Constitutional Reform Bill [H.L.]

HL Deb 14 July 2004 vol 663 cc1297-350

5.47 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 again resolve itself into Committee (on Recommitment) on this Bill.

Moved, That the House do now again resolve itself into Committee (on Recommitment). (Lord Falconer of Thoroton.)

On Question, Motion agreed to.

House in Committee (on Recommitment) accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Boston of Faversham) in the Chair.]

Clause 1 [Guarantee of continued judicial independence]:

Lord Peyton of Yeovil moved Amendment No. 5: Page 1, line 10, after "not" insert "under any circumstances or by any means

The noble Lord

said: In moving this modest and simple amendment, I should first like to comment briefly on the fact that the noble Lord, Lord Richard, yesterday took me to task for having allowed a note of acidity to creep into my speech. My only comment on that is that, given my view of the recent saga regarding the Government's conduct towards the House of Lords, I thought my reaction was more than justified. I have nothing to add beyond that.

The first of my two amendments is rooted in doubt and uncertainty as to whether the Government actually mean what they say. I should be interested to hear what the noble and learned Lord says in reply. It is admirable that the Bill says that Ministers, must not seek to influence". My suggestion is that it would be more impressive if the words, under any circumstances or by any means were inserted. I see no reason why they should not be, and that would underline the Government's stated intention and is in no way contrary to what Ministers state is their intention. I hope therefore that the noble and learned Lord will in an act of grace, which would go some way to comfort me, seek to accept the amendment on behalf of the Government. There is no need for me to prolong my remarks. The meaning of the amendment is obvious. I beg to move.

Viscount Bledisloe:

Amendment No. 6 is grouped with Amendment No. 5, although the noble Lord, Lord Peyton, has not yet spoken to it. It seems to me that Amendment No. 6 adds enormous force to the issue. At present, Clause 1(3) states: Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary".

Lord Peyton of Yeovil:

Perhaps the noble Viscount will forgive me for intervening. He is right: I did not refer to Amendment No. 6. Perhaps I should have done, but I thought that it would be simpler to keep the two separate, even though they are grouped together. After all, I have a right to move Amendment No. 6 in due course.

Viscount Bledisloe:

I am in the hands of the Committee. I think that Amendment No. 6 is necessary and that, with that amendment, Amendment No. 5 is unnecessary. However, I shall happily wait until the noble Lord moves Amendment No. 6 before I say why it is desirable. I do not know whether the noble and learned Lord would find it more convenient to deal with the two together or separately. Perhaps he could give us some guidance.

Lord Crickhowell:

I rise because my name is attached to Amendment No. 5. I had expected my noble friend to speak to both amendments together, and I think that it would have been helpful if he had. Although I put my name to Amendment No. 5 and not Amendment No. 6, on reconsideration I greatly prefer Amendment No. 6. But the fact is that my concern about this issue is fairly obvious.

It is a rather extraordinary suggestion that Ministers should seek to interfere by having private conversations with judges in order to try to obtain a particular decision. I do not think that is very likely to happen. The idea that they will carry out personal lobbying does not seem to me to be the real threat. The real threat is that there may be an attempt by Ministers, through briefing and so on, to stir up the media to create a campaign on why a particular line taken by the judiciary is wrong and to force the judiciary down a route where the law would not take them. Indeed, it is possible that a Minister would do something that I considered to be extremely unwise, as the Home Secretary did the other day. He commented on the kind of judgment that he would like to see in the case of the individual who had been sentenced in Portugal for offences in connection with football hooliganism. I am far more concerned about those wider horns of influence. I think that they would be effectively dealt with in a straightforward clause stating that one must not seek to influence particular judicial decisions. Such a clause would be totally unqualified, and that is what I should like to see us finish up with.

Lord Lloyd of Berwick:

At some stage—

Viscount Bledisloe:

May I be allowed to finish what I started?

Lord Lloyd of Berwick:

Perhaps I may suggest to the Committee that the noble Lord, Lord Peyton, should move Amendment No. 6, to which I should certainly like to add a comment.

Lord Carter:

The noble Lord cannot move Amendment No. 6. He moved Amendment No. 5 and that must be dealt with before we reach Amendment No. 6. As they are grouped, it would be easier if the two amendments were debated together and then the noble Lord could dispose of Amendment No. 5, followed by Amendment No. 6.

Lord Peyton of Yeovil:

I think that it is the will of the Committee that I speak briefly to Amendment No. 6. I am very happy to do so, and I apologise to all concerned if I made it in any way awkward for them by my failure to do so before.

The words, through any special access to the judiciary", are, first, rather suggestive that people have a habit of making secret approaches to the judiciary. I think that that is totally unjustified. Secondly, without those words, the clause means all that one wants it to mean, and I cannot see that anything is gained by adding those words to it. I shall be most interested to hear what the noble and learned Lord says, but I cannot think that the words are necessary and it is my intention, in due course, to move that amendment.

Lord Lloyd of Berwick:

As my name is added to Amendment No. 6, 1, too, want to say that I cannot see any reason that the obligation under Clause 1(3) should be restricted to cases where the Minister has "special access to the judiciary", whatever those words may mean. So far as I am concerned, they do not have any obvious meaning.

In any event, the restriction is undesirable because it may suggest that Ministers can seek to influence particular judicial decisions when they are not taking advantage of special access. Is that really what the Government intend? I am sure that that is not the case.

Viscount Bledisloe:

I can now complete what I was trying to say. I would put the point rather higher than the noble and learned Lord, Lord Lloyd. If one says that Ministers cannot seek to influence particular judicial decisions through any special access to the judiciary, one is accepting that they can seek to influence particular judicial decisions by any other means. There is only one possible way in which it is proper for the Government to seek to influence particular decisions and that is by addressing the court either as a party to the case or as an amicus curiae if they are allowed to appear as such. But there is no other way in which it is proper for the Government to seek to influence particular judicial decisions. The words should be removed from the clause and then we would not need the words in Amendment No. 5.

The Earl of Erroll:

First, as a layman, I have listened to many debates in this House and I have always gathered that when extra words are added to a measure in this way, thus qualifying it, that immediately implies that anything not included in those words is then allowed. Therefore, as it stands, the clause specifically allows other influence to take place.

Secondly, I think that the wording is intended to deal with the concordat, which we do not know much about. It is trying to say that in the concordat between Ministers and the judiciary there should not be any mechanism by which one can influence the other. I was concerned when I heard about the concordat earlier because I thought that it should be subject to parliamentary scrutiny. At present, the judiciary should be responsible to Parliament and not to a Minister in another place. We are not talking about a true separation of powers, and I think that this is one of the hidden, underlying examples of where the powers are not separated because we have a concordat that is not subject to parliamentary scrutiny.

Lord Carter: With regard to

Lord Campbell of Alloway: Amendment No. 6—

Lord Evans of Temple Guiting:

Perhaps we may hear from my noble friend Lord Carter.

Lord Carter:

To answer the point made by the noble Earl, the concordat is printed in full as an annex to the report. The amendments that needed to be made to the Bill as a result of the concordat were either inserted into the Bill in the Select Committee or the Lord Chancellor said that he would do so.

The Earl of Erroll:

I thought that a concordat could be changed subsequently without parliamentary scrutiny—that is, it is a side agreement. Although the concordat may be as it is at present, future changes to it would not necessarily be subject to parliamentary scrutiny. But I do not understand these matters properly.

Lord Carter:

I am sure that if elements of the concordat were not in the Bill and it needed to be changed, it would be fully debated. If they were in the Bill, one would need primary legislation in order to alter it.

Lord Campbell of Alloway:

I rise only to support Amendment No. 6—for some of the reasons that have been given.

Lord Falconer of Thoroton:

I start by making two procedural points. First, the speech made by the noble Lord, Lord Peyton, yesterday was a little acidic, but I have always thought that the point of the noble Lord was his acid. I hold him in the highest possible affection and did not take any offence whatever yesterday in relation to his speech.

Secondly, with regard to the Committee stage yesterday evening and, again, this afternoon, perhaps I may say as a spectator—I feel like a bit of a spectator in this—that our proceedings are becoming somewhat private. No one appears to be able to make a speech from beginning to end; everyone who speaks is primarily a member of the committee; and everyone else who then intervenes is treated like an outsider. I do not know what other noble Lords think, but it may be more sensible for us to proceed in the conventional, rather than the unconventional, way.

I turn to the points raised in the two amendments tabled by the noble Lord, Lord Peyton, and, first, to the words, through any special access to the judiciary".

The subsection was expressed in that way precisely for the reason given by the noble Viscount, Lord Bledisloe. There are cases in which, quite legitimately, a Minister will wish to influence the court. As the noble Viscount, Lord Bledisloe, said, one such occasion is when he is appearing as a party in the proceedings. He will seek to influence, and that is why the clause is worded in that way.

The noble Lord, Lord Crickhowell, expressed the fear that public campaigns might be used to seek to put pressure on the judiciary. That is dealt with by the Contempt of Court Act. The courts have been robust in stating those things that they can resist. This is slightly different. Where juries are involved, the courts have quite rightly been much more susceptible and tried to ensure that no sort of campaign is started. But broadly I do not think that there is much dispute between us as to what we seek to achieve; namely, no undue influence on the judges; that it is plainly quite legitimate to argue one's case in court; and not to start campaigns or behave improperly in relation to that, but that is dealt with by the Contempt of Court Act.

Amendment No. 5 seeks to insert the words, under any circumstances or by any means". Following up what the noble Earl said, it is best not to insert words that are unnecessary. To insert those words after the words "must not" would not add anything to the Bill. "Must not" is absolute. It does not need further clarification. Amendment No. 5 is unnecessary to achieve the purpose that the noble Lord wishes to achieve. In those circumstances, I hope that the noble Lord will feel able to withdraw his amendment.

6 p.m.

Viscount Bledisloe:

In the light of what the noble and learned Lord said about representations, would he be prepared at the next stage to delete the words, through any special access to the judiciary", and insert, "save by legal representations made in court"?

Lord Falconer of Thoroton:

I think that it is okay the way that it is done.

Lord Peyton of Yeovil:

I am grateful to the noble and learned Lord. I am not really surprised. I agree that on the whole the words do not add anything. I just wanted them to underline what the Government have said. After all that has happened, one sometimes has doubts, if I may put this gently, as to the durability of the Government's intentions. I say no more than that. I am content to beg leave to withdraw the amendment. However, before I do that, as Amendment No. 6 is grouped with this amendment, I am not at all sure what the noble and learned Lord said; that is, whether he is willing to accept Amendment No. 6 or whether he will take it away and think about it. I did not gather what his intention was.

Lord Falconer of Thoroton:

As I made clear—I apologise to the noble Lord that I did not make it clear before— no, I am not minded to accept it, nor to take it away and think about it.

Lord Peyton of Yeovil:

If it is clearly the noble and learned Lord's intention to reject the amendment, I will take it away and think about it and perhaps come back with a repetition on Report. First, it conveys an impression which is not very nice and, secondly, the words which would remain in the clause are quite sufficient to stop any kind of influence by Ministers anywhere, and this adds nothing. However, in the circumstances, I am content to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

The Deputy Chairman of Committees (Lord Boston of Faversham):

I must point out to the Committee that if Amendment No. 7 is agreed to, I cannot call Amendment No. 8.

Lord Kingsland

moved Amendment No. 7: Page 1, line 12, leave out "Secretary of State for Constitutional Affairs" and insert "Lord Chancellor

On Question, amendment agreed to.

[Amendment No. 8 not moved.]

Lord Goodhart

moved Amendment No. 9: Page 1, line 12, leave out "have regard to" and insert "respect

The noble Lord said: Amendment No. 9 is grouped with Amendments Nos. 10 to 13 and Amendment No. 16. Amendment No. 9 is intended to bridge what appears to me to be a gap between two positions to call them "extreme" might be putting it a little high—which are some way out of the middle ground. As I said, Amendment No. 9 is intended to bridge that gap, and so is Amendment No. 19, which was partly spoken to yesterday. In Clause 1(4) the Government state that the Minister must have regard to—the key words are "have regard to"—the need to defend the independence of the judiciary, the need to provide support for the judiciary and the need for the public interest to be represented in decisions affecting the administration of justice. I believe that the words "have regard to" in the context are extremely and undesirably feeble. Regard can be had to all sorts of matters. For example, regard may be had to the outcome of next week's by-election.

Lord Roper:

That is tomorrow.

Lord Goodhart:

I was speaking in a general sense. The words "have regard to" do not indicate any priority for the defence of judicial independence over other factors. On the other hand, I believe that Amendments Nos. 10 to 13 go too far the other way by imposing duties on the Minister which appear to be justiciable. Amendment No. 16 goes further still because the use of the word "unlawful" makes it plain that the relevant duties are intended to be justiciable.

That is of particular importance in relation to Clause 1(4)(b). That is the paragraph that refers to, the need for the judiciary to have the support necessary to enable them to exercise their functions".

If that is a justiciable duty, it could be for the court to decide whether the Minister had provided the support needed by the judiciary in the event of a dispute. I do not know how, in those circumstances, one could possibly find an impartial court to decide that issue. But if one could, it would then extend the existing powers of the court to control powers of spending by the Government. That is an undesirable step towards government by judges rather than by elected representatives.

Amendment No. 9 replaces the words, "have regard to" with "respect" in relation to the independent judiciary. Amendment No. 19 creates similar wording in relation to the rule of law. I believe that "respect" is stronger than "have regard to". It creates a higher benchmark for the Minister to apply when he or she is making a decision, but it leaves that decision on issues such as the needs of the judiciary within the discretion of the Minister. It does not create an objective test that can be examined and enforced by the courts. I think that that is the right balance. I beg to move.

Lord Windlesham:

Amendment No. 10 is tabled in my name also. I support what was said by the noble Lord, Lord Goodhart. It seems to me that "respect" is somewhat stronger than "have regard to". These are very fine distinctions and it is highly unlikely that we will find cases before the court in which the Secretary of State of the day has to justify the significance of the word that is used in the statute. On the other hand, in a way, these are demonstrative. They indicate the seriousness of purpose, the gravity, of the clause. I would hope that the noble and learned Lord the Lord Chancellor might be willing to consider them very carefully. If he believes that there are substantial differences in practice, perhaps he would tell us.

Viscount Bledisloe:

Amendment No. 10, which appears also in my name, does two things. First, it incorporates into Clause 1(4) the rule of law point. At this stage that is inappropriate because a decision was not reached on that last night. Therefore, I cannot press Amendment No. 10 today. However, more importantly for this purpose, it deals with the question of the right word. I could not agree more with the noble Lord, Lord Goodhart; the words "have regard to" are ridiculously mealy-mouthed for the duty to defend the independence of the judiciary.

I accept also that "respect" is a bit of an improvement, but it does not go far enough. I see nothing wrong with, take all necessary steps to ensure that". I do not think that the question of the change of wording in any way affects justiciability. That matter is dealt with by Amendment No. 16, which I apprehend the noble and learned Lord, Lord Lloyd of Berwick, will want to deal with separately, rather than in this group.

Will the noble and learned Lord the Lord Chancellor do two things: first, accept that "have regard to" is too weak; and, secondly, agree to consider what the appropriate phrase is to make the provision more meaningful? Whether or not one wants justiciability, this is not the right way to get it, without risking incorporating justiciability by the back door. I do not think Amendment No. 10 does that, but the noble Lord, Lord Goodhart is concerned about it.

Some form of wording must be put in Clause 1(4) which is vastly stronger than just saying, "Yes, we take the independence of the judiciary into account, but we take into account a lot of other things. We have taken that into account, but we have dismissed it and come to this conclusion although it will grossly infringe the independence of the judiciary". The phrase is just far too weak.

The Earl of Erroll:

Although a layman, I have listened to many debates on this kind of subject. I totally agree that "having regard to" is far too weak. It is the equivalent of saying "must consider". One says, "Well, I have considered it", but with no duty as to the outcome of that consideration. The consideration has to be in a particular direction. I think that certainly one, if not more, noble and learned Lord made that same point in the report. I think that the phrase is far too weak and that something must be done about it with one of the amendments.

Lord Lloyd of Berwick:

I support what has just been said by the noble Earl, Lord Erroll. I stand by the spirit of Amendment No. 10, even though at the moment it may not be possible to agree it. Perhaps I may also say while I am on my feet that I would seek the leave of the Committee to de-group Amendment No. 16. It really belongs in the group with Amendments Nos. 15 and 16A.

Lord Mayhew of Twysden:

I support Amendment No. 10 and distance myself from Amendment No. 9. The noble Lord, Lord Goodhart, a few minutes ago spoke of the need to find a word which was justiciable. It is awfully difficult to think of how the verb "to respect" can be justiciable.

Lord Goodhart:

I apologise to the noble and learned Lord. I was really raising quite the opposite point: I was seeking a word which I regarded as having a symbolic value, but which was not justiciable.

Lord Mayhew of Twysden:

This is all rather head of a pin stuff. I think that Amendment No. 10 is better, for the reasons that have been advanced, although I am always a little diffident about legislating for all necessary steps to be taken. However, since the amendment has the support in particular of the noble and learned Lord, Lord Lloyd of Berwick, I am prepared to go along with it with some confidence, unless the noble and learned Lord the Lord Chancellor can come up with a word that meets all these objections.

Lord Brennan:

If we look at Clause 1 in its entirety, subsection (I) is the exposition of the guarantee referred to in the rubric to this clause. Subsection (4) can only have sense if it refers to the circumstances in which that guarantee will be honoured. It seems to me that whether we use the words "have regard to", "respect" or "take all reasonable steps to ensure", or whatever, Clause 1 is almost incomprehensible unless the Minister adequately has regard to the factors in subsection (4) in order to fulfil the guarantee that he has a duty to fulfil. All we need from my noble and learned friend is confirmation that the subsection buttresses the duty.

Lord Campbell of Alloway:

I support Amendment No. 10.

6.15 p.m.

Lord Kingsland:

I entirely agree with the noble Lord, Lord Goodhart, that "have regard to" is too weak. It requires the Minister to look at something but thereafter conclude that he does not have to give any weight to it. So, whatever else we do, it is necessary for your Lordships to consider another way of expressing the Minister's obligation under subsection (4).

The noble Lord, Lord Brennan, with great respect to him, is correct in saying that the primary obligation is in Clause 1(1); and I suppose that the operational paragraph in respect to that is subsection (4). So there is an absolute obligation in subsection (1) to uphold the independence of the judiciary; and under subsection (4), the Secretary of State for Constitutional Affairs shall have regard to whether or not he needs to defend that independence. In my submission, that is an unfortunate dilution of the obligation in Clause 1(1), and for that reason alone the Minister needs to look again at the wording in subsection (4). I prefer Amendment No. 10, which makes the obligation much clearer and is more satisfactorily expressed.

Lord Falconer of Thoroton:

There is broad agreement between the speakers: first, that they do not wish to make the effect of Clause 1(1) or (4) subject to legal proceedings; and, secondly, that the words "have regard to" are too weak. On the first point I agree with those noble Lords who say that we are not seeking to create any sort of basis for legal proceedings.

Lord Lloyd of Berwick:

I am sorry to interrupt. That is exactly why I sought the leave of the Committee to de-group my amendment because that is exactly what I shall be suggesting should be done. I do not think that anyone has addressed that point yet.

Lord Falconer of Thoroton:

I was wrong because the noble and learned Lord, Lord Lloyd of Berwick, was a speaker in the earlier debate but failed, quite rightly, to say what his position was. But all those who spoke in substance in relation to it were of that view. That approach reflects broadly the division in the Select Committee. The noble and learned Lord, Lord Lloyd of Berwick, was much keener to enforce these rights by proceedings than anybody else in the committee. The position he has just stated reflects his stance but it is not the position of noble Lords supporting these particular amendments.

Viscount Bledisloe:

The noble and learned Lord is not entirely right. I was saying that I am not seeking by the words in Amendment No. 10 to render the provision justiciable. Whether or not it is to remain justiciable by Amendment No. 16 is a totally separate question. I was saying that in no way am I seeking by the back door, with Amendment No. 10, to render it justiciable. I have not yet spoken on the question of whether or not I think it should be justiciable.

Lord Falconer of Thoroton:

Again both the noble and learned Lord, Lord Lloyd of Berwick, and the noble Viscount, Lord Bledisloe, are entirely right. Although they did not mention it in their speeches, the noble and learned Lord, Lord Lloyd of Berwick, does want the provision to be justiciable and the noble Viscount, Lord Bledisloe, is not yet telling us whether he want it to be justiciable. I apologise for not making both those points clear. But—in my own defence they had not said it.

The amendments deal with a very serious matter, which is of huge significance, and the wording requires considerable thought. I do not say that we can get it better than "have regard to" considering what one seeks to achieve in this subsection. I shall set out our thinking and then deal with the specific amendments.

As I said yesterday in response to the rule of law amendment, it is not the intention to work radical changes to general constitutional principles outside the scope of the Bill. The "have regard to" language in Clause 1(4) was decided upon to ensure that the Lord Chancellor has a duty to act in accordance with the stated objectives while at the same time acknowledging that policy formulation and the substance of decisions must be for him but subject to that duty; that delivery of the objectives is not always within his exclusive gift; and that his existing constitutional position as a member of the Cabinet should not be undermined. I hope that it is obvious to Members of the Committee that the present wording of Clause 1(4) in no way detracts from the fact that the Lord Chancellor will be bound, along with all other Ministers, by the general duty to uphold the independence of the judiciary in Clause 1(1). This preserves collective responsibility because the same duty will be applied to all Ministers.

The amendments tabled by the noble Viscount, Lord Bledisloe, would impose on the Secretary of State an absolute duty to take whatever steps were necessary to ensure that the outcomes in Clause 1(4) were achieved. That would leave the Secretary of State exposed to judicial review on the merits of the question of what is and what is not a necessary step to achieve the objective in question. That would be completely unprecedented; it would impose an unacceptable burden on policy formulation and decision-making by the Lord Chancellor.

The problem would be particularly acute given that informed and reasonable opinion could differ substantially on the question at issue, particularly in relation to such controversial matters as the rule of law which are still in the clause. That may not be a very good point to make if the noble Viscount is putting that to one side for the purposes of this part of the debate. The amendment also fails to take account of the broader picture. As I said, the objective specified will not always be in the exclusive gift of the Lord Chancellor; the same is the position now. It therefore does not make sense to impose an absolute duty on the Lord Chancellor as the noble Viscount's amendment would do.

There is one further reason why I oppose the noble Viscount's amendment. It fails to take proper account of the role of the Lord Chancellor in the context of Parliament. The absolute legal duty created by the amendment would apply to the Lord Chancellor when he was exercising functions in connection with parliamentary proceedings. As the duty would be in absolute terms, with no reference to such proceedings, questions could arise on the legality of the Lord Chancellor's actions in Parliament, including his position on Bills and the content of his speeches. I am sure that the content of some of my speeches would have been alleged to contravene parts of the proposal that the noble Viscount makes in his amendment, but I cannot believe that that is what he had in mind.

I will not deal with the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, as he will deal with it separately.

Amendment No. 9, spoken to by the noble Lord, Lord Goodhart, would insert the words "must respect" in place of "have regard to". An obligation to have regard to something has accepted meaning in public law; an obligation to respect something does not have the same meaning. That may not be a reason not to support it, as it may be an indication that it is not intended to be justiciable. It would, however, be a step into the unknown. It might be stronger or weaker than the duty imposed by the existing text; we simply do not know in legal terms. The Lord Chancellor would have difficulty in determining what he had to do to comply with the duty. That would not be an acceptable outcome of our deliberations on the Bill.

Having said that, I note noble Lords' concerns about whether the wording is adequate. I will think about it, not with a view to coming back with something that leads to the possibility of legal proceedings, but with a view to coming back with something that, if possible, reflects—as the noble Lord, Lord Windlesham, said, although these were not quite his words—the appropriate importance of the duty being imposed. I take that to include all the sorts of things that the noble Lord was saying. "Gravity" would be an even better word. In those circumstances, I invite noble Lords either to withdraw or not to move their amendments.

Lord Richard:

Before my noble and learned friend sits down, perhaps he could help me with a point. I accept entirely what he says about the absolute duty that Amendment No. 10 imposes. Does he have the same problems if it ceases to be necessary actions and becomes actions which are reasonable? I am not sure whether that creates the same problems.

Lord Falconer of Thoroton:

Inserting the word "reasonable" would direct one much more towards court it would have a court feel. Therefore, I would be worried about the justiciability issue.

I have not yet answered the noble Lord, Lord Brennan. I would not necessarily wish to restrict Clause 1(1) to the factors in Clause 1(4). Clause 1(1) imposes a duty on all Ministers; Clause 1(4) refers specifically to the Secretary of State for Constitutional Affairs. It may go wider than the duty on the Secretary of State or the Lord Chancellor in Clause 1(1).

Lord Brennan:

That was my intent. Perhaps my noble and learned friend can clarify a point that arose in debate last night and he mentioned several times in his closing remarks on this amendment. Do I understand him to be saying that the Government read Clause 1(1) as meaning that every Minister of the Crown owes the duty to support this guarantee whether or not that Minister is involved in matters relating to the judiciary?

Lord Falconer of Thoroton:

Yes, that is how I read it.

Lord Brennan:

I am grateful.

Lord Goodhart:

We have had an interesting, if slightly chaotic, debate. On our Amendment No. 9, 1 have no absolute commitment to the word "respect" and shall consider possible alternative words. However, I remain of the view that "have regard to" is an inadequate form of words. I am grateful to the noble and learned Lord for saying that he would think about the matter, although without any great enthusiasm for a change. I, too, will think about it. Depending on what happens in the interim. I may come back at a later stage with either this or alternative wording in a similar amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Boston of Faversham):

I must point out to the Committee that if Amendment No. 10 is agreed to, I cannot call Amendments Nos. 11 to 13 inclusive.

[Amendment No. 10 not moved.]

[Amendments Nos. 11 to 13 not moved.]

Lord Falconer of Thoroton

moved Amendment No. 14: Page 2, line 5, at end insert— (5) In this section "the judiciary" includes the judiciary of any of the following— (a) the Supreme Court; (b) any other court established under the law of any part of the United Kingdom; (c) any international court. (6) In subsection (5) "international court" means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of— (a) an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or (b) a resolution of the Security Council or General Assembly of the United Nations.

The noble and learned Lord said: I spoke to this amendment yesterday. I beg to move.

On Question, amendment agreed to.

Viscount Bledisloe

moved Amendment No. 15: Page 2, line 5, at end insert— ( ) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the independence of the judiciary and the rule of law.

The noble Viscount said: This amendment seeks to give effect to a point made to the Select Committee by Lady Justice Arden on behalf of the working group of the Judges' Council. Rather than put it in my own words, I shall venture to read as my argument from paragraph 77 of the report. On behalf of the working group of the Judges' Council, Lady Justice Arden argued that Clause 1, should be given some enhanced status to prevent inadvertent implied repeal. It is not a question of entrenching it because it would be open to Parliament to depart from judicial independence if it wished to do so, although it would have to use clear language. The enhanced status would be achieved by imposing an interpretive obligation along the lines of section 3 of the Human Rights Act 1998. That provides that, so far as it is possible to do so, primary and subordinate legislation must be read in effect in a way which is compatible with convention rights. We suggest that that could be adapted to Clause 1 of the Constitutional Reform Bill and what goes for the independence of the judiciary goes for the rule of law as well if Parliament thought it right to include that in Clause 1 or a similar Clause".

Of course, the amendment also suffers, for present purposes, from the fact that it includes, "the rule of law", when we do not yet have that in the Bill and we have not yet decided how that is to be dealt with. I invite the noble and learned Lord the Lord Chancellor to say that he is in principle agreeable to the proposition advanced by Lady Justice Arden on behalf of the Judges' Council, and that he will give effect to an amendment on those lines, though as I said because of the rule of law point, one cannot press it at the moment. I beg to move.

6.30 p.m.

Lord Maclennan of Rogart:

Amendments Nos. 15 and 16A that are grouped seem somewhat oddly placed in a clause that is directed towards spelling out the duty of the Lord Chancellor. The amendments appear to seek to impose a duty on the courts, a restrictive interpretation, which is a bid to entrench the provisions of Clause 1.

Amendment No. 15 seems in a sense otiose, even if it is in the right place in the Bill. If one pauses to consider, it is inconceivable that judges would interpret legislation, be it primary or subordinate, in a way that suggested that it was not intended to be compatible with the independence of the judiciary and the rule of law. It seems to me that in her evidence Lady Justice Arden was making a proposition that is certainly unconventional in our constitutional law. We have not normally espoused the methods of entrenchment of the kind that she suggested. Judges are free to interpret the law as they like, but something that is plainly incompatible with the independence of the judiciary and the rule of law is unlikely to be a matter giving rise to great doubt as to the intentions of Parliament. It also seems inconceivable that such a measure would have reached the statute book without the intentions of Parliament having been made clear.

Amendment No. 16A appears to seek to draw on the experience of the Human Rights Act to empower a declaration of incompatibility to be given by the court. That raises grave questions of uncertainty. Here, to some extent, I embrace the arguments advanced on an earlier amendment by the noble Lord, Lord Brennan, about what is meant by "the rule of law". In the case of the Human Rights Act on which this appears to be based, the provisions of law that a particular new provision is declared to be incompatible are spelled out clearly in law. However, we have no such agreed acceptance as to what is meant by "the rule of law".

I do not think it wise that a general constitutional principle should be translated almost inadvertently into something that it would be open to the courts to seek to interpret in a way that might be unpredictable to Parliament at this stage. That is going too far. In respect to the clause, it is right that the provisions should be there as declaratory of constitutional principle, but they should not be capable of giving rise to actions in the court based on calling into question the compliance of the Lord Chancellor with the undefined concept of the rule of law.

Lord Kingsland:

I am most grateful to the noble Lord for giving way. I would like to be clear about the noble Lord's objections to the expression, "the rule of law", in this context. I presume that, at the time that the European Convention on Human Rights was incorporated in English, law the noble Lord supported that initiative by the Government. If that is so, in principle the noble Lord must accept that it is possible by the methods set out in the amendments— indeed, it is desirable by the methods set out in the amendments— to test primary legislation against the principles set out in the European convention.

If the noble Lord accepts that, the only difference between the requirement to test primary legislation against the rule of law and the requirement to test primary legislation against the convention is that, unlike the convention, the rule of law is not set out in a document that has been interpreted by judges over a period of time. If my analysis is correct, surely the only objection that the noble Lord can have to this amendment, particularly to Amendment No. 16A, is that the rule of law is not set out in specific terms in a legislative document against which primary legislation can be measured.

Lord Maclennan of Rogart:

It is clear that the noble Lord, Lord Kingsland, accepts that the parallel between the Human Rights Act, which is set out not only clearly in itself as an Act, but which draws on the whole jurisprudence of the preceding considerations of the European convention in the Strasbourg Court, has given a high degree of particularity to the rules with which particular legislation might be declared incompatible. There is no such particularity about the rule of law. I submit, with respect, that it would be difficult to do that. It would be almost as difficult as to say that the courts would be entitled to strike down a measure because it was incompatible with democracy, which this Parliament is deemed to favour and support. Democracy, the rule of law, and justice are broad constitutional principles—they are not precise rules that are capable of enforcement by the courts. It is legislating without clarity as to what would be the precise consequence to give effect to the amendments that have been set out in this way.

Lord Renton:

I should confess that, nearly 30 years ago, I was chairman of the only official committee since 1870 to advise on how Acts of Parliament should be drafted. Another member of that committee was the noble Lord, Lord Richard. We sat for two years, but, unfortunately, after he had been with us for a year, he took up an appointment that caused him to resign—much to my regret.

We laid down principles for ensuring that drafting was clear, legally enforceable and easily interpreted. I confess that I think that Amendment No. 15 would have given us no doubt. However—I say this with the deepest respect to the noble and learned Lord, Lord Lloyd of Berwick, for whom we all have the greatest admiration —I am worried about Amendment No. 16A. It says: If a court is satisfied that a provision of primary or secondary legislation is incompatible with either the independence of the judiciary or the rule of law it"— the court— may make a declaration of that incompatibility". I am keeping an open mind about that, and the Committee may feel that it is right. However, although we had, if I may say so, a very strong committee, with two retired Law Lords on it, we were never asked to consider the matter of incompatibility with the independence of the judiciary. We were conscious of the independence of the rule of law.

The Committee may feel that I am making heavy weather of this; I hope not. It is something new. I recollect no statutory provision that required a court to consider incompatibility with the independence of the judiciary. It is not an easy matter. In some circumstances, it may give rise to great problems of interpretation. I mention it just in case the noble and learned Lord, Lord Lloyd of Berwick, would care to make any comment about it or even say that it is something new and something that he would prefer to reconsider.

Lord Lloyd of Berwick:

I rise primarily to support Amendment No. 15, moved by the noble Viscount, Lord Bledisloe, for the reasons that he gave. Secondarily, I thank the noble Lord, Lord Renton, for the kind things that he has just said about me. However, I shall duck the question that he asked, by suggesting that it might be answered by the noble Lord, Lord Kingsland, whose name stands first in respect of that amendment. Having ducked that question, I shall speak briefly to Amendment No. 16, which is based, quite simply, on Section 6 of the Human Rights Act 1998, which provides that it is unlawful for a public authority to act in a way that is incompatible with a convention right.

If Clause 1 is to be an effective— I emphasise the word "effective"—substitute for the presence of the Lord Chancellor in Cabinet, which was, as I understood from the debate on 12 March, the original intention of the clause and, I imagine, is still the intention of the clause, it must be given some teeth. Unless it is enforceable, a statement of duty is, in the words of Professor Jolowicz, which we all learnt yesterday, sometimes called "lex imperfecta". I prefer the immortal words of Daisy Ashford, who talked about "piffle before the wind". By themselves, the words mean nothing, unless they are, in some way, enforceable.

The duty is specifically imposed on Ministers by Parliament, and the only way to give it meaning and effect is to say simply that, if a Minister acts in a way that is contrary to the duty imposed by Parliament or proposes to act in such a way, he is acting unlawfully. What on earth could be wrong with that?

I accept that the matter could probably be tested in the courts, although that would be for the courts to decide. The noble Lord, Lord Maclennan of Rogart, said that that would be undesirable and that there would be too much litigation. There would not. There is no reason to suppose that anybody could bring proceedings to enforce the duty unless he had some locus standi. In the absence of someone with locus standi, it would, in accordance with the ordinary law, be for the Attorney-General to bring proceedings as guardian of the public interest, a well known role of the Attorney-General. It will happen once in a blue moon, no more frequently. It will not happen often because, one hopes, Ministers will not act in breach of their duty.

6.45 p.m.

Lord Maclennan of Rogart:

Can the noble and learned Lord recall any instance in which the Attorney-General has brought proceedings against a Cabinet colleague that is at all cognate to the circumstance that he suggests?

Lord Lloyd of Berwick:

I am afraid that my hearing aid was not acting correctly. Perhaps I may see the noble Lord afterwards and answer him privately. I did not quite hear what he said.

I am sure that the noble Lord cannot be challenging the idea—I am sure that the noble and learned Lord the Lord Chancellor would not challenge it either—that, in certain circumstances, the Attorney-General has a duty to act on behalf of the public in enforcing a duty owed to the public. It is a well established role for the Attorney-General. It would happen very infrequently, but, in the absence of some form of ultimate fall-back on the power of the courts, the duty means nothing. That is why I propose that the amendment should be made.

Lord Mayhew of Twysden:

I respectfully support and endorse what has just been said. Things will have come to a pretty pass —not, in practical terms, a foreseeable pass—if the Attorney-General were to take such steps against one of his own Ministers—I do not mean one of "his own" Ministers; I mean "one of his colleagues". None the less, that does not deprive what is proposed of any force. It will concentrate Ministers' minds. Why? Because, as they contemplate one version of draft legislation as against another, an official will say, "Don't forget, Minister, that this is legally enforceable, and you may get somebody taking you to court on judicial review because you have arguably contravened it". It will concentrate the mind. I have a little experience of such situations, so I regard that as entirely practical and foreseeable.

Lord Richard:

I want to make two points. The noble and learned Lord, Lord Mayhew of Twysden, said that such a move would concentrate minds. It may do, but one must ask what it is that would become justiciable according to the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick.

With the amendment, the Home Secretary would have obligations to uphold the rule of law. Is it being seriously argued that somebody could take the Home Secretary to court on an application for judicial review because he had not provided enough police in Liverpool? Could the Lord Chancellor be taken to court because he had not provided enough judges in Cleethorpes? Once the doors are opened to such an obligation, the possibilities for and ramifications of judicial—I hesitate to use the word "meddling" because it would not be sufficiently polite to the judges—intervention are enormous.

I cannot believe that when the noble and learned Lord who has just sat down was Secretary of State for Northern Ireland he would seriously have welcomed a situation in which, under an obligation to uphold the rule of law, practically whatever he did in terms of security in the Province would be potentially justiciable presumably by any individual who claimed to be affected by it. It is much too wide. That is my principal argument against Amendment No. 16.

It is all very well for the noble and learned Lord, Lord Lloyd of Berwick, to say that there have to be some teeth. There may have to be a clear statement of what the Minister responsible has to do, but to open the floodgates to the extent that this amendment would, in my very respectful submission to the Committee, is going much too far.

I had thought that the noble and learned Lord, Lord Lloyd, had ungrouped the other two amendments. But as regards Amendments Nos. 15 and 16A, I feel for the poor judge. What does he have to do under Amendment No. 16A? The amendment states: If a court is satisfied so the judge has to be satisfied— that a provision of primary or secondary legislation is incompatible with either"— of two concepts, which are pretty inchoate and certainly are not expressed, are not defined and are not codified— the independence of the judiciary or the rule of law it may make a declaration of that incompatibility". That would impose an extraordinary burden on a judge.

In effect, that says that a judge should have the power to strike down—or make a declaration of incompatibility, which is much the same thing—an Act of Parliament on the basis that he, the judge, considers that it is incompatible with, the independence of the judiciary' or the operation of the rule of law.

Sitting on this side of the House, holding the views that the House knows that I hold on Europe and European development, I have heard time and again from the Benches opposite arguments about the constitutionality of the absolute necessity for enforcing the sovereignty of Parliament against the great intrusions that are coming from Brussels. One should not hand over to courts the possibility of striking down Acts of Parliament—indeed, whether primary or secondary legislation. There is a certain inconsistency in the approach put forward in this amendment. To ask judges, in effect, to judge the constitutionality or otherwise of an Act of Parliament is a very dangerous road down which we should not go.

The Earl of Erroll:

I should like to comment on that. I have some comments to make on Amendments Nos. 15 and 16A and several to make on Amendment No. 16. I think that what the noble Lord, Lord Richard, has just said is nonsense since Pepper v Hart. In Pepper v Hart, because law passed by the British Parliament was not compatible with the intention of some European legislation, I thought that the courts looked at it and either struck it down or altered it. I do not know the detail.

Lord Richard:

The point is that that is a matter put up by way of complaint. In other words, the fact that a British court has to strike something down because it is incompatible with the European Court is a matter of complaint being made by the other side, not a matter of pride.

The Earl of Erroll:

The British courts are having to do that already. To say that this is a totally novel concept is not valid. I do not see why, if we are erecting a Supreme Court, it should not be able to defend democracy and itself. Surely, Amendment No. 15 simply states that the court can interpret anything in the correct way according to this Act. Amendment No 16A says that a court can declare that a provision is incompatible which, effectively, will send it back to Parliament for reconsideration. As we move more from common law to statute law, we have to look at other protections and protections to which we are not used. That is my first point. I do not agree with anything that the noble Lord, Lord Richard, said.

Secondly, Amendment No. 16 is very important. As a member of the public, I do not see why any Minister should feel that he is above the law. In some foreign countries, we see that certain leaders are above the law. We do not respect that at all. I do not have any problems with the concept that a Minister should have to obey the law. From what the noble and learned Lord, Lord Lloyd of Berwick, said, I understand that this is an ECHR obligation. So putting it into this Bill will not alter the fact that the matter will be either brought to a British court or to the ECHR if a Minister does not obey the law. Taking the point made by the noble Lord, Lord Richard, I do not think that this has got anything to do with the provision of police whatever. It is about the independence of the judiciary.

Lord Crickhowell:

Again, as a non-lawyer, I hesitate to intervene in this debate between many expert lawyers. But I am prompted by the speech made by the noble Lord, Lord Maclennan, who based a great deal of his argument around the effect of these amendments on the rule of law part of Clause 1. Of course, as the noble Viscount, Lord Bledisloe, pointed out, we have not got around to dealing with the rule of law point. It is worth observing that the Judges' Council and Lady Justice Arden, who were responsible for introducing the whole proposal, did not put forward the proposal in connection with the rule of law at all. On referring to the examination of witnesses and question 713 in Volume 2 of the Select Committee report, the whole cross-examination at that point, and her evidence, was based on the subject of the independence of the judiciary. It was in that connection that Lady Justice Arden suggested that there were relevant precedents and that the matter could be appropriately dealt with in the way that she suggested.

She also made it absolutely clear in response to a number of questions from the Lord Chancellor notably, questions 720, 721 and 722—that she was concerned about inadvertent implied repeal. The noble and learned Lord, Lord Falconer, said that, we would all agree that we…would not want inadvertent repeal of, or limitations". Lady Justice Arden also made it perfectly clear that, ultimately, of course Parliament could make specific enactments and that the principle of parliamentary sovereignty was not in question.

It is at least worth considering whether the proposal put forward by the Judges' Council and by Lady Justice Arden, which was concerned with the independence of the judiciary, can stand up if we take away the rule of law question with all the difficulties that have been legitimately raised about the definition of the rule of law. As the proposal came from the Judges' Council, at least we should consider it on the basis that it proposed it.

My second point concerns the question of legal enforceability where, as noble Lords who heard my speech last night will understand, we have got back to my King Charles's head and the whole question of the enforceability of Clause 1. I apologise to the noble and learned Lord, Lord Lloyd of Berwick, for saying last night that I thought that it was inconceivable that the clause would be made enforceable. Here he is making a perfectly good and effective proposal for making it enforceable, particularly in connection with the independence of the judiciary.

Again, it is worth our considering—we have all these difficulties that have been accepted about the rule of law issue—whether this is a matter concerning the independence of the judiciary where it would be better to have a legally enforceable clause.

The Earl of Onslow:

Perhaps another non-lawyer may intervene but temporarily. I fail to understand, if one puts a duty on someone to do something and then he or she does not do it, that it should not be enforceable in a court of law. There is no point in doing that unless one does.

7 p.m.

Lord Brennan:

Those of us who did not serve on the Select Committee have not suffered the contagion of constitutional enthusiasm, which some of its members are displaying in this debate. This is a chapter dealing with the judiciary, a chapter on constitution. Inevitably there is a desire on the part of a convinced democrat and constitutionally minded person to seek to use such legislation as a vehicle for adding on whatever might take their constitutional fancy as the debate goes on. That is totally inappropriate.

Both of these amendments use the phrase, the independence of the judiciary and the rule of law". The independence of the judiciary, in terms of its definition, occupies some seven or eight pages of the United Nations Basic Principles on the independence of the judiciary covering everything from appointment to security of tenure, unreasonable interference and so forth. So the inchoate nature observed by my noble friend Lord Richard is illustrated as regards the independence of the judiciary just as it is on the rule of law.

Let me give an example. Let us suppose that the Chancellor of the Exchequer, with the agreement of the Cabinet, decided that economic circumstances in the country required a 30 per cent cut in judicial salaries, or even pensions. In many countries it would be plausibly argued that, whatever the intent, that would in fact interfere with the independence of the judiciary because it would affect their security of tenure and their independence from state salary considerations. That has arisen in many countries as a constitutional argument. I simply cannot accept that the phrase, "the independence of the judiciary" has some kind of purist interpretation easily applied by a court which has to determine whether or not it is being observed.

Turning to the rule of law, the debate we are having now may be repeated later, in particular by the noble Lord, Lord Kingsland, in this context, and it is the elision of the phrase "rule of law" with the contents of the Human Rights Act. The preamble to the Act refers to the rule of law, but none of the clauses of the convention and none of the sections of our Act refer to it—and they do so with consideration. That is because the convention and the Act set out specific rights which become justiciable and in respect of which as to legislation there may be a declaration of incompatibility. So it is entirely misleading to invite us to treat the rule of law as readily to be assimilated with the provisions of the Human Rights Act and easily applicable in interpreting clauses if they are amended in this way. That is not so.

The inchoate nature of these two concepts, as my noble friend Lord Richard put it, illustrates how I began. This is a chapter about the judiciary in our constitutional history. We are not accustomed to debating constitutional legislation in this place; it rarely happens. Distinguished though the lawyers are on the Select Committee, I was not able to identify any one of them as a specialist constitutional lawyer, nor do I see one in the Chamber today. When we seek to add a little bit to this chapter, as I call it, we must be extremely conservative.

The time may come when we do consider in this House the general declaratory principles of a constitution. In order to do that, there should be full consultation and full debate before it reaches this House. The example is that of the American Constitution. The first articles are declaratory. It is in the main the subsequent amendments that cause litigation in the United States because it was by those amendments that specific rights were created as regards freedom of expression and so forth which then became justiciable and enforceable. In America they do not litigate Article 1 of the Constitution, and neither should we, in the debate on this clause or on others, seek to introduce into this legislation about the judiciary general concepts of constitutional significance. If we are tempted to do so, we should look at them with strict intellectual rigour.

Lord Lloyd of Berwick:

The difficulty here is that the noble Lord was not present at the meetings of the Select Committee. Throughout the two or three months of our consideration of the Bill, the noble and learned Lord the Lord Chancellor promised us a provision to cover the rule of law. We are still waiting for a provision to cover the rule of law—or at least I think we are, but perhaps I am wrong.

Lord Falconer of Thoroton:

The remark of the noble and learned Lord, Lord Lloyd of Berwick, is profoundly unfair, for two reasons. First, the points made by my noble friend Lord Brennan were not remotely related to the detail of the rule of law provision. The noble and learned Lord, Lord Lloyd of Berwick, shakes his head, but they were not. The noble and learned Lord is seeking to imply that the precise terms of the provision affected what my noble friend Lord Brennan said, but they most certainly did not. The point made by my noble friend, one that in my view is entirely fair, was that the way that the rule of law and the independence of the judiciary are drawn in these provisions has a huge effect on the constitution. The noble and learned Lord, Lord Lloyd, seeks to respond to that by saying that I have taken such a long time to produce my rule of law clause that the point cannot readily be dealt with unless we are in Committee. With the greatest respect, that seems wrong.

My second point is that I did indeed produce such a clause.

The Earl of Onslow:

I should like to ask the noble Lord, Lord Brennan, a question. Are not the words set out in Clause 1(1), must uphold the continued independence of the judiciary", declaratory?

Lord Brennan:

I shall rarely have the opportunity of watching my noble and learned friend the Lord Chancellor leap to my defence, and I am grateful to him for that. But I am able to deal with the point put by the noble and learned Lord, Lord Lloyd, in one particular way. Whatever took place in the Select Committee, and on my reading of the evidence before the Committee, the fact is that these concepts have not been the subject of any refined constitutional analysis. The phrases have been bandied around as if they are easy to understand and generally applicable. They are not. With great respect to Lady Justice Arden, she herself is a company lawyer. The Judges' Council embraces the entire gamut of the judiciary; I am not aware that any one of them would call himself a constitutional specialist.

I turn to the intervention of the noble Earl. My whole point is that Clause 1 is declaratory, as are most constitutional principles. They are not by their nature intended to be enforceable before the courts. That is why in America the amendments arrived. They did so because people wanted specific rights.

I am sorry to make the point and I am not being critical of the Committee, rather I am simply trying to invite Members on the other side to approach matters conservatively.

The Earl of Erroll:

From what the noble Lord, Lord Brennan, has said, I gather that he thinks that because this Bill deals with broad constitutional principles it should not have been brought before this House before it had been discussed properly on a philosophical basis outside. Is that what he is trying to tell us?

Lord Brennan:

No, I was saying that this particular Bill is limited in scope which has been reasonably investigated. To extend it beyond its present scope should not take place without the kind of debate outlined by the noble Earl.

The Earl of Onslow:

I am sorry to come back to this, but the noble Lord has said that the clause is declaratory and is not supposed to be enforceable. What on earth is the point of passing laws which are not supposed to be enforced? I may not be a lawyer, but I think I understand that that is a silly way to behave.

Lord Brennan:

I had already resumed my seat and I shall remain in my place.

Lord Kingsland:

The noble Lord, Lord Brennan, said that this Bill is of limited scope; but it is described as the Constitutional Reform Bill and it seeks to enact the biggest constitutional reform of the judicial arm of our country since the Act of Settlement. I must also say that I am rather concerned about the anxiety expressed on the Government Benches about the insertion of "the rule of law" in a document which seeks to guarantee constitutional reform.

There should be nothing surprising to your Lordships' Committee about the amendments under discussion, Amendments Nos. 15 and 16A. The approach they take is entirely familiar; the wording is almost identical to the wording in the Human Rights Act 1998, which was promoted from the Government Benches under the leadership of the noble Lord, Lord Richard.

Amendment No. 15, which concerns the manner in which the courts should interpret primary legislation in the context of the independence of the judiciary and the rule of law, is simply taken from Section 3(1) of the Human Rights Act 1998. It could be cogently argued that the expression "the independence of the judiciary" is otiose because, I suspect, the 1998 Act has the effect of protecting the independence of the judiciary in exactly the same way as Amendment No. 15. So to the extent that the noble Lord is opposed to the application of Amendment No. 15 to the independence of the judiciary, he would be reneging on legislation promoted by the Government at a time when the noble Lord was the Leader of the House.

That also applies to Amendment No. 16A.

Lord Richard:

The noble Lord must not provoke me—at least not too much. I am trying to follow his argument. He said that it is not necessary because there is already law dealing with the point. In which case, why bother?

Lord Kingsland:

I said that it was arguable that it was not necessary; not that it was not necessary. The purpose of my argument was to point out to the noble Lord that, far from being a novel constitutional concept, it was introduced by his own Government at the time the noble Lord was the Leader of your Lordships' House and holding the great office of Lord Privy Seal—which, I am delighted to see, still has its usefulness today.

The same argument applies to Amendment No. 16A. The declaration of incompatibility in relation to European convention rights is contained in the Human Rights Act 1998. I repeat that I would be very surprised to discover that the independence of the judiciary was not one of the ingredients of the European convention which was protected under the 1998 Act.

So, far from being a novel concept, the independence of the judiciary as proposed in both amendments simply reiterates a right which already exists—and yet the noble Lord, Lord Richard, seems to want to repudiate it. I accept that the introduction of the rule of law is novel, but not in the sense that it is a novel way of introducing the rule of law in our constitution; it is novel because the rule of law has not yet been set out in a detailed way so as to mimic the approach that our European friends have taken under the convention.

In my submission, much of the rule of law in the United Kingdom is already reflected in the European convention. The only issues that arise are where the standards set by the European convention are not as high as the standards set under the common law. I see no difficulty in our judges developing jurisprudence to fill in those gaps; that has been the task of the common law in this country over the centuries.

I am afraid that there have been some lamentable examples recently of the Government proposing legislation in the sphere of criminal law in which many provisions fall well below the standards that, throughout the 20th century, were regarded as the rightful standards that the prosecution should meet before a conviction was obtained. I have no fear at all at the thought that our judges might continue to develop the common law jurisprudence in relation to criminal law under clauses such as those proposed to be introduced by the noble and learned Lord, Lord Lloyd of Berwick, and myself. In my view, they are excellent clauses and deserve to be taken seriously by your Lordships' House.

7.15 p.m.

Lord Falconer of Thoroton:

The noble Lord, Lord Kingsland, puts his argument clearly and defines the effect of what he is saying very well. Perhaps I may indicate, with the greatest respect, the dangers of what he is proposing.

The purpose of Clause 1 is to seek to impose upon the office holder—who is to be called the Lord Chancellor because of the vote yesterday—similar obligations within government to those of the current Lord Chancellor. Those obligations are intended to be dealt with as part of the Executive, relying upon his special role within it. There is neither a desire for nor sense in making the role subject to court enforcement. It should depend upon the way in which the office holder performs the role; if he or she performs the role badly, then the accountability should be to Parliament and not to the court, as it currently is. Indeed, that view was taken by the Lord Chief Justice in the evidence that he gave to the Select Committee.

That approach is taken because, admirable as the courts are, I do not think that in this country we want the courts to decide what the level of expenditure on police should be. Of course we do not. Nor do we want any suggestion that that kind of issue is justiciable before the courts. Nor do we want—would regard this as an unsatisfactory spectacle —the Attorney-General of the day bringing the Chancellor of the Exchequer to court because it is alleged that he infringed Clause 1(1). Merely to say that that is the position seems to me to give the absurdity to the proposal that the noble and learned Lord, Lord Lloyd of Berwick, is suggesting.

The noble Lord, Lord Crickhowell, who was a member of the Select Committee—but no worse for that—exactly identified the purpose of the amendment, which was more limited than that being advanced now—namely, it was to deal, as Lady Justice Arden said, with the possibility of inadvertent repeal or inadvertent inconsistency with Clause 1 of the Constitutional Reform Bill. That was a possibility that we all recognised, but I think I speak for the Members of the Committee when I say that we did not regard that as a particularly serious threat; we were much more concerned with the bigger issues of judicial independence and what the new office holder would do to give effect to it.

Now, instead of simply dealing with the well-defined and limited point proposed by Lady Justice Arden, the noble Lord, Lord Kingsland, suggests that we should introduce a new body of undefined law—the rule of law. We must remember that the rule of law is not an amorphous concept; it is enforced by reference to specific legal obligations. The noble Lord is saying that although a statute dealing with, for example—and he may have this in mind—previous misconduct evidence in a criminal trial might have a particular meaning now, before the clause is introduced, it could well be construed as meaning something different as a result of the effect of the reference to "the independence of the judiciary and the rule of law" in the Bill. So he is inviting the introduction of a whole new constitutional concept.

That may well be—I am fairly sure it is—what the noble and learned Lord, Lord Lloyd of Berwick, wants, but I have absolutely no doubt that that has never been debated before, a point made by the noble Lord, Lord Brennan. It is an extraordinarily wide-reaching proposal. To come to it first in a rather limited clause proposed by Lady Justice Arden, entirely sensibly, seems to me, with the greatest respect, not to be the way in which the Committee of the House should proceed.

I entirely agree with the noble Lord, Lord Brennan, that we should be very rigorous to see what will be the effects of the matters we are proposing. But the noble and learned Lord, Lord Lloyd of Berwick, seeks to go even further than that. With great respect, the noble and learned Lord has not been nearly as clear and straightforward as the noble Lord, Lord Kingsland. He wishes that acts done by a Minister, or proposals made by a Minister, or whatever Parliament does, should always be subject to the template of the rule of law or the independence of the judiciary.

For example, if a Minister were to propose that there be an ouster of judicial review in relation to immigration and asylum cases, rather than the matter being decided by Parliament, it would instead be capable of being dealt with in the courts by proceedings being brought in court, with Parliament being, in effect, denied the opportunity to debate it. Noble Lords may think that that is a good idea if they believe that the courts are the best places to test policy considerations. That is not our constitution at the moment—our constitution provides that Parliament has the opportunity to decide these matters.

So let us be under no illusion that these three amendments—I treat Amendment No. 16 as being in this group, although it is not—would have very farreaching effects. They are intended to give the courts powers that they currently do not have.

May I adopt the argument of the noble Lord, Lord Maclennan, as well? He makes two separate points—first, that the duties were intended to be declaratory only. I accept that. Secondly, this is wholly unlike the Human Rights Act, in which a similar clause compares primary or secondary legislation to a body of rights that has been developed over a long period of time, in respect of which there is a corpus of law, well defined and understandable by the courts, with a proper degree of certainty. I could think of nothing more inimical to the rule of law—and one aspect of the rule of law is certainty—than to have a transformation of the constitutional position in the way in which these three amendments propose.

I am not averse to considering how one gives effect to the very limited purpose that Lady Justice Arden proposes. But I strongly urge the Committee to resist the three Trojan horses which have been proposed, as they would have such a devastating effect on our constitution and would fundamentally shift the balance from Parliament and the executive to the courts.

Lord Lloyd of Berwick:

Before the noble and learned Lord the Lord Chancellor sits down, let us take his own example. Suppose, for example, that the Chancellor of the Exchequer were to propose to appropriate my property without compensation. Does the noble and learned Lord suggest that that ought not to be capable of being judged by the courts in a straightforward example of judicial review?

Lord Falconer of Thoroton:

Of course, and it currently is. The Human Rights Act would make that improper.

Viscount Bledisloe:

I rise to reply, as the mover of Amendment No. 15.

As the noble and learned Lord the Lord Chancellor describes it, two other Trojan horses have been coupled with Amendment No. 15. However, we must not lose sight of the fact that each amendment is separate and has a different purpose, and that they do not need to be cumulative.

Amendment No. 15 says that, wherever possible, a judge considering any Act other than this shall try to assume that that Act does not interfere with the independence of the judiciary. If, notwithstanding that effort, there is only one meaning which the judge can give to the Act that has been passed, he gives effect to it, notwithstanding the fact that it interferes with the independence of the judiciary. The amendment does not in any way require the courts to strike down anything that Parliament has said; it merely imputes to Parliament a keen desire not to interfere with the independence of the judiciary if it can.

Amendment No. 16A goes somewhat further. It says that if, notwithstanding that exercise, the court has to say that this Act has an effect on the independence of the judiciary, then it can declare so. That is a position further down the line, and it may or may not be a good proposition. But the invalidity of No. 2 does not in any way strike down No. 1. At that point, it extends even further, to Amendment No. 16 itself, which says that actions which are incompatible with the rule of law are unlawful.

It is wholly unfair to attribute to Lady Justice Arden responsibility for either Amendment No. 16 or Amendment No. 16A. The inadequacies of Amendment No. 16—

Lord Falconer of Thoroton:

I am not accusing Lady Justice Arden of any iniquity in this. Her position was completely clear throughout—it is not Lady Justice Arden I am contesting but the propositions that underlie the three amendments.

Viscount Bledisloe:

What I am objecting to is the noble and learned Lord tarring Amendment No. 15 with the same points he makes against Amendments Nos. 16 and 16A. The fact that he does not like Amendments Nos. 16 or 16A and has advanced arguments against them is no argument whatever against the validity of Amendment No. 15. That is the only point that I am making.

Secondly, I must apologise to the Committee for failing to make myself clear. I thought that I said, totally clearly, in moving Amendment No. 15 that I ignored and took out the words, and the rule of law because we have not yet got them on the face of the Bill. None the less, the speech of the noble Lord, Lord Maclennan, dealt largely with the fact that one could not have this amendment related to the rule of law. In further answer to the noble Lord, I have no interest in the geography of the proposal. If it is, as I want, put on the face of the Bill, it can be on the face of the Bill anywhere the noble Lord, as a cartographer, wishes to put it.

Lord Maclennan of Rogart:

I am grateful to the noble Viscount for giving way. I defer to his very much greater experience of following how canons of interpretation are applied by the judiciary. My failure to deal with the point he has just made—not about geography but about the effect of Amendment No. 15—was to do with the fact that it seemed otiose in that it dealt with precisely how the judiciary would address a provision that appeared to have that effect. It would follow the plain meaning but would presume that it was not Parliament's intention to repeal such an important provision of law.

Viscount Bledisloe:

I was just coming to that. I can quite see that the noble Lord, Lord Maclennan, may regard the amendment as otiose. But it seems rather surprising, if it is otiose, that it was advanced by Lady Justice Arden on behalf of the whole Judges' Council. It is sometimes the case that an Act, in its more natural interpretation, would interfere with the principle of the independence of the judiciary. Assisted by this, Lady Justice Arden and the judges appear to think that it will help them, and who are the noble Lord and I to say that it will not?

On the points made by the noble Lord, Lord Brennan, of course Clause 1 is declaratory. In it the Government set out a constitutional principle about the independence of the judiciary. The Government think that that means something, presumably. Therefore, it is not very difficult to say that the judges shall take that into account when considering statutes.

Finally, on a slightly more frivolous note, the noble Lord, Lord Brennan, raised the question of the effect of a proposal to reduce judicial salaries by 30 per cent in times of stress. Surely he is not unaware of the very important decision in the case called, I think, Board of Inland Revenue v Haddock. It decided that when such a proposal has been made, it is impossible for the judiciary to try any claim by the Inland Revenue or any other claim by a government department, because it then has a personal interest in it. That very important decision is of course only reported in Misleading Cases by AP Herbert.

Lord Falconer of Thoroton:

The issue about judicial salaries is interesting. As everyone knows, in the national emergency in the 1930s such a proposal was made. It involved all public servants including judges having their salaries reduced by a particular percentage. The judges objected on the basis that that would interfere with judicial independence. The Government refused to comply with their demands that their salary not be reduced. There was a stand-off, which lasted until an Act of Parliament was produced that would have reduced their salaries but with which the Government did not then proceed.

Viscount Bledisloe:

That is the very point that was considered in the important case of Board of Inland Revenue v Haddock. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16 to 16A not moved.]

Clause 1, as amended, agreed to.

Lord Evans of Temple Guiting:

I suggest that this may be a convenient moment for the Committee to take a break and that we resume again at 8.32 p.m.

[The Sitting was suspended from 7.32 p.m. to 8.32 p.m.]

Lord Falconer of Thoroton

moved Amendment No. 17: After Clause 1, insert the following new clause—

"GUARANTEE OF CONTINUED JUDICIAL INDEPENDENCE: NORTHERN IRELAND

(1) For section 1 of the Justice (Northern Ireland) Act 2002 (c. 26) (guarantee of continued judicial independence) substitute—

"1 GUARANTEE OF CONTINUED JUDICIAL INDEPENDENCE

1. The following persons must uphold the continued independence of the judiciary
1. the First Minister,
2. the deputy First Minister,
3. Northern Ireland Ministers, and
4. all with responsibility for matters relating to the judiciary or otherwise to the administration of justice, where that responsibility is to be discharged only in or as regards Northern Ireland.
2. The following particular duty is imposed for the purpose of upholding that independence.
3. The First Minister, the deputy First Minister and Northern Ireland Ministers must not seek to influence particular judicial decisions through any special access to the judiciary.
4. In this section "the judiciary" includes the judiciary of any of the following—
1. the Supreme Court;
2. any other court established under the law of any part of the United Kingdom;
3. any international court.
1326
5. (5) In subsection (4) "international court" means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of—
1. an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or
2. a resolution of the Security Council or General Assembly of the United Nations."

(2) In section 91(2) of that Act (extent: provisions not restricted to Northern Ireland), before paragraph (a) insert— (za) section 1,".

The noble and learned Lord

said: These amendments to the Justice (Northern Ireland) Act 2002 will ensure that the provision made by that Act in relation to the guarantee of judicial independence is consistent with the provision to be made by Clause 1 of the Bill.

Section 1 of the 2002 Act, which has not yet been commenced, already contains provisions designed to place those with responsibility for the administration of justice in Northern Ireland under a duty to uphold the continued independence of the judiciary.

In light of the provision to be made by Clause 1 of the Bill, Amendment No. 17 will substitute a new Section 1 of the Justice (Northern Ireland) Act to specify and extend the range of persons upon whom the duty is imposed. Under the new Section 1, the First Minister, the Deputy First Minister, the Northern Ireland Ministers and anyone with responsibility for the judiciary or the administration of justice specific to Northern Ireland will be subject to the duty to uphold continued judicial independence.

The new Section 1 will also provide that in upholding judicial independence, Ministers must not seek to interfere with particular judicial decisions through any special access to the judiciary.

Ministers of the Crown will be subject to the corresponding duties under Clause 1 of the Bill.

Amendment No. 17 also amends Sections 1 and 91 of the Justice (Northern Ireland) Act respectively to define the judiciary in the same terms as Clause 1 and to provide that Section 1 shall have UK-wide territorial extent. This is to ensure that the object of the duties to be imposed by Section 1 of the Justice (Northern Ireland) Act is the judiciary throughout the United Kingdom.

Finally, Amendments Nos. 99 and 100 amend the commencement provisions of the Bill to provide that the clause substituting the new Section 1 of the Justice (Northern Ireland) Act contained in the Bill may be commenced by order by the Secretary of State for Northern Ireland, in line with the commencement arrangements under the Justice (Northern Ireland) Act.

I have previously indicated to the House that I plan to bring forward amendments related to the Lord Chancellor's role in Northern Ireland. I plan to introduce such amendments on Report. I beg to move.

On Question, amendment agreed to.

Lord Campbell of Alloway

moved Amendment No. 18: After Clause 1, insert the following new clause

"LIMITATION OF THE FUNCTIONS OF THE LORD CHANCELLOR

1. The office of Lord High Chancellor of Great Britain exists only as to the functions—
1. of the constitutional role in cabinet to uphold the independence of the judiciary, the rule of law and the due administration of justice;
2. relating to the Great Seal;
3. of the parliamentary role as Speaker of the House of Lords in the interests of the self-regulation.
2. The Prime Minister must recommend to Her Majesty the appointment to the office of Lord Chancellor.
3. Save as to the exercise of the functions retained under subsection (1), the other functions of the Lord Chancellor are transferred to the Minister."

The noble Lord

said: In moving this amendment, I shall speak also to the question whether Clause 11 should stand part, which relates to the Speakership. The question whether Clause 12 should stand part, which comes further down the amendment list, has already been spoken to; that clause relates to the abolition of the office of Lord Chancellor. I shall also speak to Amendments Nos. 102 and 103, which propose relevant consequential amendments to the title.

I find myself in a little difficulty because, having attended this debate before the short adjournment, I was totally unable to understand where we were going. However, I shall do my best. I am afraid that my intellect is not capable of dealing with the situation as it now seems to be.

This is a probing amendment, which was tabled on the assumption that Amendment No. 1 might well commend itself in terms of retaining the office of Lord Chancellor. As noble Lords know—although there are not many here—I have throughout sought to retain the position of Lord Chancellor in every relevant speech that I have made in the House in the context of the passage of this Bill and the committee that reported on the Speakership.

As my noble friend Lord Kingsland said, it is not the intention to unravel the architecture of this Bill. The tripartite structure is accepted. I must try to clarify where I stand; I accept that. At this stage, the Bill as amended by the Select Committee is accepted subject to further amendment by noble Lords. I want to try to create a firm basis on which to address the House. I do not think that that has yet been totally established. The proposal will not be retabled on Report without consultation with my noble friend Lord Kingsland and without consideration of any contributions that noble Lords make in today's debate, and it will be considered in the light of any relevant amendments tabled before Report.

I have a difficulty in this regard which I hope to put shortly. I said, and I still say—I said this yesterday—that we have to retain the constitutional role of the Lord Chancellor because concepts such as the independence of the judiciary and the rule of law are not so readily defined or enforceable. I still stand by that approach. I found myself in some difficulty with the amendments that were sought to be enforced in the courts. I listened, said nothing and wondered. But you have to go one way or the other. My way—I have not had an opportunity to discuss it with my noble friend Lord Kingsland—subject to his agreement, is to assert that the Lord Chancellor shall attend in Cabinet as a legally qualified Member of this House.

Having said that, one has to note that the noble Lord, Lord Richard —who unfortunately is not in his place, but I am not going to say anything particularly unkind—said that there was no real agreement on what the Lord Chancellor was to do, what his functions were or what should be retained. I have brought the report with me in case anybody wishes to challenge that.

Amendment No. 18 proposes retention of the three functions only, all of which have been spoken to on Amendment No. 1 and require no repetition. It is on record; there is nothing more to trouble your Lordships with. As yet no other amendment concerning retained functions has been tabled. The speech of the noble and learned Lord, Lord Lloyd of Berwick, at cols. 1146–1147 of Hansard of 13 July, warrants in my respectful opinion the most serious consideration in that context, the reason being that the scope for this amendment may well be, by the will of the House, extended. It is not for me—I cannot do it—to predict what will happen between now and Report, but when this amendment is retabled, I shall have consulted with everybody and with the noble and learned Lord the Lord Chancellor, and taken into account everything that has been said and the amendments.

There is a point that I think I must take now because it could not be taken before. It is relevant to the retention of the parliamentary role of the Lord Chancellor. So, by leave—it will not take long—I should like to take it now. As regards the retention of the parliamentary role, which is part of this amendment, the Lord Chancellor shall continue to introduce legal Bills of constitutional importance, as, indeed, the noble and learned Lord is doing today, and his predecessor did on the Human Rights Act.

The Lord Chancellor participated in the concordat and the deliberations of the Select Committee, as was graciously acknowledged by the noble Lord, Lord Richard, at col. 1139. That leads one to wonder how on earth the noble Lord could have permitted himself, in the context of retained functions, to say that, we are arguing about a name and shell".—[Official Report, 13/7/04; col. 1177] It beggars belief. We are arguing about substance, and about means. If we do not have the amendments on enforcement in the courts, there is nothing else. They would be the only means of enforcement. How the matter can be treated as a sort of frippery I do not understand. All sorts of things happen in this House; there it is. 8.45 p.m.

I shall not take much more time. Proposed new subsection (1) has been spoken about. On proposed new subsection (2), it is accepted that the Lord Chancellor must be a Member of the House of Lords and legally qualified. I would go to the stake on those matters on appropriate amendments; some have already been tabled by the noble Viscount, Lord Bledisloe. Anyone plucked from the Bar, another place or wherever for that post should be granted a life peerage.

I shall move on to proposed new subsection (3). Having read with great care the contribution of the noble and learned Lord, Lord Lloyd of Berwick, I suspect that, if proposed new subsection (1) should require amendment to omit "only", extension may be needed. But we have to weight an amendment for the acceptance of the House. Then, to include functions other than only the three functions, proposed new subsection (3) would stand. On that basis, the amendment should be re-tabled after consultation with my noble friend Lord Kingsland, taking into account the matters to which I have referred—accepting that the Lord Chancellor be debarred from sitting as a judge and no longer solely responsible for selecting the judiciary, and that in principle a Judicial Appointments Commission be set up. That would leave open the questions of whether he will continue to run the courts and legal aid, and whether there would be a Supreme Court, for which I see no justification and which I shall oppose.

That is the probative basis—I hope that it is at least intelligible and straightforward—on which I beg to move.

Lord Maclennan of Rogart:

I rise to oppose the amendment. I shall not detain the House for long.

The Lord Chancellor's functions, as limited by Amendment No. 18, would leave a shadow of the present office and, curiously, retain aspects of it which might at best be regarded as an adjunct, and certainly not essential to the discharge of the role within the Cabinet of seeking to safeguard the rule of law or the independence of the judiciary.

In the Select Committee we received evidence about the Great Seal from a previous holder, the noble and learned Lord, Lord Mackay of Clashfern. There was an entertaining exchange with the present Lord Chancellor about its weight. To be candid, however, the possession of the Great Seal could scarcely be described as a "function" of the Lord Chancellor that is necessary in the 21st century.

As far as the parliamentary role of the Lord Chancellor as speaker is concerned, it may be thought that if the object is to enhance the standing of the office of Lord Chancellor, his presence at debates in this House does little towards that end. Other considerations concerned with the separation of the legislature from the executive seem to outweigh any advantage that might be gained from his sitting on the Woolsack. The first and most important operative part of the amendment— the function of seeking to, uphold the independence of the judiciary, the rule of law and the due administration of justice —covers so many uncertainties that it is doubtful that it has any administrative content at all. I am doubtful whether a Minister could sit in the Cabinet with no administrative duties and carry any weight with parliamentary colleagues.

The amendment may reflect some of the thinking that was manifested to the Select Committee by the former Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, who plainly thought it desirable that some of the administrative duties that had been added to the role of Lord Chancellor might be dispersed without loss among other members of the Government. In my judgment, however, that reflected a peculiarly apolitical view of the role. The willingness of the noble and learned Lord, Lord Mackay of Clashfern, to dispose of the duty of being responsible for the administration of legal aid, for example, suggested that he had found it an uncomfortable political task when faced with the claims of other departmental Ministers with calls upon the Exchequer. Although his personal discomfiture was understandable, if one is in charge of the administration of justice, it is not merely cognate to that to be responsible for access to justice; it is an essential part of the job. I do not believe that the recommendations of the noble and learned Lord, Lord Mackay, should carry weight with this Committee.

I hope that I have not wearied the House with those few thoughts on the amendment.

Lord Kingsland:

I thank my noble friend Lord Campbell of Alloway for tabling this amendment which he himself described as a probing amendment. I think that it is important to recall that the amendment was tabled long before yesterday's vote. Since the vote, it has become clear that the functions of the Lord Chancellor will be those that the Secretary of State for Constitutional Affairs was intended to have under the Bill. Consequently, we will have a Lord Chancellor with far more extensive responsibilities than those envisaged in the amendment of my noble friend.

I thank my noble friend for offering me the opportunity of conversations with him between now and Report stage. It may be that, in the light of those conversations, he will reconsider the type of amendment that he tables on Report. I suppose that, to some extent, that will depend upon the degree to which I am persuasive in the course of our exchanges.

It is important to recognise that the responsibilities of the Lord Chancellor, as set out in the Bill, can, and in my view should, be extended. I respectfully agree with the noble Lord, Lord Maclennan; it is hard to escape the conclusion that if the Lord Chancellor is to be responsible for the matters contained in the Bill, he should also deal with all questions concerned with access to justice. I also think that there is a powerful argument for him to remain in control of the court system. I recognise that that raises questions of public expenditure. However, those questions can, I am sure, be dealt with by the presence in another place of a suitably qualified and senior Minister of State.

The question of the responsibilities of the Lord Chancellor beyond those that I have already mentioned is naturally more controversial. The noble and learned Lord, Lord Falconer, already has a number of responsibilities which go further than the ones that I have mentioned. The degree to which those should be retained once the Bill has become an Act seems to me more perplexing.

However, I thank the noble Lord, Lord Campbell, once again for his thoughts on these matters. He was, as ever when he speaks, thought-provoking and I shall certainly think carefully about what he said over the next weeks and, indeed, because we shall soon have the summer break, months.

Lord Falconer of Thoroton:

I am very grateful to the noble Lord, Lord Kingsland, for reasserting the position that he made clear yesterday, when he said: 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 the Secretary of State for Constitutional Affairs is sufficiently powerful to carry out the tasks stipulated in the Bill for that role".—[Official Report, 13/7/04; col. 1143.] Therefore, putting aside the office-holder's title and the office which performs the functions, the position of the Opposition is that the function performed should be that of the Minister responsible for at least the judiciary-related functions and legal aid, that of the person responsible for the independence of the judiciary and the rule of law in Cabinet, and that of the person performing the Minister's function on the Minister's side of the concordat.

As I understand the position of the noble Lord, Lord Kingsland, no comment is made on the role of Speaker of the House of Lords. That is a matter for the House of Lords to decide. I agree with the noble Lord about the broad functions of the person. I do not agree with him about the title, the office or the name, but I lost in relation to that yesterday and it will be put right in another place. But as for what the office does, there is no dispute between us.

The amendment moved by the noble Lord, Lord Campbell of Alloway, proposes a role for the holder, whether he be called Lord Chancellor or otherwise, that is supremely defective in two respects. First, he proposes an office holder with no ministerial responsibility—not the head of the judiciary or a judge, yet someone who is supposed to carry the weight in Cabinet to defend the independence of the judiciary. With respect, that seems unmaintainable. Secondly, he proposes in statute that Parliament—the House of Commons and the House of Lords—should determine the position of the Speaker of this House, which is far better dealt with and, indeed, should be dealt with by this House. 9 p.m.

I hope I have made clear that I would reject quite strongly the model proposed by the noble Lord, Lord Campbell of Alloway, but further and perhaps more significant than my own objections, it would appear that the party of which he is a member and for which the noble Lord, Lord Kingsland, speaks on this occasion also profoundly disagrees with the model he proposes. I hope not just that he will withdraw the amendment on this occasion but that, in the light of what the noble Lord, Lord Kingsland, said, he will be minded not to retable it on Report.

Lord Campbell of Alloway:

I thank the noble and learned Lord for having taken the trouble to consider this matter. Certainly, whatever else I am supposed to accept, I do not accept that, because my proposals do not involve ministerial office, that detracts from the fundamental authority or concept of the Great Seal and the proximity to the Monarch and so forth. I think that we are getting bogged down in convenient but irrelevant criticism.

Certainly, I shall not come back without the assent of my own party. This is a very serious matter. It is beyond the scope of histrionics or sarcasm. It has to be treated with great seriousness and I would not presume to come back to this House without the support of my party.

I shall, of course, withdraw the amendment. I thank the noble and learned Lord and my noble friend Lord Kingsland for having spoken. However, I do not accept the suggestion that I should withdraw the amendment on any terms. The only terms are my terms. If, after consideration, my party accepts the order of functions, I shall return. If it does not I would not perhaps return at all. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 19 not moved.]

Clause 2 agreed to.

Clause 3 [Functions of the Lord Chancellor and organisation of the courts]:

Lord Falconer of Thoroton

moved Amendment No. 20: Transpose Clause 3 to after Clause 8.

The noble and learned Lord said: These are technical and drafting amendments. Before the supper adjournment the noble Viscount, Lord Bledisloe, said to me that he wanted them dealt with at a later stage so that he could have a chance to talk to my officials about them. He had useful conversations with my officials during the Select Committee. My view is that we should move them; but that my officials should speak to the noble Viscount, Lord Bledisloe, and if there are particular points where we have missed something or they could be improved, then I would undertake to come back on Report with them. I do not think that it would be a good idea not to move them at this stage, so, I am minded to move them now.

Viscount Bledisloe:

I think the noble and learned Lord has skipped a page of his brief. I thought he was speaking to Amendment No. 20, which is transposing Clause 3 to Clause 8.

Lord Falconer of Thoroton:

I am moving Amendment No. 20, which transposes Clause 3 to after Clause 8 and then there are a large number of amendments in the group. I misunderstood the noble Viscount. I thought he was saying to me before we returned that he would like to look at the long list of technical amendments. If his problem does not relate to that, noble Lords should forget what I have said. I was trying to help him.

The amendments are technical and drafting amendments, which do not affect policy. I would draw particular attention to Amendments Nos. 20 and 76. These two amendments change the ordering of what are currently Clause 3 and the accompanying Schedule 1, so that these will now follow Clause 8 and its accompanying Schedule 4. Clause 3 and Schedule I deal with the judiciary and court-related functions of the Lord Chancellor; Clause 8 and Schedule 4 deal with appointment functions. These changes are required, in part, to pave the way for the introduction of the Northern Ireland functions and to assist the manner in which we are dealing with the extent provisions of Clause 1.

The effect of these amendments is that the existing Clause 1 and its Northern Ireland counterpart will stand alone under the subtitle "Continued judicial independence". The extent of these two clauses will be the United Kingdom, but with the "carve-outs" for Scotland and Northern Ireland.

The next subtitle will be "The judiciary and courts". Counsel has advised that it would be preferable to present current Clause 8 and its schedule—appointment functions—as preliminary. Current Clause 3 and its schedule will then be presented as dealing with the consequences of current Clause 8, as well as bringing in all of the remaining judiciary and court-related functions. This is necessary because the overlap between the current Schedules 1 and 4 is becoming increasingly unsatisfactory and confusing. The extent of the clauses under this subtitle will also be the United Kingdom, other than those clauses dealing with the President of the Courts of England and Wales and the Heads of Justice, which will be limited to England and Wales.

In summary, the other amendments achieve the following. Amendments Nos. 24, 25, and 30 amend Sections 73(1) and 73(3) of the Agriculture Act 1947 and Section 6(6) of the Agriculture (Miscellaneous Provisions) Act 1954, which deal with powers to constitute agricultural land tribunals for hearings, to make provision for procedure relating to the agricultural land tribunal, and to regulate the proceedings of agricultural lands tribunals respectively. These functions are being transferred—it currently says "the Secretary of State for Constitutional Affairs", but plainly an amendment will be required in the light of the amendment yesterday.

The amendments are technical in nature and serve to remove any uncertainty arising from earlier amendments to the relevant provisions as to the effectiveness of the amendments in the Bill.

Amendment No. 32 provides for consultation with the Lord Chief Justice of Northern Ireland by, and it says, "the Secretary of State for Constitutional Affairs", but that will need to be changed to the Lord Chancellor, in performing the function of creating or altering divisions of the General Commissioners of Income Tax in Northern Ireland.

Amendments Nos. 35, 36 and 37 repeal in the body of the Bill spent provisions, which are already listed under the repeals in Schedule 17 to the Bill. Amendment No. 61 retains provisions incorrectly repealed in the Bill dealing with prescribed parliamentary procedure for statutory instruments relating to regulations made. Amendment No. 38 repeals the Lord Chancellor's functions in respect of the central office of the Supreme Court, while ensuring that the functions of the central office itself remain unaffected.

Amendments Nos. 33, 41 and 73, for consistency, replace a reference to "Secretary of State" with a reference to "Secretary of State for Constitutional Affairs" and replace references to "Lord Chief Justice" with references to "Lord Chief Justice of England and Wales". Amendment No. 64 deletes a duplication, which also contains a printing error. I beg to move.

Lord Renton:

It would be very helpful if the noble and learned Lord the Lord Chancellor could explain a little matter. In Schedule 1(5) as it now stands, on page 43, there is a reference in French, which is very unusual in describing an Act of the British Parliament—the Cestui que Vie Act 1707. As a common lawyer, I find the following provision strange: Any reference to the Lord Chancellor and keeper or commissioners for the custody of the great seal of Great Britain for the time being in section 1 of the Cestui que Vie Act 1707 is to be construed as a reference to a judge of the Chancery Division". Can the noble and learned Lord the Lord Chancellor say what that means and whether he intends to perpetuate it?

Lord Falconer of Thoroton:

I cannot tell the noble Lord what it means. I am sure that it is extraordinarily sensible to transfer the Lord Chancellor's function to a Chancery Division judge there. Cestui que Vie has some resonance with trust law but I cannot explain precisely how. I defend myself in being unable to explain it by the fact that none of my technical amendments relates to that paragraph. But I shall write to the noble Lord and explain why this—I agree, somewhat eccentric—provision appears.

Viscount Bledisloe:

There is here a whole raft of amendments to Schedule 1. The noble and learned Lord has pointed out that Schedule 1 must be amended in an enormous number of respects to change references to "the Secretary of State for Constitutional Affairs" to "the Lord Chancellor". As I understand it, his department will undertake that laborious task and bring forward all those amendments on Report.

As I understand it, these amendments further amend Schedule 1. We saw some 400 of them in the Select Committee and dealt with them in what turned out to be a very efficacious way. The noble and learned Lord very kindly made available the officials in his department, who had a mastery of the detail such as would have enabled them to answer the question of the noble Lord, Lord Renton. They explained the details of the amendments to the noble Lord, Lord Carlisle of Bucklow, and me. We were able to satisfy ourselves and the Select Committee, to which the role was delegated, on the suggestion of the noble and learned Lord, Lord Howe, to the two of us, that 99 per cent of the amendments seemed wholly acceptable.

I suggested to the noble and learned Lord that we took the same approach here. He has suggested as an alternative that we make the amendments to the Bill now; that we have such a discussion before Report; and that it is then open to us to return to any with which we are not satisfied. I confess that I find that an extremely attractive solution which would save a great deal of your Lordships' time. Speaking for myself, I would be happy to nod through all the amendments to Schedule 1 proposed today on the basis that on Report all the references to "the Secretary of State" will be changed to "the Lord Chancellor", and that it will be open to us to bring forward any individual points on which the officials cannot convince us. If that is the proposal that the noble and learned Lord makes, it is eminently satisfactory.

Lord Howe of Aberavon:

I have sat in silence for most of the day, but I wish simply to say how proud 1 feel that the precedent that I suggested in the committee of dealing with this vast raft of mysterious provisions in this informal fashion is being followed in this way. Procedure is always intended to help us and not to get in the way. I commend the wisdom of all concerned and wish them luck during the weeks ahead.

9.15 p.m.

Lord Falconer of Thoroton:

One feels more and more that the unpopularity of the Select Committee will get stronger and stronger.

Lord Kingsland:

I hope that I am correct in concluding, from what the noble Viscount has just said and from the reaction of the noble and learned Lord, that the noble and learned Lord accepts the noble Viscount's interpretation of the position and also the task of redrafting Schedule 1.

A week or two ago, we sought advice as to whether we should table our own amendments to Schedule 1 and we were advised that that would not be necessary. We are prepared to table our own amendments to Schedule 1 on Report; but if I understand the position correctly, that is now a task that the noble and learned Lord the Lord Chancellor is content to take on. If he confirms that, I am grateful to him.

Lord Falconer of Thoroton:

Yes, I do. I hope that I have made it clear that I read the Committee's decision yesterday as saying that whereas we sought to create a Secretary of State for Constitutional Affairs to perform the functions laid out for the Secretary of State for Constitutional Affairs, the Committee wished the Lord Chancellor to conduct those functions. Unless there is some extremity that I cannot work out at the moment, the consequence of that seems to be that in Schedule 1 the references to "the Secretary of State for Constitutional Affairs" should be replaced by a reference to "the Lord Chancellor".

It seems right that I should do that, on the basis that we need to work through the consequences of what was decided yesterday. I make it clear that I opposed the proposal and did not want to accept it, but that was its effect. That is what we must now help to give effect to while the Bill is in this House.

In relation to the proposal of the noble Viscount, Lord Bledisloe, that he talk with my officials—that is absolutely fine. I thought that that was what I had proposed at the beginning, all those 12 minutes ago, but he rather rudely said that I was reading the wrong bit of my notes, and I apologise for that.

On Question, amendment agreed to.

Clause 3, as amended, agreed to.

Schedule 1 [Functions of the Lord Chancellor and organisation of the courts]:

[Amendment No. 21 not moved.]

Lord Falconer of Thoroton moved Amendment No. 22: Page 45, line 24, leave out "after consulting" and insert "with the concurrence of

The noble and learned Lord

said: These amendments provide for the transfer of judiciary-related functions of the Lord Chancellor previously omitted from the Bill. They also correct inconsistencies in the transfer options to bring them fully in line with the concordat. The first group of amendments—Amendments Nos. 34, 43, 44, 46, 53, 54, 62 and 65—relate to the transfer of the Lord Chancellor's judiciary-related functions previously omitted from the Bill. These have arisen following discussions with the senior judiciary.

Amendment No. 34, for example, provides for the transfer of the Lord Chancellor's function in Section 4(3) of the Taxes Management Act 1970, which concerns the designation of another special commissioner to act as deputy presiding special commissioner. The amendment provides for the Secretary of State to exercise the function only with the concurrence of the Lord Chief Justice, the Lord President of the Court of Session, and the Lord Chief Justice of Northern Ireland. In the light of the proposal that we have agreed, perhaps I do not need to go through this. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton

moved Amendments Nos. 23 to 25: Page 45, line 25, leave out from "for" to end of line 27 and insert ""Lord Chancellor" substitute "Secretary of State for Constitutional Affairs or the Lord Chief Justice". Page 47, leave out line 33 and insert— ( ) In subsection (1) for the words before "by order" substitute "For the purposes of this section, the Secretary of State for Page 47, leave out line 36 and insert— ( ) In subsection (3) for the words before "may by order" substitute "The Secretary of

On Question, amendments agreed to.

Lord Falconer of Thoroton moved Amendment No. 26: Page 50, line 30, leave out sub-paragraph (3). The noble and learned Lord said: This amendment is in a similar category. I will not go through the detail. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 27 to 34: Page 50, line 34, leave out "this section" and insert "subsection (1) Page 50, line 37, leave out "this section" and insert "subsection (5A) Page 50, line 37, at end insert— ( ) In subsection (6) for "this section" substitute "subsection (1)". Page 50, line 41, leave out from "subsection (6)" to end of line 42 and insert "for the words before "may, by order" substitute "The Secretary of State for Constitutional Affairs". Page 51, line 38, leave out sub-paragraph (a) and insert— ( ) in paragraph (a) for the words from the beginning to "Chancellor" substitute "in paragraph 4(1) the words "after consulting the Secretary of State for Constitutional Affairs" shall be omitted, and for the reference there to the Lord Chief Justice of England and Wales and the reference to the Secretary of State for Constitutional Affairs in paragraph 4(4)"; Page 54, line 38, after "Justice" insert "of England and Wales or, in Northern Ireland, the Lord Chief Justice of Northern Ireland Page 54, line 40, after "Justice" insert "of England and Wales Page 55, line 9, at end insert— ( ) In subsection (3) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs".

On Question, amendments agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 35 to 40: Page 57, line 35, at end insert— In Schedule 10 (transitional provisions), omit paragraphs 3 and 4. Page 67, line 2, at end insert— ( ) omit paragraph (a); Page 67, line 31, after "(I)" insert "— (a) omit paragraph (a); (b)" Page 75, line 3, at end insert— For section 96 (Central Office) substitute—

"96 CENTRAL OFFICE The Central Office of the Supreme Court shall perform such business as it performed immediately before the commencement of this Act." Page 79, line 21, leave out paragraph 220 and insert— ( ) Section 36 (assignment of circuit judges to family proceedings) is amended as follows. ( ) That section becomes subsection (1) of section 36. ( ) In that subsection, for "Lord Chancellor may direct" substitute "Lord Chief Justice may, after consulting the Secretary of State for Constitutional Affairs, direct". ( ) After that subsection insert— (2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 92(4) of the Constitutional Reform Act 2004) to exercise his functions under this section." Page 79, line 27, leave out paragraphs 222 to 224.

On Question, amendments agreed to.

The Duke of Montrose moved Amendment No. 40A: Page 82, line 10, leave out "13" and insert "413

The noble Duke

said: I shall probably refrain from speaking to Amendments Nos. 40A and 41B. I gather that they can be picked up under the excuse that they relate to printing errors. Far be it from me to require the Government to accept an opposition amendment that is unnecessary.

Lord Falconer of Thoroton: Far from it. We will accept both amendments.

The Duke of Montrose:

I want to speak to Amendment No. 41A. Will the Minister explain to those of us who can, perhaps, be regarded as coming from the bush country beyond Milton Keynes why an amendment such as is contained in Schedule 1 paragraph 236(2), which refers to clauses in the Insolvency Act 1986, cannot refer to them as they stand in that Act? Are the Government proposing that the Act be reprinted? That is probably more than is required by the passing of this Bill. I beg to move.

Lord Falconer of Thoroton:

The noble Duke has identified errors, and we accept Amendments Nos. 40A and 41B. Those amendments can be made now.

Amendment No. 41A would replace a reference in paragraph 236(2) of Schedule 1 to Parts 8 to 11, written in Arabic numerals, of the Insolvency Act 1986 with a reference to Parts VIII to XI of that Act, written in Roman numerals. All references in this Bill are in Arabic numerals, rather than Roman numerals, even if they refer to older statutes printed in the latter—i.e. Roman numerals. That follows a legislative drafting convention established by the 1998 working group under the Clerk Assistant of the House of Lords that Arabic numbering should be used in statutes instead of Roman numbering. If the noble Duke has any problem with that, he should take it up with the Clerk Assistant of the House of Lords, rather than me.

I understand that my officials have discussed the convention with the noble Duke. Having given that explanation—unsatisfactory as he may regard it—I hope that he will not move Amendment No. 41A.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 41: Page 82, line 38, after "State" insert "for Constitutional Affairs

On Question, amendment agreed to.

[Amendment No. 41A not moved.]

The Duke of Montrose moved Amendment No. 41 B: Page 83, line 35, after "subsections" insert "(2),

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 42: Page 84, line 25, leave out sub-paragraph (2) and insert— ( ) For subsection (4) substitute— (4) The Secretary of State for Constitutional Affairs may, with the agreement of the Lord Chief Justice, remove any coroner from office for inability or misbehaviour. ( ) In subsection (5) for ", wilful neglect of his duty or misbehaviour in the discharge of his duty" substitute "or wilful neglect of his duty".

The noble and learned Lord

said: This group of amendments is in the same category as the earlier ones. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 43 and 44: Page 87, line 17, at end insert— ( ) Section 96 (evidence given by, or with respect to, children) is amended as follows. ( ) In subsection (3) for "Lord Chancellor may" substitute "Secretary of State for Constitutional Affairs may, with the concurrence of the Lord Chief Justice,". ( ) In subsection (5)(c) for "Lord Chancellor" substitute Secretary of State for Constitutional Affairs". Page 88, line 8, at end insert— In Schedule 14 (transitionals and savings), in paragraph 1(5) (pending proceedings) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs".

On Question, amendments agreed to.

Lord Goodhart moved Amendment No. 45: Page 89, line 8, at end insert— 269A(1) Schedule 4 (authorised bodies) is amended as follows. (2) For "Lord Chancellor" in each place substitute "Secretary of State for Justice". (3) For "each of the designated judges" in each place substitute "the Lord Chief Justice". (4) In paragraph 5 (representation by applicant)— (a) in sub-paragraph (4), for "give such advice to the Lord Chancellor as he thinks fit" substitute "notify the Secretary of State for Justice whether he concurs with the application". (b) after sub-paragraph (4) insert (5) If the Lord Chief Justice does not concur the Secretary of State for Justice shall not grant the application. (5) In paragraph 6 (decision by (Secretary of State)), in subparagraph (1) at beginning insert "If the Lord Chief Justice has concurred with the application and". (6) In paragraph 6, sub-paragraph ( I ) omit paragraph (c).

The noble Lord

said: This is a probing amendment. Schedule 1—or, at any rate, Schedule 1 as it was originally—contains an enormous number of amendments that are consequential on either the change of role or the change of name of the Lord Chancellor. So far as they simply change the name from "Lord Chancellor" to "Secretary of State for Constitutional Affairs", they will, after yesterday's vote, go into limbo. No doubt, they will, in due course, disappear from the Bill altogether. However, not all the necessary changes relating to the role of the Lord Chancellor have, in fact, been made.

In particular, the necessary changes have not been made to what I believe is a very important piece of legislation; namely, Schedule 4 to the Courts and Legal Services Act 1990. That schedule is now not in its original form, but in the form set out in Schedule 5 to the Access to Justice Act 1999, which replaced the original Schedule 4 to the 1990 Act.

Schedule 4 relates to bodies authorised to have rights of audience in the courts and rights to conduct litigation. The schedule is in four parts. Part 1 deals with the power of the Lord Chancellor to designate bodies whose members have rights of audience or rights to conduct litigation. Part 2 relates to the power of the Lord Chancellor to approve alterations of rules made by the designated bodies. Part 3 deals with the power of the Lord Chancellor to impose rule changes on the designated bodies. Part 4 contains a power for the Lord Chancellor to revoke a designation.

From that brief summary, it is obvious that those are very important powers. They were the subject of very considerable debates in the course of the passing of the Bill which became the Access to Justice Act. They are of course important because they impinge on the independence of the legal profession, which I think is nearly equal to the importance of the independence of the judiciary. I have some surprise that this had not already been dealt withor not until I raised this point at a late stage in the proceedings of the Select Committee—by the Lord Chancellor's Department.

All the relevant powers under Schedule 4 are vested in the Lord Chancellor alone. Before exercising those powers, the Lord Chancellor is required to consult a consultative panel set up under Section 18A of the 1990 Act. He is required to consult the Director-General of Fair Trading and the four designated judges; the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor. The original Schedule 4, which was replaced by the 1999 Act, gave each of the four designated judges a veto over decisions made by the Lord Chancellor. But that veto was removed in 1999 and the Lord Chancellor was left with sole decision-making powers.

The change in the role of the Lord Chancellor in particular, the fact that he is no longer a judge or head of the judiciary—makes it no longer appropriate for him to have the sole decision-making powers. Equally, it is not appropriate to transfer those powers to the Lord Chief Justice or to the judiciary as a whole. There are of course political issues involved, particularly on competition issues. Leaving Schedule 4 powers solely in the hands of the judiciary would be wrong. I believe that judges would find it difficult to overcome the sense of professional solidarity with the profession from which they have come. There is a danger that if that is left in the hands of the judiciary, there would be no sufficient consideration of the general public interest.

The best solution is to leave the powers to initiate action in the hands of the Lord Chancellor, but to require, as is done in a large number of other circumstances, the concurrence of the Lord Chief Justice. I do not think that we should go back to the original position of the 1990 Act where we had four designated judges, each with an individual power of veto. That is partly as a result of the fact that, under this Bill, the Lord Chief Justice will have a status as head of the judiciary, not just the status of one of a "gang of four", even if perhaps primus inter pares among those four.

I believe that that balance, giving the Lord Chancellor the initiative but requiring the concurrence of the Lord Chief Justice to get the balance right, is what Amendment No. 45 is intended to achieve. However, it is a sample amendment because it extends only to Part 1 of Schedule 4. However, the same principles obviously apply to Parts 2, 3 and 4. I did not feel it necessary to produce identical amendments on this occasion.

I raise this very much as a matter for discussion and I have no intention of pressing it any further on this occasion. I would be interested to hear whether the Lord Chancellor and, indeed, other noble Lords are prepared to accept this analysis and the solution I have proposed. I beg to move.

9.30 p.m.

Lord Mayhew of Twysden:

I recall, although without superb accuracy, the time when the formula which the noble Lord seeks to change was legislated; that is, the requirement of the approval or the concurrence of each of the four heads of division. At the time the profession was greatly fraught and felt very strongly about this. I am not at all sure that I am as yet persuaded by the argument put forward by the noble Lord by way of justification for removing the safeguard. I think that matters of, for example, rights of audience are of immense importance to the independence of the profession, and to the service that can be provided by it.

I would not want this matter to pass wholly without contribution from the Back Benches, which looked likely to be the case.

Lord Falconer of Thoroton:

The amendment proposes, in the context of the implementation of the concordat and Schedule 1 to the Bill, to alter the arrangements Parliament has set in place in Schedule 4 to the Courts and Legal Services Act 1990, as amended by the Access to Justice Act 1999. These arrangements relate to the consideration of applications from a body to grant its members rights of audience or rights to conduct litigation, or applications from organisations such as the Bar Council, the Law Society, the Institute of Legal Executives, the Institute of Trade Mark Agents and the Chartered Institute of Patent Agents for approval of changes to their qualification regulations or rules of conduct.

As noble Lords are aware, last July I announced a review of the framework of legal services regulation which is being led by Sir David Clementi. I gave Sir David wide terms of reference. He is looking at the whole regulatory framework and the role and responsibilities within it. The consultation paper issued by his review team earlier this year asked questions about regulatory models and, specifically, about a regulator and the role of the judiciary. The team is analysing the responses to that consultation exercise now and Sir David is due to report to me at the end of the year.

I said at the time, and I think that this is right, that I do not intend to alter the existing arrangements further until I have received his report. When I have considered his recommendations I shall report to your Lordships' House. I do not wish his review to be undermined by any attempt to make new arrangements within the overall existing regulatory structure.

I turn now to the detail of the amendment. When drafting the amendment, it appears that the noble Lord was not aware that the Lord Chancellor's functions under Schedule 4 to the Courts and Legal Services Act 1990 had already been transferred to the Secretary of State for Constitutional Affairs by a transfer of functions order laid before Parliament on 29 July last year. But it is not for that reason alone that I will ask the noble Lord to withdraw this amendment.

The amendment seeks to transfer functions from the Lord Chancellor to a "Secretary of State for Justice", which is a detail we do not need to deal with at this point. It would replace the arrangements under which the Secretary of State receives advice and applications from each of the designated senior judges with an arrangement under which he would receive the view of the Lord Chief Justice only. This would mean that the Lord Chief Justice alone must consider the application and the advice of the Legal Services Consultative Panel and that of the Office of Fair Trading before providing his advice to the Secretary of State or the Lord Chancellor. The proposed amendment does not allow the Lord Chief Justice to delegate this function to any other senior judge. Given that applications for rights of audience and rights to conduct litigation can be several hundred pages long, it is unlikely that the Lord Chief Justice alone would be able to give the attention necessary to determine if the application should be accepted without introducing considerable delay into the process. That would be neither in the interests of the legal profession nor that of the public.

The designated judges—this reflects the point made by the noble and learned Lord, Lord Mayhew—bring a range of experience and expertise and have, on occasions, brought a range of views for the Secretary of State to consider. Losing this breadth of experience would not be in the interests of the public, who are most affected by changes to the professions' rules. For that reason, too, I would ask the noble Lord to withdraw the amendment.

The effect of the amendment is also to constrain the freedom Parliament has given the Secretary of State to act once he has received the advice of the Lord Chief Justice.

I fully accept, as the noble Lord, Lord Goodhart, said, that these are very important issues, but, in a sense, they arise only by a side wind as a result of the Bill. I said to the noble Lord at the end of the Select Committee that I thought these kinds of matters should be transferred to the Lord Chief Justice. I was plainly wrong. My point is basically to let them stay where they are in the broad architecture until we hear what Clementi has to say. In those circumstances, I hope that the noble Lord will withdraw the amendment.

Lord Goodhart:

I shall start by dealing with the point made by the noble and learned Lord, Lord Mayhew of Twysden, who I think misunderstood the point I was making. The protection that was given by each of the four designated judges having a veto would not be removed by my amendment; it was removed by the Access to Justice Act 1999, at a time when I myself took part in the debate and objected to the removal of that protection.

The effect of my amendment would be to restore that protection to a considerable extent by giving a veto not to each of the four designated judges but to the Lord Chief Justice alone. That is a reasonable move because having four judges each with an individual veto was unsatisfactory. The result of that was that any one of the four could have vetoed a change in the rules which was entirely acceptable to the other three designated judges. Giving the veto to one judge, who is now formally recognised as the official head of the judiciary, is a reasonable step to take.

I am somewhat disappointed by the reply of the noble and learned Lord the Lord Chancellor. I am concerned about leaving the position of the professional bodies unprotected when so many other aspects will be protected by requiring the concurrence of the Lord Chief Justice—for instance, in the disciplinary role up until now exercised by the Lord Chancellor. If this issue is left over to be dealt with in response to the Clementi report, it seems to me that we are very unlikely to have anything incorporated in this Bill. Therefore it follows that further primary legislation is likely to be needed to amend Schedule 4. Given the changed role of the Lord Chancellor, it is a matter of importance that he should not be in a position to impose his own will on the professional bodies which are subject to Schedule 4 to the 1990 Act. It would be appropriate to put into the Bill now a provision that changes can be made only with the concurrence of the Lord Chief Justice.

I would have no objection to rephrasing the amendment—I accept that there are other respects in which it needs to be amended—in a way which would enable further appropriate changes to be made by statutory instrument under the affirmative resolution procedure once Clementi has reported.

However, I would be very unhappy about the idea that the Bill would become law with no further protection given to the professional bodies because, as I said, the independence of the legal profession is very nearly as important as that of the judiciary. Having said that, as I said earlier, I will ask for the leave of the Committee to withdraw the amendment, but I may come back with a further amendment in a somewhat different form to take up the points made by the noble and learned Lord the Lord Chancellor today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendments Nos. 46 to 75: Page 89, line 43, at end insert— ( ) Section 45 (jurisdiction of courts in certain proceedings under this Act) is amended as follows. ( ) In subsections (1) and (6) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs". ( ) After subsection (7) insert— (8) The functions conferred on the Secretary of State for Constitutional Affairs by this section may be exercised only after consultation with the Lord Chief Justice. (9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 92(4) of the Constitutional Reform Act 2004) to exercise his functions under this section." Page 90, leave out lines 8 to 14 and insert— (3A) The Secretary of State for Constitutional Affairs may remove a Child Support Commissioner under sub-paragraph (3) only with the concurrence of (a) the Lord Chief Justice of England and Wales, and (b) the Lord President of the Court of Session." Page 91, line 34, leave out paragraph 286 and insert— In section 13 (power to apply Act to additional tribunals and to repeal or amend certain provisions), for "Lord Chancellor" in each place substitute "Secretary of State for Constitutional Affairs". Page 92, line 21, at end insert— ( ) For "appropriate minister" in each place substitute "appropriate person". Page 92, line 22, leave out sub-paragraph (2). Page 92, line 28, at end insert— ( ) In subsection (12), after the definition of "appointed day" insert— "the appropriate person" means—

1. the appropriate Minister in a case which falls within paragraph (a) of the definition of the expression in section 30;
2. in any other case, the Lord Chief Justice of England and Wales;"."

Page 92, line 30, after "(13)" insert "Where the Lord Chief Justice is the appropriate person, he must obtain the concurrence of the Secretary of State for Constitutional Affairs before exercising any functions under this section. (14)" Page 93, line 30, at end insert— 300A The Value Added Tax Act 1994 is amended as follows. 300B(1) Section 86 (appeals to the Court of Appeal) is amended as follows. (2) In subsection (1) for "Lord Chancellor may" substitute "Secretary of State for Constitutional Affairs may, after consulting the Lord Chief Justice of England and Wales,". (3) After subsection (2) insert— (2A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 92 of the Constitutional Reform Act 2004) to exercise his functions under this section. 300C In section 97 (orders, rules and regulations), in subsection (1) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs". Page 93, line 31, leave out "to the Value Added Tax Act 1994" Page 95, line 31, leave out sub-paragraph (4) and insert— ( ) In subsection (3) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs". Page 95, line 33, leave out "under" and insert "by the preceding provisions of Page 95, line 35, at end insert— ( ) The functions conferred on the Secretary of State for Constitutional Affairs by subsection (3) may be exercised only after consultation with the Lord Chief Justice. Page 97, line 35, leave out "with the concurrence of" and insert "after consulting Page 98, line 30, at end insert— "Deregulation ( Model Appeal Provisions) Order 1996 (S.I. 1996/1678) (1) The Schedule (model rules for appeals) to the Deregulation (Model Appeal Provisions) Order 1996 is amended as follows. (2) In paragraph 6(3)(b) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs". (3) After paragraph 6(3) insert— (3A) The Secretary of State for Constitutional Affairs may exercise his power under sub-paragraph (3) to remove a person appointed to the panel of chairmen for England and Wales only with the concurrence of the Lord Chief Justice.". Page 100, line 36, leave out paragraph 332 and insert— ( ) Section 6 (Civil Justice Council) is amended as follows. ( ) In subsection (1) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs". ( ) After subsection (2) insert— (2A) The Secretary of State for Constitutional Affairs must decide the following questions— (a) how many members of the Council are to be drawn from each of the groups mentioned in subsection (2); (b) how many other members the Council is to have. (2B) It is for— (a) the Lord Chief Justice to appoint members of the judiciary to the Council; (b) the Secretary of State for Constitutional Affairs to appoint other persons to the Council. ( ) In subsections (3) and (4) for "Lord Chancellor" in each place substitute "Secretary of State for Constitutional Affairs". ( ) After subsection (4) insert— (5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 92 of the Constitutional Reform Act 2004) to exercise his functions under this section." Page 101, line 41, leave out "omit subsection (3)" and insert ", in subsection (3)(a) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs under a power conferred on him Page 103, line 15, at end insert— ( ) Section 10 (appeals against parenting orders) is amended as follows. ( ) In subsection (6) for "Lord Chancellor may" substitute "Secretary of State for Constitutional Affairs may, with the concurrence of the Lord Chief Justice,". ( ) After subsection (7) insert— (8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 92 of the Constitutional Reform Act 2004) to exercise his functions under this section." Page 110, line 14, at end insert— Employment Tribunals ( Constitution and Rules of Procedure) Regulations 2001(S.I. 2001/1171) (1) The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 are amended as follows. (2) In regulation 3 (President of Employment Tribunals)— (a) in paragraph (2) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs"; (b) in paragraph (4) for "Lord Chancellor" in the first place substitute "Secretary of State for Constitutional Affairs" and for "Lord Chancellor may" substitute "Secretary of State for Constitutional Affairs may, with the concurrence of the Lord Chief Justice,"; (c) in paragraph (5) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs". (3) In regulation 5 (panels of members of tribunals), in paragraph (2) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs". Page 111, line 8, leave out paragraph 391. Page 114, line 11, at end insert— In section 3 (provision of accommodation) for "Lord Chancellor" in each place substitute "Secretary of State for Constitutional Affairs". Page 121, line 32, before second "subsection" insert "under Page 121, line 44, leave out paragraph (b) and insert— (b) in paragraph (a) for "Lord Chancellor" substitute "Secretary of State or Lord Chief Justice". Page 122, line 3, at end insert— ( ) In subsection (2) for "Lord Chancellor" substitute "Secretary of State". Page 126, line 21, leave out sub-paragraphs (1) to (3) and insert— (1) This Part of this Schedule contains amendments of or relating to enactments that have already been amended or repealed by provisions of other Acts. (2) In each case the amending or repealing provision is specified, in relation to the enactment referred to, as the "original amending provision". (3) An amendment contained in any provision of this Part of this Schedule has effect only until the original amending provision comes fully into force in relation to the enactment referred to in that provision of this Part of this Schedule. Page 129, line 27, leave out sub-paragraph (ii). Page 129, line 28, leave out from "for" to end of line 29 and insert "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs". Page 129, leave out line 30 and insert"— ( ) After subsection (3) insert— (4) The Secretary of State for Constitutional Affairs may exercise his functions under subsection (2)(b) only with the concurrence of all of the following— (a) the Lord Chief Justice of England and Wales; (b) the Lord President of the Court of Session; (c) the Lord Chief Justice of Northern Ireland. Page 129, line 31, after "Justice" insert "of England and Wales Page 130, line 23, leave out ", after consulting" and insert "with the concurrence of Page 131, line 40, at end insert— "Matrimonial and Family Proceedings Act 1984 (c. 42) 484A The Matrimonial and Family Proceedings Act 1984 is amended as follows. 484B (1) Section 40 (family proceedings rules) is amended as follows. (2) In subsection (1) (a) for "by the Lord Chancellor together with any four or more of the following persons, namely—" substitute "by a committee known as the Family Proceedings Rule Committee, which is to consist of the following persons—"; (b) before paragraph (a) insert— (za) the Lord Chief Justice,". (3) For subsection (3) substitute— (3) The members of the Family Proceedings Rule Committee, other than those eligible to act by virtue of their office, are appointed under subsection (3ZA) or (3ZB). (3ZA) The Lord Chief Justice must appoint the persons referred to in paragraphs (b), (c) (d) and (e) of subsection (1), after consulting the Secretary of State. (3ZB) The Secretary of State must appoint the persons referred to in paragraphs (f) and (g) of subsection (1), after consulting the Lord Chief Justice. (3ZC) A person is to be appointed under subsection (3) or (4) for such period as the Secretary of State determines after consulting the Lord Chief Justice. (4) After subsection (4) insert— (4A) In this section "Secretary of State" means the Secretary of State for Constitutional Affairs. (5) Omit subsection (5). (6) In relation to the enactment referred to in this paragraph, the original amending provision is paragraph 278(a) of the Courts Act 2003. 484C (1) After section 40 insert—

"40A PROCESS FOR MAKING RULES OF COURT UNDER SECTION 40 (1) Family proceedings rules must be (a) signed by a majority of the members of the Family Proceedings Rule Committee, and (b) submitted to the Secretary of State. (2) The Secretary of State may allow or disallow rules so made. (3) If the Secretary of State disallows rules, he must give the Committee written reasons for doing so. (4) Rules so made and allowed by the Secretary of State— (a) come into force on such day as the Secretary of State directs, and (b) are to be contained in a statutory instrument to which the Statutory Instruments Act 1946 applies as if the instrument contained rules made by a Minister of the Crown. (5) A statutory instrument containing Family Proceedings rules is subject to annulment in pursuance of a resolution of either House of Parliament. (6) In this section and section 40B— Family Proceedings rules" means rules of court made under section 40; Secretary of State" means the Secretary of State for Constitutional Affairs.

40B RULES TO BE MADE IF REQUIRED BY SECRETARY OF STATE (1) This section applies if the Secretary of State gives the Family Proceedings Rule Committee written notice that he thinks it is expedient for Family Proceedings rules to include provision that would achieve a purpose specified in the notice. (2) The Committee must make such Family Proceedings rules as it considers necessary to achieve the specified purpose. (3) Those rules must be— (a) made within a reasonable period after the Secretary of State gives notice to the Committee; (b) made in accordance with section 40A. (2) The enactment referred to in this paragraph, for the purposes of paragraph 464(3), is section 40 of the Matrimonial Proceedings Act 1984, and in relation to that enactment the original amending provision is paragraph 278(a) of the Courts Act 2003. 484D (1) In section 41 (fees in family proceedings) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs". (2) In relation to the enactment referred to in this paragraph, the original amending provision is paragraph 278(a) of the Courts Act 2003.

On Question, amendments agreed to. Schedule 1 as amended, agreed to.

Lord Falconer of Thoroton

moved Amendment No. 76: Transpose Schedule I to after Schedule 4.

On Question, amendment agreed to.

Clauses 4 to 6 agreed to.

Lord Grocott:

I beg to move that the House do now resume. Moved accordingly, and, on Question, Motion agreed to.

House resumed.