HL Deb 20 December 2004 vol 667 cc1538-40

This Act does not adversely affect—

  1. (a) the existing constitutional principle of the rule of law, or
  2. (b) the Lord Chancellor's existing constitutional role in relation to that principle."

The noble and learned Lord said: My Lords, we have had several useful debates on the rule of law. Perhaps I may summarise the position which I think we reached. We all agreed that we do not want to change the Lord Chancellor's existing role in relation to the rule of law. That role goes further than simply respecting the rule of law in discharging his ministerial functions. It includes being obliged to speak up in Cabinet or as a Cabinet Minister against proposals that he believes offend the rule of law. That role does not require him proactively to police every act of government. The role is not one that is enforceable in courts.

In the debate on this issue at Report stage, the noble Lord, Lord Kingsland, supported by the noble Lord, Lord Goodhart, sought reassurance that the Government's previous amendment covered the Lord Chancellor's "constitutional duty to speak up in Cabinet". I think that that was the only issue between us. Amendment No. 1 provides such clarity.

The new draft also avoids any possibility of inadvertently infringing on the Lord Chancellor's existing statutory duty regarding the rule of law. Perhaps I can draw attention particularly to the speech on Report of the noble and learned Lord, Lord Mackay of Clashfern, in which he referred specifically to the Witham case. I think that the new wording puts this issue beyond any doubt whatever. I have discussed it fully with the noble Lords, Lord Kingsland and Lord Goodhart, and I think that they are content.

The legality of the Government's conduct is no less crucial to the rule of law than the matters within the Lord Chancellor's remit. The ministerial code requires all Ministers to consult the Attorney-General on issues involving legal considerations. The Attorney-General is the authoritative source of legal advice within the Government.

The Government have listened very carefully to all the concerns raised in previous stages and shown their willingness to meet those concerns and to engage in constructive debate. I think that we can now be satisfied that not only do we now share the same objectives, but that the draft before us successfully achieves those objectives. I beg to move.

Lord Goodhart

My Lords, during the tripartite discussions between the noble Lord, Lord Kingsland, the noble and learned Lord the Lord Chancellor and myself it became apparent that we were agreed on the principle that we should continue with the existing standard of the rule of law and with the existing constitutional responsibility of the Lord Chancellor to uphold it. We had some difficulty in finding a form of words acceptable to us all, but I am satisfied with the form of words in the amendment. Therefore, I am happy to support the amendment.

Lord Tebbit

My Lords, the adverb "adversely" clearly qualifies the verb "affect". Is it intended to strengthen or to weaken the impact of that verb?

Lord Falconer of Thoroton

My Lords, the words "does not adversely affect" make it clear that the Bill does not affect, one jot, the duty of the Lord Chancellor in relation to the rule of law.

Lord Tebbit

My Lords, I understand that that is the intention, but would it not be clearer—or less clear—if the adverb "adversely" was left out?

Lord Falconer of Thoroton

My Lords, we humbly thought it made it clearer.

Lord Tebbit

My Lords, I apologise for being more dense than usual.

Lord Falconer of Thoroton

My Lords, I am sorry for not getting the point until the second shot.

Lord Kingsland

My Lords, the noble and learned Lord the Lord Chancellor will recall that, initially, we were unhappy with the expression "adversely"; but, as a result of the tripartite meetings that took place between the noble and learned Lord, the noble Lord, Lord Goodhart, and myself, it became clear that it added to the sense of what we were trying to achieve. We were trying to say that the Lord Chancellor's existing powers would not be affected in any way that prevented the Lord Chancellor from continuing to fulfil the constitutional duties in the future in Cabinet that he has always fulfilled in the past. I believe that that was the logic behind the use of the expression.

However, I agree with my noble friend Lord Tebbit, that it carries with it a certain clumsiness and a sense of reluctance, a sense which, initially, I also shared. But I am now entirely happy that, when, in future, the noble and learned Lord seeks to exercise his constitutional powers in Cabinet, he will not in any way be impeded. This has been a good example of constructive thinking between the Government, the Liberal Democrats and ourselves. We are entirely content with the outcome.

Lord Tebbit

My Lords, I am most grateful to my noble friend—

Noble Lords

Order.

Lord Evans of Temple Guiting

My Lords, the procedure book tells us that noble Lords are allowed to speak only once on an amendment.

On Question, amendment agreed to.

Lord Woolf moved Amendment No. 2:

Before Clause 5, insert the following new clause—