Lords Sitting of 13 July 2004

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

Lord McKenzie of Luton
William David McKenzie,Esquire, having been created Baron McKenzie of Luton, of Luton in the County of Bedfordshire, for life—Was, in his robes, introduced between the Baroness Gould of Potternewton and the Lord Faulkner of Worcester.
Baroness McDonagh
Margaret Josephine McDonagh,having been created Baroness McDonagh, of Mitcham and Morden in the London Borough of Merton, for life—Was, in her robes, introduced between the Lord Alli and the Lord Sawyer.

Sudan: Darfur
2.49 p.m.
Baroness Rendell of Babergh Baroness Rendell of Babergh asked Her Majesty's Government:
Whether a proportion of the aid going to Sudan could be directed to the people of Darfur.
The Lord President of the Council (Baroness Amos): My Lords, the UK Government are deeply concerned about the crisis in Darfur. As the second largest donor, we have already allocated £62.5 million for humanitarian assistance in response to the crisis. In addition, the Department for International Development has provisionally allocated £35 million for Sudan this financial year in anticipation of a comprehensive peace agreement for Sudan. The Chancellor yesterday announced £150 million for the following three years for emergency and other relief.
Baroness Rendell of Babergh: My Lords, I am grateful to my noble friend for her Answer. Is she aware that conditions in the villages of Darfur are so poor and the food shortage is so great that some already malnourished children are forced to eat wild plants that are known to be toxic? Is she also aware that people are taking refuge in these villages, escaping from war and destruction, and that the villagers have to share their meagre supplies with them?
Baroness Amos: My Lords, my noble friend is right; the conditions in the villages merit a great deal of attention. Darfur has always been chronically poor. I am aware that host communities which are already poor are sharing resources with those internally displaced. That is why the humanitarian effort in
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Darfur is so critical. There have been hold-ups with aid distribution, but it is gradually improving. In June the World Food Programme reached 500,000 people, although we estimate that 1.2 million people are in need.
Baroness Rawlings: My Lords, further to the Minister's reply, what steps have Her Majesty's Government taken to help farmers return to their villages? Can they provide figures for those who have managed to get back in time to plant this season's crop? What money do the Government plan to provide to help to alleviate the specific food crisis? Perhaps Her Majesty's Government could emulate the programme of the charity Kids for Kids by donating to families one donkey and harness to carry water and fodder, which cost only £27 and has proved so successful.
Baroness Amos: My Lords, the noble Baroness may be aware that the rains have already started. That is one of the reasons that the aid programme in Darfur has been hampered. The focus is on getting food in to feed those in the villages and ensuring that the NGOs have proper access. We have worked very hard to persuade the Government of Sudan to ease some of the bureaucratic restrictions. I have met Kids for Kids; it does very good work in Sudan.
Baroness Cox: My Lords, is the Minister aware of UN reports that the Janjaweed militia, which has been supported by the Government of Sudan, continues to attack clearly marked humanitarian convoys, despite the escalation of the catastrophe, with possibly 300,000 more people dying in coming weeks? What steps are Her Majesty's Government taking to ensure that the Government of Sudan stop the militia's interference with the humanitarian effort and are themselves brought to account for complicity with the military offensives, which are the cause of the catastrophe?
Baroness Amos: My Lords, we regard the safety and security of humanitarian workers and the people in Darfur as paramount. I have been alerted to reports of continuing attacks. That remains a cause of serious concern. As the noble Baroness will be aware, my right honourable friend the Secretary of State for International Development, Hilary Benn, Colin Powell and Kofi Annan visited Sudan, as a result of which an agreement has been made with the Government of Sudan. We want to see that agreement implemented.
Baroness Northover: My Lords, is the noble Baroness aware that the rainy season has now started in Sudan—
Noble Lords Noble Lords: My Lords, she has said so.
Baroness Northover: My Lords, I am glad to hear that everyone is clearly paying attention.

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In that case, have the Government identified airstrips where food aid can be dropped? Is she aware also of trouble developing in other parts of Sudan, particularly Malakal? Are the Government concerned about that?
Baroness Amos: My Lords, I am aware that the rainy season has already started. We are investigating with the UN and the World Food Programme the best ways of distributing food in the light of that. I am aware of trouble in other parts of Sudan, including Malakal, and the need to get humanitarian assistance into those areas as well.
Lord Eden of Winton: My Lords, further to the question asked by my noble friend Lady Cox, is it not clear that the Government of Sudan are, at the very least, closing an eye to what is taking place in Darfur, or, at the very worst, condoning it? Surely this atrocity has now reached a scale where the United Nations ought to exert every effort to call the Government of Sudan to account.
Baroness Amos: My Lords, the noble Lord will be aware that Kofi Annan was in Darfur recently. There has been a discussion on Darfur at the UN Security Council, to which Kofi Annan gave a video-link report on the situation in Sudan. The UN is taking the issue very seriously. The noble Lord will be aware that we were concerned at the lack of speed of the UN response in the early days, but that has improved.
Baroness Whitaker: My Lords, will my noble friend urge the Government to congratulate the African Union on sending to Darfur not only peace monitors but troops to protect them and the local population?
Baroness Amos: My Lords, of course I can. The African Union, at its recent summit, made a strong statement on the need for support in Sudan. We are supporting the ceasefire monitoring mission to the tune of some £2 million.
Lord Alton of Liverpool: My Lords, given that the Machakos peace accord relies on reconstruction of many parts of Sudan, including southern Sudan, which I visited, will the Minister confirm that the Question on the Order Paper, calling for aid to be switched from other parts of Sudan to Darfur, is not the Government's policy and that the overall amount of aid that will be given to Sudan will not change? Can she also say something about the exodus of people from Darfur into Chad and the perilous conditions that they are now in?
Baroness Amos: My Lords, I can confirm that we will not switch aid from other parts of Sudan to Darfur. We have given some £62.5 million for the humanitarian crisis in Darfur itself, with an additional £35 million allocated for the rest of Sudan. Yesterday the Chancellor announced another £150 million over three years.

Commission for Equality and Human Rights
2.57 p.m.
Lord Ashley of Stokeasked Her Majesty's Government:
Whether it is intended that the proposed new Commission on Human Rights will have a disabled commissioner and a disability committee on which half of the members will be disabled people.
Baroness Andrews: Yes, my Lords. We published the White Paper Fairness for All: A New Commission for Equality and Human Rights on 12 May. In it we set out our proposals for distinctive governance arrangements for disability. These proposed arrangements include a statutory requirement for at least one disabled person (or a person who has had a disability) to be appointed to the board, and the establishment of a disability committee where disabled people (or those who have had a disability) represent at least half of its membership.
Lord Ashley of Stoke: My Lords, I thank my noble friend for that reply. The White Paper has been warmly welcomed. But in view of the proposed developments in the White Paper and legislation and the Government's splendid and extensive programme for legislation on disability, can we have an assurance that provision will be made for specialised expert staff and special money for the disability committee? Can we have that assurance written into legislation for the new Commission on Equality and Human Rights?
Baroness Andrews: My Lords, I am grateful for the warm welcome that my noble friend has given the White Paper, not least because of his outstanding record in promoting the rights of disabled people. It would be unthinkable for the new Commission for Equality and Human Rights (CEHR) not to employ a good number of disability experts to support the committee's work. It will take forward the very energetic agenda that the Disability Rights Commission (DRC) has in mind. We certainly expect staff from the DRC to have the opportunity to transfer into the CEHR under the normal TUPE arrangements, and to maintain its excellent work.
In response to the second point, we are fully committed to ensure that the CEHR is adequately resourced so that it can implement the programme. There would be little point in doing otherwise. However, I do not think that we want to constrain the board in any way as regards its internal arrangements. I hope that my noble friend will be satisfied with that reply.
Baroness Howe of Idlicote: My Lords, I am sure that noble Lords will agree on the vitally important role played by the Equal Opportunities Commission in promoting equal opportunities for women. In the light of that, do the Government believe that the proposed new combined commission can be anything like as

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successful in carrying forward and sustaining the issues that still remain to be tackled in this field, not least in ensuring that all our public bodies promote equality of opportunity?
Baroness Andrews: My Lords, already two distinguished Members of the House have set high standards indeed for the EOC. I am convinced that each strand of the equality work, including the EOC, will go forward and will be expanded in relation to new challenges, in particular in relation to the human rights element. We have a unique opportunity to address the public agenda and make sure that public authorities live up to those responsibilities. We also anticipate in the White Paper a new gender duty, which will oblige public bodies to ensure that their actions as employers and service providers will guarantee equality of opportunity.
Lord Addington: My Lords, will the Minister confirm that if we are to have a committee to back up a commission, the committee will not only be drawn from disabled people, but from disabled people from a wide range of disability backgrounds? Although it may be easier for a person who, say, has a mobility problem to empathise with someone who has a similar one, first hand knowledge will be important. Hidden disabilities and movement problems must be represented across the board to ensure that this committee achieves its full potential.
Baroness Andrews: My Lords, absolutely. The Disability Rights Commission, in its three or four years, has already established the width, breadth and scope of expert investment in the disability field. I particularly take the point made by the noble Lord in relation to learning disabilities, because I know that he is concerned about those. I am sure that those people will be well represented.
Baroness Finlay of Llandaff: My Lords, can the Minister confirm that provision will be made for all posts to be open to women and disabled people who may be unable to work full time? Will the disabled commissioner have a duty to represent the views of the disabled in the central body?
Baroness Andrews: My Lords, I am sure that if we can look to any organisation to have equal opportunities in their employment practices, it will certainly be the new commission. I can also confirm the noble Baroness's second point.
Baroness Wilkins: My Lords, the proposed disability committee will be subject to a mandatory review after five years. Can the Minister outline how such a review is likely to be conducted and with what level of parliamentary scrutiny? Can she also assure the House that disabled people and their organisations will be fully involved and listened to in the review?
Baroness Andrews: Yes, my Lords, I can give an assurance on the last point. Parliamentary scrutiny
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will not least be part of the obligation to prepare an annual report and even a Select Committee inquiry. In terms of the five-year review, we do not have that degree of detail yet. I am sure that in the consultative process, which is not yet concluded, there will be attention to that sort of detail. I will write to the noble Baroness if there are aspects that I do not have a grip on.
Baroness Wilcox: My Lords, we too welcome this move. To what extent do the Government envisage that a disability committee within the CEHR would be free to set its own strategy and develop its own policies with respect to disability issues? What powers would the committee possess?
Baroness Andrews: My Lords, the detail of the powers is to be worked out over the coming months as the new steering board makes the transitional arrangements for the development of the full board, which will not come into operation until the end of 2006. We have been concerned not to constrain or restrain any of the administrative detail. The disability committee, having inherited the work of the Disability Rights Commission, will be able to set its own remit. I am sure that it will want to follow along the lines that it has already started.
Lord Carter: My Lords, will the commissioner be able to deal with a situation where the easy-read version for the learning disabled of the Fairness for All White Paper, which deals with equality, was produced only yesterday; some eight weeks after the standard version and almost two-thirds of the way through the 12-week consultation period? Is that the proper way to involve disabled people in matters that really concern them?
Baroness Andrews: No, my Lords, it most certainly is not. I am sorry to hear of the length of time that it has taken to get that document out. It is rather a specialised document, but there is no excuse for that. I know that when the noble Lord chaired the Joint Scrutiny Committee, he was able to ensure that both versions of the document came out at the same time. We absolutely welcome responses from disabled people, particularly those with learning disabilities. The door is not shut on 6 August. Given the shorter period of consultation, I am absolutely sure that if they make a response it will be taken seriously.

EU Constitutional Treaty
3.5 p.m.
Lord Harrisonasked Her Majesty's Government:
What steps they are taking to ensure accurate reporting of the European Union constitutional treaty, in the light of recent newspaper coverage.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, the Government have no power to ensure accurate reporting of the constitutional treaty, as some recent press coverage clearly indicates. The Foreign Office will produce a short and clear guide to the treaty and an analysis of the treaty indicating the provenance of the text in terms of previous treaties, together with other material as necessary to inform a free and frank debate on the merits of the treaty.
Lord Harrison: My Lords, given the moonshine issuing from newspapers such as the Sun, suggesting that Brussels dictates the size of our Army, our taxes and even our bananas, does the Minister recognise that it is welcome news that a pamphlet will be produced detailing the elements of the constitutional treaty and thereby rebutting some of the Euro myths? Will the Government also consider encouraging the use of correction columns in newspapers, such as those in the Guardian and the Mirror, so that such Euro myths can be rebutted quickly and effectively at the time of publication?
Baroness Symons of Vernham Dean: My Lords, sadly, the Sun is not in a class of its own in the respect that the noble Lord has drawn to your Lordships' attention. A great number of inaccuracies are littered around our newspapers. We have written to the editors of several national newspapers to correct inaccuracies, but if we were to do it for every inaccuracy that occurs, the staff of the Foreign Office would be doing little else.
The Foreign Secretary wrote to the Times on 21 April; the Minister for Europe wrote to the Telegraph on 21 May, to the Times on 25 June, to the Independent on 25 June and to a whole range of other newspapers as well. Officials have also been engaging in this correspondence.
The Lord Bishop of Portsmouth: My Lords, do the Government agree that this is precisely the conundrum that was faced over student debt prior to the Higher Education Bill? The Government are unduly constrained in the communication of issues prior to the debate of legislation, and that is an unfair position to be in, regardless of which party is in power.
Baroness Symons of Vernham Dean: My Lords, the debate about the way in which the press covers a number of issues is one where the Government could look sorrowful and say how unfair things are in that respect; but that would not command a great deal of sympathy. What the Government must do in the circumstances is set out as clearly as possible why we believe that this treaty is a good treaty and deserves support. The point about analysing the treaty properly and indicating that many of the things that are complained about were in fact signed up to in the Single European Act and the Maastricht Treaty should be a salutary lesson for one and all.
Lord Tebbit: My Lords, does the Minister agree that since within 24 hours from now we will have read the
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Butler report, her criticisms of the accuracy of articles in the press might sound just a little like the kettle calling the pot black?
Baroness Symons of Vernham Dean: No, my Lords, because I already have the evidence for what I am talking about in relation to the European Union. Had the noble Lord been in the House yesterday when I was answering questions related to WMD and the Butler report, he would know that I was scrupulously careful not to do anything such as he has suggested.
Lord Russell-Johnston: My Lords, while entirely agreeing with the Minister that ensuring accuracy on this question is practically impossible, not least when the love affair between the Prime Minister and Rupert Murdoch seems to have withered on the vine, I would encourage the Government to continue to raise specific outstanding examples of inaccuracy. Could the Minister perhaps also encourage both the British Broadcasting Corporation and ITV to increase the number of programmes devoted to discussing and educating on the proposed European treaty?
Baroness Symons of Vernham Dean: My Lords, I do not know how great their audiences would be. It is one thing to broadcast programmes, but it is another thing to make people watch a channel engaging in such a debate. It is enormously important that a range of activities should be undertaken to give the British people the opportunity to look at the facts about the constitution. I have mentioned publications, but there will also be ministerial visits, meetings with UK regional audiences and a regularly updated website.
Baroness Billingham Baroness Billingham: My Lords—
Earl Ferrers Earl Ferrers: My Lords—
Baroness Amos Baroness Amos: My Lords, I think that we should hear from my noble friend Lady Billingham.
Baroness Billingham: My Lords, can the Minister assure us that if literature is produced it will be in a suitably wide range of languages? My grandson is in a class at a London primary school where 40 languages are spoken. I do not expect the Foreign Office to respond in quite such measures, but it is imperative that the information should be available in a wide range of languages so that all our citizens can read the information fully and clearly.
Baroness Symons of Vernham Dean: My Lords, my noble friend has made a very important point, which, I am sure, has already been taken on board in the Foreign Office. I shall certainly ensure that officials are aware that that is exactly what should happen.
Lord Howell of Guildford: My Lords, is not one of the most serious inaccuracies about reporting the treaty the description that it was just a tidying up of existing texts? That view was not only uttered in another place but appears to have been endorsed by

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the noble Baroness both last week and just a few moments ago. Surely she must agree that placing all previous texts as well as many new provisions into a new, written, legal, constitutional document, encased in a higher legal order for the whole of the European Union, presents the British people with a fundamentally new proposition that is quite different from anything in previous treaties. Is that not an accuracy that should be made very clear? Is that not the reason why the Government now agree—I am glad to say—that there should be a referendum so that the British people can make a judgment on this totally new set of propositions?
Baroness Symons of Vernham Dean: My Lords, I think that the noble Lord is being uncharacteristically rather unfair about that. From this Dispatch Box, over and over again, I have never used the phrase to which he has referred—not once. I have said throughout that there is much in the treaty that brings together the four—or, indeed, five, if one includes the Treaty of Accession—previous treaties. Indeed, there are new matters in this treaty; for example, the very important power being given to parliaments for the first time.
Much of what is being complained of is already in the treaties. Perhaps I may take the issue of fishing, about which I understand the party opposite is very exercised. The provisions in the treaty, for example, on fisheries bring forward the competencies first agreed by the noble Lord's party when it was in government and signed up to our accession. That is my point. Many of the difficulties made about this constitutional treaty arise from points that are already in treaties; but not exclusively. I have never said that from this Dispatch Box, and the noble Lord knows that.
Earl Ferrers: My Lords, the noble Lord, Lord Harrison, said that myths are a bad thing. Does the noble Baroness not agree that Brussels determining the size above which a rocking horse may not be built is absurd? Why does Brussels involve itself in that kind of thing? Why should we sign up to that kind of thing?
Baroness Symons of Vernham Dean: My Lords, I agree that some of the issues covered by the single market provisions look very silly when taken out of context. But when they are looked at as safety provisions—I am sure that the noble Earl would not wish his grandchildren to be riding on unsafe rocking horses—perhaps they look a little different.

EU External Action Service
3.14 p.m.
Lord Wallace of Saltaire Lord Wallace of Saltaire asked Her Majesty's Government:
Whether they support the proposals for the establishment of a European Union external action service.
Baroness Symons of Vernham Dean: My Lords, we welcome the proposal to establish a European external action service to be set up following ratification of the constitutional treaty. The service would support the work of a new EU foreign Minister and would draw staff from the Commission and the Council secretariat as well as secondees from member states.
Lord Wallace of Saltaire: My Lords, I thank the Minister for that reply. Can I encourage the Government to publish a brief Green Paper on how they see the European Union external action service developing? The Sun and the Daily Mail are already talking about a taking-over of the British diplomatic service. A Green Paper might, for example, include reference to the useful sharing of facilities that we already have with the German Government and others and a recognition that when there are more than 190 states in the UN it is very difficult for us to have resident missions in all of them. Is a Green Paper a useful idea?
Baroness Symons of Vernham Dean: My Lords, it may be a very useful idea in due course. But if we produced Green Papers to refute every single inaccuracy published by the Sun and the Daily Mail—which are not alone in publishing inaccuracies—we should be littered with Green Papers all around Whitehall.
The way in which the external action service will be set up and operated will be discussed in detail after the 29 October signing of the treaty. Then of course there will be a great deal of interaction between the Commission and member states about the exact way in which the external action service should operate. But I think that the noble Lord's idea of a Green Paper is excellent.
Lord Wright of Richmond: My Lords, is the Minister aware that some 15 years ago when I was still head of the Diplomatic Service I received a delegation of French parliamentarians? One of them asked me whether I thought that at the turn of the century there would still be an individual British diplomatic service. I replied that I was almost certain that there would be, but that I was totally certain that there would still be a French diplomatic service.
Baroness Symons of Vernham Dean: My Lords, indeed, I was not aware that the noble Lord had received a French delegation. I am very glad that he gave such a robust response. Of course, there is no suggestion that the external action service would replace national diplomatic representation because the draft treaty states:
"This service shall work in cooperation with the diplomatic services of the Member States", and,
"The diplomatic missions of the Member States and the Union delegations in third countries and at international organisations shall cooperate".

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I think that makes it very clear that these will be separate.
Lord Renton: My Lords, does the noble Baroness agree that a European Union external action service may require the use of force? If that is so, would not its responsibilities overlap with those of the United Nations, NATO and, indeed, our own Armed Forces?
Baroness Symons of Vernham Dean: My Lords, no. I do not think that is true. The common foreign and security policy will proceed only on the basis of a unanimous vote. That was one of the red lines the Government set themselves in the drafting of the recent treaty. That has been clearly maintained. As the noble Lord may recall, the European security and defence policy (ESDP) similarly means that national governments will have to take decisions over any decision to use force.
Lord Howell of Guildford: My Lords, following the question posed by the noble Lord, Lord Wright of Richmond, has the Minister received any expression of concern from Foreign and Commonwealth Office staff or the diplomatic corps about the dangers of overlap between the new external service and the existing national diplomatic services? Is there not some concern that as there is no common European foreign policy—indeed, we disagree quite strongly with many of our neighbours on major and central foreign policy issues—it will be very difficult for this new diplomatic service, which, in effect, is what it will be, to be effective and produce a combined view in areas where all the member states disagree?
Baroness Symons of Vernham Dean: My Lords, I have not received any representations of that nature. I am not suggesting to your Lordships that there will not be some concerns. I appreciate the point made by the noble Lord. It is important to ensure that there is not duplication of effort. There will be further discussion about how the European external action service will be established. I do not expect those discussions to start until at least the end of this year. I remind the noble Lord, as regards his worries in relation to the common foreign and security policy, that it was the Maastricht Treaty that introduced the concept of such a policy.
Lord Wallace of Saltaire: My Lords, can the Minister confirm that the British Government already share some facilities in embassies in third countries with a number of European governments? Are the Government considering any interim measures that might extend that useful way of saving money and extending effectiveness?
Baroness Symons of Vernham Dean: My Lords, we share buildings only. The whole point is that we do not have common embassies, but we do look at co-location. That is a continuing process. I have no reason to believe that such co-location projects will not be possible in the future.

Israel: Security Barrier
3.20 p.m.
Baroness Northoverasked Her Majesty's Government:
What action they propose to take in response to the International Court of Justice ruling on 9 July on the legality of the wall being built by Israel in the West Bank.
Baroness Symons of Vernham Dean: My Lords, we are considering the detail and implications of the International Court of Justice advisory opinion on the Israeli barrier. We have been consistent in recognising Israel's legitimate security concerns, but consistent, too, in believing that the barrier built on occupied territory is unlawful. We have made it clear to the Israeli Government that Israel must act within international law. We have also stressed to the Palestinian Authority its responsibilities for improving Palestinian security.
Baroness Northover: My Lords, I thank the noble Baroness for that encouraging reply. Does she note the advice from the court that the wall is not only illegal, but also jeopardises the two-state solution? Does she also note the judgment of the Israeli Supreme Court of 30 June, which ordered major changes to the route of the wall because it is,
"disproportionate … violates the rights of the Palestinians"
and that,
"Only a separation route based on the path of law will lead the [Israeli] state to the security so yearned for".
What urgent action are the Government taking on this issue and what action are they urging on their US and EU allies both in the UN and elsewhere?
Baroness Symons of Vernham Dean: My Lords, much as I appreciate the importance of the court ruling, it does not make any difference to the point that I was making at the beginning that we believe that it was an unlawful barrier in the first place. We have been making such representations for quite some time. I agree with the noble Baroness that the barrier may be said to jeopardise the two-state solution because it separates the West Bank into different cantons and therefore undercuts the possibility of a viable and contiguous—that is an important word—state of Israel. I also believe that the Supreme Court ruling is very important because it is about the humanitarian impact of the wall, which has been adjudicated on by the courts which have asked for 30 kilometres of the wall in east Jerusalem to be reconsidered. We are heavily engaged on this issue.
Lord Campbell-Savours: My Lords, in the event that this matter and the actions are illegal, would not an abstention at the United Nations on such matters be quite inappropriate?
Baroness Symons of Vernham Dean: My Lords, this is an extremely delicate question and perhaps I may

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deal with it at two levels. First, as the noble Lord will know, we did not believe that referral of this issue to the ICJ in the first place was appropriate because hitherto such referrals have concerned matters where both parties have consented to the referral. We believe that this referral has made it a much more politically-based issue. We are not alone in believing that. The whole of the EU thought so, as did Australia, Canada, New Zealand and a whole range of countries. They all made the same point. The question we must ask ourselves is what does any UN resolution say and will it be in the appropriate context of looking at the very important question of security as well as the legal and humanitarian impact of the security barrier.
The Earl of Onslow: My Lords, is it not true that all the faffing about whether it is legal or not does not make a ha'porth of difference? When the United States says "Do it", they will do it, and when it says "Don't do it", they won't. Until the United States puts its effective power behind the peace settlement in the Middle East nothing will happen.
Baroness Symons of Vernham Dean: My Lords, no. That is far too nihilistic a view of what is going on. It is a very complicated position. As I have already said, we believed that this barrier was not legal before the ruling. But it is important to look at why the barrier is being built in terms of Israel's legitimate security concerns. They cannot be swept on one side; they are real. The fact is that the Israeli Government have produced figures, which I grant are their own, which show how many fewer deaths from terrorism there have been since the wall was erected. That does not make it legal. It is still unlawful. But there is a legitimate issue about security and one issue cannot be addressed without the other. It is enormously important. We will lose any legitimacy that we have with both sides in the argument if we choose entirely to ignore the points of one side about their own security and the possibility of terrorism jeopardising their people.
Lord Turnberg: My Lords, will my noble friend agree that, while the Palestinians are still setting up terrorist training camps for youngsters, as reported by Sky television recently, it would be unrealistic to expect the Israeli Government not to make every effort to defend their citizens? Is it not also the case that many governments, including that of the United Kingdom, made it clear that at a time when Israel is taking the first steps to implement the road map by withdrawing from Gaza, the wall is not something on which the international court should be spending its time?
Baroness Symons of Vernham Dean: My Lords, I take issue with my noble friend on one point. It is not Palestinians who are setting up the training camps but extremists. I would be very sorry to see your Lordships falling into the error, of which I have heard quite a lot in the United States, of deciding that all Palestinians are terrorists. That is self-evidently not true. There are many law-abiding Palestinians who long for peace as
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much as anything else. The point is that the British Government have been discussing with the Palestinians ways in which we can help with their security. They are discussing the same issues with the Egyptians at the moment. I hope that ICJ rulings and incidents which we have to deal with throughout the peace do not detract from the overall position that one must listen to both sides of this long, complex and horrible problem in order to try to make progress. I believe that that is possible through the road map.
The Lord Bishop of Worcester: My Lords, is it not the case that it is 24 hours since the Minister was speaking about the importance of compliance with United Nations resolutions? Is it not also the case that while we absolutely recognise Israel's proper concern about security, that must be held within some kind of international consensus? For instance, there is the fact that the right of a nation to defend itself does not include the right to build defence installations on territory which it has not been agreed to be theirs?
Baroness Symons of Vernham Dean: My Lords, indeed. It is unlawful for the barrier to be built where it is. It is unlawful to have settlements in the occupied territories. These points have been reiterated again and again from this Dispatch Box. The difference between the resolutions which we were discussing yesterday and those as regards Israel's obligations are twofold. First, the resolutions that we discussed yesterday were mandatory under Chapter 7. Secondly, almost all the resolutions which refer to Israel's obligations also refer to Palestinian obligations. The fact is that neither side has fulfilled its obligations under UN resolutions.
Lord Steel of Aikwood: My Lords, as the Minister keeps saying that it is not the existence of the wall which at issue but its route, which is correct, and as Prime Minister Sharon continually ignores the point made by the international court and the Israeli Supreme Court, "what action", to quote my noble friend's Question, are the Government going to take within the EU, for example, to bring to an end the favourable trade treatment arrangement with Israel if it will not subscribe to international law?
Baroness Symons of Vernham Dean: My Lords, I have to tell the noble Lord that no serious attempt has been made to change in any way the trading relationship with Israel within the European Union. The noble Lord suggests by implication that there has been a push for this, and one that we have resisted. That simply has not been the case.
It is important that we continue to press Israel. Only two weeks ago I was in Israel and raised this issue. Over and over again I pressed the Israelis about the route of the barrier. I pressed them not only on the legal basis, which I agree is enormously important and not something to be dismissed, but also on the basis that this would jeopardise the two-state solution, the point made by the noble Baroness, Lady Northover. Moreover, on a day-to-day basis the barrier, built

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where it is so that it separates east Jerusalem, separates not Israeli from Palestinian, but Palestinian from Palestinian. Its impact in humanitarian terms on the day-to-day lives of Palestinians is out of all proportion. That is an enormously important point to keep putting back to the Israelis who, of course, live under the rule of law just as we do.

Business of the House: Standing Order 47
3.30 p.m.
Baroness Amos: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order 47 (No two stages of a Bill to be taken on one day) be dispensed with to allow the Finance Bill to be taken through all its remaining stages on Tuesday 20 July.—(Baroness Amos.)
On Question, Motion agreed to.

Scottish Parliament (Constituencies) Bill
Read a third time, and passed.

Constitutional Reform Bill [H.L.]
3.31 p.m.
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.
Moved, That the House do now resolve itself into Committee (on Recommitment).—(Lord Falconer of Thoroton.)
Lord Richard: My Lords, before the House agrees to the Motion, perhaps I may say a few words about the work of the Select Committee to which the House committed this Bill on 8 March and which I had the honour of chairing. Noble Lords may recall that the Select Committee procedure is used very rarely in respect of government Bills. The last occasion on which a government Bill was so committed and reported to the House with amendments was as far back as 1917. In 1976 a Select Committee on the Hare Coursing Bill recommended that the Bill should not proceed and it was thereby killed. So it is not a procedure that has been in a great deal of use recently.
A Select Committee on a Bill can hear evidence on the policy of the Bill, report on it like any Select Committee on a policy issue and, if it wishes, amend the Bill. That is the real difference between this type of committee and a normal Select Committee. I have to say to noble Lords that we have indeed made 400 amendments to the Bill, and the legislation now before the House reflects those changes.
Between 24 March and 24 June when we were charged to complete our report, we met twice a week for two to three hours at a time. That placed a
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considerable load on members of the committee and I should like to thank them for their assiduity and commitment. I thank also our Clerk, Mr Rhodri Walters, and our specialist adviser, Professor Andrew Le Sueur of the University of Birmingham, for their valuable assistance. I do not think that we could have produced a report which distilled so much evidence and so much argument into what I hope is a reasonably comprehensible form without the efforts of the Clerks and the special advisers.
I pay tribute also to the members of the committee. It was a committee divided on party lines, with five Labour members, five Conservatives, three Liberal Democrats and three Cross-Benchers. What I found especially heartening was the extent to which all members of the committee genuinely sought the maximum amount of agreement consonant with their individual views. It is not always the experience of someone in this building serving on a committee to find such a genuine search for consensus. In this case it seemed that there was, and I should like to make that public.
Finally, I thank the House for giving me the opportunity of chairing the committee. It was a stimulating and, as it turned out, very enjoyable task.
Our work was divided into three main phases. First, we met in public to take oral evidence from more than 32 witnesses. We received over 80 written submissions. We considered the views of 14 serving judges, seven retired judges, 14 academics, the lawyers' professional bodies in England and Wales, Scotland and Northern Ireland, as well as campaign groups, individual lawyers and law firms, and members of the public. The evidence is published in Volume 2 of the report.
This collation of the evidence and analysis of the facts and opinions about the reforms proposed in the Bill will, I hope, be of assistance to the House as it now resumes its scrutiny. I hope, too, that it provides a firm evidential basis for future argument, which no doubt will take place.
During our deliberation stage we met in private to consider the central issues that had emerged from the evidence. In total, we identified and examined 44 separate issues. On many of those questions we were able to reach conclusions on the basis of consensus. On some, our report shows that the committee supports the policy of the Bill. On other issues, we agreed to amend the Bill on the basis of amendments tabled by the noble and learned Lord the Lord Chancellor. Alternatively, we have indicated our support for amendments that the Government have undertaken to bring forward at a later stage.
It will be no surprise to noble Lords to learn that there were issues on which we did not reach agreement and consensus. Those included the two major questions of whether the office of Lord Chancellor should be abolished and whether a Supreme Court should be established. The committee was more or less evenly divided on those issues and we have explained the reasons for our disagreement in the report. Not only were we more or less evenly divided, but under the procedures of the committee the chairman had no

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casting vote. However, I have to say that, even if he had had such a casting vote, he would not have exercised it because it would have defeated the whole object of the committee if we had voted along those lines. These are major constitutional changes and it is right that they are determined by Parliament as a whole.
In the final, formal stages of our work, we amended the Bill and agreed our report. The amendments included those to which I have already alluded—the ones brought forward by the noble and learned Lord the Lord Chancellor in response to our discussions. Here I should say in parenthesis how valuable it was to have the noble and learned Lord there as a member of the committee. He could hear the argument, he had the authority and, in circumstances in which he thought it proper, his flexibility and natural charm allowed him to agree. Not only that, we accepted amendments which we felt would give better effect to the concordat between the Lord Chancellor and the Lord Chief Justice. Finally, we made a large number of minor drafting and technical amendments at the request of the Lord Chancellor. All the amendments were made by agreement.
What of the points of disagreement? As we explain more fully in paragraphs 7 and 8 of the report, we took the view early on that little would be served by seeking to vote. Instead it was better to register the areas of our disagreement in the report itself. I think that some of my colleagues on the committee would also wish me to emphasise that, in those areas of disagreement, the fact that we have stood the clauses and schedules as part of the Bill does not imply that we all acquiesce to them, nor will it inhibit some of our number at least from registering such disagreements at later stages of the Bill.
I turn briefly to some of the chief points we made. Given that the House set up the committee, which then collected evidence and sat for three months, I think it is quite important to put the committee's report in the context of this debate, and perhaps just as important to put the context of this debate in the framework of the report.
In Chapter 2 we considered in detail the issues arising from the policy of the Bill to abolish the office of Lord Chancellor. Like most of our witnesses, we all agreed that change is inevitable. No one suggests turning the clock back to before 12 June last year when the Government announced their proposals for reform. None of us supports the idea that the Minister responsible for the courts should continue to sit as a judge. We all accept that the Lord Chief Justice of England and Wales should be recognised as head of the judiciary.
But what should be the characteristics of the Minister responsible for "judiciary-related matters"? About this we certainly disagreed. Some of us support the Government's policy that the Minister should be a mainstream Secretary of State, and so not necessarily a senior lawyer but possibly an MP rather than a Member of the House of Lords. Some of us believe that the Minister should continue to be called the Lord
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Chancellor and be a senior lawyer and a Member of the House of Lords. It will now be a matter for the Committee of the Whole House to consider this important issue further.
It is also fair to say that there was, among those who wished to retain the office of Lord Chancellor, no clear agreement on what his precise functions would be. We hope that the analysis of the rival arguments set out in our report will provide a sound basis for this continuing debate.
One of the issues we also examined, which was a fairly controversial one, was the proposal in the Bill to put the constitutional conventions safeguarding the independence of the judiciary, and the rule of law, on a statutory footing. The Government brought forward an amendment to the Bill to put that into statutory form. We all agreed that the Bill should say something about these matters and the report set out various options as to how the Bill could achieve this, but we were unable to reach a consensus about the best way forward.
In the next chapter of our report we considered the proposal to create a Supreme Court for the United Kingdom. We received a wide range of views in evidence: some strongly supporting the idea that there should be a Supreme Court; some strongly supporting keeping the United Kingdom's highest court within the House of Lords. It will come as no surprise to anyone that there was no consensus within the committee on this issue.
Although we made no recommendations on the basic issue of whether there should be a Supreme Court, we did go on to make several important amendments to this part of the Bill. Indeed, this is a very good example of the way in which the committee approached its task. We disagreed on whether there should be a Supreme Court at all. We disagreed on whether commencement of this part of the Bill—the commencement of the Supreme Court assuming its responsibilities—should be delayed, pending a move to permanent premises.
Apart from those major issues, there was very considerable consensus. We agreed on the name of the court, the number of justices and that at least two should be Scottish. We agreed the qualifications for appointment to the Supreme Court. We agreed the composition of the selection commission. We agreed further that the selection commission should provide the name of only one candidate for appointment. We agreed the extent of consultation with senior justices and the devolved administrations.
We agreed that the role of the Prime Minister should solely be to act as a conduit between Ministers and the Queen. We agreed on the provisions for acting justices and the supplementary panel. We agreed that the designation of the Supreme Court as a superior court of record should remain. We agreed that there was no need to change provisions of the Bill in respect of the Scottish civil and criminal appeals or the leave arrangements for Scottish civil appeals. We agreed with the proposal to transfer devolution jurisdiction from the Privy Council to the Supreme Court. We

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agreed that the court should make its own rules. We agreed—extremely importantly—that the court should be established according to the model of a non-ministerial department, so that it would have greater control over its own financial and administrative agreements. We agreed that it should set its own fees.
We agreed that there should be an amendment to the Bill which safeguards the separate jurisdiction to be examined by the Supreme Court in respect of Scottish, Northern Irish, English and Welsh laws.
The effect of this procedure is that, if the House decides that it wants a Supreme Court to be established, many of the subsidiary issues will already have been considered in the committee and, I hope that the House will come to the conclusion, have been fairly dealt with. Of course, it will be open to the House to arrive at different conclusions, but I hope that the House will at least take the broad view that, having set up the committee and the committee having deliberated in the way that it has, the House should perhaps concentrate on the major issues. The virtue of this report is in the details, and I hope that we managed to give those details a thorough examination.
I apologise for taking some time before we reach the main debate of the day, but it is perhaps important that I spell out how we approached what we did.
3.45 p.m.
Chapter 4 of the report deals with the reform of judicial appointments in England and Wales. We considered whether the Bill is correct to propose a recommending rather than an appointing Judicial Appointments Commission. We agreed—some of us reluctantly—that a recommending commission was a satisfactory system. We agreed that the composition of the 15–person commission struck the right balance between judicial and lay involvement. We accepted amendments proposed by the Government to ensure that every panel of the commission should include at least one judicial and one lay member. Some members of the committee took the view that the arrangements for the appointment of High Court judges needed to be altered. Accordingly, we made no recommendation about that.
We were of one view in supporting the policy of the Bill that judicial appointments should be made on the basis of merit alone, and therefore accepted a government amendment to allow the Judicial Appointments Commission rather than the Minister to define "merit". We also agreed that diversity among the judiciary should be promoted, without diluting the merit principle, to ensure that more women and people from ethnic minorities are able to serve as judges. We therefore made an amendment to the Bill encouraging specific reference in the guidance issued to the commission to the importance of,
"encouraging diversity in the range of persons available for selection".
Chapter 5 of the report deals with two parliamentary matters of extreme importance, certainly to this House. Clause 94 of the Bill proposes
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to remove the right of senior serving judges to participate in the legislative and scrutiny work of the House of Lords. It will be no surprise to anyone that on this—as on the creation of the Supreme Court—we did not reach a consensus. Whether or not judges are disqualified from Parliament, we considered a second question: should a parliamentary committee be established with general oversight of judicial matters? Our view was that such a committee was indeed desirable and could act as a valuable bridge between the legislature and the judiciary.
As to whether this procedure was a success, I confess that I have mixed views. If a Bill is properly prepared and launched after appropriate consultation, then a Select Committee of this sort should not be necessary; but where, as in this case, the proposed legislation involves major constitutional issues, I think that a gathering of the evidence and an examination of the arguments have proved useful. A great deal of ground has been covered and has been cleared, and the Bill is now in a much better state than it was at Second Reading.
Lord Goodhart: My Lords, I should like to endorse what the noble Lord, Lord Richard, has said and to fill in one major omission from his speech today. I refer to the enormous debt owed by members of the committee to the noble Lord for his brilliant chairmanship of the committee.
On Question, Motion agreed to.
House in Committee (on Recommitment) accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Guarantee of continued judicial independence]:
Lord Kingsland Lord Kingsland moved Amendment No. 1:
Page 1, line 5, at beginning insert "The Lord Chancellor, other"
The noble Lord saidBefore I speak to my amendment, I should like to add my tribute to the noble Lord, Lord Richard. He referred to the noble and learned Lord the Lord Chancellor's flexibility and charm. The noble Lord, Lord Richard, had both those qualities in abundance and, in addition—and I hope that he will take this as a compliment—a good helping of Welsh guile, which helped to get the committee through one or two difficult phases in its work. I should like to thank him very much indeed.
It is my responsibility to begin the Committee stage by moving Amendment No. 1. This amendment is linked with Amendment No. 7 and a number of clause stand part debates, as noble Lords will see from the Marshalled List and the groupings list. Essentially, the issue is this. The Government wish to expunge the office of Lord High Chancellor of Great Britain from our constitution. They wish to do so because they think that the office has now outserved its usefulness. We, the Opposition, disagree. We believe that the office still has a vital role in protecting the rule of law in our country.

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When the debate on Amendment No. 1 is ended, it is almost certain that the matter will be put to the test. I would not wish any of your Lordships, therefore, to underestimate the importance of the occasion. But, at the same time, I would not wish your Lordships to oversimplify it. The question of whether or not the office of Lord Chancellor ought to survive has to be seen in the context of the Government's Bill.
There have been several debates on the Bill and many noble Lords will by now be familiar with its content. I should like to say at the outset that not only the Opposition but, I believe, a large number of your Lordships accept many of the provisions in the Bill; and the Select Committee stage has helped to crystallise our thoughts on the issues in detail. We sympathise with the initiative to set up a Judicial Appointments Committee; we support the conclusion of a concordat with the Lord Chief Justice; we accept that it is no longer appropriate for the Lord Chancellor to sit in the Appellate Committee of your Lordships' House.
Taken together, all these initiatives represent perhaps the most dramatic change in the judicial arm of our constitution since the Act of Settlement. The changes will replace decision-making on the work of the judicial arm by one individual—the Lord Chancellor—with a tripartite arrangement divided between the Judicial Appointments Commission, the Lord Chief Justice and the Secretary of State for Constitutional Affairs.
I emphasise at the outset of the debate that it is not the Opposition's intention to unravel, in any way, the architecture of the Bill; we accept the tripartite architecture in full. Our only concern, encapsulated in Amendment No. 1, is whether the position of Secretary of State for Constitutional Affairs is sufficiently powerful to carry out the tasks stipulated in the Bill for that role.
Over the past six months, many noble Lords have speculated long and hard about what it was on 12 June 2003 that led the Government to make their announcement about the position of the Lord Chancellor. Much time has passed and the Select Committee has had a chance to look at the matter dispassionately. In taking our decision today, we have to test, against the new architecture in the Bill, whether the Government's decision on 12 June—or purported decision because they could not put it into effect—was right.
In order to test this, I should like to refer your Lordships to two parts of the evidence. The first part was given in a most imaginative contribution by Professor Robert Hazell, who is the head of the Constitution Unit at University College London. He put the issue in this way. He said that in any modern Cabinet there are two forces—the forces of order and the forces of law—and successful government requires those two forces to be in balance, and he added that there is a real concern in many modern governments that the force of order will prove too strong for the force of justice.
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In his response to the consultation by the noble and learned Lord the Lord Chancellor, on the question of the survival of the office, the noble and learned Lord, Lord Bingham, said:
"Fourthly, we do not in this response comment on the proposal to abolish the office of Lord Chancellor. We are, however, very greatly concerned that the important constitutional values which the office of Lord Chancellor protected should continue to be effectively protected".
Will the proposed office of Secretary of State for Constitutional Affairs deliver what the noble and learned Lord, Lord Bingham of Cornhill, wants?
The component parts of the office have been described on several occasions by the noble and learned Lord the Lord Chancellor and others. It is envisaged that the office will normally be occupied by a party politician, who is not a lawyer, in another place and without any special precedence in the Cabinet. It is my view that an office so constituted will prove a deeply inadequate protection for the rule of law in our nation.
I derive some support for saying that from the experience of the noble and learned Lord, Lord Woolf, in respect of the ouster clause in the Asylum and Immigration (Treatment of Claimants, etc.) Bill, now thankfully no longer in the text. In his Squire centennial speech in Cambridge, a few months ago, the noble and learned Lord Woolf, in the heat of contesting the clause, said:
"I am worried about a Department for Constitutional Affairs becoming a subsidiary of the Home Office or unable to compete with the dominance of the Home Office. The result could be the Home Office being in a position to dictate the agenda for the courts, which would not accord with the need for independence".
If that is the judgment of the noble and learned Lord, Lord Woolf, on the present state of the office of the Secretary of State for Constitutional Affairs, what changes are necessary in the Bill to remedy this defect? I shall suggest what changes we believe are necessary.
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. This follows not only from the stipulations of the relationship between the Secretary of State and the Judicial Appointments Committee and the requirements of the concordat; it is also very hard to see, on a dispassionate reading, how anyone other than an experienced, qualified lawyer could possibly perform his constitutional duties.
Further, the responsibilities of the Secretary of State for Constitutional Affairs are also to the independence of the judiciary and the rule of law. What have been the great challenges to the rule of law over the past three years? The introduction of propensity evidence in the Criminal Justice Act 2003; the purported ouster clause earlier this year in the asylum Bill; and an attempt—which luckily failed—to change the burden of proof in a number of other criminal matters. In order to contest such matters in Cabinet the Secretary of State for

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Constitutional Affairs will have to have a real, in-depth grasp of the criminal law. I do not see how someone can perform the role without having legal qualifications.
Secondly, in my submission, 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 to your Lordships' House; 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, or decisions that are made about those Bills. Again, Professor Robert Hazell, in his evidence, saw your Lordships' House as the natural guardian of the constitution, a view recently endorsed by the noble Lord, Lord Wakeham, in his report on your Lordships' House.
But would a Secretary of State for Constitutional Affairs—legally qualified and a Member of your Lordships' House—do the job that the noble and learned Lord the Lord Chancellor now does? It seems to me highly unlikely that he would.
It is just imaginable that someone could still emerge from another place. My noble and learned friend Lord Howe served as a Law Officer and held two great offices of state in the 1980s as Chancellor of the Exchequer and Foreign Secretary. If the noble and learned Lord, with all those qualifications, had been made Secretary of State for Constitutional Affairs in your Lordships' House, I have no doubt that he would have carried the same amount of political clout as if he had been made Lord Chancellor.
4 p.m.
But in the 21st century, I am afraid, there will be almost no Lord Howes coming off the production line in another place. Sadly, very few lawyers of that quality are able to enter politics in another place. Future Secretaries of State for Constitutional Affairs will come direct from the legal profession into your Lordships' House carrying no political clout at all. Their political clout will derive from the office that they hold. The office of Lord Chancellor will provide them with that clout—its prestige, its status, its weight, its parallel classification with the Home Secretary, the Foreign Secretary and the Chancellor of the Exchequer. That is why maintaining the office of Lord Chancellor is so crucial in our constitutional arrangements. It is the only guarantee that, in the deliberations of the Cabinet, the rule of law will stand up to the predatory ambitions of those who represent the forces of order.
The Government have sought to promote the notion of the separation of powers as being at the heart of our constitution. It is not. It is not the separation of powers but the balance of powers that matters in our constitution. The Lord Chancellor in the Cabinet is a great inconvenience to the executive. That is the reason he should stay there. I beg to move.
Lord Lloyd of BerwickI too would like to add my tribute to the noble Lord, Lord Richard, for chairing the Select Committee in the way he did and for producing a report in record time.
At Second Reading I dared to suggest that it might be possible to produce a report by the end of July. Without wanting to be too controversial at this stage of my speech, I should say that the noble and learned Lord the Lord Chancellor described that as fanciful. In fact we succeeded in doing it by the end of June. For that we owe a deep debt of gratitude to the noble Lord, Lord Richard. What a good report it is; it is a model of clarity. I would particularly like to emphasise the point which the noble Lord, Lord Richard, made at the end of his address—that it will provide a very useful precedent if ever again we are presented with a Bill which ought to have received pre-legislative scrutiny, but which for one reason or another has not had it. We do not know what the reason was in this case; we have not been told. The report will be a very useful precedent for the future.
I see that I have already spoken for 15 minutes—but perhaps the clock has not been changed. One of the advantages of the Select Committee procedure is that some of the issues which seemed to loom so large have now disappeared altogether and all the issues are now in much better focus. The proposed abolition of the Lord Chancellor is a very good example of that. Everybody now agrees that the Lord Chancellor—if the post and office are retained, as I profoundly hope that they are—should no longer sit as a judge. In some ways I regret that, because some recent Lord Chancellors have been very good judges indeed. In the absence of the noble and learned Lord, Lord Mackay, I can say that he is a very good example of how good a judge a Lord Chancellor can be.
But I accept that there are problems with a judge sitting as a member of the Cabinet, particularly, it seems, among the newly joined members of the European Union. So it is now common ground that if the Lord Chancellor is retained, he should be debarred from sitting as a judge. It is also common ground that he should no longer be solely responsible, as he has been in the past, for selecting the judiciary. We all agree that that task will now be performed by the new Judicial Appointments Commission, to which we all look forward.
So what, having got rid of those functions, is left? Sometimes, listening to the Lord Chancellor, one has had the impression that almost nothing would be left. But that of course is quite wrong; there will still be a huge job for the Lord Chancellor. In the first place he will run the courts, including the magistrates' courts, as he has always done. Secondly, he will have his role of defending the independence of the judiciary and the rule of law, and being—as has so often been said the voice of the judges in Cabinet. Thirdly, he will have his role as Speaker of this House. I will say no more about that because it will be a question for this House whether he should continue as Speaker. So I put that on one side.

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As for the other functions, they are exactly the same functions as would be transferred to the new Secretary of State under this Bill. That is a point on which we reached agreement. I hope to quote very little from the report, but I will quote paragraph 43, which stated:
"The Committee agrees that in view of the Concordat the future duties of the Lord Chancellor/Secretary of State office-holder should be responsibility for 'judiciary-related' matters (that is, the provision of systems to support the carrying on of the business of courts and tribunals, judicial appointments, and overseeing judicial discipline); and responsibilities as the 'constitutional conscience' of Government, defending judicial independence and the rule of law in Cabinet".
So there you have it—the Select Committee is agreed that the two jobs will be exactly the same. That prompts the question of what on earth the point is of transferring those functions from the Lord Chancellor, where they will rest under our scheme, to the new Secretary of State. I suggest that that is a question to which we have never heard a convincing answer.
Let me very briefly remind the Committee of the arguments that have been advanced from time to time. There are four in all. First, there is the argument based on separation of powers—that it is wrong for a judge to sit in Cabinet. But once we take away the judicial role, as everybody agrees, that argument falls flat on its face.
Secondly, there is the argument that there is too much for the Lord Chancellor to do. That was an argument that featured very largely in the original consultation paper. It was almost the only argument. But again, once we take away the judicial role and his role in selecting and appointing the judges, we have exactly the same role as that proposed for the Secretary of State. So that argument, too, falls to the ground.
Thirdly, there is the argument—a difficult argument perhaps at first to comprehend—of the so-called inherent tension or conflict in the role of the Lord Chancellor. That is an argument which featured very largely in the speech of the noble and learned Lord the Lord Chancellor on 12 February, and in his written and oral evidence to the Select Committee. The argument is that on the one hand the Lord Chancellor has to uphold the rule of law, and that on the other he has to run a great department. He argues that those roles are in conflict and therefore should be split. Since this is such an important argument, I should again quote the Lord Chancellor's argument in his own words. He said:
"My Lords, the Lord Chancellor must form a view about where the rule of law is being infringed. That will frequently bring him into conflict with his political role. If it does, the rule of law must prevail".
Then the noble Baroness, Lady Kennedy of the Shaws, intervened and asked:
"Can we be confident that a Secretary of State with ambition will not side with the political part of his background, as distinct from that which will protect the rule of law? That is where our anxieties lie".
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The noble and learned Lord, the Lord Chancellor, replied:
"My Lords, that point is absolutely rightly and forcefully put. The question that the abolition of the Lord Chancellor's role raises is: can you go on with a £3 billion budget? With these policy responsibilities—a responsibility for being the protector of the judiciary and the upholder of the rule of law—there is an obvious conflict. The conflict has become greater and greater. The separation of powers is not some abstract concept. It is preventing your role as a Minister overtopping your role as the protector of the constitution or preventing your role as a protector of the constitution overtopping your role as a Minister. Eventually, we are getting to the point where that conflict cannot be contained in one office".
At that point, the noble Earl, Lord Onslow, intervened to say:
"That seems a rum old argument from the Lord Chancellor" .— [Official Report, 12/2/04; col. 1318.]
Whether it is a rum old argument or not, the problem is that exactly the same argument will apply to the Secretary of State, because he will be running the same department and defending the independence of the judiciary under Clause 1. Therefore, how can the Lord Chancellor rid himself of this inherent tension and conflict simply by changing his name, unless the duty under Clause 1 is not intended to press on him too heavily? I asked the Lord Chancellor that very question—question 29 on page 29—and I did not get a very satisfactory answer.
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 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.
Why do I say that the Prime Minister's role should be limited in this way but not in others, because after all, nobody would suggest that the Secretary of State for Defence should be a soldier or sailor? The distinction is almost too obvious to state. The Army must do what the Government say: there is no room for conflict or tension. However, the courts do not have to do what the Government say. Indeed, it is the other way round. It is the task of the courts to ensure that the Government do what Parliament says, which is very different. Therefore, there is obvious scope for friction between the judiciary and the executive, which may be getting wider all the time—although I hope that it is not. However, since such scope exists, it is essential to have someone running the courts who has the respect of both sides—the judiciary and the executive.
For similar reasons, it is essential to have someone who is a Member of this House, so that he can, as far as possible, be kept away from the hurly-burly of political conflict in the House of Commons. That would have the incidental advantage, often mentioned by the noble Lord, Lord Elton, of having two Cabinet Ministers in this House instead of one. We all know

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that our constitution depends on checks and balances, and that is especially important when one party or the other has a huge majority. One such check is the presence of the Lord Chancellor in the Cabinet. Of course, it is possible to exaggerate his influence, but I hope that I do not do that. I accept that he can always be dismissed by the Prime Minister. However, until he is, the check is there and we get rid of it at our peril.
4.15 p.m.
Lord GoodhartThis group of amendments concerns the future title of the Minister at the head of the Department for Constitutional Affairs. In speaking to Amendments Nos. 1 and 7 in this group, I will have to discuss our own Amendment No. 8, which proposes the alternative name for the office of Secretary of State for Justice. Our position on Amendments Nos. 1 and 7 cannot be explained without reference to that alternative name. I asked to have Amendment No. 8 grouped with Amendments Nos. 1 and 7. That has not been done, so I will have to speak to Amendment No. 8 in this debate and I promise the Committee that I will not speak to it again when we reach the point at which it appears on the list.
As the noble Lord, Lord Richard, said in his very informative introduction to this debate, there was broad consensus in the Select Committee on what the Minister should and should not do. It was agreed that the Minister should not sit as a judge, should not be head of the judiciary in England and Wales and should have only a limited role in the appointment and promotion of the judiciary—a step that would greatly protect the independence of the judiciary. It was agreed that the Minister should continue to be head of his department, which is now a substantial department with a budget of more than £3 billion a year including legal aid. It was agreed that the Minister should have a role as defender of the independence of the judiciary and of the rule of law and that that should be recognised in the Bill, although we have not yet achieved consensus on the text.
The disputes that remain, therefore, are not about the functions of the Minister. They are: first, whether the Minister should have legal qualifications; secondly, whether he—I use the word "he" because of the current convention for using the gender of the present holder of the office—should have to be a Member of your Lordships' House; and thirdly, what he should be called. In a way, I regret that the title of the office has come first in the debate. It might have been better to tackle the other issues first so that we could see what kind of creature we were describing.
Titles are symbolic, but that does not mean that the issue is unimportant. Symbols have potency. However, it is plain that the new office is very different from the old one. In the past, the office had both judicial and political functions. Certainly, at times in the past the judicial functions were the more important of the two—as, for example, in the time of Lord Eldon, who was Lord Chancellor for some 20 years between 1805 and 1825 and spent most of his time sitting as judge of the Chancery Court.
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Now, of course, the judicial role, or the vestiges of it, are to be removed. The question is whether the title of Lord Chancellor should go with it. It would be possible to retain the name of Lord Chancellor for the remaining functions of the Minister. There are arguments for that. First, continuity would be maintained. Secondly, it is said that if it is at least coupled with the requirement that the Minister should have legal qualifications and be a Member of your Lordships' House, it would strengthen the standing and independence of the Minister and his ability to stand up to Cabinet colleagues to protect the independence of the judiciary and the rule of law. That argument has been clearly and forcefully put by both the previous speakers.
I am not persuaded. The question of legal qualifications and membership of your Lordships' House does not arise out of this group of amendments. It is a matter for later groups. We can see the advantage of having legal qualifications, but I do not believe that an intelligent and well informed lay person is incapable of understanding and defending the rule of law. Lawyers tend to have somewhat fixed and rigid views on this subject, and it is more than possible that an outsider could have a better understanding of the constitutional implications. However, that is a different issue. We shall be voting not on whether the Minister should have a legal qualification, but simply on whether he should be called Lord Chancellor.
We are certainly opposed to making it the rule that the Minister, as head of a department with a significant budget, should necessarily be a Member of your Lordships' House, whether or not there are suitable candidates for this office in another place. We need a Minister, in your Lordships' House or not, legally qualified or not, called whatever title, who will stand up for the independence of the judiciary and the rule of law. Will retaining the historic office or title of Lord Chancellor strengthen the hand of the Minister in defending judicial independence and the rule of law? The answer is no. The standing and authority of the Minister depends on the character and quality of the person who holds the office, the willingness of the Prime Minister to choose a person who has the character and quality to do the job, and the willingness of the Prime Minister to heed that person's advice.
We have had a series of strong and effective Lord Chancellors in recent years. The late Lord Hailsham and the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg, all fall into that category. They were strong and effective not because they were called Lord Chancellor but because they were strong and effective people appointed by Prime Ministers who were willing to appoint such people.
Not all Lord Chancellors have been strong and effective. It would be invidious to name names, but there is no magic about the title. As shown on 12 June 2003, the Lord Chancellor, however strong, is a Cabinet Minister who can be sacked by the Prime Minister like any other Minister. A future Prime Minister who wants a compliant Lord Chancellor will

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find one. The mystique attached to the office of Lord Chancellor was shattered by the events of June last year and I do not believe that it can be reconstructed.
That was a concern expressed by the noble and learned Lord, Lord Woolf, in his speech at which I was present in Cambridge on 3 March this year, when he said:
"I also have doubts whether it would be possible now to restore the special culture that needs to exist if the Lord Chancellor is to successfully combine his different and conflicting responsibilties".
Professor Robert Hazell, head of the constitution unit at University College, London, as someone who regretted the announcement that the office was to be abolished, said in evidence to the committee:
"The damage may well have been done. The Government, having decided to abolish the office, in a way have broken the vase and it may be too late to put the pieces together again".
We do not see the retention of the office of Lord Chancellor as being a necessary or even valuable addition to that role. We also have to say, however, that we are not happy with the title of Secretary of State for Constitutional Affairs, which is an inaccurate description of the office. We have long advocated the title of Minister of Justice or Secretary of State for Justice.
Justice is the core role of the department and the Minister. The department has some constitutional roles that cannot be described as justice matters. For example, it is an umbrella department for devolution and it is responsible for the conduct of elections. Those are fringe activities that should probably go elsewhere. But the administration of the court system, the role in judicial appointments and discipline of the judiciary, responsibility for legal aid, and for civil law and procedure are central to the department. What it lacks—and should get—is responsibility for criminal law and procedure, which would leave responsibility for prisons and police with the Home Secretary. That would leave us with a Ministry of Justice responsible for law and a Home Office responsible for order. That is a logical division of responsibility, which has been adopted in most other democratic countries, and which should be adopted here.
We cannot expect the transfer of criminal law from the Home Office to the Ministry of Justice while the present Home Secretary remains in office. The "Secretary of State for Justice" accurately describes the present functions of the Minister and the department and points out the direction in which the department should move to become a fully fledged Department of Justice. A move in that direction as soon as possible is essential to give the Minister equal standing with the Home Secretary, which cannot be achieved by retaining the historic title.
If we cannot have the title of Secretary of State for Justice, although I hope that it is possible, we are faced with an unattractive choice. Do we support the retention of the historic title when the office to which it was attached has been transformed into something completely different, or do we support the introduction of a new title, which is an incomplete and inaccurate description of the duties of the office?
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The movement to our objectives—the Ministry of Justice and the Minister of Justice—will be easier if we can move to a new name now, even if it is not one that we ultimately want. That name recognises rather than conceals the change of function of the Minister. While I am entirely sympathetic to the motives of those who wish to retain the title of Lord Chancellor, they are misguided in believing that it will have that effect. We do not believe that the retention of an outdated title will assist the protection of judicial independence and the rule of law. We shall therefore vote against the amendment.
Lord Howe of AberavonI fancy that this is the first occasion after 12 years in your Lordships' House that I have taken part in a Committee stage debate, so I apologise for any procedural infelicity. I am also conscious of the fact that it is now some 32 years since I last wore a wig in anger, so I am to some extent disqualified in that respect as well.
During the intervening years, I have had the opportunity of presenting and discussing the reputation of our legal system in this country in many other parts of the world as Foreign Secretary and, in the decade or so following that, as an adviser to one of the world's largest American law firms. Throughout the world, our legal system, because of its structure and shape, commands universal respect which we put at peril with great unwisdom.
It is interesting that that was clearly recognised by Her Majesty's Government only a very short time before the events of 12 June—to be compared almost with 9/11 in their folly. When the Council of Europe pressed the Government to explain the extraordinary anomaly of the Lord Chancellor's role, emphasising the separation of powers and so on, the Lord Chancellor's Department submitted a long paper in response to Mr Eric Jurgens's motion in the Parliamentary Assembly of the Council of Europe, which explained the position as follows:
"The Lord Chancellor provides a counter-balance for the judicial branch against the centralised power of government and Parliament … he is removed to the House of Lords, away from the full force of party politics. The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with full understanding of legal culture and the rule of law".
He is thus,
"both a link and bulwark between the judiciary and the executive and the legislature".
The phrase,
"imbued with full understanding of legal culture and the rule of law",
goes a long way to answering the point most recently made by the noble Lord, Lord Goodhart. That is the position as it was until June last year.
4.30 p.m.
We are all agreed, as the noble Lord, Lord Richard, has pointed out—and I join in paying tribute to his chairmanship—on the acceptability of discarding the judicial role of the Lord Chancellor, and of saying a sad farewell to his sitting on the Woolsack in this

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House. As the noble and learned Lord, Lord Bingham of Cornhill, said, and we recorded in our report, the old days when the Lord Chancellor spent the first half of the day sitting judicially and the second half sitting as Speaker have, for better or for worse, gone for ever. We know that his sitting in this House was short-lived; the late Lord Chancellor, the noble and learned Lord, Lord Irvine, actually sat as a judge during his three years on only two cases. The nature of the job is therefore not substantially changed by that alteration, and the case that the Government were making remains exactly as strong as it was when they made it to the Council of Europe.
My noble friend Lord Kingsland has already quoted from the judges' response to the initial decision explaining why the Law Lords wished the office to continue with its present strength and reputation. But that support for the present state of affairs is also supported very powerfully and clearly by the report of the Constitutional Affairs Committee in the other place from 10 February this year. The committee said, referring to Lord Chancellors of recent times, that all have been distinguished within the legal profession, to which they have professed great loyalty. It went on:
"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, who is not bound by any judicial oath and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion".
That is the second essential distinction. That general argument is, interestingly, robustly supported by a noble friend in familiar disguise—the noble Lord, Lord Lester, under the heading of the Odysseus Trust. Under the heading,
"Arrangements to replace office of Lord Chancellor",
the evidence that the Select Committee received from that quarter said:
"We strongly favour the creation of a powerful Minister of Justice, with the legal stature and qualifications of a traditional Lord Chancellor, and a specific duty to uphold the rule of law and the independence and integrity of the judicial system".
There we have, from the Liberal Democrat Benches, support for the proposition that the office holder needs to have,
"the legal stature and qualifications of a traditional Lord Chancellor".
That is no doubt a recognition that that is the right way of securing, more surely, in the phrase of the noble Lord, Lord Goodhart, a "strong and effective" holder of this important office—someone qualified in that way.
Three things follow from that analysis, which are quite familiar. First, we need to have in that office a distinguished senior figure at the end of his career. Paragraph 36 of our report sums it up in the following words. The holder must have,
"reached the pinnacle as well as the culmination of his political and legal career".
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That plainly means a senior lawyer. I am grateful to my noble friend Lord Kingsland for his generous tribute to the expiring breed that I appear to represent. He will also remember that in the course of our committee's deliberations, the original phraseology was not,
"culmination of his political and legal career",
but "terminal". That was kindly altered to a happier word.
The second proposition, which is again familiar to the Committee, is that the holder of the office should be in this House. There are good practical reasons for that. First, as my noble friend Lord Kingsland, said, sadly there are almost no leading lawyers left in the other place. When I was fortunate enough to be appointed Solicitor General, there were at least half a dozen Members of my own party clamouring and competing for that job, and I counted myself extremely lucky to get it. There were at least as many on the other side of the House, many of them of real distinction.
Alas, if one goes to the other place now, one looks not quite in vain, but one finds people with that kind of qualification only with difficulty. The evidence for that is that the two Attorney-Generals under this Government have both been Members of this House. For the first time for many centuries, that office has had to be held in this House. So the idea that there may be spare lawyers of the distinction and quality to be appointed to holder of this office simply lying around on the Benches of the House of Commons is certainly a myth. I must say with some sadness that the decline was demonstrated by the fact that for a short time the shadow Attorney-General was not a practising lawyer of any kind but a parliamentary agent. That illustrates the extent to which the holder of this office, if he is to be a senior lawyer, must be in this House.
Another important point relating to why the holder should be in this House comes from remarks by Professor Robert Hazell. Paragraph 65 of our report said:
"The House of Lords has a particularly important role to play as a guardian of the constitution".
That was rightly endorsed, as my noble friend Lord Kingsland pointed out, by the Wakeham Royal Commission. Professor Hazell went on by saying:
"If … one important function of the Lord Chancellor or Secretary of State is to be a guardian of the constitution, then in that respect it is entirely appropriate for that Minister to be a Member of this House".
The third conclusion relates 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 and if it walks like a duck, it probably is a duck. If this creature's qualifications are going to be equivalent to those of the present Lord Chancellor, why on earth should we not call it Lord Chancellor?
The name matters not just because of the nomenclature of the office but because of the historic authority attached to that title. I noted the rather lighthearted way in which the noble Lord, Lord Goodhart, was happy to dismiss that antique title. I understand

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the thinking behind the notion of a Minister of Justice but, frankly, we do not have a Ministry of Justice and we do have a hugely important and long-respected office of Lord Chancellor. It is not sensible to say that the title has been so badly damaged by the way in which the Government have handled it that we should simply shed a few tears over the broken vase and let it lie.
This will be the last time I quote from Professor Robert Hazell, but it is interesting to read his description of his understanding of the question, which was in the very first evidence before the committee. He said that he could understand why the Government were ready to discard the judicial role of the Lord Chancellor and his role as Speaker of this House. But he said:
"I do not understand why the Government wanted also to throw away his first hat and abolish the title for the function as a Cabinet Minister. No convincing reason was advanced in the consultation paper and I am not sure that any has been subsequently. It seemed almost as if the Government were casting down the title of Lord Chancellor in an act of mindless modernisation and it certainly put the judiciary in a fright. It raised unnecessary fears that the independence of the judiciary was under threat and that in casting aside the office the Government were also casting aside the values which the Lord Chancellor upheld as the constitutional conscience of the Government and as the protector of the judiciary".
That is the head of the constitution unit at University College, London, describing his impression of the impact made by the reckless decision to discard the office of Lord Chancellor. We cannot respond to that by saying, "Well, it's too bad chaps—it's gone so let it go". If we are going to maintain the authority of the office holder, we need to do what we can to repair the damage that has been recklessly committed. It shows the damage done to the vase and I am not prepared to accept it.
That impression is powerfully reinforced by some observations made from time to time by the noble and learned Lord the Lord Chancellor himself. In last week's edition of the House Magazine, that immensely influential organ, he said:
"Why should any Prime Minister be constrained in the person he chooses to do that job—constrained by it having to be a lawyer, constrained by it having to be a member of the House of Lords? The key thing is quality of the individual, and the Prime Minister should have the widest possible choice".
I see no wisdom in that whatever. If so many people on all sides of our society, and certainly in the world outside, attach great importance to the legal qualifications—senior lawyer qualifications—and membership of this House, surely we should respect those views. As I look at that observation by the noble and learned Lord the Lord Chancellor and the insight that it gives one into his thinking, I am reminded of the cynical legal comment that even in an affidavit the truth will out.
The Lord Chancellorship is the most remarkable and important aspect of our constitution. Yet the shape of that office depends not on statute but on what our constitution depends—that is, conventions. If one looks up constitutional law and human rights in the relevant volume of Halsbury's Laws of England, as I
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did, to find the qualifications of the Lord Chancellor, one finds that there are no statutory qualifications for the office of Lord Chancellor although it has,
"long been the practice to appoint a member or a former member of the Bar, often but by no means always from among the Bench or someone who has been Attorney General or Solicitor General".
That is the foundation of this cornerstone of our constitution. Over centuries, the quality, qualifications and authority have been defined and upheld by constitutional convention and by convention alone—convention that this Government have been recklessly disposed to overthrow, with possibly far-reaching consequences.
I do not want to use the phraseology of the noble and learned Lord the Lord Chief Justice, but the noble and learned Lord the Lord Chancellor is personally a most engaging colleague. For that reason, I do not relish having to make my next remark. But I have to say that I do not find it easy to respect someone, however personally agreeable, who has the privilege of being appointed to such an historic and constitutionally vital office and is then disposed, at little more than a moment's notice, to set about its demolition. In order to prevent such constitutional vandalism—I make no apology for repeating the phrase—that office now has to be recreated, preserved and strengthened. It is no longer a convention rightly respected over centuries. It now has to be restored by Act of Parliament. It has to be restored by the will of this House.
4.45 p.m.
Lord BrennanThe Bill provides a new and fundamentally different framework for the constitutional position of our judiciary that does not involve a Lord Chancellor. Those who propose these amendments assert that the role of Lord Chancellor should continue, and they essentially rely on its antiquity and the supposed scope of its functions to justify its retention. They particularly rely, as did the noble and learned Lord, Lord Lloyd of Berwick, on the role of the Lord Chancellor in protecting the independence of the judiciary. I will henceforth call that "the role".
That approach confuses the office with the functions. I strongly disagree with the approach and I regret to say, but will say, I hope forcefully, that the contention does not survive objective analysis. The Bill is intended to reform. It will preserve the best of the past to advance the future but will not be trapped by the past in making that future constitutionally good.
Let me start with history. Before this debate, I had occasion to look at each of the major textbooks on constitutional law and history, in particular, Dicey. In none of them did I find any significant reference to the role of protecting the independence of the judiciary. It simply was not there. Indeed, when I looked at the history, what was there was the predilection of Lords Chancellor up to the Second World War to appoint judges, up to and including the Lord Chief Justice, by dint of political patronage and not merit. In my research, I found that it was only in 1975 that the Lord Chancellor—

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Lord Hailsham—first explicitly expressed the role of defending the independence of the judiciary inside the Cabinet and in Parliament as important.
But on what basis can it be defended? We are fortunate in Lords Chancellor such as the noble and learned Lords, Lord Mackay and Lord Irvine, but do we know if they ever had occasion to defend the independence of the judiciary in the Cabinet? If so, on what principle did they defend it? It is not written; it is not even mentioned in the textbooks. Perhaps that might indicate to us that this is exaggerating a problem. The independence of the judiciary of this nation is protected not by the Cabinet and not by the Lord Chancellor, but ultimately by us in Parliament. I shall now develop that contention.
As to the functions of the Lord Chancellor as judge or senior judge, nobody can plausibly argue that he should sit. It is better that he does not. The Bill does away with that. As to his function as Speaker of this House, is it acceptable that a senior Cabinet Minister should spend so much time here as is required when his main function is to serve the public interest in his own ministry? Perhaps we should change our procedures.
The only area in which this debate is significant is in the administration of justice. Within that, the only issue that is seriously raised for the retention of the Lord Chancellor is the role in protecting the independence of the judiciary. I disagree with that emphasis. The independence of our judiciary as to security of tenure, appointment and discipline rests with Parliament. For 300 years, the judges of this country have been independent and have had security of tenure; that is since the Act of Settlement. Politicians respect that independence. Judges, realising that they have it, show its importance by the integrity with which they bear office. It does not and did not need a Lord Chancellor to produce that constitutional position.
The system of appointment by the Lord Chancellor—not in terms of personalities, but as a system—has been heavily criticised. The Bill changes it to an independent commission, the assessment and recommendation of which will have to be decided on by a Minister. If he disagrees, he must explain in a reasoned—in which I include that it would be rational—explanation why he did not accept a recommendation. That is very different from times past. It does not involve a Lord Chancellor.
Lastly, there is discipline. The Bill creates a new system of discipline, effectively exercisable by the Lord Chief Justice on behalf of Ministers, with prescribed procedures and an overview by an ombudsman. That is better than before, and it does not need a Lord Chancellor. Those functions—security of tenure, appointment, discipline—are all developed in the Bill for the better. They do not depend upon a Minister.
What of the role, the critical question of whether the Lord Chancellor must be there to protect the judges? That is the ultimate and only question arising in the amendments. Of the three branches of power in a democracy, the judiciary is the weakest—the least able
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to protect itself, because of its independence and its inability to enter public debate. It is therefore everybody's democratic duty to ensure that it is properly protected. A constitutional principle is needed to do it, and that is what the Bill creates. It makes for new and better protection of the judiciary, for the following reasons.
First, the concordat agreed in January of this year is an historic and unique document. It is the first time in our history when the judges and the Government have agreed together on the best way to manage the judiciary. It is founded on a welcome concept of,
"real and effective partnership between the Government and the judiciary",
which is seen as being "paramount". That is an advance. It does not need a Lord Chancellor.
The concordat is substantially embodied in the Bill. However, it includes a new, enhanced and much more powerful role for the Lord Chief Justice. By Clause 2, he becomes the president of the courts of England and Wales. In that role, he has a statutory duty to represent the judges. He must manage their administration and he must deal with Ministers and Parliament in all of those duties. This is new, different and important, and it does not involve a Lord Chancellor—far from it.
Lord Lloyd of BerwickI am grateful to the noble Lord for giving way. Will he bear in mind that the noble and learned Lord, Lord Woolf, said in his evidence that he saw no reason why the concordat, to which everybody attaches importance, should not work with a Lord Chancellor or a Secretary of State? He could see no difference.
Lord BrennanI thank the noble and learned Lord for reminding me of that fact, but I should like to concentrate, before I return to answer that point, on the question of what the Lord Chief Justice is to do.
he new role appears to be little understood. It is assumed that the Lord Chancellor is the only person who can represent the judiciary. The Bill says different. The Lord Chief Justice, as well as the Minister for Constitutional Affairs, will represent the judges and their independence. He will do so with Ministers and Parliament and if necessary do so by public debate, if he feels that that independence is under threat. He will not be trammelled by political constraint where a Lord Chancellor would be.
My next point will enable me to deal with the point raised by the noble and learned Lord, Lord Lloyd. The role of the Lord Chief Justice fits in with and is fortified by the constitutional guarantee in Clause 1 of the continued independence of the judiciary. That involves all Ministers involved in justice and every Minister, whether in justice or not, is forbidden from interfering with judicial decision making. The noble and learned Lord, Lord Lloyd, reminded me of what the noble and learned Lord, Lord Woolf, said. What

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he said was that it may be the Lord Chancellor, or it may not. He did not say that it has to be the Lord Chancellor. Prudence on his part would surely lead him not to overstate at this stage the new role that the Bill gives to him. The role of the Lord Chief Justice and the constitutional guarantee work together.
Lord Campbell of AllowayI thank the noble Lord for giving way. Will he not accept that there is no guarantee whatever in Clause 1 and that it is wholly unacceptable to suggest that there is a guarantee? Does he not appreciate that in paragraphs 75 to 79 of the committee's report reservations were expressed by noble and learned Lords and by Lady Justice Arden about enforcement? The black-type guarantee of judicial independence, as the noble Lord must know, is a marginal gloss. It is not part of the statute or the Bill. It cannot be amended and it cannot be referred to as an aid to interpretation; and in any event it is totally misleading and wrong.
Lord BrennanIt is embarrassing to remind ourselves that in 2002, we in Parliament enacted a guarantee similar to this to protect the judges of Northern Ireland. Did we then, in doing so, consider that it was of no effect, that it was a gloss? Of course we did not. We wrote it then as we write it now in the Bill—as a constitutional provision. We may be little accustomed to dealing with written constitutions in this country, but it is time that we started to learn to use them with the intended effect that they are intended to have.
How is the guarantee to be honoured? That is the question implicit in the intervention of the noble Lord, Lord Campbell. It will be honoured in many different ways. The Secretary of the Cabinet, in his proper constitutional position, properly exercised, could not for a moment permit Cabinet discussion to occur in which political interest was threatening the independence of the judiciary, if this clause is law. It is unthinkable that that could occur.
Secondly, if there is difficulty about the independence of the judiciary in Cabinet, the Attorney-General can attend. It was only in 1992 that the Attorney-General stopped representing the Lord Chancellor in the House of Commons on all of these questions. Thirdly, and in any event under the Bill, the Lord Chief Justice himself will have the right to make representations, in public if necessary, to ensure that the guarantee is honoured.
Last and most important of all, when a constitution is written it is not Ministers or judges who give it the final protection—it is this Parliament. Would we be so supine as to allow this guarantee to have no effect? Are we not prepared to use the Select Committee on Constitutional Affairs and give it strength to make it an effective guarantee? Are we not prepared to debate in this House whether or not the guarantee has been observed? It seems to me that in this debate the parliamentary duty to preserve the constitution is fundamental.
Lord Phillips of SudburyI am grateful to the noble Lord for giving way. How supine was the House on 12 June last year, when the role of Lord Chancellor was de facto abolished? How effective were we then?
Lord BrennanThat is a matter for our own consciences. How effective were we when we debated the ouster clause in the Asylum and Immigration (Treatment of Claimants, etc.) Bill? It was changed. It was far more important that that happened than that we did not debate adequately or fully at the time the provenance of these changes.
I want to finish. Having discussed how this guarantee can be honoured, the ultimate guarantor in parliamentary terms is us, but in terms of government it is the Minister. What kind of cheapskate politics do we anticipate will occur when a Minister with a constitutional duty will ignore his duty? It is difficult to accept that we should approach our constitution in such a way.
Lastly, if the Bill is given its full reforming effect, the Lord Chancellor's office has come to an end—an honourable end—but the new start is a better start. A combination of constitutional guarantees, roles of the Lord Chief Justice and so on make it better. To continue the role would be to preserve a name. It would be confusing and unhelpful. It would certainly be undemocratic to require such a Minister to be a lawyer and from this House. It would certainly anticipate a lack of calibre that I do not accept in politics: Roy Jenkins, not being a lawyer, presented the first Prevention of Terrorism Bill in the other place with distinction, as many other non-lawyer Ministers have done with complex litigation. Above all, it is unnecessary.
The concordat indicates at paragraph 5 that the new arrangements should reinforce the independence of the judiciary. In the previous debate in this House, the noble and learned Lord the Lord Chief Justice himself said that the Bill had his firm support in implementing the concordat because it would ensure the continued independence of the judiciary.
The noble Lord, Lord Kingsland, is right. This is a dramatic change in constitutional life. But what is the choice? Is it to be a practice vague to discern, dependent upon the strength and personality of a Lord Chancellor to make it effective; and to be effective in circumstances about which we know next to nothing? Or should it be a principle writ large in a constitutional chapter; plain to read; readily understood; and thereby much more enforceable?
The chapter of our constitution that the Bill represents is an occasion for necessary change. It is an occasion when this House should support this Bill, whether it sadly leads to the end of the Lord Chancellor or not.
5 p.m.
Lord Crickhowell: My Lords, I want to address two of the principal points made by the noble Lord, Lord Brennan; the role of this House and the particular position of Clause 1.

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Members of the Select Committee very soon learnt that my King Charles's head, my obsession, was the question of the enforceability of Clause 1, an issue that had been raised at Second Reading by, among others, the noble and learned Lords, Lord Mackay of Clashfern and Lord Lloyd of Berwick. I raise it again now, partly because it has just been raised by the noble Lord and partly because the alleged "guarantee of continued judicial independence"—that is the heading to Clause 1—has been placed right at the front of the Bill. The worth of that guarantee should be evaluated and fully understood by noble Lords before they decide that the proposed abolition of the office of Lord Chancellor is to be supported or rejected.
The Judges' Council Working Party on the Bill, in its written evidence to be found on page 213 of the evidence volume, stated:
"The protection of the judicial independence is the keystone of the new constitutional arrangements".
Another working party of greatly respected Members of this House, chaired by my noble friend Lord Alexander of Weedon, whose important memorandum to the Select Committee can be found on page 465 of the evidence volume, drew attention to the attempt made in Clause 1 to impose a statutory duty to protect the independence of the judiciary and commented:
"We have the strongest doubts about the effectiveness of those provisions. Their existence demonstrates the dangers that arise from these reforms. We do not understand how such duties can be enforced".
The noble and learned Lord the Lord Chief Justice, giving oral evidence in response to my question on the subject (question 527), said that it was not intended that a clause of this sort should be enforced in the courts. He compared it to the declaratory provisions to be found in education and National Health Service legislation and told the committee that a Minister failing to fulfil the responsibilities set out in the clause,
"will be answerable to Parliament and the public for failure to do so".
With great respect to the Lord Chief Justice, I believe that this clause, which seeks to impose very specific highly important duties, is intended to be of much greater significance than clauses which impose general duties to promote education or to establish a comprehensive health service. And as the Alexander of Weedon working party pointed out in paragraph 61,
"if the proposed statutory duty proves ineffective, it is likely the Lord Chief Justice will be drawn further into political and media controversy in order to defend individual judges".
It identified other equally unfortunate consequences of the same failure.
When Lady Justice Arden, who chaired the Judges' Council Working Party, gave evidence (question 745), I pursued the subject again and asked a number of questions about this
"keystone of the new constitutional arrangements",
which is supposed to protect judicial independence and, it is hoped, the rule of law. I argued that the House of Commons, with a large government
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majority, is not likely to be an effective body to challenge executive action and that this House may not find it easy.
I suggested that if the clause is extended to cover the rule of law and, even more, if Clause 1 is given enhanced status by imposing an interpretive obligation along the lines of Section 3 of the Human Rights Act 1998, as proposed by the Judges' Council,
"surely there will be citizens outside who perhaps do not feel that Parliament is doing its job effectively who will want to take the matter to the courts and to judicial review".
We have got into a sort of circular position because we started with an unenforceable clause, and then we are told that it is okay because Parliament will deal with it; but if Parliament fails to do something about it for the people, the people's only remedy is to go to the courts.
When I put this proposition to Lady Justice Arden, she said that if it was required it should be possible to draft a clause that was enforceable; but that, understandably, she did not wish,
"to express a view either way on whether clause 1 would be capable of being relied upon by the citizen who wishes to take the matter to the courts by judicial review".
It seems to me wildly unlikely that the clause will be redrafted to make it legally enforceable. The last thing that Ministers want is to be pursued in the courts for their failures. And as Professor Jolowicz argued in his written evidence (page 365), although the clause is a fine example of what he called lex imperfecta, it may not be wise to open the door to an application for judicial review. That, he said,
"conjures up a vision to delight the enthusiastic lawyer, but may not be entirely sensible".
So we are left with a declaratory clause unenforceable in the courts and the concordat which, apart from the bland and unsubstantiated statement quoted by the noble Lord, Lord Brennan, that,
"The new arrangements should reinforce the independence of the judiciary",
gives little comfort. Like Professor Jolowicz, I believe that there is no adequate substitute for a Lord Chancellor and that it is,
"seriously misguided deliberately to destroy an office whose traditions have succeeded in creating for its holders a remarkable and deserved reputation for trustworthiness".
The Alexander Weedon working party gets to the heart of the question in paragraph 56, when it says:
"we consider that the Lord Chancellor presently holds a strong role in protecting the independence of the judiciary within Government ... First, he acts as their spokesman in arguing for resources to enable them to do their work properly and to ensure that their position is protected. Secondly, he can remind other members of the cabinet of their role within the justice system. As such, he acts as a counter-balance to the equally important role of the Home Secretary in looking after the interests of public security".

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Equally telling is the working party's earlier quotation of Lord Birkenhead's defence of the office, written in 1922, to be found on page 467 of the evidence volume. It firmly deals with the argument of the noble Lord, Lord Goodhart, that all we are talking about is a name. Lord Chancellor Birkenhead wrote:
"it provides a link between two sets of institutions"
the judiciary and the executive—
"if they are totally severed there will disappear with them any controlling or suggestive force exterior to the Judges themselves, and it is difficult to believe that there is no necessity for the existence of such a personality, imbued on the one hand with legal ideas and habits of thought, and aware on the other of the problems which engage the attention of the executive Government. In the absence of such a person the judiciary and executive are likely enough to drift asunder to the point of violent separation, followed by a still more violent and disastrous collision".
We live in a moment of history when that warning seems prescient and apposite.
My final reference is to the Law Lords, who told the Select Committee, as reported at page 116, that they are,
"very greatly concerned that the important constitutional values which the office of 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 were removed and not replaced".
The Prime Minister decided to remove that historic safeguard without consultation and, astonishingly, without reference to the Cabinet—so much for the idea that the Cabinet Secretary is to be the proper defender of the independence of the judiciary. It seems unarguable that an unenforceable declaratory clause cannot be an adequate substitute for the historic role of the Lord Chancellor. Furthermore, the authority and influence of the role does not stem simply from his responsibility for what were described in our report as "judicially related matters". The special responsibility as the "constitutional conscience" of government, defending judicial independence and the rule of law in Cabinet goes much wider and springs from the historic character and seniority of the office. That must not be casually put on one side, which is why I strongly support the amendment and the other clauses that go with it.
Lord Carter: My Lords, I wish to add to the encomiums addressed to my noble friend Lord Richard, the chairman of the Select Committee, who did a brilliant job in guiding us. As some noble Lords will remember, I was opposed to the appointment of the Select Committee on the grounds that the procedure of such a committee was not appropriate. We proved that to be the case. In the first part of our work, we treated the Bill as draft legislation and produced extremely good evidence. If we had stopped there, it would have been very helpful. But we then ignored the procedure in the Companion, decided to take no votes and dealt with amendments to the whole Bill in one day, with the exception of Clause 1, on which there was another short session. Until halfway through the process—the taking of evidence and the report—the procedure was extremely good. However,
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the procedure that we then adopted showed that, if we had followed the procedure that should have applied, the appointment of a Select Committee on a substantive Bill would not have worked at all.
We have heard a great deal about the historic role of the Lord Chancellor. I understand the history and great dignity of the office. However, let us look at what Lord Chancellors do in practice. They emerge from highly charged political discussions with the Prime Minister and ministerial colleagues involving personalities, issues and policy; they revert to acting as head of the judiciary; they help to draft the party manifesto for the general election; at the same time, they are extremely busy as a departmental Minister with a very large budget and some 20,000 civil servants; then, in their spare time, they serve as the Speaker of the House of Lords.
5.15 p.m.
We all have our views about what happened on 12 June, but without this Bill, the situation would have continued. We now agree that the Lord Chancellor should not be the head of the judiciary and perhaps should not be the Speaker of the House of Lords in the new role that we are now defining and agreeing. All that would have continued. None of the noble Lords who have tabled amendments proposed to change that situation; it was a complete anomaly, with the role involving a mixture of politician, judge and the other aspects about which we all know. The Bill has put that right; without it there would have been no concordat between the judiciary and the executive for the first time.
I have described the role of the Lord Chancellor. In practice he would not so much need Chinese walls between his various roles as the Great Wall of China. It seems generally agreed that the Lord Chancellor should not sit as a judge and should therefore not be the head of the judiciary. As a non-lawyer—I think that I am the first to speak in this debate—I have always thought it odd that the head of the judiciary need never sit as a judge, would very rarely sit as one and was appointed by the Prime Minister.
Any dispassionate examination of the role of the Lord Chancellor would conclude that the Speaker of this House should no longer be appointed by the Prime Minister but should be elected by the House. The noble and learned Lord, Lord Mackay of Clashfern, agrees with that view in an article in today's Times. As the noble and learned Lord, Lord Lloyd of Berwick, said, that is a matter for the House that need not concern us now.
If the roles of head of the judiciary and the Speakership are removed, it leaves the central question: what should the new role of the Lord Chancellor be? We agree that the Lord Chancellor should at least relinquish his role as head of the judiciary and Speaker of this House. 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.

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I have listened carefully to the arguments in favour of a senior, experienced lawyer; I understand where they come from. If I were a very unkind non-lawyer, I would say that it was special pleading in spades. I was reminded of the famous remark by Jo Grimond on "Any Questions" 30 or more years ago, when there was much discussion of restricted practices in the trade union. He said:
"If you really want to see restricted practices, put on your hat and walk down to the Temple".
If we were to require that the Lord Chancellor must be a senior experienced lawyer and a Member of the House of Lords, it would be a unique prescription on the power of the Prime Minister in the construction of the Cabinet. Any noble Lord who has spoken has dealt with the point that this House does not control supply. However, those who support the amendment suggest that a senior departmental Minister—I see that there are two former Chancellors of the Exchequer sitting opposite—with a budget of £3 billion should be a Member of this House and not the House that controls supply.
Lord Howe of AberavonMy Lords, perhaps I may pick up on the noble Lord's use of the words "unique prescription". The unique prescription that the Lord Chancellor should be a senior lawyer and a Member of this House has prevailed for 100 or 200 years, but by convention and not by statute. But the unique prescription has been there; Prime Ministers and the nation have managed to live with it quite well.
Lord CarterI am describing the prescription as a matter of law, not convention. It would now, I assume, be a matter of law that the Lord Chancellor should be a senior lawyer and a member of the Cabinet. That would be a unique prescription in law of the power of the Prime Minister and the appointment of the Cabinet. There is the major point that a departmental Minister with a budget of £3 billion—
Lord Campbell of AllowayYour Lordships will no doubt be aware that at paragraph 35 of the report, the view that the office of the Lord Chancellor should be retained in some way was expressed, putting it briefly, by noble and learned Lords, noble Lords and academics. In that context, it is wholly relevant—
Lord CarterI have not finished.
Lord Campbell of AllowayI am so sorry.
Lord CarterI was just pausing for breath. In the report, we deal with the evidence against the Lord Chancellor being a senior lawyer. Evidence was received from Justice, where witnesses agreed with the Government's view that it was not essential for the Minister to be a lawyer in order to carry out his functions under the Bill. That was evidence from Roger Smith of Justice.
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In the Scottish Executive, there is no requirement that the Minister for Justice be a lawyer. The Committee was told by Roy Martin QC, vice-dean of the Faculty of Advocates, that his assessment of the experience in Scotland—where of the two Ministers for Justice since devolution one was a lawyer and one was not—is that it does not make a particular difference. On the final question—
The Earl of Onslow: I—
Lord Campbell of Alloway: I—
Lord CarterAre you intervening? I just bent down to put down my papers. If noble Lords are patient, when I have finished I will say, "I am finished". Then I am sure that noble Lords opposite will all get to their feet.
I conclude on the point of the rule of law. Seven members of the committee either were members of the Cabinet or had attended Cabinet, as I did for five years. We asked if any of us could remember from our time when the rule of law had specifically been discussed as the rule of law in Cabinet. Now, I am sure that there were many discussions with Lord Chancellors on points of law. No one could actually remember the rule of law being discussed as such in Cabinet. The evidence of the Lord Chancellor says it all:
"The rule of law in the questions that we are talking about is not has the Government complied with the law ... we are talking about big constitutional issues which are identifiable to all members of the Cabinet. The question boils down very often to is it only a lawyer who can identify these sorts of rule of law issues? I do not believe it is, I believe that all constitutional politicians can spot them".
For the help of the noble Lord, Lord Campbell of Alloway, I should say that I have now finished.
Lord Campbell of AllowayMay I—
Noble LordsCross Benches!
Lord SkidelskyI support Amendments Nos. 1 and 7 to Clause 1. I do so as a member of the working party of Members of your Lordships' House chaired by the noble Lord, Lord Alexander, set up on the initiative of the Bar Council to consider the implications of the changes proposed in the Constitutional Reform Bill.
The reason that your Lordships' House took the unusual step of setting up a Select Committee at Second Reading was because we objected to the way in which the reform had been introduced. The Prime Minister's announcement on 12 June 2003, without consultation and as a kind of add-on to a Cabinet reshuffle, typified the extraordinarily cavalier way in which the Government have embarked on the process of constitutional change, perhaps more appropriately called the unravelling of our constitution.
It is for that reason that I cannot accept the argument of the noble Lord, Lord Brennan, that the rule of law and independence of the judiciary are adequately protected by Parliament. That may have

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been true in the past; I am not confident that it will be in the future. The noble Lord referred to Lord Hailsham. It was Lord Hailsham who warned of the dangers of "elective dictatorship". That is the permanent danger of a unitary constitution. That is why we should not abandon such defences as we have erected over time, however inadequate such defences may be, against a wilful Prime Minister who has an enormous Commons majority at his back.
I believe, as did our committee, that the Lord Chancellor is an essential counterweight to the supremacy of the executive and particularly to the power of the Home Office in our constitution. There is no need to remind your Lordships that ours is a fused constitution with a balance of powers and not a separation of powers. In this constitutional scheme, the Lord Chancellor is the main link between the legal profession and the government, representing the judges' views to the executive and the executive's views to the judges. He is thus an important element in the protection of the judiciary and the legal profession from political pressure. Such an office, and such an office holder, would be unnecessary and otiose if we had a formal separation of powers between the executive, legislature and judiciary, as in the United States, for example. That is not what the Government are proposing. There is to be no breach in the sovereignty of Parliament. What is proposed is simply to replace the Lord Chancellor with the Secretary of State for Constitutional Affairs.
Four essential functions are fulfilled by the Lord Chancellor in our constitutional system, which cannot be replicated by a Secretary of State for Constitutional Affairs. All these four functions flow not just from the name of the Lord Chancellor, as pointed out by the noble Lord, Lord Goodhart, with all the conventions attached to that name, but to the qualities that inhere in that name, whose connection with the name "Secretary of State for Constitutional Affairs" would be purely fortuitous.
The first function is to protect the independence of the judiciary. The noble and learned Lord, Lord Howe, has already quoted words from the Constitutional Affairs Committee of the House of Commons, pointing to the radical difference between the Lord Chancellor who is bound by judicial oath, and who is usually at the end of his political career, and a Minister who is a full-time politician not bound by judicial oath, and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion. Our own evidence at paragraph 21 adds that,
"there is no guarantee that the Minister will be a lawyer and so may lack the understanding of successive Lord Chancellors of the role that the legal system, the judges and the profession play in achieving a balanced constitution".
The second function is to protect the self-regulation of the legal profession. The noble Lord, Lord Carter, talked of restrictive practices. Restrictive practices can play a constructive role, if they protect the professional competence and integrity of the profession. The self-regulation of the legal profession ensures that. While the Secretary of State for Constitutional Affairs is to
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inherit the Lord Chancellor's power to improve or amend the ethical rules of the profession, our committee, at paragraph 51, was concerned that someone who is not imbued with legal habits of thought may interfere with the profession's rules,
"in ways that might assist the Government's own agenda, but which might be inimical to the wider public interest in the administration of justice".
Thirdly, we believe that the Lord Chancellor has an essential part to play in protecting the principle of appointment by merit. That is, he should continue to be responsible for appointing senior judges on the nomination of the Judicial Appointments Commission. As our evidence noted at paragraph 33,
"dangers inherent in [the powers of the Secretary of State for Constitutional Affairs to reject candidates for senior judges proposed by the Commission] could be very much lessened if the Lord Chancellor were to remain the appointing officer".
Finally, we believe that the Lord Chancellor is the best person to protect the running of the courts—particularly with respect to the function of listing cases—from executive interference. In our evidence at paragraph 44 we wrote that the administration of the courts,
"should be in the hands of a minister of the appropriate seniority to understand the needs of the judiciary and the position of the staff supporting them".
That is why I strongly support the amendments to enable the Lord Chancellor to retain his essential place in our fused constitution. Whether he continues to be our Speaker is for your Lordships to decide.
Lord Peyton of YeovilAs regards the Select Committee, perhaps I should confess—
5.30 p.m.
The Lord Bishop of WorcesterI am grateful to Members of the Committee for allowing me to speak now. First, it has been an extraordinarily valuable education to read the Select Committee's report. Whatever else is accomplished, a volume has been produced that young people and people with an interest in the way our constitution works will profit greatly from reading, to which I pay tribute.
I came to this debate on the whole—and I think that I still am—in support of the instincts that lie behind the amendments. The analysis of the situation made by the noble Lord, Lord Brennan, was, again, a tremendous education in all the different factors that are at stake and it is largely to his arguments that I think we should address ourselves.
One way of characterising the noble Lord's speech is to say that he analysed the Lord Chancellor's role in terms of functions and examined the ways in which they would be discharged after the enactment of the statute. He considered that the functions would be at least as well discharged and that therefore there is no case for continuing the post of Lord Chancellor.
On these Benches, we may feel inexpert in some of these matters, but we know quite a bit about what it is like to have one's role dealt with in terms of functions. One learns a bit about what a bishop is by what a bishop does, but one does not learn very much. In this

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debate, it is quite important that we use the words "role" and "function" in a somewhat distinguished way from each other. Indeed, there are functions that a person in the role of Lord Chancellor discharges.
The question concerns what the Lord Chancellorship represents to the heart of our society, which I shall look at under the heading of the separation of powers. This House is essentially a unitary place that brings into the common life of the nation a variety of perspectives. Our daily prayers express the desire for the unity and the knitting together of all estates and persons in this realm. They are an expression of what we seek in a society where different functions can be discharged but in which we actually bring those functions together in a single, deliberative council.
Much as I enjoyed my time in the United States and hugely admired the architecture of its constitution, I am not terribly persuaded—certainly not at present—that the separation of powers guarantees very much. It guarantees that those who wish to exert power resort to all kinds of means in order to bring the other branches of government on their side. Some of the spectacles are not particularly edifying.
If I have to choose between a vocational understanding of politics and office—that is, the Lord Chancellor has a role to which he or she is called—and one that rests on keeping things separate, I would have more faith in the vocational understanding. It seems to provide something to which a person who holds such an office can be, and historically has been, held to account. I do not really trust the possibility that that will simply happen by the interplay of different branches of government.
The separation of powers idea, which I have no doubt lies at the root of these proposals—apart from the changes of detail which, for the most part, are excellent—does not offer what is claimed for it, as well as not being the experience of the constitution of our society. Therefore, for that reason alone, I think that we are going down the wrong track. I feel confirmed in that view by the context in which this discussion is taking place.
I could imagine this House having had this debate before the famous 12 June 2003 and before the debate on the asylum Bill ouster clause. Perhaps, if we had had that debate in a more abstract and calmer frame, I should have been more likely to be persuaded of the course of action on which the Government are embarked. But I cannot state too strongly the undermining of confidence that both those episodes created in me, and I am not alone.
The 12 June episode underlines the fact that we do not seem to have any operative conventions about how the fragile, nuanced, unwritten constitution of our society evolves and changes. It seems to me that if it can be changed by simply a fiat or announcement, that is very serious because it says that we have not expressed the conventions to ourselves clearly enough. If we have not, we are in considerable danger. That is confirmed by repeated statements made in this debate
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that we cannot go back to before 12 June. It tells us that if an announcement of that kind is made, we have no choice but to accept that we go along with it.
With great respect to the riposte made by the noble Lord, Lord Brennan, to the noble Lord, Lord Phillips, as regards the asylum Bill ouster clause, it is not my recollection of that event that it was this House's debate that caused the clause to be changed. We came to the debate with an announcement that the clause would be changed. I think that was because of the intervention of some notable persons who, as it happens, but not just as it happens, had held the office of Lord Chancellor.
Lord GoodhartI am grateful to the right reverend Prelate for giving way. First, does not the row over the ouster clause show that one cannot necessarily rely on someone who holds the office of Lord Chancellor? Secondly, if this Bill goes through, the Lord Chief Justice would be in a much stronger position as the head of the judiciary in England and Wales. It is he who would be in the best position, rather than the Lord Chancellor, to act as the defender of these rights.
The Lord Bishop of WorcesterI appreciate the noble Lord's intervention. With all due respect to the noble and learned Lord, Lord Falconer, although he is of course the holder of the office of Lord Chancellor, he is the holder of that office post-12 June. That makes a profound difference to how his interventions can be regarded. The powers given to the Lord Chief Justice are very important. But what concerns me most about the ouster clause is that it was ever proposed. That is the serious matter to which I draw attention.
My final point relates to the process of this discussion. We need some conventions about how our constitution is to be changed. Although I know that many noble Lords will disagree, I think that it is very strange that the Government should make an announcement; that they should not present it to the elected representatives of the people for the first expression of their will; and that they should then process it through this House. I realise that the Committee brings formidable expertise to the task of scrutinising and revising a Bill which emerges from another place. That is how it is supposed to work. It is not going to be able to work in quite that way because the Bill will go from here to another place and we shall not have the kind of scrutiny functions to deploy as regards any amendments made there.
It is because of the fundamental questions of substance, the processes by which we are dealing with them and the context in which we have been placed, that at the moment I am persuaded to support the amendments.
Lord Peyton of YeovilI have listened and it is desired—
Lord Evans of Temple GuitingI believe that we should hear from the noble Lord, Lord Campbell of Alloway, who has risen to his feet five times.
Lord Campbell of AllowayI shall be very brief. I sought to make the point that paragraph 35 of the report states "in some way" the office must be retained.
The other point I want to make relates to the speeches of the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Kingsland, which concern functions. It arises because of the recommendation at paragraph 45 of the report, which makes it relevant to this amendment to consider whether the scope of the retained functions justifies retention of the office.
On the basis on which this was dealt with by the noble and learned Lord, the scope is wholly sufficient to justify retention of the office. That is particularly so if one adds to those functions the prime importance of the constitutional role, which has been dealt with by other Members of the Committee, the retention of the Great Seal, which confers authority, and the exercise of the parliamentary role spoken to by noble and learned Lords, including the Speakership, which stands as the guarantee for self-regulation undertaken according to our extant regime. There appears no reason or justification for change, and no one elected or appointed would have the same authority as the Lord Chancellor.
The other matter is that the office was established before the Conquest and the keepership of the Great Seal was conferred, I believe, when the king was otherwise engaged during the 30 Years' War. That seal is kept in the Purse of the Lord Chancellor at the State Opening of Parliament with the gracious Speech. Is it the idea that Clause 12 is to abolish that ceremony which takes place in your Lordships' House, with the Lord Chancellor attendant on the sovereign?
On two occasions this great office has been abolished by decree—by Cromwell pending the restoration of the monarchy, and by the Prime Minister today pending immediate restoration to enable this House to sit.
The circumstances of that occasion are all well known to Members of the Committee now and have been aptly described by my noble friend Lord Kingsland on another occasion. Those circumstances cannot yet again justify abolition. As regards the interest of the body politic from the speeches which Members of the Committee have heard, do not those circumstances cry out for the retention of the office? It is accepted by all Members of the Committee to whom I have referred, and I totally agree, that there must and shall be substantive reforms. Reforms, yes, but not abolition.
At all events, the Great Seal has to be retained in order to confer proximity with the monarch and the precedents, rank and status which is required to discharge the functions to which I have referred. Members of the Committee may remember the point made by the noble and learned Lord, Lord Lloyd of Berwick, of checks and balances as to the use of power. It is reminiscent of Darwin's Mathematical Bridge over the Cam by Queens', which held itself up by the forces of gravity. Once dismantled, no one could put it together again.
5.45 p.m.
Lord Evans of Temple GuitingI suggest that the noble Lord, Lord Lester, speaks next, followed by the noble Lord, Lord Peyton and my noble friend Lord Richard.
Lord Lester of Herne HillI shall not follow the noble Lord, Lord Campbell of Alloway, into the tangled undergrowth and thickets of the ancient British constitution through the ages. Instead I shall make one point only and a point in support of the speeches made by my noble friend Lord Goodhart and the noble Lord, Lord Brennan.
I wish to give a short piece of evidence to the Committee. I am one of the few Members of this House who has served in a government in which ruleof-law questions came up frequently in Cabinet. The conduct of Ministers at the time persuaded me that the present system was not quite as perfect as suggested by those with a conservative disposition.
I had the privilege of serving in the second Wilson government—
A noble LordAs a special adviser.
Lord Lester of Herne HillI was coming to that. It was a government who contained, among others, the noble Baroness, Lady Williams of Crosby, as a distinguished Minister. I served as Roy Jenkins's special adviser. In that capacity I was given responsibility for looking at the constitutional issues as they came before the Wilson Cabinet. I was a great admirer of the Lord Chancellor, Lord Elwyn-Jones, and of the Attorney-General, Sam Silkin. As I travelled back from Morocco I said to Elwyn Jones, on the eve of the Labour government's election, "What would you do if you were Lord Chancellor?". I remember that charming, genial and fine lawyer saying, "I would not be the last Lord Chancellor". I said, "Apart from that, Elwyn, what else would you do?". It was not clear to me that he had a clear idea. He served with great geniality.
The issues which arose in that Cabinet included what should be done about the Shrewsbury pickets. What should be done about the Clay Cross councillors? What should be done about the fact that the Scottish devolution proposals made no allowance at all for judicial review which, as contemplated at the time, would have given the judges no proper autonomy or power?
I have to say that, time and time again in Cabinet, the person who stood up for the rule of law was not the Lord Chancellor. It was not even the Attorney-General when he was allowed to be there. It was Roy Jenkins. I do not say that because I believe that a lay person who is not a lawyer would necessarily have the qualities of Roy Jenkins any more than would a lawyer. But I do say from my own observations of Cabinet proceedings—I hope that the noble Lord, Lord Wilson, will agree that I am not in breach of the Official Secrets Act in saying this after more than 30 years—that it is an innocent illusion to suppose that

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the label of "Lord Chancellor" or the office of Lord Chancellor matters. As the noble Lord, Lord Brennan, said so effectively, what matters is the structure within which the senior office holder operates, the individual personality of that office holder, and whether he or she is a person of strong and robust independence, integrity and understanding of the rule of law.
All I can say from my personal experience is that to carry on romanticising about 1,000 years of history and so forth is beside the point.
Lord Peyton of YeovilI listened with rapt attention and considerable admiration to the opening of this debate by my noble friend Lord Kingsland. I listened with similar respect and attention to the noble and learned Lord, Lord Lloyd of Berwick. However, I wonder whether their generosity had not led them to forget rather too soon the events which preceded 12 June. Those events sowed some widespread seeds of deep mistrust both of the Government and of the noble and learned Lord the Lord Chancellor himself. I must briefly remind noble Lords of why that was so.
In my view, since they came into office the Government have handled your Lordships' House in a thoroughly hamfisted way. They were cavalier in their dismissal of a promise which persuaded hereditary Peers to agree to depart from the House on the basis that a reasonable settlement would be made before anything further was done. As far as I can recall, the noble and learned Lord who now sits on the Woolsack dismissed it in a rather lighthearted manner by saying that it was a temporary arrangement which no one could really expect to last. But that was a very different standpoint from that adopted by the noble and learned Lord, Lord Irvine of Lairg, whose name, surprisingly, has not been mentioned in the debate so far. The noble and learned Lord, Lord Irvine, considered that a promise was a promise, and so he stood in the way of the Government.
My other charge against the Government is that they have been singularly naive in their attempt to wrap all this up in the garments of respectability, saying that it is a well thought out plan of constitutional reform. I do not really think that it was anything of the kind. Moreover, a shock was administered to the Government when they found that neither the Prime Minister nor the noble and learned Lord himself could wave a wand and cause his office to disappear. To get out of the situation created by the honourable conduct of the noble and learned Lord, Lord Irvine, the Government called back the Lord Chancellor from the Dome—where, incidentally, he was winning very few laurels—because he had just those qualifications for the job of the present post that the noble and learned Lord, Lord Irvine, lacked. The obedience and flexibility of the noble and learned Lord the Lord Chancellor commended him to the Prime Minister.
I question the idea that a Secretary of State would be able to resist the pressures of the Home Office. As I said the other day, although the noble and learned
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Lord did not take my words seriously, I believe that he and his department would make a very easy meal for the Home Secretary.
I cannot forget the cavalier treatment of a certain binding promise which was made. The noble and learned Lord affected to treat it as if it was time-expired.
We have now had the experience of seeing the noble and learned Lord sitting happily on the Woolsack, still determined, at the end of his term, to destroy the office. I agree with what was said about this by my noble and learned friend Lord Howe. He expressed surprise that the noble and learned Lord, having enjoyed the office, could so easily then destroy it. If the noble Lord, Lord Goodhart, was right in what he said—that we are simply arguing about the name and title of the office—I cannot see why the Government should not accept that.
I do not think that the noble and learned Lord can be all that surprised at the chilly reception given to this Bill and which, indeed, has been accorded to him for his part in it. He is perhaps the first holder of his office who has thoroughly enjoyed eating his cake, and now relishes destroying it.
As I have said, I find it quite impossible to dismiss from my mind all the events which preceded 12 June. My one fear is that, when the Bill goes back to the House of Commons, the calm attitude and reasoned compromise displayed by my noble friend Lord Kingsland arid the noble and learned Lord, Lord Lloyd of Berwick, will not in any way be echoed by the Members and Ministers who sit in that House. I do not share the hopes expressed by my noble friend and I am very sorry for it.
Lord RichardHaving spent a modest 15 years in this House listening to the noble Lord, Lord Peyton, and 10 years in the other place listening to him, I have always been struck by the thought that beneath that curmudgeonly exterior, of which the noble Lord is very proud, there is a very gentle man; indeed, a humorist trying to get out. It is a great pity that he spoils it by being overly acid. It is like putting too much vinegar in the stew. You end up tasting only the vinegar and not tasting the meat. I have to say to him, in all candour and in great friendship, that the speech he has just made was frankly disgraceful in the context of this debate.
6 p.m.
Perhaps I may try to bring this down to reality. We have been up in the realms of the constitutional stratosphere. Everybody has been telling me what a great office the Lord Chancellor is, as are the duties he performs, and how the constitution will be, if not destroyed, at least rocked if the Lord Chancellor goes.
Let us look at the alternatives. In our report we set out four possible ways in which, if one wanted to preserve the office of Lord Chancellor, it could be preserved. First, we could retain, preserve and enhance several crucial features of the office, including that he has to be a senior lawyer and a Member of this House.

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Secondly, the office of Lord Chancellor could be redefined so that the office became more a judicial than a political one, and legal aid could be transferred to other departments. Indeed, that was the argument put by the noble and learned Lord, Lord Mackay.
Thirdly, the title Lord Chancellor could be used for the Secretary of State for Constitutional Affairs. In other words, there is the Secretary State, and the person who is performing that function does what the Bill requires of him, but he is called the Lord Chancellor. That, as I understand it, has been the position taken up by the noble and learned Lord, Lord Howe.
Fourthly, the title Lord Chancellor could be used for the Speaker of the House, and indeed that is what the noble Lord, Lord Campbell of Alloway, seems to be advocating. One noble Lord who gave evidence to us said that the Lord Chancellor was Speaker of the House and, when asked what else he could do, said that he could "hold himself at the disposal of the House". I was not quite sure what that meant at the time, nor indeed am I sure now.
It is therefore important to start this argument by looking at the four main elements of what the Lord Chancellor is supposed to do and to ask ourselves is he doing them, in this day and age should he be doing them, or should they be done in some other way?
What are they? First, he is the senior judge in the United Kingdom, recognised as such as head of the judiciary. Secondly, he is responsible for the administration of the courts, legal aid, and some other administrative matters. Thirdly, he appoints the judges. Fourthly, he sits as Speaker of the Lords.
Let us look at each of them. First, it seems to me to be absolutely basic that if he cannot sit as a judge he cannot sit as head of the judiciary. We heard very strong evidence that it is not possible at the moment for the Lord Chancellor to sit. Reference was made in parenthesis by the noble and learned Lord, Lord Howe, to what the noble and learned Lord, Lord Bingham, told us about the efforts made to try to find work for the noble and learned Lord, Lord Irvine, to do.
I will read to the House what the noble and learned Lord, Lord Bingham said.
"In the three years until Lord Irvine retired when I was here he sat on two cases. It was agreed between us that he could not do anything with crime because that affected his colleague, the Home Secretary, he could not deal with human rights because he had piloted that Bill through the House, he could not deal with judicial review because it was of government interest and he could not deal with commercial cases because they always went on for much longer than he could possibly sit. That left him in that period of three years with two cases, one about whether premises could be a dwelling for the purposes of the Rent Act if they did not have a kitchen and one about the construction of a mortgage deed".
The conclusion of the noble and learned Lord, Lord Bingham, was quite firm:
"This was the result of both of us trying to find cases on which he could sit. I came to form the view that really no useful purpose was served".
That seems to me to explode the idea that the Lord Chancellor should continue to be a judge or be regarded as head of the judiciary; and, if he is not going
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to be the head of the judiciary, who is? The answer to that is the Lord Chief Justice. The question that then has to be asked is whether he is in a better position to safeguard the independence of the judiciary than is the Lord Chancellor—this emasculated Lord Chancellor—who is no longer a judge and no longer head of the judiciary itself.
It seems to me that the one thing the concordat does—and I very much agree with what my noble friend Lord Brennan said on this—is to establish a firm relationship, as far as I know for the first time in British constitutional history, between the judges and the executive. That is a much greater protection for the judges than they have ever had in the past, other than merely relying upon the efforts, unseen, of a Lord Chancellor. Therefore, that first function of the Lord Chancellor's office goes.
Secondly, he is the Minister now responsible for the administration of the courts and legal aid. Noble Lords may not like this, but the change in the Lord Chancellor's Department over the last 10 or 15 years has been dramatic. It is bound to cause changes in the role of the Lord Chancellor and in the office that any possible Lord Chancellor may occupy.
What is it? He now administers a budget of £3 billion a year. The manpower of the department is now 23,000 and will soon be 30,000-strong. If one were approached, objectively and cold, and asked, "My department has a budget of £3 billion and employs 30,000 staff. 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. For a senior Secretary of State of a major spending department of that sort, under our constitution, supply is determined down the other end of the corridor, not up here. It seems to me that a situation in which he was sitting up here and there was a junior answering for him on matters in the House of Commons would not be satisfactory.
If those responsibilities are removed from the Lord Chancellor's brief, which is the suggestion, and they go to a Secretary of State and the Lord Chancellor does other things, what is left? At the moment, judicial appointments are very much within the discretion of the Lord Chancellor. The existing process is arcane and shrouded. In recent years, since 1945, there has been very little criticism of the process on political grounds. By and large, judges are no longer appointed because of their political allegiances. It was not always so. Those attached to the 1,000 year-old institution, its mystique and its tradition, should perhaps recognise this.
There is a famous story told of Lord Halsbury when he was Lord Chancellor. There was a vacancy in the High Court and someone approached him and said, "Lord Chancellor, ceteris paribus, you will of course appoint the best man for the job", to which he said, "Ceteris paribus be damned! I shall appoint my nephew"—and he did.

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The history of Lord Chancellors until the end of the Second World War is not the mystical one that we have heard about today—as the guardian of the constitution, the guardian of the rule of law. All too often, Lord Chancellors of the past have not been interpreting the views of judges to the Cabinet. What they have been doing is taking the views of the Cabinet and enforcing them on the judges and on the judiciary. By and large, the process has been in the opposite direction to that which noble Lords opposite seem to think.
I come back to the point I made a little earlier. In terms of the independence of the judiciary and the rule of law, the concordat is a greater safeguard than the existing position of the Lord Chancellor.
The consensus on the Committee, and I think now generally, is that the time has come to establish a Judicial Appointments Commission. That proposal may need fine-tuning, but I think that the Government's approach is inescapable and right.
Finally, there is the fourth function of the Lord Chancellor—sitting on the Woolsack as the Speaker of this House. I ask those who support the office of Lord Chancellor on the basis of the 1,000 years of history, tradition and greatness behind him, do they really think that the office should be so diminished as to be confined to somebody who sits on the Woolsack of the House of Lords for two hours a day when the House is sitting and, indeed, when the House is self-regulating? Is that what it comes down to? With great respect, we are arguing about a name and shell. We are not arguing about a post. We are not arguing about anything particularly concrete. We are arguing about whether, after 1,000 years of history, we take this terribly dramatic step of removing the name "Lord Chancellor" from the British constitution. The way in which the office of Lord Chancellor is going—his functions are going to go; his powers are going to go— you will be left with only a name.
Lord Campbell of AllowayWill the noble Lord give way?
Lord RichardPerhaps I may finish this sentence and then I shall of course give way. The noble Lord having risen, perhaps I should say that the name and the Great Seal will be left. I had forgotten the Great Seal.
Lord Campbell of AllowayThe noble Lord referred to "name and shell"; what about the Monarch and the State Opening of Parliament? It is not a name and a shell.
Lord RichardI am very much attached to the State Opening of Parliament. I enjoy it; it is colourful. It gives great fun and enjoyment to all those concerned. However, it does not have to be the Lord Chancellor who goes down on his knee and hands up the Queen's Speech. I am sure that anyone who sits on the Woolsack at any given moment could do that. Indeed, even perhaps one of the other Ministers in the House
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of Lords could do that. I do not think that the nature of the ceremony of the opening of Parliament is a justification, one way or another, for retaining the Lord Chancellor.
Lord KingslandI am grateful to the noble Lord for giving way. In order that there should be no misunderstanding, when I introduced the amendment I made it absolutely clear that we accept the new architecture of the Bill. The issue is not whether the Lord Chancellor should or should not remain in status quo; the issue is whether in the new architecture of the Bill, the Lord Chancellor should fulfil the function of the Secretary of State for Constitutional Affairs. To say other is to misrepresent our position.
Lord RichardIt is not your position; there is not one position on the matter. That is the unreality of the debate. Everyone is saying they want to retain the Lord Chancellor, but there are different versions of the kind of Lord Chancellor they want to retain. The noble Lord, Lord Kingsland, is clear and the noble Lord, Lord Campbell of Alloway, is clear—but the two certainly do not agree. The noble and learned Lord, Lord Mackay, if he was in his place, would not agree.
Before people attack the Bill in a slightly virulent way, it is incumbent upon the Opposition to say what kind of Lord Chancellor they want. I have heard it from the noble Lord, Lord Kingsland, and, with respect, I do not need to hear it again. I heard it in Committee; I have heard it twice today; I understand it.
Perhaps I may now briefly finish what I was going to say. The only argument that seems to me to be left for some individual called the Lord Chancellor is that he should be a kind of constitutional nanny in the Cabinet, where he could pass on to the rest of the Cabinet and the Government his preoccupations about whether the Government are doing something which interferes with the independence of the judiciary and the rule of law. History does not lead us to believe that the function of many Lord Chancellors in the past has been in that direction. As I said earlier, too often it has been in the other direction.
If the post goes and there is very little left of it except the name and shell, should we keep the name? The noble and learned Lord, Lord Woolf, was quoted earlier and perhaps I may be allowed to quote him. He was very firm that continued use of the title would create confusion. He said:
"because of an accumulation of events, including the fact that the role of the Government Minister envisaged in the Concordat is very different from the historic role of the Lord Chancellor, I have real reservations as to whether it is possible to retain the title".

Change is inevitable. The only real question now is how does one effect it. It seems to me that the time has come for this particular bullet to be bitten.
6.15 p.m.
Viscount BledisloeI detect that the feeling of the House is reaching the stage of wishing to hear from the noble and learned Lord the Lord Chancellor and then bringing the matter to a conclusion. But perhaps, as

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someone whose name is attached to the amendments, I may be allowed to postpone that for one—but only one—speech further.
The first thing I was going to say has just been said in the intervention of the noble Lord, Lord Kingsland. After hearing the speeches of the noble Lords, Lord Brennan, Lord Carter and Lord Richard, and the question put by the noble Lord, Lord Goodhart, to the right reverend Prelate, one would have thought that none of them had heard the various concessions and points made by the noble Lord, Lord Kingsland, at the beginning as to what these amendments do not seek to change. It is no good noble Lords on the Government Benches knocking down cock-shies that do not exist.
The noble Lord, Lord Richard, said that there are various models of Lord Chancellor that might be kept. That may be so, but the model we are debating is the one contained in these amendments—and it is quite clear what that model does and does not seek to do. Under the government proposals in the Bill, there is a substantial role for a Government Minister. Obviously that is right; there has to be a considerable ministerial involvement in processes such as being responsible for the courts and judicial resources and the administration of those services; being responsible for setting up the Judicial Appointments Commission and recommending judicial appointments on its selection; and for implementing the concordat.
Various people have spoken about the concordat but have forgotten—or perhaps some have not read every word of Schedule 1 and so have not known—what it actually involves. The concordat involves an enormous number of decisions, made either by the Lord Chief Justice in concurrence with the Minister, or by the Minister in concurrence with the Lord Chief Justice, or by one having consulted the other. There is a very large ministerial role. The question is: who is to perform it?
The noble Lord, Lord Brennan, quite rightly said that under the Bill the Lord Chief Justice is to represent the views of the judges. But the noble Lord seems to have forgotten that under the Bill also the Lord Chief Justice will be deprived of his voice in this place and will not be able to comment in advance, or speak in Cabinet or to Ministers, about proposals that have not yet emerged. We all know that the word that gets out early and prevents someone announcing a detrimental course of action is infinitely more influential; it is easier than trying to turn someone from a policy that they have announced.
Under Clause 1, the Minister will have a special responsibility for guarding judicial independence and the rule of law. That is a role which inherently involves tension. There is inevitably and rightly a conflict between the demands of order and efficiency and the demands of justice and the rule of law. Those whose duty it is to protect the latter—the demands of justice and the rule of law—must be willing and able to stand up for their cause notwithstanding that inherent tension.
The Government say that one of the purposes of their proposals is to remove that inherent tension. If that is what the effect of the Bill will be, then the
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defence of constitutional propriety will have gone by the board. If the tension is not there, the role is not being fulfilled.
The question before the House is not one of name or how you preserve the Lord Chancellor. We do not start from the premise, "Oh, we must have a Lord Chancellor doing something; now let's find him something to do", as the noble Lord, Lord Richard, seems to think. We are saying—to use the words of the right reverend Prelate—that there are functions under this Bill; what kind of person do you want to discharge them?
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.
The noble Lord, Lord Carter, said that it is surprising that we are seeking to encapsulate that in the statute. It has been the practice and convention for centuries. The only reason why it has to be encapsulated in statute now is because the Government have sought to tear up that convention.
The advantages of having such a person are that he is in a much better—I only say better—position to fulfil the vital role of protecting the rule of law and judicial independence. What is fascinating is that that is a view expressed by the House of Commons constitutional committee. Surely, therefore, it is not very surprising if your Lordships' House takes the same view. Such a person is more likely to see the ruleof-law implications, and is in a better position to insist on them.
Of course that person can be sacked. Any Minister can be sacked. But that is a very drastic tack for a Prime Minister to take. Everyone will be aware that he has been sacked, and he will be around to make his displeasure or his reasons for dissenting known, whereas an ordinary Minister can be moved with no trouble without ruffling the waters. He can be "promoted" or moved sideways. Nobody will know that that is because he was putting his foot down or seeking to say, "Oi, look, the rule of law and the independence of the judiciary are offended by your proposal".
We are not saying that a Lord Chancellor will always succeed in standing up for the rule of law sufficiently strongly, or that he will succeed. No mechanism in a constitution—certainly no mechanism

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depending on a person—will always be successful. But we are saying that on average he will be more likely to be successful in that role than a run-of-the-mill politician hoping for promotion. It does not avail us for the noble Lord, Lord Lester, to tell us how wonderfully Lord Jenkins no doubt would have done that job, or for the noble Lord, Lord Kingsland. to tell us how wonderfully the noble and learned Lord, Lord Howe, would have done that job. Of course there are always exceptions. But what we are looking for is what in general will be better. I would suggest that there is no doubt that that is somebody in the mould and with the qualifications of a judicial Lord Chancellor.
I entirely agree with the right reverend Prelate the Bishop of Worcester that it is totally defeatist to suggest that, because the Government have sought to smash the mould, that mould is irretrievable. There have always been bad holders of particular offices, or periods when offices did not do particularly well, but that does not mean that those offices were ruined. That is no more the case now.
There is one other point which I do not think has been made. If there is a person with the qualifications of a Lord Chancellor, it will be infinitely easier for the partnership between the Lord Chief Justice and the Government to function properly, and for them to handle judiciary-related matters. There are hundreds of different matters in Schedule 1 alone. If there is a new Minister from outside with no relevant background, and the Lord Chief Justice has to get his concurrence or consult him or vice versa on myriad issues, the Lord Chief Justice—poor man—will spend the first six months of that man's time in office teaching him the basics of what is going on. He will have to explain to him who the difficult personalities are, and explain the problems. Just when they are beginning to talk the same language, he will be moved on to another department, whereas Lord Chancellors have on the whole been relatively permanent, certainly by the relevant standards.
That raises a very important point on which the noble and learned Lords, Lord Bingham and Lord Mackay, expressed great concern. It is on whether, if under the Bill an enormous amount of administrative work is loaded on to the Lord Chief Justice, top lawyers and the best judges will want to take that role if they have those administrative burdens made infinitely more difficult by having to deal with a series of new Ministers coming in and having to be taught.
It is said that one does not have a doctor as Minister of Health, or a soldier as Minister of Defence, so why does one need a special qualification for this role? The answer is another question: is the administration of justice simply a department of government, or is it a separate and vital strand of our constitution? As the very distinguished working party chaired by the noble Lord, Lord Alexander of Weedon, and including Members from all parts of the House, made absolutely plain, the administration of justice is different and therefore cannot be equated with the Minister of Health.
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I sought to explain why there are enormous advantages to the course proposed by the amendment. Are there any disadvantages? I can see only one, but I fear that it will weigh with the Government's Front Bench very strongly. It is that the proposed amendment is not the scheme devised by the Prime Minister on the back of an envelope after long minutes of thought, research and consultation during the afternoon of 12 June.
Earl FerrersThis afternoon we have had a debate which has consisted mostly of speeches by legal and noble and learned Lords. Some of them have been learned and some are just legal, but most of them have fallen into that category. I do not fall into either category.
I have listened with a certain degree of surprise to what has been said. We have heard everyone saying what a Lord Chancellor should do, what the independence of the judiciary means, how it ought to be achieved, what the lawyers ought to do and how justice can be properly performed in this country. I listened to this with amazement because I had never thought that we had done this before. We had a Lord Chancellor for a thousand years; they may have all been different, years and years ago, but recently we have looked back on them with admiration and have thought that they conducted their work well. It is surprising that one then has people saying, "We ought to adjust this and adjust that", as if we were trying to devise a system for a new country that was starting up.
When a government come along with the intention of disposing of the office of Lord Chancellor, frankly, I wince in a great way. What was the first reaction of your Lordships' House? It was, "What are we going to do without a Lord Chancellor? We will have to have a Speaker". So, like all good authoritative bodies, we set up a committee to find out what kind of Speaker we should have. It was chaired by the noble and learned Lord, Lord Lloyd of Berwick, and it was decided that we would have to have a Speaker and pay him £100,000 a year. Then, surprise of all surprises, we will have to find something for him to do.
It never occurred to us to consider such things when we had a noble and learned Lord sitting on the Woolsack. He fitted in all the responsibilities that he was given. The noble Lord, Lord Richard, said that his office has increased enormously. I daresay that it has; so has the Prime Minister's office. In some people's minds the Prime Minister seems to manage all right with his greatly inflated office and I have no doubt that the noble and learned Lord the Lord Chancellor can too. However, that is not an argument for doing away with that which we have had and that which has been run well.
6.30 p.m.
Other countries do not have a Lord Chancellor and people come to this country to see what we do and how we do it. I spoke to someone from South Africa the other day. He said, "We are engaged in building a new

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country and are trying to find out what to do. We come to your country and what do we find? You abolish everything and do away with it all".
I am not at all impressed by the idea of having a Speaker in your Lordships' House. We had one in the noble and learned Lord the Lord Chancellor and despite being able to ridicule that, it worked well. However, we will obviously have to do something if this office is abolished.
No noble Lord has yet referred today to what the Government are doing to the constitution. They are going around rather like Boadicea in her chariot chopping off everything that they can, particularly in your Lordships' House. First, they did away with hereditary Peers. Then they said that they must have 100 of them back, so 100 came back. Just for the sake of embarrassment, I remind your Lordships that we are the only Peers who are elected—none of the others is. Then they said, "Now we will do away with the Law Lords"—vaporise them—so the Law Lords went. Then the Lord Chancellor came along and said, "I want the Lord Chancellor's head off"—which used to be treason, but I suppose that it is not nowadays.
When we have got rid of the hereditary Peers, the Law Lords and the Lord Chancellor, what is left but the life Peers. Let nobody think that they will not be the next to go. Of course they will. We cannot have a House made up of a lot of life Peers packed in by the Government. We have recently seen and are continuing to see new Peers admitted day after day and good luck to them. We welcome them broadly. However, let us not pretend that that is the right way to fill a Second Chamber, when all the other participating bits have been removed.
I suppose that even the right reverend Prelates' chances are numbered. Certainly, their numbers are numbered. That is a great pity because the right reverend Prelate the Bishop of Worcester made a significant contribution when he asked why anything should be sacrosanct about 12 June 2003 just because the Prime Minister, however important he is, makes a judgment. That does not mean to say that nobody can then go down that path afterwards.
What the Government are doing to the constitution is of tremendous effect. They are wrong and it is wrong to encourage the Government to destroy the constitution, even if it means that there should be some way of changing slightly the work or the duties of the noble and learned Lord the Lord Chancellor. He ought to stay in his place as it is.
Lord Falconer of ThorotonMay I join other noble Lords and express my gratitude to the work done by my noble friend Lord Richard for successfully chairing the Select Committee? The committee made real progress in improving the Bill. In two significant areas we failed to reach agreement —the future of the Lord Chancellor, and the Supreme Court. Even in those areas we heard evidence which illuminated our discussions. We are not nearly so far apart in our views as this debate might suggest.
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I am glad that we had the Select Committee. I opposed it at the time, fearful that the most recent precedent prior to this Select Committee would be followed and the Bill would be killed. That has not happened. As my noble friend Lord Carter said, it has allowed for something akin to pre-legislative scrutiny in the course of the Bill going through Parliament. It has allowed the pace of reform to be more deliberate, so that proper consideration has been given to the principles and the details. That is to the good. The circumstances surrounding the birth of these proposals have led to them being attended by suspicion. They deserve to be considered on their merits. The Select Committee has given us time to do that. As the noble Lord, Lord Kingsland, said, there has been an emerging degree of agreement on what he described as the architecture of the new arrangements.
The role of the Lord Chancellor as it has developed over the past century until the beginning of the 1970s has the following elements. He is: the Speaker of this House; a judge; the head of the judiciary appointing, deploying and disciplining judges; the voice of the rule of law and the independence of the judiciary within government; and the head of a major government department responsible for the courts, legal aid and a number of other constitutional policy responsibilities.
Until the 1970s, as the noble and learned Lord, Lord Bingham, said in evidence to us, the predominant aspects of the Lord Chancellor's job and day were as judge and head of the judiciary, and Speaker of the House of Lords—the morning in the Judicial Committee of the House of Lords and the afternoon on the Woolsack. His ministerial responsibilities were not onerous. Indeed, in 1885, the Lord Chancellor's Office comprised only a Permanent Secretary and seven other officials, the vast majority of whom were lawyers. Following the Courts Act 1971, his office grew to 10,000 staff, with a budget to match. As has been stated often in the course of this debate and in Select Committee, that budget now stands at over £3 billion, over half of which is devoted to legal aid.
The expenditure of such large sums has increasingly become, quite legitimately, the object of political controversy. Questions are rightly asked about how well criminal courts handle the management of criminal cases, how the legal aid budget should be spent and how quickly and fairly the magistrates' courts deal with public law children cases. The regulation of the legal profession is a matter of legitimate political debate and there are questions about the extent to which the vulnerable and the socially excluded have proper access to advice and justice. Those are matters of political debate throughout the country.
The increase in both the size of the ministerial function and the political attention that it has attracted have been accompanied, although for different reasons, by a reduction of two other parts of his responsibilities—those of Speaker of this House

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and those of sitting as a judge. Since Lord Hailsham's tenure, the Lord Chancellor has had to be supported by a significant number of Deputy Speakers with whom to share the workload of the Woolsack. Although it is ultimately a matter for your Lordships' House to decide, the continuing role as Speaker is uneasy and difficult to reconcile with the changing demands of the office. By that, I do not refer to the burden of work, but to the nature of the work. A significant ministerial job is not easy to reconcile with being the Speaker of this House. As your Lordships have heard, the sittings of the Lord Chancellor as a member of the Appellate Committee of your Lordships' House have become fewer and fewer. As the noble and learned Lord, Lord Bingham, made clear in the extract of his evidence read by my noble friend Lord Richard, it has become increasingly difficult to find cases in which the Lord Chancellor can participate.
Practical difficulties aside, it has appeared increasingly inappropriate for the Lord Chancellor to sit judicially. There is now little if any support for that role. The Select Committee's first area of broad agreement was,
"that it has long been impracticable for the Lord Chancellor to sit as a judge".
At the same time, the Lord Chancellor's workload in other areas has increased, but in respect of significant responsibilities of his role as head of the judiciary—the appointment, deployment and
disciplining of judges—there is a growing sense that the time for significant change has arrived. As Committee members have been told in the course of this debate, members of the Select Committee were unanimous that the time had come to set up a Judicial Appointments Commission. It is neither sensible nor defensible to leave the appointment of judges to one person.
Whereas 50 years ago, he would be making about 25 appointments a year from a pool of barristers who would be largely known to him personally, now he makes over 700 appointments. The majority of those are not from the Bar but from a pool that is substantially unknown to him.
There is also acceptance of the need for the explicit involvement of the executive, albeit constrained, in the appointment system. The concordat negotiated with the judiciary, of which we have heard much in the debate, and for which there is considerable support, represents the view of the executive and the judiciary about what their relationship should be. It is possible to have different views about the precise involvement, but it is important to point out that the concordat envisages that the Minister fulfilling the role of the appointer— or the giver of advice—under the concordat is no longer either the head of the judiciary or a judge. There is acceptance that the role of the Lord Chancellor as a judge and head of the judiciary has gone.
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On the matter of discipline, change has already occurred. Both my predecessor and I have regarded it as wholly inappropriate to consider disciplining a judge without consulting the Lord Chief Justice. In relation to any serious step against a judge, we would seek his concurrence. A protocol to that effect already existed between us. The concordat sets out in detail how the discipline process would work in the future. Again the role envisaged by the Minister in the concordat is not that of a judge but a Minister.
Finally, in respect of deployment, the judiciary and I agree that, both as a matter of practicability and constitutional principle, it is wholly wrong for the Lord Chancellor to determine which individual judge should sit in which court. That is patently a matter for the judges. The view of the vast majority of those who gave evidence was that the time had come for the Lord Chancellor to cease to be the head of the judiciary. Instead, the Lord Chief Justice—the chief professional judge in England and Wales—should take that role.
There remains the Lord Chancellor's function as the person in government who protects the independence of the judiciary and the rule of law. This is a critical function. It must and will be preserved. It is the expression of key values on which our constitution rests: justice, the independence of the judiciary and the rule of law, aside from party politics. That role goes beyond the mere identification of the law and the need to adhere to it. It goes further than simply ensuring that the Government take proper legal advice before doing something.
In the context of a democracy, which is based on parliamentary sovereignty, it involves speaking out privately, and if necessary publicly, where the rule of law may be threatened. But the role is as part of government, not separate. It involves speaking for justice, the rule of law and the independence of the judiciary within the Cabinet and the Government. It is one aspect of a number of protections that exist. The Attorney-General, the courts, the police and lawyers all have a role. But the Minister, given his responsibilities for the justice system and the judiciary, has an important role to play.
The holder of the office needs to be a respected and trusted member of the Government, able to put the requirements of justice and the rule of law above daily considerations. The role—critical in our constitution—must be performed by someone who is no longer a judge. The effect of our deliberations in the Select Committee, and as we believed the position to be before that committee, was that the role of judge and head of judiciary had effectively gone. A judge in Cabinet, increasingly perceived to be outside the mainstream by his colleagues and the public, will not be as effective in protecting those interests of the judicary and the rule of law as a strong, respected member of Cabinet, with a clear and unequivocal responsibility to uphold justice and the law.
The Earl of OnslowWill the Lord Chancellor give us some evidence of that fact? The idea that Lords Chancellors Hailsham, Mackay, Jowitt or Gardiner could not do that is incomprehensible. The noble and learned Lord's assertion that, because he is not a judge, a Secretary of State can is incomprehensible. There is no basis in fact for that.
Lord Falconer of ThorotonThe point that I am making is that there is widespread acceptance of the view that the person currently fulfilling the role of Lord Chancellor should no longer sit as a judge. There is also widespread acceptance of the view that a member of the Cabinet cannot discipline judges, cannot deploy individual judges and should not appoint judges on his own. Indeed, the Select Committee was unanimous on those three points.
6.45 p.m.
Lord Howe of AberavonI apologise for interrupting the noble and learned Lord the Lord Chancellor, but we should make it absolutely clear that there is no difference between us on that point. It is entirely common ground that the Lord Chancellor in Cabinet should not be a judge but that he should be a senior lawyer in this House. The Lord Chancellor has articulated a strong case for exactly that conclusion without any question of the man being a judge.
Lord Falconer of ThorotonI am grateful to the noble and learned Lord, Lord Howe, for making that point. There is complete agreement that a judge will no longer be head of the judiciary. The particular authority that came, and comes, to the Lord Chancellor in Cabinet is because he is a judge—the senior judge.
Lord Phillips of SudburyIn response to that point, will the noble and learned Lord the Lord Chancellor accept that when he was in Birmingham court on Saturday last before 350 young people and an equal number of parents and teachers, his magnetism revolved solely and exclusively round his personal qualities and the fact that he was the Lord Chancellor of England—not because he was Secretary of State for the Department of Constitutional Affairs?
Lord Falconer of ThorotonThe 300 or so 13 to 14-year-olds were unaware that my personal magnetism was based on the fact that I was the Lord Chancellor.
Just as the Leader of the other place and the Leader of this place have roles requiring them on occasions to put the interests of the Chambers they lead before their political affiliations, so must this Minister when it comes to justice and the protection of the rule of law. Of course, in every case it will depend on the quality and timbre of the holder of the office. He cannot expect his views always to prevail, but his voice must be heard, and the strength of the office depends on its relevance and its defensibility.
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In the place of the Lord Chancellor the Bill provides the right combination to provide an office of appropriate certainty. It clearly sets out the responsibilities of the executive and the judiciary. It is unique in that the justice functions given to the Minister by the Bill cannot be removed save by primary legislation. For the first time, it provides for judicial independence with a defined role for the Minister. We shall place on the Minister a clear, statutorily defined role to protect the rule of law. We will debate in later groups the terms of that role but there will be no doubt that such a role will be placed in the Bill.
The job description—this reflects where the process has got to, not because of 12 June, but the position that already existed—is, therefore, of a Minister with a substantial budget performing a role within government that puts him in a mainstream position in terms of political issues, with a special obligation in respect of justice and the rule of law.
Baroness Williams of CrosbyThe noble and learned Lord the Lord Chancellor is aware of the relative pattern of powers among departments in government. Does he agree that to have the singular effect that he is now claiming for the future Secretary of State, it would be better to have a department that is as powerful as the Home Office? That would mean switching the criminal justice system from the Home Office to that of the new Secretary of State for Constitutional Affairs?
Lord Falconer of ThorotonI do not think that it would be necessary to do that, but I agree with the basic proposition that the office we describe has to be strong enough to stand up not just to the department to which the noble Baroness referred, but to any department that may seek to do something that infringes the rule of law. It is also important to remember that the holder of this office has to be someone who is capable of being a Minister expending £3 billion of government money in respect of issues of legitimate public concern. Therefore, the rule of law and the ministerial role must go together.
Lord Mackie of BenshieWould this Minister's position be protected, and its independence enhanced, by the automatic right to a substantial pension?
Lord Falconer of ThorotonAnybody's position would be enhanced by access to a substantial pension. I do not put forward substantial pension and large salary as the basis of status— rather, it is the position and the requirements of that position set out in statute; the irremovability of certain functions from him as a result of statute; and the fact that he or she is going to perform a very important role.
Some suggest that incremental change is all that is required; they say, "Don't abolish—simply change". The temptation of that course will be great, particularly to this House, but I urge the House to resist. The basis on which the Bill is drafted and the assumption on which the concordat was agreed is that the new office holder should be a Minister. While his

1189
responsibilities will involve working closely with the judiciary, it is not as a judge that he will be doing this; it is as a Minister. That is the inescapable consequence of his no longer sitting as a judge or being the head of the judiciary.
The time has come to accept this fundamental change. This is not something that has come out of the blue.
Noble LordsOh!
Lord Falconer of ThorotonThe organisation Justice raised these issues back in the 1970s. The noble and learned Lord the Lord Chief Justice said in giving evidence to the Select Committee that the concordat,
"reflects an inevitable development brought about by gradual changes in the office of Lord Chancellor and his department over the past half century".
We may debate how this change should be achieved. We need to craft, very carefully, the role and standing of the new job to ensure that the proper balance exists. But let us no longer doubt that the change must be made. Some appear to have accepted that argument. I include the noble Lord, Lord Kingsland, and the noble and learned Lord, Lord Howe, in that. But they suggest that there may be some benefit in calling the new office holder the Lord Chancellor. Again, I believe that the answer is no. He is not doing the same job. We should recognise that and not suggest that he is. We should also recognise that the job requires the rule of law element—to use shorthand—and the ministerial role. Both those roles must be balanced in the appointment that the Prime Minister makes at a particular time. Furthermore, we do not want there to be any confusion with the new role of the Lord Chief Justice.
Others argue that additional restrictions are required: that the office holder should be a lawyer or a judge, or take a special oath or be a Member of this House. We shall come to those amendments later. I can certainly see that on occasion it would be an attraction to a Prime Minister to have a senior lawyer in the post. I can see the attraction of the holder of this office being in this House. But the question is, should the Prime Minister be constrained to have a senior lawyer in the House of Lords?
Noble LordsYes!
Lord Falconer of Thoroton: Should he, when confronted with the choice of, say, Mr Michael Howard QC or Viscount Whitelaw as the holder of this office, be forced to have Mr Howard on the basis that he is a senior lawyer? Is it not possible to conceive that making a choice between competing skills, the right conclusion for the Prime Minister of the day to come to is that the best man or woman for the job would be someone in another place who was not a qualified lawyer?
The Earl of ErrollI believed that one of the objects of Parliament was to constrain the powers of the Prime Minister. The Prime Minister is arrogating to himself the powers of the monarch, so we now have the monarch's powers sitting within Parliament. We must at some point constrain those powers, or we shall go back about 800 years in history.
Lord Falconer of Thoroton: This Bill and the debate in relation to it gives Parliament the opportunity to determine whether the changes should take place. I submit that the right course to take is to accept that change should occur. It is welcome change and, rather than seeking to cling to the historical aspects of the argument, we should see what is best to get the protections that I believe we all want.
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. I believe that neither of those propositions, in the light of the acceptance of the new architecture, is sustainable. It is not right, and it does not protect either the citizen or the interests of justice, that we continue with the current arrangements.
I believe that we agree about more than we perhaps think. We know what we want the office holder to do. We do not achieve that by refusing to face up to the difference between the job of the Lord Chancellor, as I have described it, and the widely supported functions of the new Secretary of State. I invite the movers of Amendments Nos. 1 and 7 to consider very carefully, in the light of what I have said, whether the best protection for the public and for justice, is to withdraw the amendment and accept the changes that have occurred.
Lord KingslandI am going to say this to the government Benches only once more. In tabling the amendment, we are not seeking to defend the status quo. We accept the architecture of the Bill. We simply believe that its foundations would be so much deeper if the role granted to the Secretary of State was played instead by the Lord Chancellor. The issue is simple: what sort of person should perform the role of the Secretary of State as defined in the Bill?
Whatever the Government's motives for opposing the amendment, I have no doubt about the consequences. The effect of operating these new arrangements with a Secretary of State for Constitutional Affairs will profoundly and needlessly undermine the rule of law.
The Government are risking our future by their uncontrollable obsession with obliterating our past.
I wish to test the opinion of the Committee.
6.57 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 240; Not-Contents, 208.

Division No. 1

CONTENTS

Ackner, L.

Ferrers, E.

Ampthill, L.

Flather, B.

Anelay of St Johns, B.

Fookes, B.

Arran, E.

Forsyth of Drumlean, L.

Astor, V.

Fowler, L.

Astor of Hever, L.

Fraser of Carmyllie, L.

Attlee, E.

Freeman, L.

Bagri, L.

Freyberg, L.

Ballyedmond, L.

Gardner of Parkes, B.

Bell, L.

Garel-Jones, L.

Belstead, L.

Geddes, L.

Biffen, L.

Gilmour of Craigmillar, L.

Blackwell. L.

Glenarthur, L.

Blaker, L.

Glentoran, L.

Blatch, B.

Goschen, V.

Bledisloe, V.

Gray of Contin, L.

Bowness, L.

Greenway, L.

Boyce, L.

Hanham, B.

Bramall, L.

Hanningfield, L.

Bridge of Harwich, L.

Hanson, L.

Bridgeman, V.

Harris of Peckham, L.

Brooke of Sutton Mandeville, L.

Hayhoe, L.

Brookeborough, V.

Henley, L.

Brougham and Vaux, L.

Higgins, L.

Burnham, L.

Hodgson of Astley Abbotts, L.

Buscombe, B.

Hogg, B.

Butler of Brockwell, L.

Home, E.

Byford, B.

Howard of Rising, L.

Caithness, E.

Howe, E.

Cameron of Lochbroom, L.

Howe of Aberavon, L.

Campbell of Alloway, L.

Howe of Idlicote, B.

Carlisle of Bucklow, L.

Howell of Guildford, L.

Carnegy of Lour, B.

Hunt of Wirral, L.

Carr of Hadley, L.

Hurd of Westwell, L.

Carrington, L.

Hutton, L.

Chadlington, L.

Hylton, L.

Chalfont, L.

Inge, L.

Chalker of Wallasey, B.

Inglewood, L.

Chilver, L.

James of Holland Park, B.

Chorley, L.

Jauncey of Tullichettle, L.

Coe, L.

Jellicoe, E.

Colville of Culross, V.

Jenkin of Roding, L.

Colwyn, L.

Jopling, L.

Cope of Berkeley, L. [Teller]

Kalms, L.

Courtown, E.

Kelvedon, L.

Cox, B.

Kilclooney, L.

Craig of Radley, L.

Kimball, L.

Craigavon, V.

King of Bridgwater, L.

Crathome, L.

Kingsland, L.

Crawford and Balcarres, E.

Kirkham, L.

Crickhowell, L.

Knight of Collingtree, B.

Cuckney, L.

Laidlaw, L.

Cumberlege, B.

Laing of Dunphail, L.

Dahrendorf, L.

Laird, L.

Darcy de Knayth, B.

Lamont of Lerwick, L.

Dean of Harptree, L.

Lane of Horsell, L.

Dearing, L.

Lang of Monkton, L.

Denham, L.

Lawson of Blaby, L.

Dixon-Smith, L.

Lindsay, E.

Donaldson of Lymington, L.

Listowel, E.

Dundee, E.

Liverpool, E.

Eccles of Moulton, B.

Lloyd of Berwick, L. [Teller]

Eden of Winton, L.

Lucas, L.

Elles, B.

Luke, L.

Elliott of Morpeth, L.

Lyell, L.

Elton, L.

Macfarlane of Bearsden, L.

Erroll, E.

MacGregor of Pulham Market,

Feldman, L.

L.

1192

MacLaurin of Knebworth, L.

Sainsbury of Preston Candover,

Maginnis of Drumglass, L.

L.

Mancroft, L.

St John of Fawsley, L.

Mar, C.

Saltoun of Abernethy, Ly.

Marlesford, L.

Sanderson of Bowden, L.

Masham of Ilton, B.

Sandwich, E.

Mayhew of Twysden, L.

Seccombe, B.

Miller of Hendon, B.

Selborne, E.

Monson, L.

Selsdon, L.

Montagu of Beaulieu, L.

Sharpies, B.

Montrose, D.

Shaw of Northstead, L.

Moran, L.

Shrewsbury, E.

Morris of Bolton, B.

Skelmersdale, L.

Moser, L.

Skidelsky, L.

Mowbray and Stourton, L.

Slim, V.

Moynihan, L.

Slynn of Hadley, L.

Murton of Lindisfarne, L.

Soulsby of Swaffham Prior, L.

Naseby, L.

Sterling of Plaistow, L.

Neill of Bladen, L.

Stewartby, L.

Newton of Braintree, L.

Stoddart of Swindon, L.

Nickson, L.

Strange, B.

Noakes, B.

Strathclyde, L.

Northbourne, L.

Sutherland of Houndwood, L.

Northbrook, L.

Swinfen, L.

Northesk, E.

Tanlaw, L.

Norton of Louth, L.

Taylor of Warwick, L.

O'Cathain, B.

Tebbit, L.

Oliver of Aylmerton, L.

Tenby, V.

Onslow, E.

Thatcher, B.

Oppenheim-Barnes, B.

Thomas of Gwydir, L.

Oxford, Bp.

Thomas of Swynnerton, L.

Park of Monmouth, B.

Trefgarne, L.

Patten, L.

Trenchard, V.

Perry of Southwark, B.

Trumpington, B.

Peyton of Yeovil, L.

Ullswater, V.

Phillips of Sudbury, L.

Waddington, L.

Pilkington of Oxenford, L.

Wade of Chorlton, L.

Platt of Writtle, B.

Wakeham, L.

Plumb, L.

Waldegrave of North Hill, L.

Plummer of St. Marylebone, L.

Walker of Worcester, L.

Prior, L.

Walpole, L.

Pym, L.

Warnock, B.

Rawlings, B.

Weatherill, L.

Rees, L.

Wilcox, B.

Rees-Mogg, L.

Williamson of Horton, L.

Renfrew of Kaimsthorn, L.

Wilson of Dinton, L.

Renton, L.

Wilson of Tillyorn, L.

Renton of Mount Harry, L.

Windlesham, L.

Roberts of Conwy, L.

Wolfson, L.

Rogan, L.

Wolfson of Sunningdale, L.

Rotherwick, L.

Worcester, Bp.

Ryder of Wensum, L.

Wright of Richmond, L.

Saatchi, L.

Young of Graffham, L.

NOT-CONTENTS

Acton, L.

Blackstone, B.

Addington, L.

Blood, B.

Ahmed, L.

Boothroyd, B.

Alli, L.

Bradshaw, L.

Amos, B. (Lord President of the Council)

Bragg, L.

Brennan, L.

Andrews, B.

Brooke of Alverthorpe, L.

Archer of Sandwell, L.

Brookman, L.

Ashley of Stoke, L.

Burlison, L.

Ashton of Upholland, B.

Campbell-Savours, L.

Avebury, L.

Carter, L.

Bach, L.

Carter of Coles, L.

Barker, B.

Chan, L.

Bassam of Brighton, L.

Chandos, V.

Beaumont of Whitley, L.

Christopher, L.

Berkeley, L.

Clark of Windermere, L.

Bernstein of Craigweil, L.

Clarke of Hampstead, L.

Best, L.

Clement-Jones, L.

Billingham, B.

Clinton-Davis, L.

Birt, L.

Cohen of Pimlico, B.

1193

Corbett of Castle Vale, L.

Mackenzie of Framwellgate, L.

Crawley, B.

McKenzie of Luton, L.

Currie of Marylebone, L.

Mackie of Benshie, L.

David, B.

McNally, L.

Davies of Coity, L.

Maddock. B.

Davies of Oldham, L. [Teller]

Mallalieu, B.

Dean of Thornton-le-Fylde, B.

Mar and Kellie, E.

Desai, L.

Marsh, L.

Dixon, L.

Mason of Barnsley, L.

Donoughue, L.

Massey of Darwen, B.

Drayson, L.

Merlyn-Rees, L.

Dubs, L.

Miller of Chilthorne Domer, B.

Elder. L.

Mishcon, L.

Evans of Parkside, L.

Mitchell, L.

Evans of Temple Guiting, L.

Morgan, L.

Falconer of Thoroton, L. (Lord Chancellor)

Morgan of Drefelin, B.

Morgan of Huyton, B.

Falkner of Margravine, B.

Morris of Manchester, L.

Farrington of Ribbleton, B.

Neuberger, B.

Faulkner of Worcester, L.

Newby, L.

Fearn, L.

Nicol, B.

Filkin, L.

Northover, B.

Finlay of Llandaff, B.

Oakeshott of Seagrove Bay, L.

Fitt, L.

Parekh, L.

Fyfe of Fairfield, L.

Paul, L.

Gale, B.

Pendry, L.

Garden, L.

Peston, L.

Gibson of Market Rasen, B.

Pitkeathley, B.

Giddens, L.

Plant of Highfield, L.

Golding, B.

Ponsonby of Shulbrede, L.

Goldsmith, L.

Powell of Bayswater, L.

Goodhart, L.

Prosser, B.

Gordon of Strathblane, L.

Prys-Davies, L.

Goudie, B.

Ramsay of Cartvale, B.

Gould of Potternewton, B.

Randall of St. Budeaux, L.

Graham of Edmonton, L.

Razzall, L.

Grantchester, L.

Rea, L.

Greengross, B.

Redesdale, L.

Grenfell, L.

Rendell of Babergh, B.

Grocott, L. [Teller]

Richard, L.

Hamwee, B.

Richardson of Calow, B.

Harris of Haringey, L.

Roberts of Llandudno, L.

Harris of Richmond, B.

Robertson of Port Ellen, L.

Harrison, L.

Rodgers of Quarry Bank, L.

Hart of Chilton, L.

Rooker, L.

Haskel, L.

Roper, L.

Haskins, L.

Rosser, L.

Henig, B.

Russell-Johnston, L.

Hilton of Eggardon, B.

Sainsbury of Turville, L.

Hogg of Cumbernauld. L.

Sawyer, L.

Hollis of Heigham, B.

Scotland of Asthal, B.

Holme of Cheltenham, L.

Sharp of Guildford, B.

Hooson, L.

Sheldon, L.

Howarth of Breckland, B.

Shutt of Greetland, L.

Howells of St. Davids, B.

Simon of Highbury, L.

Howie of Troon, L.

Smith of Clifton, L.

Hoyle, L.

Smith of Leigh, L.

Hughes of Woodside, L.

Snape, L.

Hunt of Chesterton, L.

Stallard, L.

Hunt of Kings Heath, L.

Steel of Aikwood, L.

Jones, L.

Stern, B.

Judd, L.

Stone of Blackheath, L.

King of West Bromwich, L.

Strabolgi, L.

Kirkhill, L.

Symons of Vernham Dean, B.

Layard, L.

Taverne, L.

Lea of Crondall, L.

Taylor of Blackburn, L.

Lester of Herne Hill, L.

Temple-Morris, L.

Linklater of Butterstone, B.

Thomas of Gresford. L.

Lipsey, L.

Thomas of Macclesfield, L.

Lockwood, B.

Thomas of Walliswood, B.

Lofthouse of Pontefract, L.

Thomson of Monifieth, L.

McDonagh, B.

Thornton, B.

Macdonald of Tradeston, L.

Tope, L.

McIntosh of Haringey, L.

Tordoff, L.

McIntosh of Hudnall, B.

Triesman, L.

MacKenzie of Culkein, L.

Truscott, L.

1194

Tunnicliffe, L.

Warwick of Undercliffe, B.

Turnberg, L.

Watson of Invergowrie, L.

Turner of Camden, B.

Watson of Richmond, L.

Uddin, B.

Whitaker, B.

Varley, L.

Whitty, L.

Wall of New Barnet, B.

Wilkins, B.

Wallace of Saltaire, L.

Williams of Crosby, B.

Walmsley, B.

Williams of Elvel, L.

Warner, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
7.11 p.m.
Lord Evans of Temple GuitingI beg to move that the House do now resume. In moving this Motion I suggest that the Committee stage begin again not before 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Uranium Enrichment Technology (Prohibition on Disclosure) Regulations 2004
Lord Triesmanrose to move, That the draft regulations laid before the House on 1 July be approved [24th Report from the Joint Committee].
The noble LordMy Lords, we face a very real threat from weapons of mass destruction. Nobody in this House could avoid this unhappy fact.
The draft regulations we are discussing this evening concern one key technology used in the civil nuclear industry—uranium enrichment. This technology can also be used in the production of nuclear weapons. We have a responsibility to ensure that it does not fall into the wrong hands, and so increase the risk of the proliferation of nuclear weapons. These draft regulations will strengthen the protection provided by our law in this area.
I would like to spend a few moments explaining the background to this technology. As many of your Lordships will be aware, the production of fissile material is necessary both for the generation of nuclear power and for the construction of nuclear weapons. One of the ways that this can be achieved is by separating uranium isotopes, a process usually known as enrichment. It was first achieved on an industrial scale during the Manhattan project in the Second World War.
Enrichment of uranium can be achieved in a number of ways. In the UK uranium is enriched by means of a cascade of centrifuges to produce nuclear fuel for power generation. Elsewhere in the world other technologies to enrich uranium are used, such as the gaseous diffusion method employed in France and the USA.
Uranium enrichment technology is used in the civil nuclear industry to produce low-enriched uranium. It is part of the process of manufacturing nuclear fuel for

1195
power stations. However, it can also be employed to enrich uranium to a far higher level, which can then be used in nuclear weapons programmes.
Because it can be used to develop nuclear weapons as well in civil nuclear power programmes, uranium enrichment technology is attractive to certain states and to terrorists. In recent decades there have been a number of reported instances of disclosure of this technology. In the 1970s Abdul Qadeer Khan, a Pakistani nuclear scientist, illegally acquired this technology from the Netherlands and very recently admitted providing this technology to Libya, North Korea and Iran. In the 1980s Karl-Heinz Schaab, a German national, supplied this technology to Iraq.
Uranium enrichment technology is so proliferation-sensitive that we must not allow it to circulate freely even within the UK, because to do so would increase the risk of the technology finding its way into the wrong hands.
Transfers of this technology are already regulated under UK law including by patents and export control legislation. But the coverage of the law is not total. There are gaps that have to be addressed.
Because of this, these draft regulations will create a new offence of unauthorised disclosure of this technology. The draft regulations are being made under powers in Section 80 of the Anti-terrorism, Crime and Security Act 2001.
The draft regulations will penalise disclosures made with intent to assist a uranium enrichment programme or disclosures that are made recklessly—by which I mean that the person knows or is indifferent to the risk that an unauthorised disclosure would assist a uranium enrichment programme, or gives no thought to an obvious risk that disclosure would assist such a programme.
The uranium enrichment industry in the UK needs to make disclosures of this technology in the normal course of its business. The draft regulations will address this and other legitimate circumstances by making those persons who make certain limited disclosures of this technology exempt from prosecution. Such exemptions include disclosures authorised by the Government, those made in connection with a patent application for this technology, or where the technology is already legally in the public domain.
We have also taken full account of the special position of Internet service providers. They will not face prosecution if, for example, they are unaware that information about uranium enrichment technology has been placed on a website they are hosting. To do otherwise would plainly be unjust.
I am very much aware that work on this form of enrichment and related areas may be carried out by the academic and scientific community. I certainly do not want to put barriers in the way of scientists carrying out their research. However, the academic and scientific community need not worry about these draft regulations.
1196
This is because the draft regulations focus on the key proliferation threat. They prohibit only the disclosure of technology which can be used to enrich uraniumx2014;in other words technology which will be of direct assistance to a proliferator. The House will be assured that the regulations do not prohibit disclosure of the research into the generally applicable fundamental science and engineering which enrichment makes use of, nor of items such as centrifuges which have been designed to do things other than to enrich uranium. If a scientist has this technology in his or her possession and wishes to disclose it, he can apply to the security regulator for the nuclear industry—the Office for Civil Nuclear Security—for an authorisation to do so.
In drawing up the draft regulations, the department has consulted a wide range of interested academic and scientific representative bodies. They include the Royal Society, the Royal Academy of Engineering and Universities UK. I am pleased to report that none has opposed the draft regulations. The House may recall that Professor Eyre of the Royal Society recently pointed out that the scientific community must be aware of its responsibility to stop technologies which can be used in weapons of mass destruction from getting into the wrong hands.
Your Lordships will also be aware that the draft regulations were withdrawn and then relaid. We did this so that we could incorporate the suggestion of the Joint Committee on Statutory Instruments that there should be a delay before the regulations came into force. That was because the penalties for falling foul of the regulations are severe and it is important that everyone should know where we are going before they are introduced. The delay of 28 days will allow us to bring the regulations to people's attention before they come into force. I am most grateful to the Joint Committee for its valuable scrutiny.
I probably do not need to remind the House in any way of the threat the world faces from the proliferation of weapons of mass destruction. These draft regulations address one important aspect of that threat and in that light, I commend them to the House. I beg to move.
Moved, That the draft regulations laid before the House on 1 July be approved. [24th Report from the Joint Committee].—(Lord Triesman.)
Baroness Miller of HendonMy Lords, I thank the Minister for his explanation of these regulations and for the excellent explanatory notes published by his department. Of course, we on these Benches support the regulations as we support all measures designed to inhibit the availability of any weapons of mass destruction which may find their way into the hands of bloodthirsty terrorists, to whom human life means little.
However, I am by no means certain how effective these regulations will be in achieving that objective, because the actual information about the technology is widely available in text books and over numerous websites on the totally uncontrollable and uncensorable Internet. I am equally uncertain how

1197
effective they may be when, as we have seen recently, what I can describe only as rogue scientists have been prepared to give or sell their country's atomic secrets to others. That has happened in the case of a Pakistani scientist and the Minister gave a few other examples.
There are valid fears that scientists of the former Soviet Union may have been peddling know-how, and indeed nuclear material itself, as well as essential equipment. There is little doubt about the source of North Korean and Iranian nuclear capability and the threats they pose to the world.
I was a little concerned that the regulations may impinge on normal academic freedom which enables our universities to teach and our scientists—especially research scientists—to exchange information with colleagues. Academic freedom is a subject which we have debated at length previously and the Government have given assurances that they entirely respect the concept.
I would have liked to have an assurance from the Minister that the exemptions contained in paragraph 2(2) take academic freedom into account. However, I believe that the noble Lord, Lord Triesman, in introducing these amendments, has given me that assurance. He said that the Royal Society, the Royal Academy of Engineering and Universities UK have been consulted and that they agree and that gives much assurance to the House.
Even though, as I said earlier, these regulations may be circumvented by the actions of irresponsible governments and by non-UK persons out of the jurisdiction of our government, they are necessarily to be welcomed as giving our courts some additional powers to deal with those who do assist in undesirable nuclear proliferation. I know that BNFL was consulted by Her Majesty's Government in the early formulation of the legislation and it, too, is content with it. We are therefore pleased to support the regulations.
Baroness Miller of Chilthorne DomerMy Lords, first, I must apologise to the Minister for missing the opening part of his statement. I was under the impression that the business would be taken in the dinner hour and did not know of the change. However, I assure him that I heard the brief delivered by his right honourable friend in the Commons committee yesterday. It was substantially the same, so I am aware of what was said.
We welcome measures to prevent terrorism and there can hardly be a more serious combination than nuclear technology and terrorism. However, I must ask whether the regulations are proportionate and appropriate because it would be easy to pass regulations that were disproportionate. For example, although we may feel a terrorist threat here, we do not want to stop all people visiting the Houses of Parliament so we have tried to have a proportionate reaction. Does the Minister believe that these regulations are proportionate?
1198
I want to explain why, given various factors, I am not sure that they are. First, they cast a further veil of secrecy over the whole of the nuclear industry, which has already had a secretive history and in which the public have a legitimate interest. In fact, one of the points in the Energy Bill, made so ably by the noble Lord, Lord Jenkin of Roding, was that the opening up of the nuclear industry was to be welcomed. Secrecy serves no public interest. I presume that the regulations have been produced in reaction to an Intelligence Service assessment. Can the Minister reassure me of that? As the noble Baroness, Lady Miller of Hendon, said, the knowledge is already out there.
The reality is that throughout the world, where there are nuclear reactors there is a more present threat, as was highlighted in December 2003 when 37 bars of highly enriched uranium were recovered by an international specialist armed unit from a shattered Bulgarian power station. A further eight bars of material went missing, one of which was recovered by the secret services and seven are still missing. If in passing these regulations we therefore believe that we have secured the UK, we are ignoring reality. I believe that we would be better off to put the effort into the kind of programmes in which the United States and Russia are engaged; those of blending down uranium so that it cannot be used in nuclear weapons.
There other current issues such as nitrate fertilisers, commonly available and quite unregulated. When blended with other commonly available substances, they become lethal. Have the Government given any thought to the chemical compounds which could still be useful to farmers but would make fertilisers far less useful to terrorists? That is the kind of practical regulation that would be helpful.
At a time when the Government have said they are keeping the nuclear option open—it would be fair to say that several leading Conservatives have been calling for new nuclear-build programmes— public debate on the nuclear issue is liable to be stifled if we see a large number of regulations, of which this is the start, closing down information on the nuclear industry. With these regulations, it will be much harder to ask questions about the safety of processes. How will public meetings be held, especially public inquiries where detailed information should be disclosed with regard to new planning permissions, for example? I notice that the regulations cover building, so presumably those planning permissions will take place on buildings which no one should know about and no one can discuss.
Then there is the matter of the resulting waste. Something will still have to be done with that waste—it will still have to be counted in a waste inventory and finally disposed of, but no one will have the right to know how much is likely to be produced by the technologies which will now be so regulated.
Do regulations denying the public such information comply with their rights under the new Aarhus Convention? The regulations talk of compliance with EU obligations but not with EU conventions. And

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how do they relate to the international situation? We are asking other countries to be open about their nuclear processes and ensure that civil programmes do not have military potential, but we will no longer be able to have that assurance in the UK as we shall not know what the Government are sanctioning under the guise of these regulations.
Finally, there is the question of the democratic process. I believe that these are important and highly significant regulations because uranium enrichment should concern us all. In the Commons yesterday, there was the statement that the Minister has repeated here today, followed by one minute of scrutiny. That is not very good. But in this House, we have been allocated a slot in the dinner hour, which is perhaps a little better; it may receive about 20 minutes of scrutiny.
I believe that the regulations merit a full debate with arguments from all sides. The Minister is looking puzzled. But if all that technology is shielded from public scrutiny, how shall we have the right to know what developments are taking place in the UK? I shall give him an example. New laser isotope enrichments can convert the acid-grade fuel to weapons-grade fuel. That is of great concern. As the non-proliferation treaties proceed, how will the electorate here know what the Government are sanctioning in its name?
Some time ago, the US Department of Energy declassified information on highly enriched uranium inventories. Among its reasons for doing so was that the data may permit more environmentally relevant information to be provided to stakeholders and the public. Crucially, it may permit more knowledgeable public discussion on uranium storage and disposal. That is part of the process.
I appreciate that that goes slightly wider than the regulations, but I suspect that they are the first of a tranche of regulations to be issued about the industry. At the very time that the industry is expected to expand, we must scrutinise very carefully the veil of secrecy that we are being asked to draw.
Finally, the regulations beg the question of why the UK is planning to enrich yet more uranium when we are committed to nuclear non-proliferation. Why is that?
Lord TriesmanMy Lords, I am grateful to both the noble Baronesses, Lady Miller of Chilthorne Domer and Lady Miller of Hendon, for the points that they made. I shall try to deal with them briefly. First, the noble Baroness, Lady Miller of Hendon, was right to draw attention to the possibility that, given the current state of knowledge in some of these technologies, it will be possible for people to circumvent the requirements of these—or any—regulations. She made the point, with which I wholly agree, that it remains a plain obligation on our part to try to ensure that there is no proliferation of weapons of mass destruction. I am also happy to repeat my confirmation that the academic community was in the loop during the discussions. The nuclear industry and the scientific community generally were in the loop of the
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discussions and it is of some comfort that they had no objection to the principle of the proposals. They were content that viable academic research and the normal exchange of academic information can proceed.
The noble Baroness, Lady Miller of Chilthorne Domer, made some important points, but it may well be that we will disagree to some extent about the processes involved. Are the regulations proportionate? Certainly. The proportionate quality that I shall describe is not because I want to answer the question about any recent intelligence; it is not the Government's policy to respond to intelligence assessments in either House of Parliament and I have no intention to do so. Indeed, I think that it would raise some eyebrows were I to do so.
However, I hope that it would be a common concern that various uranium enrichment technologies have become particularly sensitive, precisely because they are commonly used in the production of nuclear fuels in the civil nuclear industry but are so easily adapted for nuclear weapons programmes. The intention is to ensure, as far as possible, that the coverage of existing law is as strong as it can be to try to ensure that the information involved does not escape recklessly. Do many people already have that kind of information? They do. But it is also true that it is an area in which people are continually trying to improve techniques, as well as considering further methods of uranium enrichment. Those techniques and new methods may well be of value to people who have hostile and terrorist intent.
We would be negligent if we were to say simply that there is a lot of information out there already and that we are content to allow for the possibility that it could spread still further. The regulations are proportionate. They do not deal explicitly with stolen nuclear materials overseas. I do not think that we could make regulations in this House that could conceivably do so. That does not mean that that is not worrying. I share the worries that have been expressed. But they are not part of the regulations. Nor is it a part of the regulations that we consider other commonly available chemicals, that can, with relative ease, be turned into explosives. Quite aside from whether there are good alternatives to nitrate fertilisers, there are probably a number of chemicals which, put together with other chemicals and reactive agents, would produce devastating effects.
The regulations do not cover such matters, although they are of course extremely important and we should try our best to ensure that we are dealing with them appropriately. Nor, with the greatest respect, do I think that this is an issue of planning permission. It may be about the specialist design of specialist buildings that deal with specialist equipment in the process of uranium enrichment. But, generally speaking, most of the issues about the planning arrangements for all kinds of power generation sites are covered in other legislation, including much that we have discussed recently.
Baroness Miller of Chilthorne DomerMy Lords, I am sorry to interrupt the Minister, because I realise that time is pressing, but, if a building is to be erected for the process of uranium enrichment, will the information about the use of the buildings be available to the public, so that they can make their views known?
Lord TriesmanMy Lords, when commercial planning permissions are sought—the nuclear energy industry is a commercial proposition—the planning permissions must meet the full range of the planning requirements for information before planning consents can be given. I candidly do not think that that is an area of huge secrecy. It is hard to build a nuclear reactor, if new nuclear reactors are to be built, without people generally being aware of its likely use and the likely content of the nuclear fuel.
I am now paraphrasing a little, and I apologise for that. Will we deal with declassification of information at the same time as we are encouraging other countries to reveal their nuclear weapons development capability? We are all parties to the non-proliferation treaties. The obligations that we urge on others are obligations under the non-proliferation treaties. They should not be doing the things that they are doing. On our part, the information will not be declassified if that would present a threat to our national security.
In all conscience, I do not believe that it could be said that the democratic processes or possibilities of debate are limited in the United Kingdom. But, such as they are, the limits certainly concern where it is of grave danger to the peoples of the United Kingdom that weapons of mass destruction or the technologies to build them could be spread. That seems to me a sensible precaution and that is all that the regulations deal with.
I assure the House that we introduce measures such as these only where we believe that they are entirely justified by the threat that we face and after careful thought about the consequences. There is no crying wolf about this. The draft regulations are necessary and I commend them to the House in that light.
On Question, Motion agreed to.

Regulatory Reform (Patents) Order 2004
7.39 p.m.
Lord Triesmanrose to move, That the draft regulatory reform order laid before the House on 7 June be approved [20th Report from the Regulatory Reform Committee].
The noble Lordsaid: My Lords, I beg to move the Motion standing in the name of my noble friend Lord Sainsbury. The Regulatory Reform (Patents) Order 2004 comprises many reforms which in combination will amend the Patents Act 1977. They will do so to make it possible to administer the Patents Act 1977 and the Patents Rules 1995 in a manner compliant with the World Intellectual Property Organisation's Patent Law Treaty, which I will refer to from now on as the PLT to save time.
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It is also intended to unify the criteria for allowing restoration of a ceased patent and the new provision for reinstatement of a terminated application for a patent; to allow patent applications withdrawn as a result of an error in a request from the applicant to be resuscitated; and to remove an anomaly in the treatment of patents as items of personal property between Scotland, the remainder of the United Kingdom and the Isle of Man.
While the proposals will be of considerable benefit to patent applicants and patentees, simplifying procedures and removing unnecessary burdens, care has been taken to ensure that they do not in any way undermine the interests of the public in general. In particular, the proposed legislation specifically protects the rights of third parties whenever a patent application whose termination has been made known to the public is resuscitated or reinstated.
The field of patents is specialised. The strange mixture of law with technology means that, in practice, most dealings with the Patent Office are conducted by highly skilled professional representatives working on behalf of patent applicants and patent proprietors. The department has consulted widely, and we are satisfied that these proposals are accepted as sound, reducing processing complexity without affecting the balance between rights-holders and third parties and being substantially cost-neutral. As such, they have been welcomed by those who represent the interests of applicants and patentees.
Articles 4 to 7 of the draft order seek to remove burdens from the process of making an application for a patent, and, in particular, from the requirements associated with qualifying for a date of filing. The date of filing of an application is important. The priority date of an invention is determined by the date of filing of the first application made in respect of it and sets the temporal boundary of the "state of the art"—that is to say, the known body of knowledge against which the novelty of the invention is to be judged.
The administrative formalities associated with qualifying for a date of filing should, therefore, in so far as it is possible, be reduced to the minimum. At the same time, the maximum scope possible should be afforded to applicants to comply with other less time-sensitive formal requirements by a later date, although this will as a consequence carry the risk that an application may be treated as withdrawn or refused if not all the formal requirements are subsequently complied with.
It is therefore proposed to reduce the amount of detail that needs to be supplied about the applicant; to make clear that where a description is filed in a foreign language it will still qualify for a date of filing; to allow a reference to an earlier application for the invention to be made instead of filing a description; and to abolish the filing fee and replace it with an application fee that can be paid later.
It is also proposed to improve on the existing arrangements for the late filing of missing material and to allow such material to be included without amendment of the date of filing where it was wholly

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contained in an earlier application from which the applicant legitimately claims priority rights. The new filing requirements will also keep applicants better informed of the status quo of their applications. In particular, when no application fee is paid at the time of filing, the applicant will be notified of the time available in which to pay it and the consequences of not paying in time.
Payment of the application fee will cause the Patent Office to examine the application for formal defects and to notify the applicant of any outstanding requirements. Between them these two provisions will allow those applicants who wish only to obtain a date of filing to do nothing more than meet the date-of-filing requirements, while at the same time ensuring that those who want to proceed need only pay the application fee to be promptly and fully informed of the outstanding requirements to be complied with. This represents the best use of resources for both applicants and the Patent Office.
Articles 17 and 18 of the order are concerned in part with the resuscitation of applications withdrawn as a result of an error in a request from the applicant, and in part with the extension of time limits specified by the comptroller. The present proposals not only make clear that the error-correction provisions of the Patents Act 1977 are available to correct such mistakes, but will also provide for the protection of third parties whenever the fact that an application has been withdrawn is published before the error has been remedied.
While many time limits are specified in the Act or prescribed in the rules, there remain some which are set by the comptroller. They are outside the scope of the existing provisions for extension of time periods, and the present reforms will remedy that deficiency. A first extension of any time limit specified by the comptroller will be available on request as of right, provided that the request is made within a prescribed time. Second and subsequent extensions will be allowable at the discretion of the comptroller. There is at present no formal provision for reinstating an application which has been refused or treated as withdrawn as a result of the applicant having failed to meet a time limit.
Article 8 of the proposed reforms will enable applicants to request, and the comptroller to allow, reinstatement of terminated applications, provided that the applicant can show that there was always a genuine intention to continue with the application. Where notification that an application has been terminated is published, appropriate third-party protection will be a precondition for allowing reinstatement. Article 9 adapts the existing provisions for restoring ceased patents to be uniform with the standards required by the newly instituted reinstatement provisions of Article 8.
I have already mentioned the importance of the date of filing in establishing the priority date of an invention. Until now, declarations of priority have been allowed only when the date of filing of the later application is not more than 12 months after the date of filing of the earlier application from which priority
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is claimed. Article 5 of the present proposals will allow the applicant to request, and the comptroller to allow, declarations of priority to be made with respect to applications filed within a limited period after expiry of that 12 months, provided that the applicant can show that it was always his intention to have filed it in time.
Article 10 addresses an anomaly in the treatment of patents as objects of personal property in Scotland, the remainder of the United Kingdom and the Isle of Man. Articles 12 to 16 and 19 effect consequential amendments to the Patents Act 1977 and are made necessary by the principal changes, which have already been explained. Articles 20 to 23 provide the transitional arrangements necessary to ensure a smooth introduction of the proposed reforms.
I thank the members of the Select Committee on Delegated Powers and Regulatory Reform for their finding that the present proposals are appropriate to be made under the Regulatory Reform Act 2001, and for recommending them to the House. The committee in another place has also considered the proposals. I had not treated them as a repeat of anything said in the other place because the debates in this House are freestanding on the matter. It concluded that they remove burdens within the meaning of the Regulatory Reform Act 2001 without removing any necessary protections or preventing the exercise of any existing rights or freedoms. On the committee's unanimous recommendation, the order was unanimously approved in the other place. I now commend it to this House.
Moved, That the draft regulatory reform order laid before the House on 7 June be approved [20th Report from the Regulatory Reform Committee].—(Lord Triesman.)
Baroness Miller of HendonMy Lords, I thank the Minister for his very clear, detailed explanation of the order and for his department's usual excellent Explanatory Notes, which were of great help.
This is a highly technical order which will easily be understood by a specialist in patent law—indeed, the Minister mentioned that it was often the patent lawyer who got involved in doing this. I am advised by one such patent lawyer, whom I consulted, that the order removes a number of anomalies in the 1977 Patents Act and simplifies what are now considered to be over-rigid time limits and excessively prescriptive procedures for the presentation and granting of applications and transfers of the valuable rights constituted by a patent.
This is not a controversial matter, especially as it has undergone not one but two separate exercises in Parliamentary scrutiny. We are pleased to give it our support.
Lord Shutt of GreetlandMy Lords, I too, thank the Minister for his detailed presentation of the order. I am neither a patent lawyer nor a patent agent. I suspect that it could have been quite an interesting career, but

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it was not to be. Perhaps there is a place in your Lordships' House for a patents expert—we may already have onex2014;but I am not one of those.
On the basis that the order is about the removal or reduction of burdens, the removal of anomalies, and enabling the Act to be administered in conformity with the World Intellectual Property Organisation Patent Law Treaty, we are happy on these Benches to support it.
Lord LyellMy Lords, I wonder if I might take one minute of your Lordships' time. I congratulate the noble Lord, Lord Triesman, for taking such care in explaining the law of patents.
The noble Lord, Lord Shutt, could not have spoken a truer word. From the end of January 1977—I think it was 24 January—until some time in July of that year, I occupied the position roughly similar to that of my noble friend Lady Miller. I am neither a lawyer, nor a barrack-room lawyer, nor an expert. I am a mere accountant. I always love to tease my noble neighbour that I am a poor country boy from Angus and a mere accountant, but that did not stop me from assisting my noble friend Lord Belstead with the 1977 Patents Bill, which later became the Patents Act. The noble Lord, Lord Triesman, will be gratified to know that in those days the speakers included the Lord Chancellor and the noble and learned Lord, Lord McCluskey, who was here for an earlier matter and has now fled the coop—perhaps for good reason; I know not. The Labour government's Minister was in attendance with a full panoply and representatives of the Patent Office. Those of us on these Benches were briefed from the patent agents. I confirm to the noble Lords, Lord Triesman and Lord Shutt, that it was an extremely detailed and complicated Act, but it did not faze anyone in the accountancy profession, let alone Back-Benchers.
I really want to congratulate the noble Lord, Lord Triesman. I reiterate the thanks given by my noble friend Lady Miller to his department for the clear Explanatory Notes. I wonder whether he could confirm something either quickly tonight or at a later stage. I was invited to look, and did look, at the Explanatory Notes, and my attention was drawn to page 5 of the order. I think that he mentioned Article 5 and the new Section 15A on preliminary examination. Subsection (8)(b) says:
"As a result of the observations, the comptroller is satisfied that the formal requirements have been complied with".
It seems to me that this is doing exactly what is spelled out in the Explanatory Notes. Where there is a fairly small or one hopes not particularly significant error—the Latin word that we used in 1977 was lacuna—that can be corrected without major complication or indeed any complication, and that above all will not harm the rights of third parties, the patent applicant will be protected.
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I apologise that I have gone into even a third minute. I am most grateful to the noble Lord, Lord Triesman. I commend him in proposing the order, and I wish it all success.
Lord TriesmanMy Lords, I start by confirming that that is precisely the position. If I have misunderstood any part of it, I will most certainly write. I believe that I have the same understanding. I was also grateful for the Notes, because I am not a lawyer, just a humble mathematician ploughing a trade in economics. I feel that I understood it, despite its complexity, reasonably well. I am grateful to all noble Lords who have taken part in the brief debate.
On Question, Motion agreed to.

National Minimum Wage Regulations 1999 (Amendment) (No. 2) Regulations 2004
7.54 p.m.
Lord Triesmanrose to move, That the draft regulations laid before the House on 17 June be approved [23rd Report from the Joint Committee].
The noble LordMy Lords, I beg to move the Motion standing in the name of my noble friend Lord Sainsbury. I am pleased today to present these regulations to the House. The national minimum wage remains without doubt one of the Government's finest achievements. It has made a substantial difference for at least 1 million low-paid workers in the United Kingdom every year for the past five years.
In July last year, the Government asked the independent Low Pay Commission to report on two issues connected with the minimum wage by February 2004. We asked it to review the rates that it had previously proposed for October 2004 in the light of the latest economic position. We also asked it to look at the possible introduction of a new minimum wage rate for 16 and 17 year-olds. The commission reported in February 2004, and the Government announced in March that we accepted their recommendations. In particular, the regulations that we are debating today implement the increases recommended by the commission to the adult and development rates of the minimum wage. They also, as recommended by the commission, introduce a new rate payable to those aged below 18.
It may be helpful if I briefly explain the regulations. Regulation provides for the regulations to come into force on 1 October 2004. That will give employers sufficient time to prepare and plan for the rate increases, which were, of course, announced by the Government in March. Regulations 2, 4(a) and 4(c) deal with increases to the minimum wage rates. Having laid firm foundations to the minimum wage in the first four years, the Government were able to accept the commission's recommendation last year that the adult rate should be increased by around 7 per cent. This year, the commission has recommended further increases of around 8 per cent in the case of the adult

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rate, increasing that rate to £4.85 an hour, and 5 per cent for the development rate, taking that to £4.10 an hour.
The commission concluded that these increases were justified, as the overall economic outlook remains favourable, with continuing high employment and very low unemployment levels. In addition, employment across low-paying sectors as a whole is continuing to grow, and there is little or no evidence that the minimum wage is having any adverse impact on these sectors. The increases would extend the coverage of the minimum wage substantially, so that 1.6 to 1.9 million low-paid workers stand to benefit. That can only be good for the United Kingdom.
Regulation 3(a) has the effect of providing that workers under 18 and who are over school-leaving age now qualify for the minimum wage. Regulation 4(b) sets a minimum wage rate of £3 an hour for such workers. The Government agreed last year that the commission should consider that issue, following the findings in its 2003 report that some full-time jobs were offering extremely low levels of pay and minimal training to young workers. The commission has found continued evidence that some jobs in this age group offer very low rates of pay and little or no training. The commission concluded that it is important to introduce a minimum wage for 16 and 17 year-old workers in order to stop exploitative rates of pay. The Government agree.
However, it is clearly important to set any rate for this group cautiously. Unemployment and employment levels for 16 and 17 year-old workers are substantially worse than for those aged 18 to 21, and the Government's main priority for people in this age group is for them to remain in education or training, which would be in their long-term interest, rather than to take up low-paying jobs. The commission concluded that a rate of around £3 per hour would have little impact on young people's decisions on whether to remain in education. The implementation of education maintenance allowances this autumn also seems likely to encourage young people to stay in education rather than opt for low-paying jobs. The Government therefore accepted a rate of £3 an hour. The National Minimum Wage Act 1998 only covers people,
"who have ceased to be of compulsory school age".
Therefore, the new £3 rate will apply only to those under 18s who have ceased to be of "compulsory school age". We believe that is right that youngsters who are still at school should be encouraged to focus attention on their education and educational development.
Under regulation 3(b), noble Lords may know that apprentices aged between 19 and 25 are presently exempt from the minimum wage for the first 12 months of their apprenticeship or participation in such schemes. We have left that position unchanged. Regulation 3(b) simply updates the titles of the government schemes treated like apprenticeships operating in England and Wales. The titles of those schemes are unchanged in Scotland and Northern Ireland.
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A key issue that needs to be considered is the position of very young apprentices. We know that many 16 and 17 year-old apprentices earn less than the new rate of £3 an hour and that many 18 year-old apprentices earn less than the new 18 year-old rate of £4.10 an hour. We are very concerned to ensure that employers continue to offer apprenticeships and, recognising that they are breaking new ground and will feel the need for caution, the commission recommended that apprentices aged under 18 should not be entitled to the new rate. The Government have accepted the commission's recommendation.
The Low Pay Commission also recommended that people aged under-18 who are on schemes at a pre-apprenticeship level should be exempt from the new rate. The Government think it is sensible that workers on these schemes should be exempt from the minimum wage, bearing in mind that, as I mentioned earlier, they would be exempt from the minimum wage for at least the first 12 months if they progressed on to an apprenticeship. Regulation 3(c) lists the pre-apprenticeship schemes.
Regulation 5 increases the value of the accommodation outset. That is the amount that may be taken into account when determining whether the minimum wage has been paid in situations where a worker is provided with living accommodation by the employer. The amount—again, the recommendation of the commission—is increased from £3.50 to £3.75 per day.
Regulation 6 makes some minor amendments as a consequence of the fair piece rate regulations that were passed by this House in the spring. It requires businesses employing output workers—people who are paid per piece produced or task performed—to, where relevant, keep copies of the written notices that they have provided to their workers and details of how they have set a fair piece rate paid to those workers.
Regulation 7 contains some minor technical transitional provisions. I hope that I have given a fair account of these regulations. I commend these regulations to the House.
Moved, That the draft regulations laid before the House on 17 June be approved [23rd Report from the Joint Committee].—(Lord Triesman.)
Baroness Miller of Hendon: My Lords, I thank the Minister for his explanation of this Motion and, as usual, for his department's explanatory note. As the Minister has told us, these regulations increase the basic hourly national minimum wage from £4.50 to £4.85 and the lower hourly rate is increased from £3.80 to £4.10.
Of course, we accept the principle of the national minimum wage, but those increases are substantially above inflation. We are a little concerned that that might impact on competitiveness. My honourable friend the Member for South Suffolk said that this adds to the cost of business at a time when the outlook for both jobs and investment in the private sector look poor.

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The regulations also introduce a national minimum wage in favour of those below the age of 18, which could have an impact on employment opportunities for such young people, especially as Brendan Barber predicts that it,
"should mean that more significant increases can take place in future years".
I should like to remind the Government that in the economic situation in the world, of course it is very important that the Government focus on the need to improve Britain's competitive position by cutting rather than increasing the burdens that they place on British business. But with that very small caveat, I can tell your Lordships that we shall not oppose the Motion.
Lord Shutt of Greetland: My Lords, I, too, thank the Minister for explaining the Motion, which I support. However, I should like to make a couple of comments based on personal experience. For some years, I have been a non-executive director of a not-for-profit guesthouse. In circumstances where people are being paid above these rates, one knows that when the rates are changed the people just above also change. If the increase is above the rate of inflation, one has to think very carefully about its effect. If one is running a not-for-profit organisation, which is a tight ship, these things have to be worked out.
There is a great deal of perception that people will not pay certain prices, particularly when they have to be increased above the rate of inflation. It is therefore very important that when changes like this have to be made maximum notice is given. In the guest house and catering industries, particularly when looking at tariffs, which have to be planned in advance, maximum notice of changes is necessary.
It is my belief that people are prepared to pay proper prices and not exploit people for accommodation, services, catering and so forth. But the people who run such business need to know when changes are to be made and they need the maximum amount of notice. With that contribution about being given maximum notice in terms of changes that may take place in the future, I am happy to support the Motion.
Lord TriesmanMy Lords, I thank the noble Baroness, Lady Miller, and the noble Lord, Lord Shutt, for the important and interesting points that they made. It is right that we are eager to ensure that regulatory and other burdens are kept within close limits for the good conduct of business and to encourage competitiveness.
The decisions to make awards above the rate of inflation or to introduce a scheme for those under the age of 18 were the subject of very detailed discussions in the commission. Over the history of the commission, both under George Bain and now under Adair Turner, the potential risks of taking that kind of course of action have been dealt with in considerable detail—not just in themselves, but also because there are knock-on
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consequences in other parts of the reward systems that apply in firms. I think that they have always come to a judgment very carefully in those circumstances.
The regulations are important. More than 1.6 million workers stand to benefit from the increases. I think that they will have the impact of ensuring that young workers are also not exploited through excessively low wages. In all of those cases, having good notice so that we can all plan properly is extremely important. All those points are very well taken.
On Question, Motion agreed to.

Landfill (Scheme Year and Maximum Landfill Amount) Order 2004
8.7 p.m.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty)rose to move, That the draft order laid before the House on 22 June be approved [22nd Report from the Joint Committee].
The noble Lord: My Lords, we are considering the Landfill (Scheme Year and Maximum Landfill Amount) Regulations which set the maximum amount by weight of biodegradable municipal waste allowed to be sent to landfill in the UK. The instrument is made under the Waste Emissions Trading Act 2003.
The regulations set the maximum amount of biodegradable waste that the UK will be required to landfill over the next 15 years. They then divide the UK's obligations under the Landfill Directive between England, Scotland, Wales and Northern Ireland by setting targets for 2010, 2013 and 2020. These target year dates take into account the four-year derogation available to the UK under the directive.
In order to encourage a steady reduction in landfilling and so reduce the risk of the UK breaching its targets, this instrument sets maximum amounts which can be landfilled for the years leading up to the first target in 2010. Thereafter straight-line reductions to the latter targets will apply. Separate national regulations will be made in each country to implement landfill allowance schemes. The regulations for landfill allowances and a trading scheme in England will be laid before Parliament shortly. In Wales the National Assembly has already approved the Welsh landfill allowances scheme and similar regulations are being drafted for Scotland and Northern Ireland.
This instrument also amends the definition of scheme year in the Waste and Emissions Trading Act from 17 July to 16 July and from 1 April to 31 March. As noble Lords will remember, this was a matter of some debate during the passage of the primary legislation. However, this change brings the scheme year onto the same footing as the financial year for central and local government. For Wales the scheme has been further amended to allow the scheme to start in October this year part way through a scheme year. In England, Scotland and Northern Ireland the schemes will start on 1 April 2005.

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The instrument has been drafted in consultation with Scottish Ministers, the National Assembly for Wales and the Department for the Environment of Northern Ireland. It has been agreed by them. I commend the order to the House.
Moved, that the draft order laid before the House on 22 June be approved. [22 Report from the Joint Committee].—(Lord Whitty.)
Lord Dixon-Smith: My Lords, I am grateful to the Minister for his explanation of the regulations and particularly for the knowledge that the scheme year is to be the same as the financial year. As the noble Lord said, it was a fruitful source of debate when we were dealing with the Bill.
These regulations are going to bring about a really major change in the way in which we handle waste in this country. While the Bill provided for the establishment of this scheme of targets for each year, the only target that I am really concerned about is the one at the end. Given that we are postulating a major change in the handling of waste and given the complexities and delays imposed by the planning system which can take a long time, and the difficulties that authorities have had in making up their minds as to how they are to handle these problems, I hope that there will be some sympathy from the Government if waste disposal authorities fail to meet the interim targets, provided that the Government can be confident that they are going to meet the final target, because that is the one which matters.
It has to be said that the change to be brought about will be very expensive. One looks at what is spent at present in this country on waste collection and management. It amounts to £1.8 billion. If one extrapolates from the Dutch experience which already meets the 2015 target, our expenditure needs to rise to £3 billion. If one looks at what has happened under the Comprehensive Spending Review, the fact is that the increases in expenditure do not suggest that the money will be available. The particular figure which causes me concern is the extra Private Finance Initiative credits for investment to increase to £155 million by 2007–08. My own local authority will require to spend £200 million in order to meet this target. If one extrapolates from that level of expenditure, the PFI credits presently being provided will not prove adequate to enable these targets to be met.
None the less, we have to accept that the effort has to be made because there is the threat of fines of £500,000 per day in 2018 or 2019 if we fail. But I am bound to say to the noble Lord that in my view, horrendous though that fines is, it is less than the cost of financing the improvements which will need to be made in order to avoid paying the fine. That is quite an interesting calculation.
That said, I would not advocate being in the position of having to pay the fine because that would be dead money. At least if you are investing, you will get something back for what you are paying out.
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We support the order and will not be objecting to it.
Baroness Miller of Chilthorne Domer: My Lords, we welcome the order and the targets it will lay down. It will ensure some certainty about what the targets are for those who will need to work towards them. After hazardous waste, biodegradable waste could be said to be the most difficult kind of waste to deal with because it is hard to persuade individual householders and commercial interests to separate it. I believe that further work needs to be done in this area. All too often the answer has been to give householders subsidised compost bins. Biodegradable waste deposited in such bins turns into a very unpleasant sludge which puts everyone off trying to make compost.
The future may lie in more widespread municipal composting. Can the Minister tell me whether BSI standards have been set for compost? If the end product were proved to be truly useful, that would mark a good step forward. If householders are enthusiastic about separating their waste, perhaps the Government might like to encourage local authorities to give the resulting compost away. I realise that that is a matter for individual authorities, but it is a proposal which needs to be considered.
Has any work been undertaken on the link between this order covering composting—by which time biodegradable waste has ceased to be a waste product and has become a resource once more—and the European Union soils directive, which requires a great deal of soil improvement to take place?
Lord Whitty: My Lords, I am grateful for the support of both opposition Front-Benchers for the order, and in particular for the recognition of the need for a substantial shift in the way in which we deal with waste in this country. The noble Lord, Lord Dixon-Smith, also recognised that the redefinition of the financial year will be helpful to local authorities and others. Although I was slightly startled at one point when I thought that he was about to advocate nonpayment of fines and civil disobedience, it is undoubtedly true that this work will be expensive. The fines reflect the importance of potential breaches. However, it is important that we recognise the benefits both to society and to the environment from achieving these targets. It is an expensive effort for local authorities and will mean a change in behaviour on the part of both householders and commercial bodies.
The noble Baroness asked about the issues surrounding the separation of biodegradable waste and composting standards, how to persuade householders to separate their waste and then how to treat it. Discussions are going on between ourselves, the Office of the Deputy Prime Minister and the various municipal authorities to review Defra guidance on municipal waste management strategies, as well as on the guidance that is appropriate for the planning system, a point referred to by the noble Lord, Lord Dixon-Smith. That work is ongoing. I cannot

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answer directly the question put to me by the noble Baroness, Lady Miller, about BSI standards, but if there are any developments, I shall let her know.
The noble Lord, Lord Dixon-Smith, was correct to say that the end target is the most important thing, but it is also important that local authorities are kept on a trajectory towards that end target. That is why the directive has been drafted in this way and why we are specifying the targets for the interim years as well.
Turning to the point about an overlap with the EU soils strategy, I think that that is slightly limited in relation to the provision before us because we will be dealing with different methods of disposal of the waste created in fields and elsewhere. However, there may be some crossover and I shall look into that.
I repeat my appreciation of the support of the opposition parties.
On Question, Motion agreed to.

Constitutional Reform Bill [H.L.]
8.18 p.m.
House again in Committee (on Recommitment) on Clause 1.
Lord Lloyd of Berwickmoved Amendment No. 2:
Page 1, line 7, leave out "continued"
The noble and learned Lord: I am not sure whether this is a drafting or a probing amendment, but it seems to me that the word "continued" serves no real purpose. Everybody accepts that the judges are independent now. Why does that fact need to be stated in the Bill? My suggestion is that the word "continued" is verbiage. If we do have to have an adjective qualifying independence, then I would suggest that "existing" is a better word than "continued". I beg to move.
Lord Falconer of Thoroton: There does not seem to be much between us. The duty of all Ministers to uphold the independence of the judiciary is nothing new. There has always been an expectation that Ministers will behave in this way, even though it has not previously been expressed as a statutory duty.
Clause 1 gives statutory force to what is now a matter of convention and will ensure that our long history of an independent judiciary continues. We believe that putting the duty into statute and ensuring that it extends to all Ministers will provide stronger protection for judicial independence than exists now.
However, although the form of protection will be enhanced, we believe that the substance of what we are protecting should be defined by reference to what we have now: the sophisticated and well respected notion of judicial independence as it has developed over the centuries. As now drafted, the clause adds certainty that what we now know to be the case will not change.
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Removing the word "continued" from this duty would suggest that one is seeking to remove the link with the existing concept of judicial independence. I am not sure what the noble and learned Lord, Lord Lloyd, is seeking to achieve by this but it may be, as he said, that it is simply a probing amendment.
The function of the word sought to be deleted is simply to ensure that judicial independence is defined and must develop in line with the concept as it is now understood. It will not freeze the content of judicial independence at a particular point in time. In exact accord with the judicial method in the common law system, it will simply ensure that the starting point for any consideration of what judicial independence requires must be the concept as it was known at the time the Bill is enacted. The concept can of course evolve to reflect changing circumstances, but the parameters of any such evolution must surely be set by what exists now.
The amendment tabled by the noble and learned Lord would imply something else: that the Bill was declaring some new principle, in a deliberate break with the past. From what he has said, I do not think that is what he intends. I am encouraged in that respect by his use of the word "existing". I do not think that there is much difference between us, therefore.
Declaring such a break with the past—which I do not think he intends—without defining the content of the implied new principle would, in my opinion, sow confusion and uncertainty in an area where clarity and certainty are crucial factors. It is very important in an area such as this that all those concerned have as much certainty as possible as to what is expected of them. What the current provision states clearly is that we want to perpetuate the existing state of affairs, allowing for gradual evolution in accordance with changing circumstances. That must surely be the correct approach to a principle of such crucial constitutional importance.
In those circumstances. I ask the noble and learned Lord to withdraw his amendment.
Lord Lloyd of Berwick: The difference between the noble and learned Lord the Lord Chancellor and me is that he cannot see my purpose in excluding the word "continued"; I cannot see his purpose in including the word "continued". Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Windleshammoved Amendment No. 3:
Page 1, line 7, at end insert "and the rule of law"
The noble Lord: The proposition lying behind this amendment is more significant than the one we have just disposed of so briskly and quickly. It concerns the rule of law.
The proposition is that the rule of law is such a fundamental principle that it deserves to be recognised specifically in this historically significant constitutional Bill.

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If we are moving towards a written constitution—which in a number of respects we are—we can all agree that it should be inclusive. Some may argue that such an amendment to this Bill is unnecessary and that a recognition of the rule of law is omnipresent in every ministerial office. A happy picture indeed to visualise, and I hope that it applies to the office of the noble and learned Lord, Lord Falconer, together with his ministerial colleague. If that was ever true, however, it certainly cannot be regarded as an accurate description of some of the policies of the Home Office under the leadership of the present Home Secretary. Mr Blunkett, as we recognise, has many exceptional qualities, but I do not think he would claim that a willing deference to the rule of law is among them. His recent setback over the handling of immigration appeals is only one of a number of Home Office policies to have been successfully challenged in the courts.
This amendment, however, is not an occasion for partisan point-scoring; it is intended to be constructive. I recall the controversy over mandatory sentencing under a Home Secretary who now leads, very successfully, my own party. I refer to Michael Howard. An issue when Michael Howard was the Home Secretary in a Conservative administration was that injustice could result where the sentence for a criminal offence was a mandatory sentence fixed by law rather than one which was adjusted to reflect the severity of an offence and the harm done.
One of the difficulties in adhering to the rule of law is to recognise situations in which it arises, where it may be applied and where it is relevant. Let me give an example. Not long ago the present Government attempted to strengthen the enforcement of probation orders by withdrawing supplementary benefit from offenders who had failed to conform with the requirements of a probation order, very often by failing to report to their supervising officer, which is at the heart of the probation concept.
It was a salutary experience to try to persuade the department concerned at that time—the DHSS or the Department for Employment—that such action would be contrary to the rule of law and that entitlements to social security payments were based upon entirely separate considerations. Finally, after the issue had been raised both in this House and in print, the department gave way and the noble Baroness, Lady Hollis—the Minister then as now—was able to assist in devising some alternative penalties.
That may be regarded as a relatively minor example, but often matters of principle arise out of humdrum situations which are not recognised at the time as amounting to conspicuous issues of injustice. It is just one example which illustrates the need for vigilance.
More broadly, there is a large body of received political wisdom surrounding the definition and the meaning of the rule of law, the subject of the amendment, and the notion of constitutional legality. After a long and controversial debate and a short welcome break for dinner, this is certainly not the moment to probe its significance or to pontificate on
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its application. However, what can be claimed without fear of contradiction is that the rule of law is an honourable inheritance which has been developed over a lengthy period of time and which upholds fundamental British values and the political society we enjoy today. Long may it continue. It is our responsibility to ensure that it does.
That is the case, in brief, for adding a specific reference to the rule of law to the opening clause of the Bill. I commend it to your Lordships. I beg to move.
8.30 p.m.
Lord Goodhart: Amendment No. 19, which is in my name and that of my noble friend Lord Maclennan of Rogart, is grouped with Amendment No. 3. We on these Benches support Amendment No. 3. We think it is right that all Ministers should be required by statute to uphold the rule of law as well as the independence of the judiciary. However, there are issues which have not yet been resolved about what this obligation really means and how it is to be implemented. Some of these issues are raised by Amendment No. 19.
There can be no doubt that the rule of law is a principle of the constitution and has been so for at least 300 years. That battle was fought for most of the 17th century, from the struggle between Lord Coke and Lord Chancellor Bacon in the early years of the century up to the Act of Settlement around the end of it. However, it is difficult to define the rule of law. Some would say that it is mainly or wholly procedural, that rights and powers must be exercised in accordance with established law and not by arbitrary decision, or that principles of natural justice must be applied, such as that no one must be a judge in their own cause and that both sides are entitled to be heard.
It is less clear whether the rule of law has a substantive content. The question arises whether there are laws, such as the Nazi race laws, which are so repugnant to fundamental human rights that they cannot be regarded as legitimate laws at all.
The question has been raised that if the Government were to introduce laws which were inconsistent, or might be thought by some to be inconsistent, with the rule of law, would the courts be bound to apply them? If the judges have power to disregard laws in such cases, then we get a potential conflict between the rule of law and another principle of the constitution, which is the sovereignty of Parliament. We have not had to resolve that issue and I hope we never will. I do not think that we should aim to decide it in this Bill. That means that we should not use the Bill to restrict the sovereignty of Parliament as it exists.
We believe that the duty of Ministers to uphold the rule of law will be part of the legal background when reviewing an executive decision or the validity of secondary legislation, but the decision of a Minister to lay legislation before Parliament should not be capable of being restrained because that legislation is arguably contrary to the rule of law.
The possibility of a judicial review before an Act of Parliament or a Bill is laid before Parliament is a route to the rule of lawyers rather than the rule of law. That

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is why Amendment No. 19 spells out that nothing in the Bill is intended to derogate from the sovereignty of Parliament.
Lord KingslandI am most grateful to the noble Lord for giving way. As I understand it, following the incorporation of the European Convention on Human Rights into our law, the Minister is under a duty not to put before Parliament a Bill which contains a contravention of the convention. Why should that same principle not apply to the rule of law?
Lord GoodhartI do not believe that there is such a duty. There is a requirement in the Human Rights Act that there must be a statement on whether the Bill complies, but I do not think there is any duty not to lay a Bill before Parliament. The sovereignty of Parliament still permits a Minister to lay before Parliament a Bill that does not comply with the rule of law. Indeed, as I understand it, the Civil Partnership Bill now before the House of Commons following its hectic passage through your Lordships' House contains a statement by the Minister that she is not satisfied that it does comply with the European Convention.
Lord KingslandDoes it not follow from the obligation to certify a Bill that, should a Minister conclude that a Bill were not certifiable, he would be restrained from promoting it? Alternatively, he would have to place on the Bill, "I am promoting this Bill even though I do not think that it complies with the European Convention".
Lord GoodhartThe second point is obviously correct, but the first point is not. For example, it must be correct that it is open to any government who saw fit to repeal the Human Rights Act 1998 as a matter of constitutional legality. I cannot think that anything less than that would, in itself, involve something that was restrainable by any judicial process.
Amendment No. 3 concerns duties under Clause 1(1) which apply to Ministers generally. It does not apply to the specific duties of the Minister—or the Lord Chancellor as we must now continue to call him following the passing of the amendment earlier today. The specific duties are covered by Amendment No. 10 and in part also by Amendment No. 19, although I will not now deal with the particular part of that amendment which relates to the specific duties of the Lord Chancellor.
The Government have not yet come up with their own amendments on the rule of law issues. It is desirable to see them before we take a vote on this issue, if indeed we have to take a vote. Therefore, although we support Amendment No. 3, we hope that it will not be put to the vote today and we do not intend to press our own amendment to a vote in Committee so that we can give time for further consideration of the rather complex and abstruse issues raised by the duty to uphold the rule of law.
Lord CarterI have two points. I will return to the definition of the rule of law, but my first point is an
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interesting one. Something has always puzzled me, and what happened over the Civil Partnership Bill is a good illustration. I have always been concerned about what would happen if a Bill were introduced that was compliant with the Human Rights Act and had the ministerial certificate, but was then amended—which would have to happen in the House of Lords, because the Government have not lost a Division in the Commons since 1997—which made that Bill non-compliant. Of course, the Minister would have to introduce it to the Commons and say that it was not compliant in order to use the Commons majority to make it compliant. That probably answers the point made by the noble Lord, Lord Kingsland. The Bill must be promoted as non-compliant in order to use the power of the Commons to make it compliant. I think that that answers the puzzle that I have always had about what would happen if a Bill became non-compliant on its passage.
To return to my second point, as members of the Committee who were on the Select Committee will remember, we had long discussions about the rule of law. There were nine lawyers out of 16 of us and it was a very interesting discussion. I was interested in the point made by the noble Lord, Lord Goodhart. He said that it was hard to define the rule of law. In fact, I do not think that it has ever been defined. I asked a number of members of the Select Committee, "Could you please define the rule of law?" Nobody could. Amendment No. 19 states:
"The rule of law is a principle of the constitution".
Is it not odd to include in the Bill a principle of the constitution that cannot be defined? Perhaps the noble and learned Lord the Lord Chancellor would like to have a go at defining it.
Lord CrickhowellI follow the noble Lord, Lord Carter, if only because we have one thing in common: he and I are not lawyers. The noble Lord performed an immensely valuable function in the Select Committee by producing solutions to all those parliamentary questions that arose, just as he has now.
He has attempted to steal my function which, as a non-lawyer, is to ask what I call the Pooh Bear or damn-fool question, which sometimes produces astonishing truth when put to the experts.
It is in that spirit that I intervene. I have no great difficulty with the amendment tabled by the noble Lord, Lord Goodhart. I accept that the rule of law is the principle of the constitution. He put it to one of our most eminent witnesses that the courts would assume that it was and would act on that basis. Equally, I have no difficulty with the principle of the sovereignty of Parliament. I do not think that anyone in the Committee argued that whatever the lawyers decided, they were interpreting the law as made by Parliament, and Parliament could always change the law. We are not far apart on that. I am glad to hear that we shall come back to the noble Lord's amendment when we have all considered it again.
My reason for intervening on the proposition that we should include a specific reference to the rule of law is that on that point we have the support of the Lord

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Chief Justice, the noble and learned Lord, Lord Woolf. On page 152 of the evidence section, in answer to question No. 501 put by the noble Viscount, Lord Bledisloe, the Lord Chief Justice said:
"It seems to me that it is very desirable that there should be a clear statement which reflects the need for the protection of the rule of law and I can well see that there is a very important role for the individual, whether he be called the Lord Chancellor or whether he be Secretary of State, to perform the function that you have just identified within government".
Encouraged by the fact that the noble and learned Lord, Lord Woolf, thinks it is a good idea to have a specific rule, I turn to the Committee's opinion, expressed in paragraph 73. We decided, unanimously I think, or certainly without difficulty, that there should be a reference to the rule of law. The Lord Chancellor undertook to produce a suitable amendment. The only point that I made at that stage because we were well advanced in our deliberations is that I hoped that his amendment would come back in adequate time for us to consider it, and not on the last Tuesday on which we were sitting when we would have to agree it without proper consideration. About 10 days passed and no amendment came from the Lord Chancellor.
That is why I intervene today. I am pretty confident that the Lord Chancellor produced an amendment and then found that he was in considerable difficulty with his colleagues in Cabinet, particularly the Home Secretary. There was then great difficulty in reaching agreement on an amendment that would be acceptable both to those of us who wanted to defend the rule of law and to the Home Secretary. That encourages on why we need a specific reference in the legislation on that point.
The Lord Chancellor came back eventually in the final week—so late that we had to sit on the Thursday to consider the final draft of the committee—and we looked at the amendment, which is in the record so I need not read it out. It seemed to be one of the great masterpieces drafted by Sir Humphrey. Sir Humphrey had clearly been brought back from retirement—perhaps because the most distinguished Permanent Secretary to the Lord Chancellor's Department gives a masterly performance of Sir Humphrey on charitable occasions. Those of us who have attended at Smith Square on one of those occasions will know that he is a master at performing the role of Sir Humphrey, and may have wondered perhaps whether, in drafting this amendment, he made a contribution to it. But it was a contribution of such obscurity, in its complex bringing together of the need to protect the rule of law with the need to maintain the supremacy of Parliament, that a very large number of us in the Committee said that we simply could not accept it.
8.45 p.m.
The noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Kingsland produced very clear amendments whose objectives we could all understand. But all those amendments—the complex, Sir Humphrey-drafted amendment of the noble and learned Lord the Lord Chancellor and
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the clearer amendments tabled by the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend—were all withdrawn on the simple basis that as a Committee we decided that we could not press to a Division amendments on which we could not agree. That is why we are back in the House this afternoon.
This is an important issue, which goes back to that issue referred to in the earlier debate about the inevitable tension in government between those who protect the rule of law and those with equally important functions—the functions of the Home Secretary—in trying to maintain law and order. As a non-lawyer, I certainly do not have a solution, and I support the noble Lord, Lord Goodhart, in saying that this is probably not an issue that we shall press to a conclusion tonight. However, before this Bill leaves the House, and certainly before it becomes an Act, we should have greater clarification than we have at present. We need to have, as the noble and learned Lord the Lord Chief Justice said that we should have, a very clear statement in the Bill to protect the rule of law.
Lord CarterMy Lords, I am sure that the noble Lord will agree with me that it is extremely hard to define the rule of law—and if it is extremely hard to define, how does one know that one is in breach of it?
Lord CrickhowellThat is exactly the question of which I said that the noble Lord was following my example in asking the damn fool question that sometimes produced interesting answers. Surrounded as I am by some of the most eminent lawyers in the country, and indeed the world—lawyers with a huge reputation—I hope that before we reach the end of our proceedings, we shall have enlightenment. And who better to give us enlightenment than the noble and learned Lord the Lord Chancellor himself?
Lord GoodhartI should like to say, before the noble Lord sits down, that the situation is surely that one does not always know when one is in breach of the rule of law, but that there are times when one knows when one is.
Lord CrickhowellI had thought that I had sat down, but I note what the noble Lord says.
Viscount BledisloeI support the amendment so ably and concisely moved by the noble Lord, Lord Windlesham. Until now, it has been the Lord Chancellor's role to be what the noble and learned Lord, Lord Bingham, described as the guardian of constitutional propriety. Although that has been a vital role, until now it has never been spelt out in any statute. But now that role is to be codified in Clause 1, which imposes both a general duty on Ministers and a special duty on the Lord Chancellor.
Since the role is now to be codified, it is surely vital that the wording of Clause 1 sets out the whole of that duty as guardian and does so in clear and forceful language. At present, Clause 1 fails in that in several

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different respects, which will be covered by the various amendments—the one now before us and some of its successors.
In respect of this amendment, the trouble with Clause 1 is that it relates only to the independence of the judiciary and says nothing about upholding or defending the rule of law. That, when one is codifying, is a very serious omission, because if part of a duty is expressed and the other part is not, the inevitable conclusion is that the second half no longer exists. A nauseating Latin expression used by lawyers is expressio unis est exclusio alterius. It means that if we say that it is the duty of Ministers to uphold the independence of the judiciary and do not also say that it is their duty to uphold the rule of law, we have lost their duty to uphold the rule of law.
The noble and learned Lord the Lord Chancellor accepts that principle. Indeed, in his closing speech in the somewhat better attended earlier debate he referred specifically to the duty to uphold the rule of law being part of the function of the relevant Minister. As the noble Lord, Lord Crickhowell, has said, at a late stage he put an amendment before the committee that was met with almost universal criticism and was withdrawn. Our present solution is very simple. It is to insert the rule of law alongside judicial independence as the things that must be upheld.
The answer, with respect to the noble Lord, Lord Carter, is—to paraphrase some words of Lord Denning—"I may have difficulty in defining it but I can recognise it when I see it". The answer is that one can recognise something that is in breach of the rule of law, even if one cannot write a sentence that codifies precisely what it means.
The noble Lord, Lord Goodhart, is correct that once the words "rule of law" have been inserted in Section 1(1) they also have to be inserted in Section 1(4), and that that is dealt with by Amendment No. 10. I am delighted to hear that the Liberal Democrats support this amendment. I must confess that I have some problems with their Amendment No. 19. I am not sure whether it is meant to be an alternative or a cumulative amendment. I would point out two slightly difficult problems with it. The first is that it imposes a duty in relation to the rule of law on the one Minister only. That is curious when the duty to uphold the independence of the judiciary is imposed first on all the Ministers and secondly under Section 1(4)—
Lord GoodhartAmendment No. 19 was tabled after Amendment No. 3, so it was taken to be cumulative to that amendment. The difference is that Amendment No. 3 deals with the rule of law as it applies to Ministers as a whole in Section 1(1). It does not deal with the specific duty of the Lord Chancellor under Section 1(4). Therefore, something else needed to be put in to deal with that. That would be either Amendment No. 10 or Amendment No. 19.
Viscount BledisloeI am very grateful to the noble Lord for that explanation. The other difficulty with Amendment No. 19 is that it appears to deal with the
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rule of law somewhat differently for the independence of the judiciary, and I suspect that if the Government do not accept this amendment we will need to get together and produce a compendium version. I suggest to the noble and learned Lord the Lord Chancellor that the right thing to do at the moment is to accept Amendment No. 3, write in the rule of law there and then go on to decide what further amendments are needed. I hope that idea will commend itself to him.
Baroness Williams of Crosby: One of the beauties of the House of Lords is that noble Lords who have not been part of Select Committees are entitled to contribute to the debate. I speak with a consciousness of great humility because we have heard a brilliant Sophoclean dialogue between noble Lords who were members of the Select Committee, and not many other noble Lords have taken part in the debate so far.
I am not a lawyer and therefore I shall address in fairly simple terms the arguments that a politician might bring to bear on this particular argument. One of the things that emerges—and I think I might use the words "après le deluge"—is how we find a basis of agreement because clearly it would be an impossible situation for the two Houses to enter into an unending game of ping-pong with no outcome. It would do considerable and grave damage to the status and standing of Parliament. My brief remarks in this discussion are directed towards how we might move steadily towards some sort of broadly acceptable compromise. I will not go back to the issue of the title because that has been decided, for at least the time being, by a substantial majority in the Committee. Frankly, I do not think that it matters as much as the substance of the role of the new Minister.
From my point of view, and probably from that of many outside the House, the key question is not so much the title as the role, significance and weight of the person who holds office in the department that will be responsible for upholding the independence of the judiciary and the rule of law. That is obviously the crucial consideration, so we should address the question of how we improve the standing, status and weight of this department.
It is well known that the Liberal Democrats believe that the best way to do that is to create a Ministry of Justice, which would include the criminal justice responsibilities of the existing Home Office, and leave the Home Office more involved in the application and execution of law than the making of law and legal guidelines. Since for the moment that simply is not a possibility, much as we would like it to be, the House must address itself to every possible way in which it can enhance the status of the department that will be responsible, whether the title of the noble and learned Lord is Lord Chancellor or Secretary of State for Constitutional Affairs.
We on these Benches support Amendment No. 3, tabled by a group of Cross-Bench and Conservative Peers, because we think that even in a small way it will enhance the position of the Minister responsible for upholding the rule of law. It is only a first step, not in

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itself sufficient, and although I always dislike in any way disagreeing with that formidable intellect, the noble and learned Lord Brennan—
Noble LordsNoble but not learned.
Baroness Williams of Crosby: Not learned? He sounds awfully learned to me. I apologise—the noble Lord, Lord Brennan. I disagree with the noble Lord to some extent, because I thought that in his brilliant speech he put rather too much weight—and I am very sorry to have to say this—on the response, reaction and power of Parliament. In the past 15 years—I make no political distinction whatever—there has been a steady encroachment of the executive on the influence and power of the legislature. That has increased, partly in legitimate response to concerns about security after 9/11.
The great issue that confronts us is how we limit the demands of security, which are now powerfully enhanced, by setting against them the responsibility of Parliament for upholding the liberties on which the whole significance and justice of our society depend. That makes the position of the Lord Chancellor/ Secretary of State for Constitutional Affairs much more important than it was a few years ago.
In the United States, there is a full and thoroughgoing separation of powers. Following the Patriot Act, the Senate finally woke up—it was very late in doing so—to depending upon its own considerable status and holding the executive to account. That happens much more rarely in the United Kingdom.
How can we enhance the powers of the new department? One way is that suggested by the noble Lords who tabled the amendment. There are other ways in which we need to address the question. We need to consider whether we should set any conditions. We also need to consider the argument for the person concerned being a lawyer, with a more instinctive knowledge of the rule of law. We also need to consider the question of whether he or she should sit in this House or another. On that, I am persuaded by the arguments of the noble and learned Lord the Lord Chancellor that the Prime Minister should not be constricted in that way.
Finally, we must address the most difficult question of them all. The Lord Chancellor, in his speech on the first group of amendments, pointed to the need for the most capable, able, intelligent and, above all, courageous person to be appointed to the job we are now discussing. I hate to say it, but we must address the fact that there is no longer the trust in politicians that once existed. Therefore, arguing that the crucial issue is who a Prime Minister—any Prime Minister—has in mind and that he will always have regard to the integrity and courage of that person rather than to his own association, party links or whatever, no longer carries a great deal of weight with the public.
For those reasons, I believe that we need to be more specific about some of the powers that should adhere to this department and about some of the requirements
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we would expect the person appointed to it to meet. We must recognise the fact that that extraordinarily negative vote we have just seen in part arises as much from distrust in politicians as it does from the view that the title Lord Chancellor should be retained.
9 p.m.
Lord Lloyd of Berwick: I want to follow the noble Baroness in the wider ground which she has opened up before us, but it is better to confine myself strictly to the amendment now before the Committee. I support Amendment No. 3.
In the Select Committee, as I am sure the noble Lord, Lord Richard, will confirm, we waited anxiously from day to day for the Government to produce an amendment to cover the inclusion of the rule of law. At that stage, I thought that that was common ground. Eventually, at the 59th minute of the final hour, an amendment was produced and it was, as accurately described by the noble Lord, Lord Crickhowell, quite unacceptable.
If I had been asked before 12 June 2003 whether we should ever be debating in this House an amendment which would require Ministers of the Crown to uphold the rule of law, I would have thought that was perfectly absurd. Of course Ministers must uphold the rule of law. It is one of the basic facets of our constitution. But all that changed when the Government decided to abolish the office of Lord Chancellor. It is because of that decision—and only because of that decision—that this amendment is now necessary. I support the amendment.
Lord Campbell of Alloway: I support the amendment. The wider appreciation of the noble Baroness, Lady Williams, encapsulated some of my own thoughts and anxieties. I know not yet how those may be resolved. The rule of law and judicial independence as such are all but incapable of definition. Being incapable of definition, they cannot be enforced by any court of law. There is no suggestion that they should be or that Clause 1 should be amended to confer express jurisdiction.
That being so, I come back to the way in which the noble Baroness, Lady Williams, presented the situation. I do not know what the committee's view was, as I was not a member. I just read the report, but I did not find much in it to help me with this problem. Is it to be assumed that the committee took the view that these obligations, as they were incapable of definition and enforcement by the courts, should not be enforced by the courts? If it took that view—and I have a feeling that it may have done, although I do not know what its view was—
Lord Carter: I have been waiting ever since my speech for the chance to intervene on the noble Lord, Lord Campbell of Alloway. If we accept the principle that the obligation can be neither defined nor enforced, what happens to the legal principle of certainty?
Lord Campbell of Alloway: I shall try to deal with that. I am very grateful for the intervention, which was wholly irrelevant to the question, with respect. There is a far wider problem apart from the question; it was raised eloquently and objectively by the noble Baroness, Lady Williams of Crosby. What was the Select Committee's attitude? Was it that there would be no recourse to enforcement of these obligations by the courts or was it not? I assume that, as the obligations could not be defined, they could not be enforced by the courts.
Lord Lloyd of Berwick: I shall let the noble Lord complete his speech, but I would like to ask him a question before he sits down.
Lord Campbell of Alloway: If the obligations cannot be enforced by the courts, it seems that the only way in which they can be enforced is by retaining the persuasive powers of the Lord Chancellor in a constitutional role in the Cabinet. If that is the position, what other measure is to be taken?
Lord Lloyd of Berwick: On the question of what was discussed in the committee, there was no agreement on whether the clause was enforceable. As the noble Lord will notice, I have tabled Amendment No. 16, which is specifically designed to make the duty under Clause 1 enforceable in the courts.
Lord Campbell of Alloway: I am very much obliged to the noble and learned Lord.
Lord Brennan: I am about to give some advice to my noble friend the Minister which is gratuitous and, therefore, all the more likely to be objective: he should approach this question with extreme caution.
The Bill is about the independence, structure and administration of the judiciary. In any written constitution, that would be a discrete chapter. Although I commend the sentiment that the rule of law should prevail in our justice system, to latch it on to the end of a clause dealing with the independence of the judiciary is constitutionally clumsy. If we were debating a written constitution, the role of the rule of law and our obligation throughout government and justice to maintain it would be a declaratory statement and the first or second article of a written constitution.
It is therefore inappropriate for us now to use the phrase loosely, as if we all know what it means, in the context of this clause, for the following reasons. First, the rule of law requires to be defined. It is not a law in the sense of an enforceable law between parties, so much as a constitutional principle that feeds the justice of the community to which that constitution applies.
Secondly, in determining what the phrase means constitutionally to our community, we must consider broader considerations than justice. Clause 1 refers in subsection (1) to the role of Ministers and those connected with the administration of justice. The rule-of-law obligation should apply to all Ministers in all departments.
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Thirdly, subsection (1) says:
"Ministers of the Crown and all with responsibility for … the administration of justice".
The "and" is conjunctive, not disjunctive. That means that this all requires some careful consideration. That is not to demean the intent of the amendment, rather to ensure that when we debate it further, and when my noble and learned friend from the Government considers it, our responses are produced carefully. What he says tonight and hereafter will be seized on as the view of the Government on the status of the rule of law in our constitution. That requires very careful thought. The amendment proposed by the noble Lord, Lord Windlesham, is extremely simple; the amendment proposed by the noble Lord, Lord Goodhart, is analytically unacceptable when it is subjected to some careful thinking, and neither really achieves the intent of all parties.
This is important stuff. In the enthusiasm to deal with the judiciary constitutionally, those who are conservative become liberal and expand it to include the rule of law in a general way. I commend the enthusiasm, but let us do it carefully, comprehensively, and in a way that has constitutional significance across the board.
Lord Slynn of Hadley: The noble Lord Lord Brennan has beaten me to it in his gratuitous advice. He is obviously more nimble than I am in getting up.
I support the inclusion of a reference to the rule of law somewhere in the document, but I have some hesitation in including it in subsection (1). I shall be brief, because my noble friend Lord Brennan has already said it, but the clause deals with those,
"with responsibility for matters relating to the judiciary or otherwise to the administration of justice",
and it probably would be construed as meaning, "Ministers concerned with matters relating to the judiciary". In other words, it would read, "Ministers of the Crown and all others with responsibility for matters relating to the judiciary". If it is meant to apply to all Ministers of whatever kind, whether concerned with the judiciary or otherwise, that ought to be made explicit. I can see some lawyer appearing before the Judicial Committee—I hope that it is still in existence —arguing that there is a doubt about this.
It is common in constitutions for there to be a reference to the rule of law simply as a principle of the constitution. I hope that I am not misremembering, but I think that in the Treaty of Rome as amended, and in the draft constitution, there is a reference to the rule of law as a principle of the constitution. That seems to me—despite the anxieties of the noble Lord, Lord Carter, which I well understand—to point without doubt to not including a definition of the rule of law in the Bill. Judges have been applying the rule of law, enforcing it, making people act in accordance with the rule of law, and preventing people acting contrary to the rule of law for a long time without necessarily on every occasion giving a clear, specific, detailed definition of it.

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I support the inclusion of a reference to the rule of law somewhere, but I am not in favour of including a definition of what is in essence a constitutional principle.
9.15 p.m.
The Lord Bishop of Worcester: Perhaps I may build on this debate. Much of what we have been saying today seems to have been a struggle towards some articulation of social transcendence. That may sound rather abstract and pretentious, but we are trying to find a way of speaking about that which overrules even that which rules us, or even those who rule us, and to which those who rule us are, in some sense, accountable, even if they could get a popular majority for a quite different course of action.
I am not nostalgic about a society in which everyone assented to the kinds of assumptions that are built into our daily prayers. But it is not possible for a society to do without some articulation of the transcendent in relation to its own life, even if that is done in entirely humanistic terms. I would hold that there will always be limitations to our ability to do that. But I think that that is what we are struggling towards.
As I understand it, to have some articulation of what the rule of law means —because it is not the rule of a law; it is certainly not the rule of lawyers; and it is not the rule of politicians—is to have a discussion about what it is to which we are all accountable: that is, not just this Minister; not just all Ministers; not just all Members of the Houses of Parliament, but everyone. That cannot be dealt with by inserting three words into a clause. Nevertheless, it is an important obligation that we do not lose the fact that that is what is emerging from this important debate about this important Bill.
Lord Kingsland: I should like to ask the noble Lord, Lord Goodhart, another question about his amendment. New subsection (3) in Amendment No. 19 states:
"Nothing in this Act shall derogate from the sovereignty of Parliament".
As I understand it, the sovereignty of Parliament is a doctrine of the courts. If I am correct in that, what function does making a reference to it serve? The courts in their jurisprudence will determine exactly what the sovereignty of Parliament is in a particular context. They might take the view, as did many courts in the 16th and 17th centuries, that the sovereignty of Parliament was qualified by the genius of the common law; or, as in 19th century Benthamite England, they might take a much more robust view about the powers of the legislature. But in the last resort it is the courts that define the sovereignty of Parliament, not Parliament itself. In those circumstances, is it really very helpful to add subsection (3) to the amendment?
Lord Goodhart: I think that it is inaccurate to say that the sovereignty of Parliament is a creation of the courts. It is something that is certainly recognised by the courts, but it is a constitutional principle. It was recognised by Dicey, as is well known, and by many
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other distinguished constitutional lawyers since. There have been questions about whether there is a limit to the sovereignty of Parliament and, if so, what that is.
The intention behind subsection (3), and why it is necessary to include it, is that, as I said in my speech earlier, there is the possibility that at some time we might get a major conflict—which could have happened on the ouster clause in the asylum Bill—between the courts and the Government about whether the courts were bound to recognise the sovereignty of Parliament and the legitimacy of decisions made by Parliament. It seemed desirable that the question should be left as open after this Bill as it was before. I did not want any conclusion to be drawn that, because there was a specific reference in this Bill to upholding the rule of law, therefore parliamentary sovereignty was in any way less than it would be if this Bill were not passed. I hope that that is an adequate explanation of why I included this particular amendment.
Lord Campbell of Alloway: As we appear to be debating Clause 19, having listened to what the noble Lord has said, I cannot see the slightest justification for retaining subsection (3). It does not make any sense at all.
Lord Elton: As a non-committee member and a non-lawyer, I am a little puzzled over the difficulty about the rule of law. Are we not simply asking Ministers of the Crown to do what we ask the wearer of the Crown to do when we say, "May she uphold our laws" and perhaps adding sotto voce, "Until you are able to change them"? That is what it comes down to. It is for Parliament to see whether the laws are changed or not.
Lord Kingsland: There appear to be two separate issues as regards the clause with which we shall have to grapple over the next few days in Committee. The first is whether it should be enforceable. That is dealt with in later amendments. The second is the content. At one level one might say that, constitutionally, the rule of law deals with issues such as the ouster clause; or one might posit an unlikely set of circumstances in which Parliament passed an Act limiting the franchise of the electorate. Those are two circumstances in which the courts might decide that the fundamental nature of the common law constitution was undermined by the sovereignty of Parliament.
At the other end of the scale it might be said that a defendant's rights in a criminal trial form part of the rule of law. I am rather attracted to that argument because it seems to me that the weakest point of the European Convention on Human Rights relates to the rights of the accused in a criminal trial. That arises, I believe, because we in this country have a very different system of criminal litigation to that on the Continent. There the protections are in my view at a much lower level. Therefore, the jurisprudence of the European Court of Human Rights is not much help, for example, when governments introduce proposals about propensity evidence to be led by the prosecution.

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I believe that the issues of content and enforcement have both to be looked at in greater depth as we move closer to the heart of this topic. I heard with interest the views of the noble and learned Lord, Lord Slynn of Hadley, and of the noble Lord, Lord Brennan, who rightly identified a possible weakness in the positioning of the amendment. Nevertheless, I believe that the expression "rule of law" has to come somewhere. I shall be interested to hear what the Lord Chancellor says about it.
Lord Falconer of Thoroton: This is an important issue which I do not believe we can resolve tonight. We have always been particularly concerned to ensure that our constitutional reforms in no way dilute the rule of law as a fundamental principle of the United Kingdom constitution. On the contrary, we believe that the overall effect of the reform should and will be to strengthen the constitutional principle of the rule of law by entrenching the independence of the judiciary and ensuring increased clarity and transparency in judicial and ministerial rules.
Members of the Select Committee who considered the Bill considered amendments similar to those before us. They also considered a government amendment. I have not tabled that amendment again as I first wished to listen to the views of Members of this Committee on what principles they believed an addition to the Bill on the rule of law should encompass.
Noble Lords have already raised the importance of ensuring that the rule of law continues to be upheld, but before we get to the detail of such an amendment, perhaps I may seek to establish clearly what the objectives are that we are seeking to address in this Bill. It seems to me that there are a number of key principles that ought to guide us in our consideration of this issue, excepting as I do that there should be a reference to the rule of law in the Bill. The principles are as follows.
First, in referring to the rule of law in the Bill, we ought to be seeking to ensure that the responsibilities in regard to the rule of law currently discharged by the Lord Chancellor are, after the change or abolition of that office— whatever may happen in the future—still discharged within government.
Secondly, the responsibilities of the Lord Chancellor or the office holder in regard to the rule of law arise, I believe, from his or her ministerial responsibilities for the justice system. Thirdly, we must accept that other Ministers of the Crown have responsibilities in regard to the rule of law; for example, the simple proposition that they must abide by the decisions of the courts. But the Lord Chancellor, or whatever the office holder may be called, because of his responsibilities for the justice system and their importance for the rule of law, has a special position within the Cabinet and within the executive.
Fourthly, the responsibilities of the Lord Chancellor or office holder in regard to the rule of law are not and should not be a matter for enforcement by
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the courts. They are discharged in the Cabinet and in the executive through his position there and his influence in discussion with his colleagues. The operation of Cabinet government is central to our constitution and we should not be seeking to change that in the Bill by imposing a duty that would fall to be discharged in Cabinet, but that could be subject to judicial review going to the merits of the action taken or not taken by the office holder.
Fifthly—and this is why I think that in terms of principle, the noble Lord, Lord Goodhart, is right in his third subsection—any provision we add to the Bill should not in any way restrict the ability of Ministers or others to put proposals before Parliament on which Parliament can then decide.
Finally, any provision we add to the Bill must properly take account of the roles of persons other than Ministers in regard to the rule of law, and not undermine their—the other person's—proper responsibilities. It is not the purpose of this Bill to codify the roles of all persons with responsibilities for the rule of law in our constitution. The danger of codifying some and not others is that we would upset the delicate balance that currently exists, which is not defined and could not be satisfactorily defined, in statute.
A further general point about the rule of law which I think must guide our deliberations is that the rule of law is not itself a directly applicable legal rule, but a description of the status that the law as a whole should be accorded within our constitutional system. It informs the content, interpretation and application of the law, as the courts have often said in, for example, cases involving Article 6 of the European Convention on Human Rights. But the rule of law is not and never has been of itself a standalone legal doctrine. It does not by itself form a directly applicable part of the law, so the courts could not at present declare actions to be illegal solely on the ground that they were contrary to the rule of law. If the rule of law is engaged, there must be some specific legal rule that gives expression to it before the courts can intervene. Any amendment that did not take account of this distinction would have constitutional effects reaching far beyond the subject matter of this Bill.
It follows from the above principles that any provision in the Bill on the rule of law should seek to provide reassurance that the existing position in relation to the rule of law is preserved while avoiding wider constitutional effects. It should preserve the balance in our constitutional arrangements while demonstrating the continuity and providing the clarity that noble Lords both on the Select Committee and in this Committee have been rightly anxious to secure with respect to the constitutional principle of the rule of law.
Before proceeding to the detail of the amendments I would like to make one further point which I think is highly relevant and was touched upon by the noble and learned Lord, Lord Slynn of Hadley, but which is frequently overlooked.

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9.30 p.m.
The point is that securing the independence of the judiciary forms a very substantial part of the Lord Chancellor's current role in upholding the rule of law and of Clause 1 of the Bill. The starting point for any attempt to define what is the Lord Chancellor's role with respect to the rule of law must be his ministerial responsibility for the justice system. Fundamental to this is the need for an independent and impartial judiciary. The centrality of that need to the rule of law is something that all commentators on the topic agree upon.
That substantial part of the Lord Chancellor's role in upholding the rule of law has already been referred to in Clause 1 of the Bill. The duties imposed represent a very substantial strengthening of the protection for judicial independence by comparison with the present position. Not only is the current role of the Lord Chancellor in securing judicial independence placed in a statute for the first time, it is also extended to all government Ministers.
The task in hand in relation to the rule of law in the Bill is therefore to define what additional role the Lord Chancellor has in relation to the rule of law, over and above the question of judicial independence, and to provide for continuity with that role after the office is changed. It seems to me that many of the differences—if there are differences—between the Government's position and that of others in your Lordships' House, and many of the difficulties we have identified with the amendments now before us, can be traced back to this point.
In short, we do not think that the point is properly taken account of in the amendment tabled by the noble Viscount, Lord Bledisloe—a matter to which I will return in a moment, after recalling the views of the Select Committee in relation to the rule of law.
The Select Committee that examined this Bill was able to agree on a number of significant areas with respect to the rule of law, although perhaps these areas have received less attention than the areas of disagreement. For that reason, the Committee was able to agree easily that it is desirable for the Bill to make reference to the rule of law. We also agreed, first, that the reference to the rule of law should replicate as far as possible the responsibilities in regard to the rule of law currently discharged by the Lord Chancellor. Secondly, we agreed that, while other Ministers have responsibilities in regard to the rule of law, the Lord Chancellor has and should continue to have a special role in relation to the rule of law within the Cabinet. Most of the Committee, though not all, agreed that this duty is not and should not be directly enforced through the courts, but stems from his position in Cabinet and is exercised by way of his influence in discussions with colleagues.
The simplicity of the amendment of the noble Viscount, Lord Bledisloe, at first seems alluring. Indeed, my initial inclination was exactly the same as his. At the outset it appeared that achieving our objectives would simply require a reference to the rule
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of law to be added to Clause 1 of the Bill, as this amendment seeks to do. However, closer scrutiny has revealed some fundamental problems.
As I have said, the rule of law denotes a state of affairs in which, in the event of conflict, the law has paramount force and effect in relation to any persons, institutions, interests, values, customs, practices, and so forth. It is not a directly applicable legal principle but a description of the status that the law as a whole should be accorded within our constitutional system. It can inform the content, interpretation and application of the law, but is not itself a directly applicable part of the law.
This amendment would remove that distinction and make the rule of law into a directly applicable legal doctrine, binding on certain individuals. On one interpretation, it would require those individuals to ensure that a constitutional state of affairs, that is, the supremacy of law, prevails in all circumstances. On another, it would require them to act in accordance with a standard determining the legality of their actions and possibly to enforce that standard in relation to the actions of others.
On either interpretation, the amendment is unsatisfactory for three main reasons. First, the amendment could not work because the content of the principle of the rule of law is controversial, with opposing views having been expressed over time by judges, academics, politicians, and practitioners. So individuals could never know with certainty what was required of them. Secondly, the amendment treats in identical terms roles that are fundamentally different.
At present, the rule of law is upheld—that is, the supremacy of law is secured—primarily by the courts. The prominence of their role follows from the fact that it is they who have the authority to interpret the law and authorise its enforcement against all persons, including against the Government.
Others, too, have roles in upholding the rule of law. The nature, extent and content of these roles varies considerably and has developed gradually over centuries as part of the process of constitutional development. Parliament ultimately has the power to make or unmake any law. The Attorney-General advises the Government on the law and represents the public interest before the courts. The police prevent and investigate criminal behaviour to ensure that the criminal law is enforced. The legal profession advises and represents individuals, corporations and governments in their dealings with the courts and with each other. This helps to ensure that the law prevails in private dealings, in police investigations and in court proceedings. Ministers are required to obey the law but do not generally have any direct role in enforcing the law against others.
None of these roles is presently defined as such in statute although the relative positions of some of the players are buttressed by specific statutory or common law rules—such as, for example, the provisions in the Act of Settlement about the removal of judges. They are all different in nature and content. They fit together to form the overall structure of the

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constitution and ensure the status of the law within it. None of them amounts to a comprehensive duty to ensure that the rule of law is upheld in all respects. No one in our present constitutional system has such a duty.
Seeking to impose upon Ministers of the Crown and all with responsibility for the administration of justice an unqualified statutory duty to uphold the rule of law, which is the effect of Amendment No. 3, fails to recognise that none of these persons would be in a position by themselves to ensure that the rule of law is upheld even within the limits of their own constitutional roles. It also fails to recognise that the status of the law within the constitution can only be guaranteed as the net effect of different independent roles that complement and, at the same time, act as checks and balances upon each other. Making each and every one of these persons comprehensive guardians of the rule of law in identical terms, which is the effect of Amendment No. 3, would ignore these distinctions and impose a duty on each that he would find himself unable to fulfil.
The Lord Chancellor has certainly never been subject to such an undifferentiated duty. As I have said before, we have already improved upon the Lord Chancellor's role in defending judicial independence in Clause 1 by giving it statutory expression in unqualified terms and extending it to all Ministers of the Crown. That is an important advance. The issue we are grappling with now is to define and give expression to what else the Lord Chancellor's role in relation to the rule of law comprises.
I very much thank the noble Lords, Lord Goodhart and Lord Maclennan, for their amendment. It is an interesting and thoughtful attempt to come to grips with the complexity of this matter. The approach suggested in their amendment is much more in line with the principles that I have already set out as key to our consideration of this important issue. The amendment appears to have considerable merit but I wish to consider the draft further. I believe that, as it stands, the draft does not quite address some of the concerns I have raised in relation to the other amendment on the rule of law of the noble Viscount, Lord Bledisloe, that we have debated.
As drafted, the proposed subsection (1) could give rise to considerable legal uncertainty—there is a difficulty about what is meant by the rule of law—but, as I said, I accept that the words "the rule of law" have to go into the Bill somewhere. The amendment that I proposed to the Select Committee referred to the rule of law as an existing principle. The intention was to make it clear that whatever is agreed as encompassing the rule of law now is the principle that we are seeking to safeguard in the future in order to provide as much certainty as possible. I am concerned that the unqualified mention of the rule of law—that is, without reference to the word "existing"—as per the amendment would not provide this clarity or certainty.
I also have some concerns that unless the Bill makes clear that it is the existing principle of the rule of law that is to continue, the provision could be interpreted
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as creating a new constitutional principle. I think we all agree that we are seeking to replicate an existing principle.
Subsection (2) of the amendment causes some difficulty in its use of the term "respect". I remain unsure what is meant by this term in this context and what its effects in practice are intended to be. More importantly, I am not sure how the courts, if it were ever to come to it, would interpret the term. That uncertainty is reflected in the fact that, as far as I am aware, a statutory obligation to respect something is hitherto unknown in primary legislation. When dealing with a contested and potentially fluid concept such as the rule, I have reservations about introducing more uncertainty of terminology.
I also have some misgivings as to whether the amendment appropriately takes into account other important constitutional principles. We must be very careful not to disturb the balance of existing constitutional principles, as I have gone through before. I accept that proposed new subsection (3) seeks to acknowledge the sovereignty of Parliament, but there are other principles whose status under the proposed text would need to be considered very carefully.
There is no doubt, as I have said, that we need to introduce provision in relation to the rule of law. I remain committed to bringing in an amendment to ensure that the rule of law continues to be upheld. I have listened carefully to the debate and will seek better to understand the views of the whole House before tabling an amendment of my own at a later stage. That later stage will be while the Bill goes through this House.
No written constitution, to my knowledge, has a provision imposing general obligations to uphold the rule of law. Given the nature of the principle, and the complexities and subtleties of its application, that is perhaps unsurprising. That highlights the scale of the task before us, and the importance—as the noble and learned Lord, Lord Slynn, and the noble Lord, Lord Brennan, said—of not rushing ahead and of ensuring that we get this provision right. I hope that in those circumstances the noble Lord will feel able to withdraw his amendment.
Viscount Bledisloe: Can the noble and learned Lord be a little more specific about what he intends to happen if the amendment is not now pressed? He said that he would bring forward an amendment at some later stage of the Bill before it leaves this House. In the light of our previous experience, as vividly described by the noble Lord, Lord Crickhowell, I am afraid that we want something more categorical.
Will the noble and learned Lord assure us, first, that he will produce that amendment for Report, and, secondly, that he will circulate and discuss it with those who have taken part in this debate before tabling it?
Lord Falconer of Thoroton: It would be useful to have a discussion with those people who have taken part in this debate and those who were members of the

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Select Committee. I very much hope that I will be able to table an amendment before Report. As Report will probably not take place until October or November, I have a very long time in which to prepare it.
Viscount Bledisloe: A very long time is not always enough for the noble and learned Lord.
Lord Windlesham: The response of the noble and learned Lord, Lord Falconer, was in two parts, almost audibly so. There were his own extempore reactions for the first three or four minutes and then the Government's prepared response, which he was naturally bound by, but treated with a fairly free hand. There was generosity in those replies. The importance of rule of law is clearly recognised by the Minister, as well it should be. It is a question of how that primacy can best be reflected in the Bill. We can take encouragement from what has been said, particularly in the last few minutes of his reply.
The short debate was also notable for the contribution of the noble Baroness, Lady Williams of Crosby. If I may say so to her, and to Members of the Committee, there are few people who have done more to encourage the growth of human rights in their public career—hers is a very long public career—than she has, irrespective of the Benches on which she was sitting at the time. Her contribution was a most important one. We value it and thank her.
The noble Lord, Lord Brennan, made a conservative speech. He said that, broadly speaking, things were all right as they stand and any question of introducing changes, amendments and so on had to be looked at most carefully. Broadly speaking, he appeared not to favour any change at all. That was a revelation from someone whom we respect as one of the greatest orators in the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.45 p.m.
Lord Falconer of Thorotonmoved Amendment No. 4:
Page 1, line 7, at end insert—
"( ) Subsection (1) does not impose any duty which it would be within the legislative competence of the Scottish Parliament to impose.
( ) A person is not subject to the duty imposed by subsection (1) if he is subject to the duty imposed by section 1(1) of the Justice (Northern Ireland) Act 2002 (c. 26)."
The noble and learned Lord: Amendments Nos. 14, 90, 91 and 98 are grouped with this amendment. These amendments address two issues relating to the extent of Clause 1. First, we have concluded that in one sense the present drafting is too narrow. As it stands, the duty is confined to the territory of England and Wales only. It could therefore be argued that it applies only to the actions of Ministers and others that take place within the physical limits of England and Wales. It could also be argued that the judiciary other than that of England
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and Wales fall outside the scope of the protection afforded by the duty. It would not include the justices of the new Supreme Court, the judiciary of Northern Ireland and Scotland, and the judiciary of international courts and tribunals.
Secondly, we think that the drafting is too broad in another respect—it does not take account of the positions of the devolved administrations in Scotland and Northern Ireland. The scope of the clause needs to be narrowed to take account of that.
The effect of the amendments in this group is as follows. The territorial extent of Clause 1 will be the whole of the United Kingdom. Clause 1 will remain binding on Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice. The clause will not impose any duty that could be imposed by the Scottish Parliament. It will not, therefore, infringe on the competence of that Parliament. That is in line with the unanimous views expressed by the Select Committee. Those bound by the parallel provisions in Section 1 of the Justice (Northern Ireland) Act 2002, which already contains provision in relation to continued judicial independence and to which my Amendment No. 17 refers, will not be bound by the existing Clause 1 duty. As both duties will be coextensive, the effect of being bound by either one of them will be the same.
I believe that this approach accords with the opinion of the Select Committee on these issues. But, I should spell out one aspect of the amendments that could, at first blush, appear not to be in line with the opinion of the committee. The Government, respecting the devolution settlement, fully accept that Clause 1 should not bind Ministers of the Scottish Executive and their officials, or otherwise operate within the competence of the Scottish Parliament. My Amendment No. 4 achieves that. However, the Government believe that the object of Clause 1 should be all of the judiciary of the United Kingdom, including the judiciary of England and Wales, of Scotland, Northern Ireland and the justices of the Supreme Court of the United Kingdom. It must be right that the responsibilities of UK Ministers should cover all members of the judiciary in the UK. That said, Amendment No. 4 makes it clear that it will be for the Scottish Parliament to decide whether, and if so what, duties in this area are appropriate for the Scottish Executive. I would note that the approach taken by these amendments has been agreed with those in the devolved assemblies.
Amendment No. 98 limits the territorial extent of Clauses 2, 4 and 5 to England and Wales only; those clauses deal with the judicial posts in England and Wales. I would also note that Amendment No. 14 defines the "judiciary". As well as covering all members of the UK judiciary, the amendment will cover the judiciary of any court or tribunal which exercises functions of a judicial nature in pursuance of any international agreement to which the United Kingdom is a party or any resolution of the Security Council or General Assembly of the United Nations. That would include the International Court of Justice,

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the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Court, the European Court of Justice and Court of First Instance and the European Court of Human Rights.
Finally, Amendments Nos. 90 and 91 make it clear that the term "Minister of the Crown", as used in Clause 1, follows the definition in the Ministers of the Crown Act 1975:
"holder of an office in Her Majesty's Government in the United Kingdom".
That makes it clear that Ministers of the Scottish Executive are not caught by the clause. I beg to move.
The Duke of Montrose: I need a little clarification. Not being a lawyer or having gone into all the findings of the Select Committee, is it right that the Scottish Parliament has no role in relation to the independence of the judiciary? I see from the Scotland Act that the existence of the High Court and the Court of Session is reserved to the United Kingdom Parliament at Schedule 5, under reservations to the constitution. I believe that the salaries and pensions of judges are also reserved to the United Kingdom Parliament under financial and economic matters.
Perhaps the Scots are not totally excluded because I believe that in certain circumstances, Scottish Ministers are Ministers of the Crown. There is a stipulation under Section 52:
"Statutory functions of the Scottish Ministers, the First Minister or the Lord Advocate shall be exercisable on behalf of Her Majesty".
I am not sure whether that means that they rate as Ministers of the Crown and, as such, have a responsibility for the independence of the judiciary.
Under Clause 53:
"The functions … so far as they are exercisable within devolved competence, [shall] be exercisable by the Scottish Ministers instead of by a Minister of the Crown".
It seems to me that it is not the Scottish Parliament that has to do with the independence of the judiciary, but perhaps some Scottish Ministers.
Lord Falconer of Thoroton: First, Ministers of the Crown do not include members of the Scottish executive. Secondly, the Scottish Parliament has legislative responsibility for a measure similar to Clause 1 in so far as it affects Ministers of a Scottish Parliament or the Scottish executive. That is why we have not included them in the provision.
Thirdly, the reservations in the Scotland Act, to which the noble Duke referred, relate to the existence of the Court of Session only, and this has nothing to do with the existence of the Court of Session. Justice is devolved, which is why if there were a duty that Scottish Ministers should be prevented from interfering with the independence of the judiciary, it would be a matter for the Scottish Parliament, not this Parliament.
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In relation to the changes that we have made, we have done two things. First, any Minister of the UK executive should be prevented from interfering with a judge, wherever he—the Minister—might be geographically. Secondly, that includes judges of the Scottish court.
Lord Cullen of Whitekirk: I wonder whether I may make a few comments on Clause 1 as affected by Amendments Nos. 4 and 14.
I am grateful to the noble and learned Lord the Lord Chancellor and Secretary of State for pursuing the objective to which the amendments are directed. It is clear that, even if one proceeds on the basis of the opinion expressed by the Select Committee report that it should be left to the Scottish Parliament to impose on Scottish Ministers duties similar to those in Clause 1, there would still be an anomaly in that Ministers of the Crown and other persons who have responsibilities throughout the United Kingdom would be subject to Clause 1 duties only as regards England and Wales.
Amendment No. 14, along with a consequential amendment to Clause 109(1) which deals with extent, are designed to fill that gap.
The terms of Amendment No. 4 do not impose any duty which would be within the legislative competence of the Scottish Parliament to impose. I appreciate the difficulty in devising a form of words that leaves a Minister or other responsible person in no doubt as to when he or she is subject to a duty under the clause, as it would be amended. It may be possible to improve the wording. No doubt that can be discussed in due course.
Lord Falconer of Thoroton: I am obliged to the noble Lord, Lord Cullen, for that intervention. Certainly, if the wording can be improved, we would consider an amendment on Report. I shall entertain suggestions on those lines.
On Question, amendment agreed to.
Lord Evans of Temple Guiting: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
Returned from the Commons on Monday 12 July with certain amendments agreed to with amendments, with certain other amendments disagreed to but with amendments in lieu thereof, and with the remaining amendments agreed to; the Commons amendments were printed pursuant to Standing Order 51(2).
House adjourned at five minutes before ten o'clock.