HL Deb 07 December 2004 vol 667 cc779-800

(1) A person is not qualified to be appointed Lord Chancellor unless he has at any time—

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

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.
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.
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.
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 moved Amendment No. 7: Page 1, line 13, leave out subsections (4) to (6).

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". 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.

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 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. 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.
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.
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 moved Amendment No. 8: Page 2, line 1, at beginning insert "The Lord Chancellor and other

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 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: 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 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 moved Amendment No. 12: Page 3, line 36, at end insert "in England and Wales

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 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—

  1. (a) the Lord Chief Justice, or
  2. (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 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 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 moved Amendment No. 19: Leave out Clause 8 and insert the following new Clause—