LORD CHANCELLOR: MEMBERSHIP OF THE HOUSE OF LORDS

HL Deb 07 December 2004 vol 667 cc749-79

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.] 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.] 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". 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— 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 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 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. 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.

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 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 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 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 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?

People say—and they have said it here today—that it would be wrong to fetter the Prime Minister's discretion to have this choice open to him, but nobody has actually argued that he should appoint the Lord Chancellor from the Commons. That has been rejected on all sides from the evidence I have seen so far. The reason we need to put the issue in statute form is that of convention. For as long as memory goes back the Lord Chancellor has been in this House. That convention was dealt a most alarming blow by the events of 11 June, 18 months ago. When prime ministerial power is exercised, whether recklessly, carelessly or impulsively, in defying convention of that kind we are entitled to say that, remarkably and unusually, this is an area where we need to protect ourselves from repetition of similar conduct. We need to embody that in statute law.

Therefore, I come back to the point which others have made but which cannot be expressed too strongly in expressing the importance of giving the Lord Chancellor this unique position as senior lawyer in this House, to be distinguished from any Secretary of State. Secretaries of State do not always realise it, but their functions can be shuffled around at will. Secretaries of State are relatively small beer compared with the importance of the Lord Chancellor's position.

I want to cite two passages to explain how important it is to have that statutory guarantee of the independence of the Lord Chancellor. The noble and learned Lord, Lord Bingham, in his memorable address in July last year—the Ditchley lecture—said: If the office is held by senior, authoritative, respected, politically disinterested Ministers, and if those Ministers act as robust champions of constitutional propriety and judicial independence, then the core of the Lord Chancellor's office will be preserved…I do regard the conditions as spelled out as crucial if the safeguard of proven value, which has served us well over many centuries, is not to be lost, perhaps for ever. That is strong language, which is perhaps not surprising coming from a former Lord Chief Justice and senior Law Lord. However, more important even than that are the comments made by the House of Commons Constitutional Affairs Committee, in its first report of 10 February. It states: By virtue of the office's 'great antiquity, much dignity and considerable importance', the holder has special status within Government. He has always in recent times been a lawyer. He has generally in recent times been at one remove—at least in the public eye—from the day to day activity of the Government. Often Lord Chancellors have been promoted from a career outside Parliament…All have been distinguished within the legal profession, to which they have displayed great loyalty". Then there is the argument that has been advanced several times, but not quite in this form, coming from a House of Commons committee: There is a radical difference between on the one hand a Lord Chancellor…who has a special constitutional importance enjoyed by no other member of the Cabinet and who is usually at the end of his career (and thus without temptations associated with possible advancement) and on the other hand a minister who is a full-time politician and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion". That is the crucial thing. A Lord Chancellor in this House is, almost by definition—even for such a young man as the noble and learned Lord, Lord Falconer—not at the end, but at the pinnacle of his legal and political career. It is an incentive to get people who are trying to pursue the two occupations of lawyer and politician together to note that that is one office open to them at the end of their career as a possible triumphant conclusion, and it is of huge importance that that office should continue to have all those qualities attached to it and that it should be in this House.

It may have been sufficient until now to rely on the Prime Minister of the day to obey the conventions of the constitution but, after the events of that reckless press release that destroyed the horse on which the noble and learned Lord, Lord Irvine, had until then been riding, it is surely crucial for Parliament to say clearly and beyond doubt that the Lord Chancellor, with his functions defined as the noble and learned Lord, Lord Chancellor, seeks to do, should be firmly, by statute, placed in this House.

Lord Richard

My Lords, there seems to be a slight air of unreality to this debate. We have been round the course and have heard the arguments several times already. The only new evidence that there has been this afternoon has been the extraordinary speech by the Lord Chief Justice, who brought a judicial view to our proceedings that was both refreshing and novel and ought to be treated extremely seriously by the House.

When the Select Committee was considering the Bill, the noble and learned Lord, Lord Howe, took the view, I thought, that the office of Lord Chancellor should be associated with the office of Secretary of State for Constitutional Affairs—in other words, that the surviving office, if I may use that phrase, should broadly be what it is at present, as occupied by my noble and learned friend Lord Falconer. The speech that the noble and learned Lord just made seemed to indicate that he actually wanted a distinction: there would be two Ministers, one the Secretary of State for Constitutional Affairs—

Lord Howe of Aberavon

No, my Lords.

Lord Richard

Well, my Lords, I noted down the noble and learned Lord's words. He said, "the Lord Chancellor, as distinguished from the Secretary of State". If I am wrong, I am delighted to give way.

Lord Howe of Aberavon

My Lords, the last thing in the world that I want to do is to disaggregate the functions now exercised by the noble and learned Lord, Lord Falconer. I was simply making the general point that Secretaries of State can have their functions shuffled one from the other, but I do not want to disturb the present functions exercised by the noble and learned Lord.

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 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 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 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 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 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 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, 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 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.

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.

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.

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 moved Amendment No. 4: Before Clause 1, insert the following new clause—