the Chancellor of the High Court;".
      293 In section 107 (interpretation), in subsection (6) omit "by the Lord Chancellor".
      294 In section 108 (rules, regulations and orders), in subsections (1) and (6) after "Lord Chancellor" insert "or Lord Chief Justice".
      295 (1) Section 109 (minor and consequential amendments etc) is amended as follows.
      (2) In subsection (4)—

      (a) after "Lord Chancellor may" substitute ", after consulting the Lord Chief Justice,";

      (b) after "considers" insert ", after consulting the Lord Chief Justice,".

      (3) After subsection (6) insert—
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      296 (1) Schedule 1 (constitution and procedure of courts boards) is amended as follows.
      (2) For paragraph 1 substitute—
      "1 (1) The members of each courts board are to be appointed by the Lord Chancellor.
      (2) The Lord Chancellor may appoint a member of a description mentioned in paragraph 2(a) only with the concurrence of the Lord Chief Justice."
      (3) In paragraph 8 (meaning of regulations) after "Lord Chancellor" insert "after consulting the Lord Chief Justice".
      (4) After paragraph 8 insert—
      "9 The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this Schedule."
      297 In Schedule 7 (High Court writs of execution), in paragraph 12(4) (regulations) for paragraphs (c) and (d) substitute—
      "(ba) the President of the Queen's Bench Division,
      (c) the President of the Family Division,
      (d) the Chancellor of the High Court, and".
      Extradition Act 2003 (c. 41)
      298 The Extradition Act 2003 is amended as follows.
      299 (1) Section 67 (the appropriate judge) is amended as follows.
      (2) In subsection (1)(a) for "by the Lord Chancellor" substitute "by the Lord Chief Justice of England and Wales after consulting the Lord Chancellor".
      (3) After subsection (4) insert—
      "(5) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1)(a)."
      300 (1) Section 139 (the appropriate judge) is amended as follows.
      (2) In subsection (1)(a) for "by the Lord Chancellor" substitute "by the Lord Chief Justice of England and Wales after consulting the Lord Chancellor".
      (3) After subsection (4) insert—
      "(5) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1)(a)."
      Criminal Justice Act 2003 (c. 44)
      301 The Criminal Justice Act 2003 is amended as follows.
      302 (1) Section 167 (Sentencing Guidelines Council) is amended as follows.
      (2) In subsection (1)(b)—

      (a) for "Lord Chancellor" substitute "Lord Chief Justice";

      (b) for "Lord Chief Justice" substitute "Lord Chancellor".

      (3) After subsection (9) insert—
      "(10) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      303 (1) Section 168 (Sentencing Guidelines Council: supplementary) is amended as follows.
      (2) In subsection (1) for paragraphs (b) and (c) substitute—
      "(b) enabling the Lord Chancellor to remove a judicial member from office, with the concurrence of the Lord Chief Justice, on the grounds of incapacity or misbehaviour, and
      (c) enabling the Secretary of State to remove a non-judicial member from office on the grounds of incapacity or misbehaviour."
      (3) For subsection (2) substitute—
      "(1A) The following provisions apply to an order under subsection (1)—

      (a) if the order includes provision falling within subsection (1)(a), the Lord Chancellor must consult the Lord Chief Justice about that provision before making the order;

      (b) if the order includes provision falling within subsection (1)(b), the order may not be made unless the Lord Chief Justice agrees to the inclusion of that provision.

      (1B) The Lord Chief Justice may, with the concurrence of the Lord Chancellor, by order make provision as to the proceedings of the Council."
      (4) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1B)."
      304 (1) Section 330 (orders and rules) is amended as follows.
      (2) In subsection (1)(b) after "Lord Chancellor" insert "or the Lord Chief Justice".
      (3) After subsection (2) insert—
      "(2A) Where a statutory instrument is made by the Lord Chief Justice in the exercise of the power referred to in subsection (1)(b), the Statutory Instruments Act 1946 applies to the instrument as if it contained an order made by a Minister of the Crown."
      Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (S.I. 2004/1861)
      305 In regulation 4 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (President of Employment Tribunals), after paragraph (5) insert—
      "(5A) Where the Lord Chancellor is the appointing office holder, he may revoke an appointment in accordance with paragraph (5) only with the concurrence of the Lord Chief Justice."
      AMENDMENTS OF OR RELATING TO ENACTMENTS REPEALED OR AMENDED OTHERWISE THAN BY THIS ACT
      Introduction
      306 (1) This Part of this Schedule contains amendments of or relating to enactments that have already been amended or repealed by provisions of other Acts.
      (2) In each case the amending or repealing provision is specified, in relation to the enactment referred to, as the "original amending provision".
      (3) An amendment contained in any provision of this Part of this Schedule has effect only until the original amending provision comes fully into force in relation to the enactment referred to in that provision of this Part of this Schedule.
      Promissory Oaths Act 1871 (c. 48)
      307 (1) Section 2 of the Promissory Oaths Act 1871 (persons before whom oaths to be taken) is amended as follows.
      (2) In the paragraph beginning "In England" for "Lord High Chancellor of Great Britain" substitute "Lord Chief Justice of England and Wales".
      (3) After that paragraph insert—
      "The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under the preceding paragraph."
      (4) In relation to the enactment referred to in this paragraph, the original amending provision is paragraph 51 of Schedule 8 to the Courts Act 2003 (c. 39).
      Children and Young Persons Act 1933 (c. 12)
      308 (1) Schedule 2 to the Children and Young Persons Act 1933 (constitution of youth courts) is amended as follows.
      (2) In paragraph 6—

      (a) in paragraph (a)—

      (i) after "he may" insert "after consulting the Lord Chief Justice";

      (ii) after "thinks fit" insert "after consulting the Lord Chief Justice";

      (b) in paragraph (b)—

      (i) after "may" insert ", after consulting the Lord Chief Justice,";

      (ii) after "thinks fit" insert ", after consulting the Lord Chief Justice,".

      (3) In paragraph 14 after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".
      (4) In paragraph 15(b)—

      (a) for "by the Lord Chancellor" substitute "by the Lord Chief Justice, after consulting the Lord Chancellor,";

      (b) for "order of the Lord Chancellor" substitute "order made by the Lord Chief Justice after consulting the Lord Chancellor".

      (5) In paragraph 16 for "consent of the Lord Chancellor," substitute "consent of the Lord Chief Justice, given after consulting the Lord Chancellor,".
      (6) In paragraph 18—

      (a) for "Lord Chancellor" in the first place substitute "Lord Chief Justice";

      (b) for "Lord Chancellor" in the second place substitute "Lord Chief Justice, after consulting the Lord Chancellor".

      (7) After paragraph 21 insert—
      "22 The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this Schedule."
      (8) In relation to the enactments referred to in this paragraph, the original amending provision is Schedule 10 to the Courts Act 2003 (c. 39).
      Maintenance Orders Act 1950 (c. 37)
      309 (1) In section 25(1) of the Maintenance Orders Act 1950 (power to make rules about procedure under section 144 of the Magistrates' Court Act 1980), for "Lord Chancellor" substitute "Lord Chief Justice of England and Wales".
      (2) In relation to the enactment referred to in this paragraph, the original amending provision is paragraph 91(2) of Schedule 8 to the Courts Act 2003.
      Courts Act 1971 (c. 23)
      310 (1) In section 27 of the Courts Act 1971, in the definition of "the senior judges" in subsection (9) for "the Vice-Chancellor and the President of the Family Division" substitute "the President of the Queen's Bench Division, the President of the Family Division and the Chancellor of the High Court".
      (2) In relation to the enactment referred to in this paragraph, the original amending provision is paragraph 139(a) of Schedule 8 to the Courts Act 2003.
      Restrictive Practices Court Act 1976 (c. 33)
      311 The Restrictive Practices Court Act 1976 is amended as follows.
      312 (1) In section 1 (the Court), after subsection (3) insert—
      "(3A) The Lord Chancellor may select a person under subsection (3) only with the concurrence of all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland.

      (3B) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section.
      (3C) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this section.
      (3D) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      (2) In relation to the enactment referred to in this paragraph, the original amending provision is section 1 of the Competition Act 1998 (c. 41).
      313 (1) Section 2 (judges of the Court) is amended as follows.
      (2) In subsections (1)(a) and (3) for "Lord Chancellor" substitute "Lord Chief Justice of England and Wales".
      (3) After subsection (4) insert—
      "(5) The functions conferred on the Lord Chief Justice of England and Wales by this section may be exercised only after consulting the Lord Chancellor.
      (6) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      (4) In relation to the enactment referred to in this paragraph, the original amending provision is section 1 of the Competition Act 1998 (c. 41).
      314 (1) Section 3 (non-judicial members) is amended as follows.
      (2) After subsection (3) insert—
      "(4) The Lord Chancellor may exercise his functions under subsection (2)(b) only with the concurrence of all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland.

      (5) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section.
      (6) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this section.
      (7) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      (3) In relation to the enactment referred to in this paragraph, the original amending provision is section 1 of the Competition Act 1998 (c. 41).
      315 (1) Section 4 (provision for additional judges or members) is amended as follows.
      (2) In subsection (1), in paragraph (a) after "consultation with" insert "the Lord Chief Justice of England and Wales,".
      (3) After subsection (2) insert—
      "(3) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      (4) In relation to the enactment referred to in this paragraph, the original amending provision is section 1 of the Competition Act 1998 (c.41).
      316 (1) Section 6 (administration) is amended as follows.
      (2) In subsection (5) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice of England and Wales,".
      (3) After subsection (6) insert—
      "(7) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      (4) In relation to the enactment referred to in this paragraph, the original amending provision is section 1 of the Competition Act 1998.
      317 (1) In section 9 (procedure), in subsection (1) for "Lord Chancellor" substitute "president of the Court with the concurrence of the Lord Chancellor".
      (2) In relation to the enactment referred to in this paragraph, the original amending provision is section 1 of the Competition Act 1998 (c. 41).
      Magistrates' Courts Act 1980 (c. 43)
      318 The Magistrates' Courts Act 1980 is amended as follows.
      319 (1) Section 67 (family proceedings courts and panels) is amended as follows.
      (2) In subsection (2)(a) for "by the Lord Chancellor" substitute "by the Lord Chief Justice, after consulting the Lord Chancellor,".
      (3) In subsection (5) for "on the Lord Chancellor" substitute ", exercisable by the Lord Chancellor with the concurrence of the Lord Chief Justice,".
      (4) After subsection (8) insert—
      "(9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)(a)."
      (5) In relation to the enactment referred to in this paragraph, the original amending provision is section 49(1) of the Courts Act 2003.
      320 (1) Section 68 (combined family panels) is amended as follows.
      (2) In subsection (2), after "thinks fit" insert "after consulting the Lord Chief Justice".
      (3) After subsection (6) insert—
      "(6A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      (4) In relation to the enactment referred to in this paragraph, the original amending provision is section 49(2) of the Courts Act 2003 (c. 39).
      321 (1) In section 146 (rules relating to youth court panels and composition of youth court), in subsection (2) for "Lord Chancellor" substitute "Lord Chief Justice".
      (2) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his powers under rules made under this section."
      (3) In relation to the enactment referred to in this paragraph, the original amending provision is section 50(3) of the Courts Act 2003.
      Supreme Court Act 1981 (c. 54)
      322 (1) Section 130 of the Supreme Court Act 1981 (fees to be taken in Supreme Court) is amended as follows.
      (2) In subsection (2)(a) for "President of the Family Division and the Vice-Chancellor" substitute "President of the Queen's Bench Division, President of the Family Division and the Chancellor of the High Court".
      (3) In relation to the enactment referred to in this paragraph, the original amending provision is paragraph 263 of Schedule 8 to the Courts Act 2003 (c. 39).
      Matrimonial and Family Proceedings Act 1984 (c. 42)
      323 The Matrimonial and Family Proceedings Act 1984 is amended as follows.
      324 (1) Section 40 (family proceedings rules) is amended as follows.
      (2) In subsection (1)—

      (a) for "by the Lord Chancellor together with any four or more of the following persons, namely—" substitute "by a committee known as the Family Proceedings Rule Committee, which is to consist of the following persons—"

      (b) before paragraph (a) insert—

      "(za) the Lord Chief Justice,".
      (3) For subsection (3) substitute—
      "(3) The members of the Family Proceedings Rule Committee, other than those eligible to act by virtue of their office, are appointed under subsection (3ZA) or (3ZB).
      (3ZA) The Lord Chief Justice must appoint the persons referred to in paragraphs (b), (c) (d) and (e) of subsection (1), after consulting the Lord Chancellor.
      (3ZB) The Lord Chancellor must appoint the persons referred to in paragraphs (f) and (g) of subsection (1), after consulting the Lord Chief Justice.
      (3ZC) A person is to be appointed under subsection (3ZA) or (3ZB) for such period as the Lord Chancellor determines after consulting the Lord Chief Justice."
      (4) Omit subsection (5).
      (5) In relation to the enactment referred to in this paragraph, the original amending provision is paragraph 278(a) of the Courts Act 2003.
      325 (1) After section 40 insert—
      "40A PROCESS FOR MAKING RULES OF COURT UNDER SECTION 40
      (1) Family proceedings rules must be—

      (a) signed by a majority of the members of the Family Proceedings Rule Committee, and

      (b) submitted to the Lord Chancellor.

      (2) The Lord Chancellor may allow or disallow rules so made.
      (3) If the Lord Chancellor disallows rules, he must give the Committee written reasons for doing so.
      (4) Rules so made and allowed by the Lord Chancellor—

      (a) come into force on such day as the Lord Chancellor directs, and

      (b) are to be contained in a statutory instrument to which the Statutory Instruments Act 1946 applies as if the instrument contained rules made by a Minister of the Crown.

      (5) A statutory instrument containing Family Proceedings rules is subject to annulment in pursuance of a resolution of either House of Parliament.
      (6) In this section and section 40B "Family Proceedings rules" means rules of court made under section 40.
      40B RULES TO BE MADE IF REQUIRED BY LORD CHANCELLOR
      (1) This section applies if the Lord Chancellor gives the Family Proceedings Rule Committee written notice that he thinks it is expedient for Family Proceedings rules to include provision that would achieve a purpose specified in the notice.
      (2) The Committee must make such Family Proceedings rules as it considers necessary to achieve the specified purpose.
      (3) Those rules must be—

      (a) made within a reasonable period after the Lord Chancellor gives notice to the Committee;

      (b) made in accordance with section 40A."

      (2) The enactment referred to in this paragraph, for the purposes of paragraph 306(3), is section 40 of the Matrimonial Proceedings Act 1984, and in relation to that enactment the original amending provision is paragraph 278(a) of the Courts Act 2003.
      Social Security Administration Act 1992 (c. 5)
      326 (1) Schedule 2 of the Social Security Administration Act 1992 (Commissioners, Tribunals etc—supplementary provisions) is amended as follows.
      (2) In paragraph (1) (tenure of office), after sub-paragraph (5) insert—
      "(5A) The Lord Chancellor may exercise a power conferred on him by sub-paragraph (4) above only with the concurrence of all of the following—

      (a) the Lord Chief Justice;

      (b) the Lord President of the Court of Session."

      (3) In relation to the enactment referred to in this paragraph, the original amending provision is section 39(3) of the Social Security Act 1998.
      Civil Procedure Act 1997 (c. 12)
      327 (1) Section 2 of the Civil Procedure Act 1997 (Civil Procedure Rule Committee) is amended as follows.
      (2) After subsection (8) insert—
      "(9) If the Lord Chancellor disallows rules under subsection (8), he must give the Civil Procedure Rule Committee written reasons for doing so."
      (3) In relation to the enactment referred to in this paragraph, the original amending provision is section 85(1) of the Courts Act 2003 (c. 39).
      Justices of the Peace Act 1997 (c. 25)
      328 (1) The Justices of the Peace Act 1997 is amended as follows.
      (2) In relation to the enactments in that Act referred to below, the original amending provision is section 6(4) of the Courts Act 2003 (c. 39).
      329 (1) Section 1 (Commission areas) is amended as follows.
      (2) In subsection (2) for "by the Lord Chancellor by order made by statutory instrument" substitute "by order made by the Lord Chancellor, after consulting the Lord Chief Justice, by statutory instrument".
      (3) After subsection (3) insert—
      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      330 (1) Section 4 (petty sessions areas) is amended as follows.
      (2) In subsection (2) for "by the Lord Chancellor by order made by statutory instrument" substitute "by order made by the Lord Chancellor, after consulting the Lord Chief Justice, by statutory instrument".
      (3) After subsection (3) insert—
      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      331 In section 5 (appointment and removal of justices of the peace), in subsection (1) for "in like manner" substitute "by the Lord Chancellor with the concurrence of the Lord Chief Justice".
      332 (1) Section 6 (residence qualification) is amended as follows.
      (2) In subsection (3) for "Lord Chancellor is" substitute "Lord Chancellor and the Lord Chief Justice are both".
      (3) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      333 In section 7 (supplemental list for England and Wales), in subsection (4)—

      (a) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,";

      (b) for "Lord Chancellor is" substitute "Lord Chancellor and the Lord Chief Justice are both".

      334 In section 8 (removal of name from supplemental list), in subsection (1) after "Lord Chancellor" insert ", with the concurrence of the Lord Chief Justice,".
      335 (1) Section 9 (effect of entry of name in supplemental list) is amended as follows.
      (2) In subsection (3) for "by the Lord Chancellor" substitute "by the Lord Chief Justice".
      (3) After subsection (4) insert—
      "(5) The Lord Chief Justice may not give an authorisation under subsection (3) unless the Lord Chancellor concurs.
      (6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (3)."
      336 In section 10A (appointment and tenure), in subsection (3) after "Lord Chancellor" insert ". with the concurrence of the Lord Chief Justice,".
      337 In section 10B (deputies), in subsection (2) after "Lord Chancellor" insert ", with the concurrence of the Lord Chief Justice,".
      338 (1) Section 10C (status) is amended as follows.
      (2) In subsection (3) for "given by the Lord Chancellor from time to time" substitute "given by the Lord Chief Justice from time to time after consulting the Lord Chancellor".
      (3) After subsection (4) insert—
      "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      339 (1) Section 24 (rules as to chairmanship and size of bench) is amended as follows.
      (2) In subsection (5) omit "by the Lord Chancellor".
      (3) After subsection (5) insert—
      "(6) Rules under this section that relate to the matters referred to in any of paragraphs (c) to (e) of subsection (2) are to be made by the Lord Chief Justice after consulting the Lord Chancellor.
      (7) Any other rules under this section are to be made by the Lord Chancellor after consulting the Lord Chief Justice.
      (8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      340 In section 25 (records of justices of the peace) after subsection (4) insert—
      "(5) The Lord Chancellor must consult the Lord Chief Justice before—

      (a) designating a justice under subsection (1), or

      (b) giving a direction under subsection (2).

      (6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      341 (1) Section 26 (Greater Manchester, Merseyside and Lancashire) is amended as follows.
      (2) In subsection (2)—

      (a) in paragraph (a) after "Lord Chancellor insert "or the Lord Chief Justice";

      (b) in paragraph (b)—

      (i) after "Lord Chancellor" in the first place insert "or the Lord Chief Justice";

      (ii) for "the Lord Chancellor" in the second place substitute "that person, or those persons,".

      (3) In subsection (3)—

      (a) in paragraph (a) after "Lord Chancellor" insert "or the Lord Chief Justice";

      (b) in paragraph (b)—

      (i) after "Lord Chancellor" in the first place insert "or the Lord Chief Justice";

      (ii) for "the Lord Chancellor" in the second place substitute "that person, or those persons,".

      (4) After subsection (3) insert—
      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      342 (1) Section 27A (magistrates' courts committees) is amended as follows.
      (2) In subsection (2) for "by the Lord Chancellor by order made by statutory instrument" substitute "by order made by the Lord Chancellor, after consulting the Lord Chief Justice, by statutory instrument".
      (3) After subsection (3) insert—
      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      343 (1) Section 27B (alteration of committee areas) is amended as follows.
      (2) In subsection (4) before paragraph (a) insert—
      (za) the Lord Chief Justice;".
      (3) After subsection (10) insert—
      "(11) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      344 (1) Section 33 (alteration of petty sessions areas) is amended as follows.
      (2) In subsection (2) after "Lord Chancellor" in the first place insert "after he has consulted the Lord Chief Justice".
      (3) In subsection (3)—

      (a) in paragraph (a) after "Lord Chancellor thinks fit" insert "after consulting the Lord Chief Justice";

      (b) for paragraph (b) substitute—

      "(b) a magistrates' court committee fail to comply within six months with a direction under subsection (2);
      (bb) the Lord Chancellor is, after consulting the Lord Chief Justice, dissatisfied with the draft order or report submitted in pursuance of such a direction; or".
      (4) After subsection (3) insert—
      "(3A) The Lord Chancellor may only make an order to which subsection (3) applies after consulting the Lord Chief Justice."
      (5) In subsection (4) after "appear to the Lord Chancellor" insert ", after consulting the Lord Chief Justice,".
      (6) After subsection (5) insert—
      "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      345 (1) Section 53A (costs in legal proceedings) is amended as follows.
      (2) In subsection (4) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice,".
      (3) After subsection (6) insert —
      "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."
      346 (1) Section 54 (indemnification of justices and justices' clerks) is amended as follows.
      (2) In subsection (6) for "by the Lord Chancellor" substitute "by the Lord Chief Justice after consulting the Lord Chancellor".
      (3) After subsection (9) insert—
      "(10) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (6)."
      347 (1) Section 64 (training courses) is amended as follows.
      (2) In subsection (1) for "by the Lord Chancellor" substitute "by the Lord Chief Justice after consulting the Lord Chancellor".
      (3) After subsection (3) insert—
      "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1)."
      Data Protection Act 1998 (c. 29)
      348 (1) Paragraph 3 of Schedule 6 to the Data Protection Act 1998 (constitution of Tribunal in national security cases) is amended as follows.
      (2) That paragraph becomes sub-paragraph (1) of paragraph 3.
      (3) After that sub-paragraph insert—
      "(2) The Lord Chancellor may designate a person to preside under this paragraph only with the concurrence of all of the following—

      (a) the Lord Chief Justice of England and Wales;

      (b) the Lord President of the Court of Session;

      (c) the Lord Chief Justice of Northern Ireland.

      (3) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph.
      (4) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this paragraph.
      (5) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this—

      (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);

      (b) a Lord Justice of Appeal (as defined in section 88 of that Act)."

      (4) In relation to the enactment referred to in this paragraph, the original amending provision is paragraph 2 of Schedule 4 to the Freedom of Information Act 2000 (c. 36)."
      The noble and learned Lord said: My Lords, I inadvertently did not speak to this amendment although I was supposed to do so, for which I apologise.
      This is part of a large group of amendments that give effect to the commitment I gave to the House in July to bring the Bill into conformity with your Lordships' decision to retain the Lord Chancellor. As your Lordships will be aware, this has been no small task and there are a few further changes to the Bill which remain necessary. Before I outline the amendments before us now I should like to give the House advance notice of what I envisage bringing forward at Third Reading.
      I have already undertaken to the House that functions of the Lord Chancellor relating to the judiciary, the administration of justice and the Great Seal will be entrenched. That is, it will not be possible to transfer them away from the Lord Chancellor without primary legislation. Clause 100 of the Bill achieves this in respect of functions conferred on the Minister by the Bill. However, because many of the Lord Chancellor's functions will, now, be removed from the Bill (because they will remain with the retained Lord Chancellor, without modification), I will be bringing forward revised provisions to ensure that this entrenchment applies to the full range of relevant functions, whether they are otherwise dealt with in the Bill or not.
      Similarly, I am advised that the Bill's provisions are no longer sufficient to enable the concordat to be implemented as we had envisaged in relation to functions in subordinate legislation, and in primary legislation enacted since the introduction of this Bill. I envisage therefore bringing forward provisions to address that lacuna too.
      In addition I expect to bring forward additional amendments to Schedule 4 to bring functions not currently in the schedule into line with the concordat. There are major amendments which will introduce a single, uniform practice direction-making power for civil and family business across all levels of court, as agreed with the Lord Chief Justice in the concordat. Finally, there will be some minor amendments to provisions already in Schedule 4 to bring them into line with the concordat, to make other necessary amendments, and to correct errors and inconsistencies identified in the current print of the Bill.
      I return to the amendments before us now. As I have said, they bring the Bill into line with the decision of this place to retain the Lord Chancellor. I hope that those of your Lordships with a particular interest in the matter will have already received the letter I sent last week explaining these changes in detail, and that we need not trouble ourselves today with prolonged consideration of them. As has become our custom regarding this Bill, I am happy to deal informally with any queries your Lordships have, and bring back any necessary changes at Third Reading.
      I do not think that it is necessary for me to go through any of the particular changes in this group. I
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      should perhaps draw attention to Clause 84, which amends Section 10 of the Courts Act 2003 that relates to the appointments of lay justices, to provide with consultation of relevant people. Amendment No. 167 replaces the reference to the Secretary of State for Constitutional Affairs in Clause 84 with a reference to the Lord Chancellor. I do not think that there are any other changes to which it is sensible to draw your Lordships' attention.
      Changes have been made to the way in which justices' clerks are appointed and reassigned, and my noble friend Lady Ashton outlined at length in Committee why these changes are so important. This schedule now contains the promised provision. I am convinced that these changes, alongside the existing statutory protection of the independence of justices' clerks and the non-statutory protections agreed with the judiciary that my noble friend outlined in Committee, will ensure that the judicial independence of justices' clerks continues to be protected. I draw attention specifically to that, because the role of justices' clerks has caused considerable concern among Members of this House. Therefore, it is right to say that there are provisions in Part 2 of Schedule 4 that relate to that.
      I think that is all I need to draw attention to, and I apologise for not doing so before the dinner adjournment. This amendment is totally and completely uncontroversial, but it relates to the whole group of amendments. I beg to move.
      9 p.m.
      Lord Kingsland: My Lords, I recall that when this matter came to your Lordships' attention earlier this year, the question was posed to the noble and learned Lord the Lord Chancellor by the noble Lord, Lord Renton, about the Cestui que Vie Act 1707. Has the noble and learned Lord the Lord Chancellor had the opportunity to delve into the mysteries of this legislation and take the matter up with the noble Lord?
      Lord Falconer of Thoroton: My Lords, first, I congratulate the noble Lord on his memory. Second, I congratulate him on almost a clean ball at this point, sending my stumps flying in every direction.
      No—although I cannot definitively say no—I will need to check this. My recollection is that I wrote a letter on that, but I will instantly check when I get back to my department and provide the noble Lord with a copy—
      Baroness Ashton of Upholland: You did.
      Lord Falconer of Thoroton: My Lords, encouragingly, but not convincingly, I am being told that I did write such a letter. I will send a copy to the noble Lord. If I did not send such a letter, I will instantly write one and send it. I apologise for not being in entire grip of that aspect.
      Lord Kingsland: My Lords, I am much obliged to the noble and learned Lord.
      Lord Mackay of Clashfern: My Lords, the noble and learned Lord referred to the justices' clerks. I have certainly been conscious of a certain, what shall I say, anxiety in that quarter. I am not altogether unaware of this having been expressed some years back in legislation that was put forward for altering the arrangements for the magistrates' courts.
      Is there any line management arrangement for the justices' clerks? Are they completely independent, or are they answerable to managers within the Courts Service agency?
      Lord Falconer of Thoroton: My Lords, they have line management responsibilities, and that is what is causing the problem, in that the Courts Act 2003 in effect made the justices' clerks civil servants, and therefore responsible, in an employment way, to people above them. The concern was that if they were not delivering on things that might be perceived to be the goals of the administration that might be prejudicial to them in relation to promotion or movement.
      Therefore, we have sought to provide arrangements that protect the sanctity and objectivity of the process by which judgments are made about the appointment of justices' clerks and the movement or promotion of justices' clerks, and to achieve that by involving the Lord Chief Justice if there is any question in relation to that. The direct answer to the question asked by the noble and learned Lord is yes, they are responsible to a manager in some respects. That is why, I believe, the anxiety arose.
      Lord Goodhart: My Lords, before the noble and learned Lord sits down, I should say that we have been in communication with the Justices' Clerks' Society, which is not satisfied with the steps that have been taken so far. There is an amendment tabled in our name which will be taken at a considerably later stage of the Bill, and we shall return to that issue on that occasion, when we will take into account the changes proposed in this amendment.
      Lord Falconer of Thoroton: My Lords, I accept and understand that. My amendments are not in any way seeking to preclude debate and the resolution of the issue that the noble Lord is raising.
      Lord Goodhart: My Lords, I entirely accept that.
      On Question, amendment agreed to.
      Clause 10 [The Great Seal]:
      Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 27:
      Leave out Clause 10.
      The noble Lord said The noble Lord said: My Lords, in moving the amendment, perhaps I may say that I shall also move Amendment No. 28 formally, in view of the undertakings that have been given by the noble and
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      learned Lord, Lord Falconer of Thoroton. Their effect is to retain keepership of the Great Seal with the Lord Chancellor. I beg to move.
      Baroness Ashton of Upholland: My Lords, as was stated in Committee on 11 October, the Lord Chancellor will continue to hold the Great Seal. I promised to bring forward amendments to the Bill to that effect. I said that I would look at the arrangements in respect of the Commissioners of the Great Seal. I am satisfied that further legislative changes are not necessary. The noble Lord, Lord Campbell of Alloway, has pipped me to the post in tabling Amendments Nos. 27 and 28, which remove Clause 10 and Schedule 5, and I am happy to accept them.
      Lord Campbell of Alloway: My Lords, I am very much obliged to the noble Baroness.
      On Question, amendment agreed to.
      Schedule 5 [Amendments relating to the Great Seal]:
      Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 28:
      Leave out Schedule 5.
      On Question, amendment agreed to.
      Clause 11 [Speakership of the House of Lords]:
      Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 29:
      Page 5, line 25, leave out from beginning to first "the" and insert "The Lord Chancellor shall retain"
      The noble Lord said The noble Lord said: My Lords, this amendment is a little more difficult. It is concerned with the Speakership of the House. I shall also speak to Amendment No. 31. It would leave out Schedule 6, which is also concerned with the Speakership.
      The problem is that I have made a mistake in the drafting of this amendment, so I shall deal with it as a probing amendment. It was tabled in consultation with my noble friend Lord Kingsland, a brother Silk at the Bar, so inevitably it was subject to error. When I saw the Marshalled List, I thought that we had made an error and I was advised that the amendment was defective—and that the appropriate amendment was to leave out Clause 11 and Schedule 6 because, under Standing Orders, Speakership of the House is not a matter for primary legislation and, therefore, should not be left in.
      Having confessed my error, I had an informal word with the noble and learned Lord, Lord Falconer, and I think that he understands the position. The merits of the arguments as to whether it should be the Lord Chancellor or an elected Speaker, as was proposed by the Select Committee, are for another day. However, I point out that the report of the Select Committee was wholly based on the assumption that we did not have a Lord Chancellor, but now we do. So that is somewhat otiose.
      The merits have been spoken to on a previous occasion, certainly by me at Second Reading and on Report. I know that noble Lords, on some other occasion—not on primary legislation—will wish to speak on the merits, in particular my noble friend Lord

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      Dean of Harptree. After I have heard what your Lordships say, I shall eventually withdraw the amendment so that this matter may be put right at Third Reading. I beg to move.
      Lord Maclennan of Rogart: My Lords, it may be that some understanding has been reached between the noble Lord, Lord Campbell of Alloway, and the Lord Chancellor on this amendment, but it seems a little odd to have on the face of the Bill a clause that deals with the Speakership. However, I do not agree with the substance of the amendment that was moved by the noble Lord, Lord Campbell, and it is very much a matter for this House to decide, not in debates following primary legislation, but following a debate and deliberation on the report of the Select Committee about who should chair. My firm view is that whoever should chair should not be the head of a department which is responsible for spending £3 billion of public money. It is a complete diversion of energy in the wrong direction. I cannot think of any good reason why we should wish that the Lord Chancellor in his new role adhere to the past practice. However, as the noble Lord, Lord Campbell, said, that may be a debate for another day and I have some sympathy with his view about the presence of this clause in the Bill.
      Lord Kingsland: My Lords, if I understand my noble friend Lord Campbell correctly, I appear, inadvertently of course, to have misled him on the proper direction of his amendment and I formally and publicly apologise for so doing. It has prevented your Lordships considering the substance of the matter tonight and we must wait, with anticipation, to deal with the matter at Third Reading.
      However, I cannot allow the moment to pass without expressing a view about the Speakership of your Lordships' House. This is a very important issue which requires careful thought and upon which taking the wrong decision could change the whole character of the House. That is why I submit that the clause on the Speakership and the accompanying schedule should not remain part of the Bill.
      This Bill, and the review by the noble and learned Lord, Lord Lloyd of Berwick, and his committee on the Speakership of the House were predicated on the assumption that the office of Lord Chancellor would no longer exist. Your Lordships' House has now determined not only that the office should continue to exist but that the Lord Chancellor should remain in your Lordships' House.
      For my part, I wish to see the Lord Chancellor continuing in his historic role as Speaker of the House. The ancient office and high degree of that office reflect and embody the authority and precedence of this House. I had thought that the noble and learned Lord, Lord Falconer, had indicated that he would be willing to continue to serve as Speaker while remaining Lord Chancellor. Therefore, it was somewhat disappointing to read of a recent remark that he made to a newspaperman to the effect that he would very much like the Lord Chancellor not to be Speaker of your Lordships' House.
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      Your Lordships have shown in recent changes to procedure that the House is willing to accommodate change to suit the personal preferences of the incumbent Lord Chancellor. I cite, for example, the rules concerning speaking to legislation. My noble friend Lord Strathclyde, the Leader of the Opposition, has openly advocated further change—for example, no longer to require the noble and learned Lord to robe for or preside at Divisions and to reduce our calls on him to preside at Question Time. But it is a far cry from sensible incremental change to a wholesale change that would dispense with the traditions of your Lordships' House and could see us moving towards a full-time Speaker with authority over the House. At the very least, we should not take such a far-reaching decision in the fringes of, or as a by-product, of a wider Bill.
      I agree with my noble friend Lord Campbell of Alloway and accept his view that the Lord Chancellor should remain, at least, the titular Speaker of your Lordships' House. However, I am relieved to hear that he will not press his amendment this evening because I believe that it would add to what I consider to be the mistaken course of the Government in including these provisions in the Bill. With the greatest respect to another place, I do not think that the other place should have any part in determining the internal procedures or arrangements of your Lordships' House. The other place would rightly regard it as an unacceptable impertinence if your Lordships were to propose legislation affecting the role of Mr Speaker. Surely the reverse applies, and we should not invite another place to think otherwise.
      Therefore, I would not send any amendment to another place that risked the Members of another place dictating who should be the Speaker of your Lordships' House. This matter should be determined in your Lordships' House by your Lordships' House and with the interests of your Lordships' House exclusively in mind.
      We can achieve that objective through our own Standing Orders and after a full discussion on the basis of the proposals made by my noble friend Lord Strathclyde, including some of the ideas contained in the report of the noble and learned Lord, Lord Lloyd of Berwick. That, I submit, would be the right course, with proper respect to the traditions and authority of your Lordships' House, and it would still allow your Lordships to relieve the Lord Chancellor of all but ceremonial duties.
      Lord Falconer of Thoroton: My Lords, I shall deal, first, with the position of the noble Lord, Lord Campbell of Alloway. I understand that the noble Lord will not move his amendment, which states that the Lord Chancellor should retain the Speakership, and that the only amendment in which he is now interested is the one relating to Schedule 6. I am sorry; I misunderstood the noble Lord.
      Lord Campbell of Alloway: My Lords, I had better intervene or we shall get into a muddle. I am speaking to both the substantive amendment and the

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      amendment relating to the schedule, but I am asking for leave to withdraw one and not to move the other on the basis that they are probing amendments. Having admitted my error, I undertake to table an amendment at Third Reading that both be left out. I have confirmed with the Table that it is proper to do that at Third Reading.
      Lord Falconer of Thoroton: My Lords, I am not sure what is meant by both being left out. It is within the gift of the noble Lord, Lord Campbell of Alloway, to miss out the first one. I understand what he means by leaving out Schedule 6. I shall deal with both amendments.
      The first amendment proposes that the Lord Chancellor retain the Speakership of the House. As has been made clear right from the outset, we would oppose that. I believe that there is broad agreement now about what the new Lord Chancellor should do: he should not be a judge; he should not be head of the judiciary; but he should be responsible for the department, for the ministerial end of the concordat, for the independence of the judiciary and the rule of law. That is a full-time job. I respectfully submit that it is not wise, not sensible and not compelling that he should also be the Speaker of the House—not for any reason of constitutional nicety, but because the job specified is a full-time job.
      The noble Lord, Lord Kingsland, suggests that it would be nice for the Lord Chancellor to be Speaker but not in a way that involved him doing anything. The moment the matter is put like that, the absurdity of the position is made absolutely clear. The noble Lord, Lord Kingsland, wishes me to be Speaker of the House not because of the role that I would perform but to block anyone else becoming Speaker. There would be a great roadblock in the way.
      I express no view in this debate about what the alternative arrangements should be. However, the one thing that is absolutely clear is that a person doing the three-pronged job that we all agree that the Lord Chancellor should perform, should not also be the Speaker of the House of Lords. No reason has been advanced by the noble Lords, Lord Kingsland and Lord Campbell of Alloway, other than the fact that the Lord Chancellor has been Speaker for a considerable time. The implication of the argument advanced by the noble Lord, Lord Kingsland, is that it would block anybody else. In my respectful submission, that does not provide any reason at all for the Lord Chancellor to continue as Speaker, and I would strongly oppose it.
      Having said that, I respectfully submit that the right course in relation to the Speakership is that it should be dealt with by this House—not by both Houses of Parliament. I also submit that there should not be an amendment of the kind that the noble Lord, Lord Campbell of Alloway, proposes: namely, that the Lord Chancellor should retain the Speakership. Our Schedule 6 simply allows the Speakership to change without compelling any change in the Speakership. The way in which that is achieved is by amending any Acts of Parliament in which the Lord Chancellor acts as Speaker and replacing them with the words "the
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      Speaker of the House of Lords". At the end of the day, if the House does not want to make a change, Schedule 6 does not compel it; but Schedule 6 allows it.
      The noble and learned Lord, Lord Lloyd of Berwick, has produced a report saying that there should be a change. Although I accept the point made by the noble Lord, Lord Kingsland, that it is predicated on the abolition of the Lord Chancellorship, the noble and learned Lord, Lord Lloyd, has made it clear to me that he still thinks that the Lord Chancellor should not be the Speaker of the House of Lords. It would be completely wrong to close our eyes to the fact that change is required. It would be completely wrong for us to close our eyes to the fact that change may well occur. In the Bill, we should not compel the House to make the change, but we should allow the House, if it wishes, to make the change.
      Therefore, I invite the noble Lord, Lord Campbell of Alloway, neither to press his amendment nor to bring it back at Third Reading. I believe that the universal view of the House is that this is not a matter for both Houses of Parliament. Equally, I invite the noble Lord, Lord Campbell of Alloway, not to bring back his amendment in relation to Schedule 6, which is a facilitating amendment, not a compelling amendment.
      Lord Campbell of Alloway: My Lords, I am grateful to the noble and learned Lord. The reason I have not argued the merits is not because I am not capable of arguing them, but because I do not think that this is the occasion on which we should argue them. That is all. I think that they should be argued on another occasion. In any event, my noble friend Lord Kingsland has put up a pretty good argument on them. At this hour of night nobody wants to hear too much argument on the merits when this is not the occasion on which we are supposed to be arguing them. Frankly, I do not accept the criticism, but it does not worry me overmuch.
      It worries me that the noble and learned Lord does not seem to understand that I wish to ask the leave of the House to withdraw the amendment and that I wholly accept that the schedule is consequential. By withdrawing the one amendment, I would then formally ask leave not to move the other.
      I would naturally like to thank the noble Lord on the Liberal Democrat Benches for his kind speech, and for their indulgence for my error and their understanding of the reasons. They may not agree on the merits, but we are not considering them. All I want to do is to remove this clause so that we may on another occasion debate the merits, but not in primary legislation. That derogates from the privileges of this House and probably—although we are not supposed to speak of them—from the privileges of the other place. Each House has its own privilege and neither House should have them removed or amended by primary legislation unless there is an overall Bill which attacks the privilege of the House. I suppose that anything can happen, but we do not have such a Bill yet.
      I respectfully beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      Lord Goodhart Lord Goodhart moved Amendment No. 30:
      After Clause 11, insert the following new clause—
      "SALARY AND PENSION
      Schedule (Salary and pension of the Lord Chancellor) contains amendments relating to the salary and pension of the Lord Chancellor."
      The noble Lord said The noble Lord said: My Lords, in speaking to Amendment No. 30, I shall speak also to Amendment No. 32. These are new amendments. Under the original Bill, the Lord Chancellor would have transmuted into a Secretary of State with a consequential right to a statutory salary under the Ministerial and other Salaries Act 1975. That consequence would be automatic and does not need to be spelled out in the Bill.
      Following the vote in Committee to retain the office of Lord Chancellor, there is a need to consider what should be the salary of the Lord Chancellor. One possibility would be to retain the existing statutory salary, which is linked to the salary of the Lord Chief Justice. Under the 1975 Act the Lord Chancellor gets £2,500 more than the Lord Chief Justice. That salary is somewhat higher than that of the Prime Minister. That seems inappropriate when the Lord Chancellor no longer holds judicial office, which is the basis on which the link to the Lord Chief Justice's salary was based.
      9.30 p.m.
      Another possibility is to go back to what would have been the consequence of that Bill as originally drafted and to treat the Lord Chancellor as being entitled to the same salary as a Secretary of State. Indeed, I understand that that is the salary that the noble and learned Lord in fact draws. I proposed that in a Private Member's Bill introduced in the 2002–03 Session. Having obtained a Second Reading of that Bill, I took no steps to take it any further.
      However, simply to link the salary of the Lord Chancellor to that of a Secretary of State would fail to take into account the effect of the vote in your Lordships' House to retain the office, which requires some continued recognition of the separate status of the Lord Chancellor. It is therefore necessary to decide what the Lord Chancellor should get and to legislate for it in the Bill. Our proposal is that the Lord Chancellor's salary should be linked to the ministerial salary of the Prime Minister and should be £10,000 a year less than that salary. That means that the Lord Chancellor would continue to be entitled to a higher ministerial salary than a Secretary of State or the Attorney-General, although significantly less than he is at present entitled to receive and would receive if he were to draw the full salary.
      Under my amendment, the Lord Chancellor, if in the House of Lords, would also receive the allowance under the Ministerial and Other Pensions and Salaries Act 1991 for Ministers in the House of Lords. On pensions, the effect of my amendment is that the Lord
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      Chancellor would continue to receive a pension equal to half his salary on leaving office, although the pension would of course be based on a lower salary. The salary of the pension would continue to be paid from the Consolidated Fund.
      That pension would be received whatever the length of service, as is the case at present. That is a privilege shared only with the Prime Minister and the Speaker of the House of Commons. I believe that that is appropriate because the rejection of the Lord Chancellor's advice on the rule of law would, more than likely, lead to his resignation and he should at least have the cushion of a pension of a fixed amount, irrespective of his length of service.
      Salaries and public expenditure are plainly a matter for the other place, rather than your Lordships' House, but I have made these proposals because I want to hear whether the Government have considered the issue; if so, what are their proposals; and, if they have not yet finalised those proposals, when we are likely to receive them. Our proposals strike a reasonable balance and I hope that the Government will produce something similar, either at Third Reading or when the Bill reaches the other place. I beg to move.
      Lord Kingsland: My Lords, broadly speaking, I support the speech of the noble Lord, Lord Goodhart, on the question of both salary and pensions. On salary, the Lord Chancellor should receive a salary that is slightly less than the salary received by the Prime Minister but more than all other members of the Cabinet. On his pension, I entirely agree with the noble Lord, Lord Goodhart, that it should be half of the salary, payable immediately on leaving office.
      Lord Falconer of Thoroton: My Lords, this is an important issue. We touched on it briefly on 11 October. We agreed that we needed to consider the salary and pension rights of the ministerial post in the Bill, whether or not it carried the title Lord Chancellor. The effect of what the noble Lord, Lord Goodhart, said is that if the office of Lord Chancellor remains, there should be some particular pay and pension arrangement relating to it.
      The view was expressed on 11 October that it would be hard to justify continuing the present arrangements where the Lord Chancellor is required to be paid more than the Lord Chief Justice when he, the Lord Chancellor, is no longer at the head of the judiciary. That appears to be obviously right. There appeared to be a general view that special arrangements are needed but there was no agreement on what those arrangements would be.
      We must bear in mind that we are considering the salary and pension rights of a different ministerial post from the existing office of Lord Chancellor. Even though this House has decided that the post should have the title of Lord Chancellor, it does not necessarily follow that the new rights accruing to it should be considered only in the context of the existing office. That is broadly the point that the noble Lord makes.

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      The amendments are an attempt to address some of the core issues. They do not yet provide a coherent package. Of particular concern is the unfortunate—and, I am certain, unintended—omission of provisions protecting the position of former Lord Chancellors—I am looking across at one—or their widows. They might legitimately be upset about that. Provision to protect the position of the widows and dependents of future holders of the new office was also omitted. Both our families may not be happy about the arrangements. I suspect that the amendment tabled by the noble Lord, Lord Goodhart, was not intended to provide for the complete package.
      I have listened with interest to the arguments that the noble Lord, Lord Goodhart, and other noble Lords have contributed to the debate. Of course the new ministerial figure must have appropriate salary and pension arrangements. I am not clear what exactly the noble Lord proposes regarding pay. I understood him as saying that it would be the Prime Minister's ministerial salary, not his salary as a Member of Parliament on top, and also what he described as the ministerial "allowance" which a Minister in the Lords would get. It appeared that the noble Lord was referring to both; I do not think that there are both, so I am not entirely clear what is proposed.
      Lord Goodhart: My Lords, when I referred to the Prime Minister's ministerial salary, I meant exactly that. In calculating the Lord Chancellor's salary, there should be no linkage to the salary that the Prime Minster receives as a Member of Parliament. As I understand it, the 1991 Act provides for allowances to be payable to Ministers in the House of Lords. Those are quite small; they are around £5,000 a year. As they are payable to Ministers in the House of Lords, so long as the Lord Chancellor is in the House—he is required to be as a result of today's vote—it seemed appropriate that he receive that allowance. In any event, if the Lord Chancellor was in the House of Lords as a result of the exercise of the Prime Minister's discretion, he should be entitled to draw that allowance as well as his ministerial salary.
      Lord Falconer of Thoroton: My Lords, I am grateful for that. I think that the noble Lord proposes a salary of £10,000 less than the Prime Minister's ministerial salary. As a consequence, the Lord Chancellor's salary would be marginally more than my current salary as Secretary of State. My current Secretary of State's salary is around £98,000; it is proposed that the Lord Chancellor's salary be around £110,000. I am grateful for that. I am told that the Lord Chancellor is currently barred from receiving the allowances that other Lords Ministers receive, so that would be a benefit to the new Lord Chancellor.
      I understand where the noble Lords, Lord Goodhart and Lord Kingsland, are coming from but I do not agree with the structure proposed in the amendments, even putting aside their particular deficiencies—namely, the effect on previous Lord Chancellors and on my dependents is not necessarily the best outcome. I accept that the salary and therefore
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      the pension of the post must be considered in the light of the Prime Minister's and other ministerial remuneration.
      The right course at this stage is to consider very carefully what has been said. I do not think that anybody has quite got it right yet. We must consider what the best approach is. It is a point of very considerable importance, having regard to the role of the Lord Chancellor in relation to the rule of law and the independence of the judiciary. I am sorry that I have not come forward with positive proposals but I recognise the importance of the point.
      Lord Goodhart: My Lords, I am grateful to the noble and learned Lord for his reply. As I made clear, I put forward these amendments in order to get the subject discussed. It is an important subject that has not been fully discussed previously. I accept that there are problems with which I have not dealt, such as the rights of families of either former or future Lord Chancellors.
      Having said that, it is clear that some provision about the Lord Chancellor's salary and pension should go in this Bill rather than waiting for some other Bill. I very much hope that that will be achieved, probably in the other place. I can see that it would not be practicable to introduce it in your Lordships' House before Third Reading. But before the Bill leaves the other place on its way back here, it should contain appropriate provisions for the Lord Chancellor's salary and pension. I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      Schedule 6 [Speakership of the House of Lords]:
      [Amendment No. 31 not moved.]
      [Amendments Nos. 32 to 34 not moved.]
      Clause 13 [Part 1: interpretation]:
      Lord Kingsland Lord Kingsland moved Amendment No. 35:
      Leave out Clause 13.
      The noble Lord said The noble Lord said: My Lords, I think that, consistent with Amendments Nos. 27 and 28, which were moved by my noble friend Lord Campbell of Alloway, I must also move Amendment No. 35 so that we can expunge any mention of the Great Seal from the Bill. I beg to move.
      Baroness Ashton of Upholland: My Lords, on a happy note, as the noble Lord quite rightly says, Amendment No. 35 falls into the same category as the others in group 13. I am happy to accept the amendment.
      On Question, amendment agreed to.
      Lord Evans of Temple Guiting: My Lords, I beg to move that consideration on Report be now adjourned.
      Moved accordingly, and, on Question, Motion agreed to.
      House adjourned at seventeen minutes before ten o'clock.