House of Commons
Tuesday 1 March 2005
The House met at half-past Eleven o'clock
Prayers
Mr Speaker in the Chair
Private Business
London Local Authorities and Transport for London Bill (By Order)
Order for Second Reading read. To be read a Second time on Tuesday 8 March.
Oral Answers to Questions
Foreign and Commonwealth Office
The Secretary of State was asked—
Iran
I have no immediate plans to visit Tehran. The Government continue to urge Iran to comply with its international obligations. I discussed Iran's responsibilities under the nuclear non-proliferation treaty with Dr. Hassan Rouhani, the secretary-general of Iran's supreme national security council, on 13 December. The Under-Secretary of State for Foreign and Commonwealth Affairs, my hon. Friend the Member for Harlow (Mr. Rammell), raised Iranian adherence to international human rights treaties with the Iranian ambassador on 7 February.
I thank my right hon. Friend for that answer, although I am disappointed that he is not going to visit Tehran before the general election. I remind him—he well knows this—that the Government's annual human rights report for 2004 shows continuing deterioration in the human rights conditions in Iran. The rights of religious minorities, especially the Baha'i, continue not to be respected.
The United Nations rapporteur's report on freedom of expression from more than a year ago has still not been implemented. The July visit of the UN rapporteur on enforced disappearance had been cancelled and no new time arranged. In 2003 there were more than 100 public executions—
Order. The question is far too long.
I wonder if I could correct my hon. Friend the Member for Bridgend (Mr. Griffiths) in one respect: there is to be no general election in Iran in the near future, but there will be presidential elections on 17 June. It remains to be seen whether I can get there before then. I am sure that that was what he had in mind.
My hon. Friend raised an important and serious point about Iran's human rights record, which has been poor in a number of significant respects—it has gone backwards, not forwards. We continue to raise the issue in every way, including through negotiations following the Paris agreement in mid-November and the agreement between the three Foreign Ministers and Dr. Rouhani in mid-December.
I am grateful for what the Foreign Secretary said about human rights issues. Can he confirm that although the Christian faiths enjoy recognition in Iran at least nominally—there is massive discrimination against Christian churches—the Baha'i faith enjoys no such recognition, with particularly important implications for access to higher education, for example. Will he raise that point with the Iranian ambassador?
I can confirm that I shall raise that point, not only with the Iranian ambassador but with the Iranian Foreign Minister when I next see him.
In a week when the new Iranian ambassador is going on Wednesday, Thursday and Friday to Scotland, at the beginning of his ambassadorship, basically on good will, does the Foreign Secretary accept that in Scotland the Iranian ambassador will be warmly received by the university of Edinburgh and others, and that there are many people with connections with Iran who want better relations with Iran?
Yes, I do and I know—in fact, I have just learned and should have known before—that my hon. Friend is rector of one of the oldest universities in the United Kingdom. I appreciate the work of the new Iranian ambassador. We have diplomatic relations with Iran and we wish to see them improved. I hope that my hon. Friend and all those whom the new ambassador meets in Scotland will not only pass back, through His Excellency the ambassador, the United Kingdom's desire further to strengthen relations with Iran in every particular, but say that, in addition to the nuclear dossier, it is the Iranian regime's human rights record that is a serious bar to significant improvement in those relations.
Would it not be easier for the Government to persuade the Iranians to go along with them if American troops were not providing protection for the Mujaheddin-e-Khalq terrorist organisation, at Camp Ashraf in Iraq? We should bear in mind that the MKO is a proscribed terrorist organisation with an appalling record of killing individuals in Iran.
The MEK is a proscribed organisation; indeed, as Home Secretary I proscribed it in the first batch of proscriptions following the Terrorism Act 2000. There are changes in the position of MEK and I should be happy to brief the hon. Gentleman in detail about that. There has been more co-operation, as I think he may have been informed, between the coalition forces in Iraq and the Government of Iran in respect of MEK, which is a nasty terrorist organisation that has to be contained.
European Constitution
The text of the EU constitutional treaty has been agreed by the Heads of State and Government of all EU member states. It is now being approved, according to the constitutional requirements of each member state. The text of the treaty can be amended only by an intergovernmental conference. No such IGC is in prospect.
Given that the Government have signed all six European Union asylum directives, will the common asylum policy prescribed by the treaty become mandatory for us, or will there still be scope for us to opt out of it?
Of course we have an opt-out on the application of that part of the treaty. I believe that the directives to which the hon. Gentleman refers allow the United Kingdom, for the first time, to send so-called asylum shoppers back to other EU member states, and about 200 are being sent back each month. That is something achieved by this Government after the utter failure of the Conservative party, which left us with the whole problem of Sangatte. Without that co-operation in Europe, we would be much worse off.
Do we not now have something of a pick-and-mix European Union? Would it not have been easier to disaggregate the treaty before now, specifically taking out all the components relating to the eurozone? Given that only a minority of member states belong to the eurozone, would that not have made my hon. Friend's campaign for a yes vote easier?
My campaign to ensure that Britain does not isolate itself by repudiating the treaty would be made a lot easier if my hon. Friend supported me occasionally.
The treaty contains references to enhanced co-operation within a framework of rules. I thought that that was once the policy of the Conservatives, but they are now going so fanatically down the Rothermere road of rejecting Europe and reverting to the isolationism of the 1930s that there is no hope of support from them. I hope that my hon. Friend and I will be on the same platform when this big question is debated next year.
Does the Minister accept that at present, but only at present, it is open to Parliament to ensure that it retains its right to legislate on its own terms—subject, of course, to the question of a referendum? Does he accept that that is because the new treaty revokes all the existing treaties and laws and reapplies them under the primacy of the constitution and under a new jurisdiction of the European Court of Justice? Does he accept that that is not the original primacy of 1972, and that we now face a fundamental change? That is why the Government have now had to accept a referendum. The new primacy undermines the supremacy of Parliament, and is the real reason why a referendum became essential.
I warmly welcome the hon. Gentleman's contribution. It is an important and refreshing change for him to admit that the primacy of the European Court of Justice was established in 1972, after a lengthy debate in the House. It is very helpful of him to reaffirm that.
I remind the hon. Gentleman—perhaps you could remind all Members, Mr. Speaker—that this House is supreme. We could leave Europe, and we could revoke treaties when we want to. I very much doubt that that would be good for Britain, for British business and for British jobs, but it will be tested in the general election, in the House when we finally debate the Bill, and of course in a referendum, when the British people will not follow the isolationist passions of the hon. Gentleman and his party.
We know the real reason why the Government agreed to a referendum, and we know of the rather colourful advice that the Minister gave the Foreign Secretary, because he has put it on record elsewhere.
Last week the German Europe Minister described the EU constitution as the "birth certificate" of a united states of Europe. That contrasts starkly with the claim of Ministers here that it is a simple codification of existing treaties. Does the Minister understand that most British people now think the Government are being dishonest about the constitution? If he is serious about wanting a debate on Europe so that he can put his case, why has the European Union Bill had no Committee stage? Will there be a Committee stage before Easter, or was the Second Reading three weeks ago just a cynical ploy?
The Conservatives insisted that we bring the treaty and the referendum to the House in the form of a Bill. We have discharged that duty; now what the Conservatives requested over a long period has become "a cynical ploy".
I read the account in the Daily Mail of the German Europe Minister's speech in the Bundestag. I was amused to read today that in the 1930s Lord Rothermere was writing letters to Adolf Hitler telling him to invade Romania and make one of his sons King of Hungary. At that time, the Daily Mail loved Nazi Germany; today, it hates democratic Germany. Mr. Bury has said time and again that he wants a Europe of states and citizens, and the idea that anyone in Germany wants to be run from Brussels any more than we do is ganz Unsinn—complete and utter nonsense.
Zimbabwe
I summoned the Zimbabwe ambassador on 22 February to object strongly to the continued intimidation of the media and Opposition. I made it clear that we wanted to see free and fair elections, and that these developments augured badly. We had a robust exchange.
I am pleased that the Minister is making some representations, because I have yet to see anything seriously tangible to suggest that the elections in Zimbabwe will be fair. In the past two years, four newspapers have closed down and a new law has been proposed to attack civil society, in contravention of agreements at African level that civil society is important to democratic elections. Given the resources that were mobilised in Iraq to ensure that the democratic voice of the people was heard, what similar forces will be deployed to ensure that all those in Zimbabwe have their say in their general election?
No, we are not going to invade Zimbabwe. Indeed, the right hon. and learned Member for Devizes (Mr. Ancram) ruled that out some time ago. I agree with most of what the right hon. Member for Fylde (Mr. Jack) had to say, however. We see no sign that Zimbabwe is preparing for a fair election. As in the past, the electoral register contains thousands of ghost voters, while many people who are entitled to vote have been left off it. The registrar general is refusing to provide the Opposition with an electronic version of the register that can be checked. Journalists are being harassed, independent newspapers suppressed and opposition meetings broken up. As I say, we see no sign that Zimbabwe is preparing for a free election. We are watching closely and we shall not hesitate to share what we find with the right hon. Gentleman and the wider world.
The British Government have been in the lead in expressing opposition to Mr. Mugabe's regime, but does my hon. Friend agree that if we really want to influence events in Zimbabwe, it is important for us to work with other Commonwealth and African countries? It would have a much greater impact on events if we worked in common with others, instead of appearing to be the old colonial power acting on its own.
My hon. Friend is absolutely right. His words are very wise, and Opposition Members would be wise to heed them. In the past month, we have succeeded in persuading the European Union to roll over the sanctions against Zimbabwe for a further 12 months. I wonder whether a Tory Government, with their policy of isolation in Europe, could have persuaded the other 24 members of the EU to achieve a similar result. I somehow doubt it.
Have this Labour Government explained to Mr. Mugabe the splendid opportunities for electoral fraud offered by the widespread introduction of postal voting?
No, we have not. When it comes to electoral fraud, there is not a lot we can teach Mr. Mugabe.
As my hon. Friend knows, the Inter-Parliamentary Union human rights commission has met representatives of the Zimbabwe Government on several occasions to discuss the imprisonment and harassment of many existing Members of Parliament in Zimbabwe. Will my hon. Friend tell us in what conditions Mr. Roy Bennett and other Members of Parliament in Zimbabwe are now being held? The last account that we had was that they were pretty dire, and I wonder whether he has had any further news on the situation.
I have no up-to-date information about the prison conditions of Mr. Roy Bennett. He is in prison and has been barred from standing again in the election. As far as I know, he is the only serving Member of Parliament to be imprisoned in Zimbabwe. My hon. Friend might be interested to know that his wife proposes to stand in his place.
The EU's decision is welcome, but has the Minister had any consultation with other African countries to see whether they are in a position to observe the election, and whether they are in a position even now to see what is happening, as it is close to the day of the election?
That is an important point. There is a lot that other African countries can do. We are looking in particular for the Southern African Development Community delegation to observe the credibility of the election. That will be a test of the credibility of SADC as well as that of the Zimbabwe Government. SADC has laid down some clear guidelines, and we hope that it will insist on those being adhered to. It is also important that election monitors examine the entire process, not just the event on the day, so that they can take account of whether circumstances exist in Zimbabwe for a free election to be held. As I said, that is a test of SADC's credibility as much as of that of the Government of Zimbabwe.
Given the Foreign Secretary's vocal support for democratic elections in Iraq and Ukraine, what is the reason for his deafening silence on Zimbabwe's coming election? With opposition candidates being beaten up, newspapers banned and politicians rather than judges imprisoning political opponents such as Roy Bennett, quiet diplomacy and quiet words with the high commissioner for Zimbabwe are simply not enough. What will the Government do to protect the democratic rights of the people of Zimbabwe from Mugabe's tyranny? Will Mugabe once again, for the third time under this Government's watch, be allowed to laugh in the face of democracy while this Government walk by on the other side?
We are always in the market for constructive suggestions, but we do not hear many from the right hon. and learned Gentleman and his hon. Friends. All that we hear is a great deal of huffing and puffing, which will not make the slightest difference—indeed, it plays straight into Mr. Mugabe's hands, as one of the planks of his electoral platform is that the opposition in Zimbabwe are British stooges. Of course that is not the case, but every time the right hon. and learned Gentleman and his hon. Friends start making their mouths go, it rather gives that impression. He is well aware that we have not been at all silent on what is going on in Zimbabwe. The hon. Member for Altrincham and Sale, West (Mr. Brady) asks what we have achieved. One thing is the rollover for another 12 months of European Union sanctions. As he knows, we have also played a leading part in trying to get the United Nations interested in what happens in Zimbabwe.[Interruption.]
Iran (Nuclear Programmes)
The aim of the work undertaken by the French and German Foreign Ministers and by me, since summer 2003, has been to ensure that Iran's nuclear programmes are for peaceful purposes only. Following the November 2004 Paris agreement, senior officials are now involved in detailed negotiations to pin down objective guarantees about Iran's nuclear activities and in respect of technological and economic co-operation and political and security issues.
I am grateful for the Foreign Secretary's statements. Both sides of the House will agree about the undesirability of Iran obtaining a nuclear weapons capability. Certainly, we support the diplomatic efforts of the United Kingdom, France and Germany in seeking to prevent that from happening. Is he alarmed, however, that as yet it does not appear that the International Atomic Energy Agency is getting unfettered access to all potential nuclear sites? Does he agree that that must put in jeopardy the closer economic ties that we all want?
As I understand it, the access of the IAEA to Iran's nuclear sites has generally been satisfactory, but in some cases it has not been. Iran is required to comply with the terms of the nuclear non-proliferation treaty and its own safeguards agreement with the IAEA. It has also signed but not yet ratified the additional protocol that requires extra inspections. Whether Iran gives proper access to the IAEA will most certainly be one of the factors that the agency's board of governors will weigh in the balance when it comes to consider its next steps.
May I congratulate my right hon. Friend on his role in pushing forward these important talks, as there is no doubt that a nuclear-armed Iran would be a driver of nuclear proliferation throughout the region? However, does he accept that Iran has legitimate security concerns? It has nuclear neighbours within the region and faces a potential conventional threat from those on its own borders. Within that context, would not it make sense to bring together the international community to say that some form of security guarantee was needed for Iran within a stabilised region? Obviously, Iran would have to be a player within that security framework, but security guarantees might help to ease the pressures that Iran itself faces.
Iran, like any other nation in the region, has security concerns, but none of its concerns—I am pleased to hear my hon. Friend endorse this—would justify its acquisition of nuclear weapons, which would make the security of the whole region, including Iran, significantly worse, not better. We accept its security interests; security has been one of the aspects of the discussions that have followed the Paris agreement in November and of the discussions that the three Foreign Ministers, including myself, had with Dr. Rouhani in December. But Iran has to take steps itself, and one of the most important that it could take to improve the security of the whole region would be to accept a two-state solution in respect of Israel and Palestine and to acknowledge Israel's right to exist, as required by UN Security Council resolutions.
With the Israelis alleging that the Iranians will have a nuclear weapon within six months, the situation is clearly getting serious. I accept the Foreign Secretary's assertion that verification is key, but does he accept that it is not just the E3 who must be satisfied with verification, but the United States?
I have seen these reports, but not their provenance. Our discussions with the Iranians are based on their failure to make disclosures in accordance with their safeguards agreement under the non-proliferation treaty. That has been well recorded, including in a Command Paper that I presented to the House, and is based on suspicions about the dual use of Iran's nuclear activities. There is no concrete evidence that Iran is developing nuclear weapons; let me make that clear to the House. I accept that in addition to the E3—France, Germany and the United Kingdom—we must involve all the other partner members of the IAEA board of governors, including the Russian Federation, whose Foreign Minister I met this morning, and especially the United States, whose Secretary of State I shall be seeing this afternoon.
Does the Secretary of State accept that the Government will be guilty of double standards if we continue to lecture Iran on meeting its obligations under the non-proliferation treaty while failing to meet our own obligations, particularly article 6, under which we are committed to negotiate away—in good faith and at an early date—our nuclear weapons, something we are failing to do?
I do not accept what my hon. Friend says; the factual basis of his question is simply wrong. Under article 2 of the non-proliferation treaty, we are allowed to hold nuclear weapons. That applies to all five permanent members of the Security Council as so-called "nuclear weapons states", in contrast to all others, who are categorised under article 4 as "non-nuclear weapons states". Moreover, there is a requirement for gradual but multilateral progress towards full-scale nuclear disarmament. We have taken more steps than any of the other permanent members of the Security Council. We are also involved in constructive discussions on the forthcoming review conference on the non-proliferation treaty.
My right hon. Friend's role, together with his two European counterparts, in the delicate negotiations with Iran over non-proliferation deserve full support. Does he welcome the evidence that the Bush Administration are becoming more supportive? Does he agree that it would be helpful if they considered supporting any positive incentives that Europe might offer to Iran?
I am grateful to my hon. Friend for his opening comments. Let me make it clear that we have worked closely from the very start with the United States Administration, who have a key interest in this issue. The US is a permanent member of the Security Council, as are we, and at each stage it has actively backed the resolutions passed unanimously by the IAEA board of governors. I look forward to the collaboration and co-operation with the US Government in respect of Iran—as in respect of so many other issues—continuing.
European Constitution (Spanish Referendum)
The EU constitutional treaty is good for Britain and for the rest of Europe. While referendums are of course a matter for each individual state, we are pleased that Spain has approved the treaty in its referendum.
I thank the Minister for that reply, but does he agree that one lesson to be learned from the referendum campaign in Spain is that if any Government—including this one—take a decisive lead in arguing for a yes vote, a yes vote will be secured? Is he also aware that St. David was a good European?
My hon. Friend is wearing proudly on St. David's day the sign of the leek—[Interruption.] I meant to say the daffodil. All the founding members of the great kingdoms of the United Kingdom were fine Europeans and he is right: it is for the Government of the day to take a lead on this issue. No sensible British citizen, business or voluntary organisation that reads this short but powerfully written treaty will want to do anything other than endorse it wholeheartedly.
The Minister for Europe will recall that when the previous Conservative Government signed the Maastricht treaty, qualified majority voting was extended in a number of areas, as will be the case under this constitution. An analysis of the votes on the European Council shows that whenever that method is used, Britain is almost always on the winning side. Does he not agree that the extension of QMV is fully in line with Britain's reform agenda—as he pointed out in Sheffield's The Star last Saturday and in Le Figaro yesterday—and that it is extremely important that we make sure that that agenda is also part of Europe's reform agenda?
If I may return from that fine European flower the daffodil, my hon. Friend is of course right: the substantive move to QMV happened under the Single European Act. Not a single part of this now open market of 450 million people buying British goods and services would have been possible without the very significant move to QMV that former Prime Minister Lady Thatcher initiated. Of course, the other big shift happened under the Maastricht treaty. It is a sign of the sadness and bankruptcy of the Conservatives that, having given birth to QMV to advance British interests, they are now resiling from a measure that is absolutely essential to ensuring the open playing field in Europe for British businesses that we all want.
Before the Minister gets too carried away with the result in Spain, will he simply remind the House of the percentage of Spanish people who actually voted in the referendum?
It was considerably more than the percentage who voted in the local government elections in the hon. Gentleman's constituency, considerably more than the percentage who voted for the European Parliament Tory candidates in his region, and a bit less than the percentage who voted in the US election. Some 42 per cent. voted, and the large majority secured within that figure shows that Spain has achieved the right result. I also welcome the ratification in Lithuania, Slovakia and Hungary, which I will be visiting later today. I shall convey to our Hungarian friends the Conservative party's opposition to their ratification of the treaty. The hon. Gentleman might care to reflect on the extent to which his party is isolated from every other Christian Democratic and Conservative party in Europe.
Does my hon. Friend accept that if there is not a decent vote in favour of the treaty in this country, the legitimacy of the whole process will be open to question? Should we consider, in the time-honoured way, whether there should be a minimum turnout level in order to give some legitimacy to our referendum?
I am not an expert on my hon. Friend's constituency, but I would caution him against setting minimum levels of participation under British constitutional theory and practice. Let us not forget that the treaty will be debated and voted on in the House of Commons. It will be a matter for discussion and debate during the forthcoming general election, when sensible patriotic candidates who support Britain in Europe will, I think, gain a handsome majority. When the referendum comes, there will be a clear yes vote. In my many years in politics I have enjoyed counting huge majorities, but I am always happy just to win.
Given the Minister's welcome of the result of the Spanish referendum, what is his real view of Prime Minister Zapatero's comment at the time that, under the constitution,
"We will undoubtedly see European embassies in the world, not ones from each country . . . We will see Europe with a single voice in security matters."
At the time, the Minister described that on the radio as a "complete myth", but was not his friend the Spanish Prime Minister merely daring to tell a truth that the Minister and the Foreign Secretary are desperately trying to hide from the British people?
If the right hon. and learned Gentleman were to say to the President of France, the Chancellor of Germany, or indeed the King of Spain, that their foreign policies would be decided in Brussels, he would be laughed out of Paris, Berlin and Madrid. Spanish, British, French and German embassies are not going to close. I am not responsible for what Mr. Zapatero says in Spanish—
He is your friend.
He is indeed my friend, and I believe that it is important to have friends in Europe. Perhaps at some time in the future the Conservative party might find some—other than the French Communist party and all the other loony nutters who are opposed to Europe. Under the treaty, foreign policy is decided by unanimity and there is nothing in it that works against British foreign policy goals.
Does the Minister agree that during the post-war period in which European unity and co-operation has developed, Britain has managed to avoid signing any treaty until it became pretty obvious that it was the sensible thing to do, at which point we have started to squirm? A little later, when it becomes inevitable, we sign—but always too late to have made a real impact on the value of that treaty to the British nation.
If my hon. Friend is talking specifically about European Union treaties, he is right. However, we were present in shaping this particular treaty from the very beginning. I shall not waste the House's time reading out a list, but in much of the continental media, it is described as "la constitution anglo-saxonne", or even as a Blairite constitution, which is why it is so popular across the channel. The Government have taken a key lead in defining and shaping this constitution and ensuring that it works both to advance British interests and to enhance peace, stability and democracy in today's Europe and, I hope, in tomorrow's world.
Will the hon. Gentleman tell the House clearly whether it is the Government's intention that the Bill that secured its Second Reading some weeks ago will be brought back for its Committee stage before Easter?
That is obviously a matter for discussion among the usual channels. I can speak only for myself, but I would be delighted to debate any of the Bill's provisions further. It is for the hon. Gentleman to ascertain from his Front-Bench colleagues whether they are prepared to help find time for this important issue.
Bolivia
Bolivia faces many challenges. The Government support President Mesa's efforts to achieve a national consensus on reducing social conflict and taking the country forward. We remain committed to working in support of democracy in Bolivia and to promoting the country's economic and social development.
Bolivia is south America's poorest country, but the last regime made the situation worse by caving in to World Bank pressure to privatise water and sewerage services in exchange for financial assistance. Following huge public demonstrations, that privatisation has been reversed and the protesters now have ending the privatisation of electricity, gas and oil in their sights. Does my hon. Friend agree that to coerce the acquisition by foreign companies of an impoverished nation's vital resources is often morally wrong and economically pointless? It is also politically undesirable, in that it can destabilise poorer countries and weaken a nation's democratic control over its affairs.
I do not believe in coercion, but neither do I agree that the private sector should never be involved in delivering essential natural resources, whether in Bolivia or elsewhere. One of the problems in Bolivia is that although the state water industry is effective at reaching existing markets, it is not very effective when it comes to securing the investment and resources needed in poor areas in marginalised parts of the country. Bolivia desperately needs foreign investment, and we are concerned to ensure that it gets it. Our aid programme, and in particular the debt relief announced recently by my right hon. Friend the Chancellor of the Exchequer—in which Britain is taking the international lead—will help to create the backdrop to the successful reform that Bolivia desperately needs.
Lebanon
Since the bomb attack that killed former Prime Minister Rafik Hariri on 14 February, Lebanese opposition politicians have worked closely together to demand a full investigation into the attack and the full implementation of the Taif accord. On 28 February, in the face of public protests following the attack, including a general strike, the Lebanese Government resigned. As my noble Friend Baroness Symons of Vernham Dean made clear when she visited the Lebanon last week, the UK urges all parties in Lebanon to implement United Nations resolution 1559, which supports the sovereignty of Lebanon and the exercise of its rich tradition of democracy.
I am sure that my hon. Friend the Minister and the House as a whole share my concern for Lebanon and its democratic institutions after the brutal assassination two weeks ago of former Prime Minister Hariri, and yesterday's resignation of Prime Minister Karami. Other concerns centre around the continued presence in Lebanon of Syrian intelligence forces. As a member of the Inter-Parliamentary Union delegation to that beautiful country last year, I was privileged to see the economic and political progress that has been made there since the end of the civil war. Will my hon. Friend do all that he can to ensure that that progress is maintained and improved on?
I concur that real progress has been made in Lebanon. Our compass to guide us forward is UN Security Council resolution 1559, which made it clear that there should be respect for that country's sovereignty, territorial integrity, unity and political independence. It urged all remaining foreign forces to withdraw and called for the disbanding of all Lebanese and non-Lebanese militias.
The European Commission has approved a new aid package worth €50 million for Lebanon in 2005–06. Does the Minister agree that the best trade and development guarantees between the EU and Lebanon arise through the upholding of democracy and independence in that country?
I assure the hon. Gentleman that we are working closely with EU partners in respect of the UN Security Council resolution to which I referred, and also in respect of the ongoing aid and development support. Democracy is important, and that is why we were keen to support the resolution when it came before the UN.
Lebanon has a long history of trouble as a result of foreign interference. Does my hon. Friend the Minister agree that means that we must work with the EU, the UN and other international bodies to achieve a framework in that country that will enable free and fair elections to be held, and a degree of stability to be secured?
I concur that international organisations have an important role to play, not least in respect of the investigation of the assassination that took place this month. That is why we welcome the steps taken by the UN Secretary-General in that regard.
News emerged yesterday that elections are to be held in Lebanon and, as the hon. Member for West Bromwich, West (Mr. Bailey) said, they must be free and fair. Does not that make it all the more urgent that UN Security Council resolution 1559, and the comments by UN Secretary-General Kofi Annan that Syrian troops should be withdrawn by April at the latest, are acted on?
I certainly concur that it is important that the terms of that Security Council resolution should be taken forward, and I understand that those issues are being discussed with EU partners and others at the margins of today's important meeting in London. In addition, the same points were made forcibly by my colleague Baroness Symons when she visited Lebanon last week.
May I draw my hon. Friend's attention to the situation in southern Lebanon, where the writ of the Lebanese Government has not run for years and which is under the control of Hezbollah, which uses its position there regularly to launch attacks into northern Israel? As well as encouraging Syria to withdraw its regular troops from Lebanon, should we not also encourage it at every opportunity to desist from giving financial and military support to Hezbollah?
The British Government have proscribed Hezbollah's external security organisation as terrorist, and we take every opportunity to make clear the importance of ending terrorism from whatever source and directed towards whomsoever in the middle east.
The Opposition welcome yesterday's resignation of the pro-Syrian Government in Lebanon, although we are concerned about the potential for instability in both Lebanon and the regime in neighbouring Syria. If Syria does not withdraw from Lebanon—thus failing to comply with UN Security Council resolution 1559—continues to back terrorists in the middle east and Iraq, fails to plug its porous borders and fails to disarm the Hezbollah militia in Lebanon, how will the Government assist the US in enforcing the UN resolution?
I would not want to anticipate all those circumstances, because clearly, work continues to avoid them. The Syrians have recently withdrawn a number of troops from Lebanon—of course, that is to be welcomed—but we are clearly of the view that the terms of the Security Council resolution should be upheld. As for the hon. Gentleman's concern about instability, I understand that the Prime Minister of Lebanon will form a caretaker Administration while President Lahoud consults on a new Administration, and we are certainly committed to supporting the opportunity for the Lebanese people to have their say in democratic elections in due course.
Middle East
I am sure that I speak for the whole House in condemning utterly the terrorist outrage in Tel Aviv on Friday last, in which four Israelis were killed and many more were injured, and in sending our condolences to the Government and the people of Israel.
The new President of the Palestinian Authority, Mahmoud Abbas, condemned that outrage in unequivocal terms last Friday, and he did so again at this morning's meeting of the London conference, which is being held at the Queen Elizabeth II centre, across Parliament square. In his opening address to that conference, President Abbas set out his plans greatly to improve the Palestinian Authority's security structures, with help from the international community. Co-operation with the Israeli security services has already been significantly strengthened.
I thank my right hon. Friend for that reply. He mentioned affairs in Tel Aviv on Friday, which suggest an inability to tackle the terrorists effectively and directly—a requirement that must be addressed. Indeed, he also mentioned today's conference. Can he give an assurance to the House that that conference has resulted in comprehensive international scrutiny of, and therefore support for, the Palestinian Authority in their efforts?
The conference is still continuing, but I shall ensure that once it is concluded, the formal resolution conclusions of the conference are made available to the House immediately. Part of the draft conclusions are about better support by the international community—including the United Kingdom, which is playing a leading role in this respect—for the security sector reform of the Palestinian Authority. The expectation by the whole international community, and by the Government of Israel in respect of the Palestinian Authority, is that the Authority and its security services make every effort to control terrorist organisations operating in the occupied territories, but the expectation cannot be that there will be no terrorist outrage from the occupied territories, because it needs to be understood that those terrorist organisations, while their main and immediate aim is the killing of innocent Israelis, are also seeking to undermine the authority of the democratically elected Palestinian Authority.
I am sure that the Foreign Secretary agrees that nothing, but nothing, justifies a suicide bomb of the kind that was detonated in Tel Aviv, particularly if there is evidence to suggest that that atrocity was instigated or even encouraged by another country in the region. He is right to remind us there are those who reject any proposals for a peace settlement and will take any action they consider may have that result. On the eve of today's important meeting, the Foreign Secretary was reported as having endorsed the need for a full-scale peace conference. Does he agree that it is essential to maintain the momentum? When might we expect a full-scale peace conference?
The endorsement of an international peace conference is not something that happened yesterday; that endorsement has long been the position of the British Government following our support for the road map, which has in phases 2 and 3 the need for such an international conference. A theme of the discussions that I heard before coming to the House for Question Time was the need for the conference, and for it to be held as soon as possible. I am afraid that I cannot give the right hon. and learned Gentleman or the House an exact time scale, because that depends on progress. However, the quicker the progress on the matters laid out in the first phase of the road map—that is essentially the agenda for today's discussion—the better the confidence between Israel and the Palestinians will be, and the more quickly we can get on to such conferences in phases 2 and 3.
What steps can my right hon. Friend the Foreign Secretary take to undermine support for rejectionist groups such as Hezbollah and Hamas? Is he prepared to take stronger measures against support for such organisations in this country?
I was the Home Secretary who proscribed the military wings of Hamas, Hezbollah and Islamic Jihad. Whether the remaining activities of those organisations can be proscribed is an evidential matter, not a matter of the Government's intention. The issue is being kept under close and active review by my right hon. Friend the Home Secretary.
May I associate the Conservative party with the Foreign Secretary's words of condemnation of the horrific suicide bombing in Tel Aviv last week?
We welcome the meeting that is taking place in London. Support for Mahmoud Abbas is crucial at this pivotal time. Can the Foreign Secretary assure Mahmoud Abbas that so long as he is committed to peace and the eradication of terrorism we will stand firmly by him? Can he go further, and offer assistance in pursuit of the sponsors and armourers of the suicide bombers, whose sole intention is the sabotage of the peace process? Would he be prepared to propose an international initiative on the ground within the west bank to help Mahmoud Abbas to crack down on terrorist activity?
I am grateful for the right hon. and learned Gentleman's initial remarks and his support for the London meeting. We are doing what I believe he anticipates—giving a great deal of practical financial support to the Palestinian authority so that it can improve its security apparatus. I saw that when I visited the UK-financed and trained staff of the control room in Ramallah. We are ready to do more, as, I believe, are the United States Government. It is one thing to improve operational capacity on the ground in Gaza and, more importantly, the west bank. However, alongside that, we are engaged in serious discussions with some of Israel's neighbours, particularly Syria and Iran, about their need not to be equivocal in respect of those organisations that the rest of the world regards as terrorist organisations, and to end whatever support they are giving to Hamas, Hezbollah and any other rejectionist organisations.
I agree with everything that my right hon. Friend has said, and I remind the House that one way of dealing with rejectionist forces is to improve the lot of the Palestinians in the west bank and Gaza. Does my right hon. Friend agree that the sooner we can conclude the conference and move the agenda forward for ordinary Palestinians, the more likely they are to go along with us in the actions necessary to stop the people whose sole objective is to destroy peace?
I completely agree with my hon. Friend. His remarks echo those made this morning by Jim Wolfensohn, head of the World Bank, who in an eloquent address to the London meeting said that economic development requires security, but that security requires economic and social development. The more quickly we can raise the living standards of everyone in the area, the better security will be.
Turkey
The Government strongly support Turkey's bid to join the EU. The Secretary of State is in regular contact with the Turkish Government on its EU aspirations, and I will visit Turkey in a few days to discuss those and other matters.
Will the Minister confirm that it is the UK Government's position that until such time as Turkey brings its human rights record in line with the rest of Europe, and in particular makes its Kurdish citizens equal within its borders, we will not support Turkey's application to join the EU?
We are supporting Turkey's application precisely because it has made massive strides in improving human rights for Kurds, journalists and others. Perhaps the news from Istanbul has not reached Colchester, but I assure the hon. Gentleman that considerable improvements have been made in, for example, education and broadcasting in Kurdish. Efkan Ala, the governor of Diyarbakir, the main Kurdish city, said that the majority of Kurds saw a fully democratic Turkey within the European Union as offering the best prospect of guaranteeing their democratic rights. Perhaps if the governor were invited to Colchester, the hon. Gentleman would learn something to his advantage.
Can my hon. Friend point to any serious research that has been done to evaluate the social and economic impact on the EU and the UK of Turkey joining the EU? Has his Department commissioned any such research, and if so, may we know about it?
The European Commission has undertaken research and the Turkish Government have undertaken extensive research, as have several Turkish universities to whose staff I have had the pleasure of talking. I am happy to try to convey some of what they told me to my hon. Friend. We believe strongly that a Turkey that is oriented towards Europe and embraces the European values of democracy, the rule of law and the open market will be a powerful addition to British national interests, which want stability in that part of the Mediterranean and Black sea world. We urge Turkey to stay the course of continuing reforms and raising its game. Turkey in the EU is an enormous prize for all of us who value that relationship, especially as it will involve a largely Muslim country showing that a Muslim population can live fully within the norms of democracy, under the rule of law and with respect for human rights.
GCHQ
Senior management and all staff at GCHQ take security very seriously, and so do I. The security provisions are subject to constant review, although the hon. Gentleman would not expect me to go into too many details.
I thank the Foreign Secretary for that response. I am sure that GCHQ is better able to assess the potential threat than I am, but in an era when we rightly see London as a possible target for terrorist attacks, I remind the right hon. Gentleman—although I am sure that he does not need it—that the GCHQ building is very conspicuous and is also close to a small airport. The building is just outside my constituency, but thousands of my constituents work there. It must be considered a potential terrorist target, and I trust that the Foreign Secretary will take all the measures necessary to protect it.
I readily acknowledge the hon. Gentleman's constituency interest as so many of his constituents work there. We are grateful to them, and to the others who do so, for the important national task that they undertake. The building is obvious; I have visited it on several occasions, and from the earliest stages have discussed its security and the possible risks. Although the other buildings were lower and not such a landmark, they too were obvious. Of course, as part of the continuous security review, both the prospect of penetration through the perimeter of the building and risks from local airfields are taken into account.
Middle East
I last met Israeli Foreign Minister Silvan Shalom during my visit to Israel on 24 November 2004. We continue to engage closely with the Israeli Government at all levels, including in preparation for today's London meeting on supporting the Palestinian Authority.
In order to show solidarity with the Palestinian Authority against the terrorist threat to their security, will the right hon. Gentleman use the London conference as an opportunity to add Hezbollah in its entirety to the UK list of terrorist organisations? Will he press the EU to do likewise, because the organisation is not on its list at all?
As I said in answer to an earlier question, this is not an issue of intention, because it is all a matter of evidence. The Terrorism Act 2000, for which I had ministerial responsibility, laid down clear procedures for proscription. I might say, in recalling last night's interesting debate, that the House is quite right to impose specific obligations on Secretaries of State and to make provision for the judicial review of decisions in such circumstances. Such decisions cannot be taken capriciously or without evidence, even though people say to us, "We know that the whole of Hezbollah is a terrorist organisation." That is not enough in the British system, with a Government who are proud of introducing the Human Rights Act 1998, and who live by that Act every day of their existence.
Points of Order
On a point of order, Mr. Speaker. I know that you can in no way be held responsible for the questions that appear on the Order Paper, but do you accept that it is unfortunate that we have not had the opportunity today to express our strongest condemnation of the butchery that happened yesterday when more than 100 Iraqis were murdered and, at the same time, to say that the murderous gangsters responsible will not triumph in the end?
The hon. Gentleman will know that questions are picked at random, which is why the opportunity did not arise.
The hon. Gentleman raised a matter about "Yesterday in Parliament" a week ago after reading a diary piece. I have now received word from the BBC that the diary piece was completely untrue. Perhaps that reinforces my case that we should always watch what we read in the papers and take it with a pinch of salt.
On a point of order, Mr. Speaker. Given that the Foreign Secretary is still in the Chamber, could you possibly arrange for him to meet the Home Secretary so that he can explain to the Home Secretary how the House of Commons should be handled?
I understand that they meet on a regular basis.
On a point of order, Mr. Speaker. While the Foreign Secretary is still in the Chamber and willing and able to give us his attention, do you agree that in light of the fact that the question on Sudan, which would have allowed contributions on the subject of Darfur, was not reached, it would be immensely helpful if the Foreign Secretary or the Prime Minister were minded to come to the House to make a statement about the continuing crisis in Darfur, which has both a humanitarian and a human rights character? Millions of people may wonder why, in the course of an hour, we were unable to debate a matter of the most momentous magnitude for the future of that country.
The hon. Gentleman is trying to extend Question Time.
On a point of order, Mr. Speaker. I accept entirely what you said about "Yesterday in Parliament", but I want to get the record straight. Obviously, reports of the butchery that occurred appeared in newspapers, but no one has contradicted the fact that more than 100 Iraqis were murdered. I hope that you, Sir, were not indicating—I am sure that you were not—that the matter that I raised on a point of order did not take place.
I was not doing that. The hon. Gentleman raised a point of order a week ago, so I thought that I would bring him up to date while I had the opportunity.
BILL PRESENTED
Small Renewable Energy Developments (Permitted Development)
Mr. David Drew, supported by Mr. David Chaytor, Alan Simpson, Mr. Andrew Stunell, Norman Baker, Mr. John Horam, Mr. Simon Thomas, Sue Doughty, Mrs. Patsy Calton and Peter Bottomley, presented a Bill to require the Secretary of State to extend permitted development status to small renewable energy developments and issue guidance to planning authorities in connection with such developments; and for connected purposes: And the same was read the First time; and ordered to be read a Second time on Friday 15 April, and to be printed [Bill 67].
Bus Services (Quality Contracts Schemes)
I beg to move,
That leave be given to bring in a Bill to amend the requirements for making quality contract schemes under the Transport Act 2000.
The Bill is born out of a tale of two cities. One is London, where bus services were never deregulated. The other is any other city—or, for that matter, town, village community or neighbourhood—in Britain. Bus services outside London were deregulated in 1986 by the then Conservative Government. Since then, quality and standards have fallen dramatically. Fares have gone up by almost 50 per cent. in real terms, and the number of passengers has fallen by more than one third in my area of West Yorkshire. It is a typical picture. In regulated London, on the other hand, patronage has increased by one third.
Deregulation means that bus companies can pick and choose what services they provide. They are free to make profits while providing a poor service. Week in, week out, services are chopped, changed, missing or late. Passengers suffer or they vote with their feet. Bus use outside London fell again last year, by 3 per cent. In this deregulated system, there is little that passengers, communities, MPs, councillors, local authorities or passenger transport executives can do to make private bus companies maintain or improve their services. The result is that many people have been denied a reliable and affordable bus service to work, to school and college, to shops, to health centres and to hospitals.
Let me quote just one letter, which I received today by coincidence, from one of my constituents, Mrs. M. Jubb, to the managing director of First Leeds. It says:
"Dear Mr. Graham
I am writing once again to plead with you to give us back our early morning . . . bus service down Hough Side Road.
I cannot tell you enough that you are causing so much misery to myself and my neighbours in the Hough Side area. Please come and walk down Hough Side Road or up Hough Side Lane at 6.30 in the morning, keeping in mind the people who use these buses are women. I am sure you would agree with me that these buses are essential to us especially in winter time.
I know that these days everything is about keeping shareholders happy. I cannot however believe that you make so much . . . money"
that
"just bypassing these 4 stops down Hough Side Road"
is acceptable. That letter is not unusual; it is typical.
When we ask operators to reconsider bus service cuts, we can summarise the response—appropriately—with two fingers. First, they say that the services are not profitable, and secondly, they suggest that we ask Metro to subsidise them. One private operator, Arriva, summed up its approach with admirable but brutal honesty when it said:
"Outside London our approach, to what is currently a mature market, is to focus on a twin-track strategy of targeting investment to deliver growth and eliminating low margin and loss-making routes."
Trimmed of its business-speak, that could be the epitaph etched on the tombstone of so many local services.
The decline affects everyone, not just passengers. Poor services mean increased car use, which creates even more congestion, pollution and road safety hazards in our communities. Other modes of transport, such as rail and tram, have a role to play, but buses provide three quarters of local passenger transport journeys, and among lower income groups, the proportion is even greater.
Quality contracts already exist under the Transport Act 2000 and operate to good effect in London, where services were never deregulated. Bus use in regulated London increased by nearly 10 per cent. last year. Outside the capital it fell by 3 per cent. On average, bus companies make 7.5 per cent. pre-tax profits in London, but 15 per cent. in PTE areas.
My Bill would make it easier for PTEs like Metro in West Yorkshire to introduce quality contracts. They would specify the routes, the quality and the performance of bus services over a wider area. Bus operators would have to tender for these contracts, rather than being able to cherry-pick. Services could then be properly monitored and better safeguarded. At the moment, the conditions that the PTEs have to satisfy to implement a quality contract are much too severe. My Bill would reduce that barrier.
So far, no quality contract proposals have been submitted to the Secretary of State. That is mainly because the legislation requires such proposals to surmount a number of formidable obstacles before they can be approved by the Secretary of State. A quality contract must satisfy three conditions. First, the proposed scheme must implement the policy set out in the proponent's bus strategy; that is fair enough. Secondly, it must represent value for money in terms of economy, efficiency and effectiveness; again, that is a fair test. Thirdly, it must be the "only practicable way" of implementing the relevant policies in the strategy. That last test is far too onerous. The present system has failed to provide customers with a basic, reliable and affordable bus service. The bus operators have had 19 years to show that they can work in partnership, but they have failed.
The Transport Act 2000 requires PTAs and local authorities to demonstrate that their proposals are "economic, efficient and effective". That should be the main test. In any case, the final power to grant a quality contract rests with the Secretary of State, not the local authority. The "only practicable way" test is superfluous and is discouraging the local intervention that the Government seek to promote in the provision of bus services.
In the four years the 2000 Act has been on the statute book, no local authority has sought to use these powers. When one does, it is inevitable that its proposals will be tested through the courts, given the severity of the test that it has to meet. Moreover, the process is lengthy and complex. Realistically, it would take two and a half years to introduce a quality contract under the 2000 Act, even with the shortening of the process recently introduced by the Government. Although that move is welcome, it will not alter the fundamental problem of the legislation, which dictates a lengthy, complex and difficult process whereby the "only practicable way" test remains a formidable and unnecessary obstacle to the delivery of better bus services. It remains a steeplechase with a huge first fence; it is not enough simply to reduce the length of the course.
Partnership, which is the Government's preferred way forward, has worked to a degree in some areas, including parts of Leeds, my own city. However, partnerships invariably involve special circumstances that cannot be replicated easily, particularly in northern city regions served by PTEs. One example is that of West Yorkshire Metro's guided bus projects, where patronage growth of 50 per cent. has been achieved. But these are isolated examples where it suits the operators to engage. PTEs are completely dependent on local monopoly providers who choose to act responsibly and to take a long-term view, and that is far from the norm.
Yes, we do need partnership where it can work, and we must continue to invest in it where it delivers, with operators who are prepared to take a long-term view, but we also need much tighter regulatory intervention, which the Bill would help to achieve. It would take away the requirement on PTAs and local authorities to demonstrate that quality contracts are the "only practicable way" to implement their statutory bus strategies.
This Bill is dedicated to the millions of passengers, including my constituents, who have seen their services decline and disappear over the past 19 years and fares increase by 50 per cent. in real terms, and who have waited in vain in all weathers for bus services that increasingly arrive late or not at all, and which, when they do turn up, are provided by increasingly shabby vehicles. I commend the Bill to the House.
Question put and agreed to.
Bill ordered to be brought in by Mr. Paul Truswell, Mr. Dennis Turner, Mr. David Clelland, Mr. Clive Betts, Mr. George Howarth, Mr. Graham Stringer, Mr. John Grogan, Colin Burgon, Mr. Fabian Hamilton, Mr. Colin Challen, Mr. John Battle and Mr. George Mudie.
Bus Services (Quality Contracts Schemes)
Mr. Paul Truswell accordingly presented a Bill to amend the requirements for making quality contract schemes under the Transport Act 2000: And the same was read the First time; and ordered to be read a Second time on Friday 18 March, and to be printed [Bill 68].
Orders of the Day
Constitutional Reform Bill [Lords]
[3rd Allotted Day]
Considered in Committee [Progress, 1 February].
[Sylvia Heal in the Chair]
[Relevant Documents: First Report from the Constitutional Affairs Committee, Session 2003-04, HC 48-I and 48-II, on Judicial appointments and a Supreme Court (court of final appeal), and the Government's response thereto, Cm 6150; and the Third Report, Session 2004–05, HC 275-I and 275-II, on the Constitutional Reform Bill [Lords]: the Government's proposals.]
Clause 8 — Head and deputy head of criminal justice
I beg to move amendment No. 360, in page 4, line 29, at end insert 'in England and Wales'.
With this it will be convenient to discuss the following amendments:
No. 352, in page 4, line 34, at end insert 'in England and Wales'.
No. 353, in clause 9, page 5, line 2, at end insert 'in England and Wales'.
No. 354, in clause 9, page 5, line 4, at end insert 'in England and Wales'.
I have a slight impression of living in the Chamber at the moment, but I hope that the afternoon will be a little more tranquil than yesterday.
The amendments are probing; they were designed, as the Minister will see, to write it into the Bill that when we are talking about a head and deputy head of criminal justice or a head and deputy head of family justice, we are dealing with England and Wales. I realise that that is what the Minister intends us to be dealing with. I certainly did not read the Bill as suggesting that we were covering Northern Ireland. I just wondered whether that should be clarified and whether there was any harm in not clarifying it.
It is noticeable that when clause 7 refers to the president of the courts in England and Wales it makes explicit to whom we are referring. While Scotland does not bother me, in the sense that it is a completely different jurisdiction, it seems to me that the amendment might just tidy up the Bill somewhat.
I echo the comments made by the hon. Member for Beaconsfield (Mr. Grieve). I am looking forward to a tranquil but quite long afternoon, looking at the weight of business in front of us.
Clauses 8 and 9 create new judicial leadership roles in criminal and family justice, namely, the head of criminal justice and the head of family justice. The first role will be exercised by the Lord Chief Justice or a person appointed by him. The second role will be exercised by the president of the family division. Those new offices will exist in the judicial system of England and Wales only. In Scotland, such responsibilities are the preserve of the Lord President of the Court of Session, and new equivalent clauses are being tabled for Northern Ireland.
While I understand the rationale for the amendments, I do not think that they are necessary, not least because clause 119 explicitly states that clauses 7, 8 and 9 extend only to England and Wales. There can be no possible ambiguity with the present titles in view of the extent provisions; they can apply only in the judicial system of England and Wales. The amendment would cause more confusion, as the statutory title Head of Civil Justice, which is established separately under the Courts Act 2003, does not refer to England and Wales. That title is not "Head of Civil Justice in England and Wales", even though it extends only to England and Wales.
So, first, as it is not necessary because of the nature of clause 119 and, secondly, for the sake of consistency with other statutory titles in the Courts Act 2003, I hope that the hon. Gentleman will recognise that the amendments are not necessary.
I am grateful to the Minister for his response. I accept his comments, and will ask in a moment for leave to withdraw the amendment.
The Minister alluded to the size of the scrutiny that we have to carry out this afternoon. At the risk of straying a little from the precise matter under discussion, I should like to put it on record that it is unsatisfactory that we should have to consider hundreds of Government amendments at a late stage in the proceedings on the Bill. That is not because the amendments are contentious; many of them are not. However, their sheer volume makes proper scrutiny extremely difficult. I hope the Minister will take that back when considering how Bills are proceeded with in future.
I understand the position taken by the hon. Gentleman and I hope that in the course of today's business, which has broadly been agreed through the usual channels, we will be able to focus on matters of substance. The great majority of the amendments are consequential or supplemental to other principal aspects of the Bill. I hope we will not neglect debate on any signal or important aspects, and I do not anticipate that that will be the case.
I had not intended to make my comment at this stage, but as the issue has been raised, I shall do so. I have been observing progress on the Bill from a distance. My hon. Friend the Member for Somerton and Frome (Mr. Heath) has been doing the work and sends his apologies today. I am trying to catch up and deal with it. That gave me a chance to reflect on the huge number of amendments.
I make two observations. I accept that many are drafting and tidying-up amendments, and there are not many significant amendments. That will be reflected, I anticipate, by the relatively small number of votes today. However, if at this stage in the Bill we are dealing with so many amendments, of which almost all are Government amendments, that shows how necessary it is for Bills of constitutional significance to receive proper consideration. This is such a Bill, and it was considered at length in the House of Lords. Amendments such as those that we are debating, relating to the names of courts, whether they refer to England and Wales as well as Scotland, or whether they have United Kingdom titles, were debated and rightly so, because the courts have different names and traditions in different parts of the United Kingdom.
The Bill is a constitutional measure and we are giving it relatively good scrutiny, even though there is so much to amend at a late stage. That contrasts with the Bill that we considered yesterday, which was about the substance, not the process, of what the courts do. On that we had almost no chance for debate on—
Order. I have allowed the debate to go a little wide of the amendments before us. The remarks that have been made will be noted. I hope that we can now confine our remarks to the amendments under discussion.
I respect that, of course. I was trying to be careful about mentioning the names of courts, to make sure that I was well and truly in order, but I shall come back to that.
This is a small debate, which is quite proper, about the title of courts and the title of people in the courts. I hope we will learn the lesson that we need to give greater consideration to matters of substance, which are much more important.
I could make a similar comment about the sheer quantity of Government amendments, which cover provisions from the 16th century to the 20th century amending other statutes. That presents a practical problem for those who have to deal with it, and further illustrates the folly of trying to abolish the office of Lord Chancellor on a Thursday afternoon and discovering that it takes about a year to find out the vast extent of his functions.
The amendment relates to courts in England and Wales, and it is apposite to remind ourselves that we are not looking sufficiently carefully at the different implications of the legislation for England and Wales and for Scotland. I point out by way of illustration that it became clear at a Committee hearing this morning that the sort of powers conferred later in the Bill to make court rules for Northern Ireland, for example, do not arise from this Bill or from the Prevention of Terrorism Bill, which we discussed yesterday. It will not be possible for the Government to make rules imposing Special Immigration Appeals Commission procedures on the Court of Session in Scotland. In drawing attention to an England and Wales element in the present clause, the Conservative Opposition have usefully reminded us that we need to be careful about the different ways in which the two pieces of legislation impact on the different jurisdictions of the United Kingdom.
I am grateful to the right hon. Member for Berwick-upon-Tweed (Mr. Beith) for his comments, which echo the reasons why I saw fit to highlight the issue. I also agree with the hon. Member for Southwark, North and Bermondsey (Simon Hughes). Subject to those matters, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 25, in page 4, line 37, leave out 'Minister' and insert 'Lord Chancellor'.—[Mr. Leslie.]
Question proposed, That the clause, as amended, stand part of the Bill.
I spoke earlier about the creation of the new judicial leadership roles and how, in clause 8, the head and deputy head of criminal justice are being created. I do not feel that I need to comment further.
I welcome the creation and formalisation of the positions of deputy heads. In practice we have had a deputy head of criminal justice. There is ample evidence to show that that post was badly needed because of the over-burdening of the Lord Chief Justice with administrative work and the management of the courts. A deputy head of family justice has recently been created and I have no doubt that that is a desirable move as well. The formalisation of those posts is a sensible move, which I welcome.
Question put and agreed to.
Clause 8, as amended, ordered to stand part of the Bill.
Clause 9 — Head and deputy head of family justice
Amendment made: No. 26, in page 5, line 7, leave out 'Minister' and insert 'Lord Chancellor'.—[Mr. Leslie.]
Question proposed, That the clause, as amended, stand part of the Bill.
I hope I am not too late to ask the Minister a question about subsection (3), which at least in part replicates a provision of clause 8. I do not feel the need to expatiate at length on this important matter. I know that you, Mrs. Heal, will be relieved by that, as will the Minister, my hon. Friend the Member for Beaconsfield (Mr. Grieve) and representatives of the Liberal Democrats. It is purely a quizzical inquiry on my part.
Subsection (3) tells us that the Lord Chief Justice must not appoint a person under subsection (2)—that is, a deputy head of family justice—unless two conditions are met. One of those conditions is that the Minister has been consulted. I cannot criticise the subsection on the grounds that it is verbose. It is not. It is extremely short and pithy. However, I would welcome an explanation from the Minister as to exactly what that consultation must embrace. Is it a case of consulting the Minister and being guided by him or her, or is it simply a formal process of informing the Minister of the wish of the Lord Chief Justice, satisfying the Minister that that person is not of suspect character, and the decision then resting? I should like to be clear about what exactly is entailed. It is a very innocent inquiry, as are most of my inquiries, Mrs. Heal, as I am sure you will testify.
The hon. Gentleman is indeed exceptionally innocent and we love him for that, or at least I used to think that it was an endearing characteristic. Clause 9(3) contains the requirement for the Lord Chief Justice to consult the Lord Chancellor on who may be a suitable person for appointment as deputy head of family justice. It is apposite that the hon. Gentleman raises that matter because, at many other points throughout the consideration of the Bill, we will look at the difference between consultation and concurrent agreement between the Lord Chief Justice and the Lord Chancellor. The concordat between the two has in many ways framed the partnership that forms so much of the Bill.
In short, consultation does not require the Lord Chancellor or the Lord Chief Justice to do what the other expressly wishes to happen—it is a consultation—but the spirit of partnership will prevail. There will be an expectation that the one will seriously consider the views of the other party. Ultimately, however, the decision, as the clause sets out, rests with the Lord Chief Justice. I hope that that helps the hon. Gentleman to elaborate on that point, and I am grateful to him for raising it.
I am satisfied.
Question put and agreed to.
Clause 9, as amended, ordered to stand part of the Bill.
Clause 10 — Powers to make rules
Question proposed, That the clause stand part of the Bill.
Clause 10 introduces schedule 1, which provides for the transfer and amendment of functions relating to rule-making powers that are not made by rule committees but which are currently conferred on the Lord Chancellor alone. The making of rules of procedure for courts is clearly a judicial matter and the power will transfer to the Lord Chief Justice as detailed in schedule 1. However, the Lord Chancellor must have involvement in rules that may impact on his duty to ensure the efficient running of the administration of the court system. Therefore, as agreed with the Lord Chief Justice, his concurrence will be required.
The Lord Chancellor will also have a more general power to require changes to be made to existing rules, or to make new rules to achieve a desired outcome. That mirrors the proposals for rules made by rule committees.
Question put and agreed to.
Clause 10 ordered to stand part of the Bill.
Schedule 1 — Powers to make rules
Amendments made: No. 27, in page 54, line 12, leave out 'Minister' and insert 'Lord Chancellor'.
No. 28, in page 54, line 24, leave out 'Minister' and insert 'Lord Chancellor'.
No. 29, in page 54, line 25, leave out 'Minister' and insert 'Lord Chancellor'.
No. 30, in page 54, line 26, leave out 'Minister' and insert 'Lord Chancellor'.
No. 31, in page 54, line 29, leave out 'Minister' and insert 'Lord Chancellor'.
No. 32, in page 54, line 30, leave out 'Minister' and insert 'Lord Chancellor'.
No. 33, in page 55, line 3, leave out 'Minister' and insert 'Lord Chancellor'.
No. 34, in page 55, line 9, leave out 'Minister' and insert 'Lord Chancellor'.—[Mr. Leslie.]
I beg to move Government amendment No. 490.
With this it will be convenient to discuss Government amendment No. 370.
These are purely technical amendments to schedule 1 and are consequential to amendments made elsewhere in the Bill in relation to the Lord Chancellor's rule-making powers. Amendment No. 490 to section 5 of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1996 clarifies that the rule-making power under section 5(1) of the Act is to be exercisable in accordance with the rule-making procedure under section 5(6), rather than the procedure under section 5(2).
Section 65(3) of the Mental Health Act 1983 relates to the exercise of jurisdiction of mental health review tribunals, subject to rules made by the Lord Chancellor under that Act. The Bill currently repeals the reference in subsection (3) to rules made "by the Lord Chancellor". Following reinstatement of the Office of Lord Chancellor, that reference will remain correct, and amendment No. 370 ensures that it is not repealed. I hope that these technical changes will stand in the Bill.
It is perhaps an opportune moment to point out that, whereas schedule 1 makes provision for the Lord Chief Justice or a judicial officer nominated by the Lord Chief Justice with the agreement of the Minister to make designated rules, the legislation that went through the House like a dose of salts yesterday goes in the opposite direction and gives the Lord Chancellor the power to make rules, subject to consultation with the Lord Chief Justice in matters relating to the subject matter of that Bill.
The schedule applies only in England and Wales. To exercise any rule-making power in relation to Northern Ireland, the Lord Chancellor has to bring forward a statutory instrument, which I think requires an affirmative order. The situation in Scotland is different again, in that he has no power to make rules and indeed the Government have no power to enforce upon the Court of Session any particular set of rules. It is a bit puzzling that, on Monday, we gave the Lord Chancellor responsibility to make rules subject to consultation with the Lord Chief Justice, while on Tuesday we are affirming that it is the Lord Chief Justice who makes rules subject to the agreement of the Minister.
Perhaps the Under-Secretary of State for Constitutional Affairs, the hon. Member for Shipley (Mr. Leslie), could reflect on that point and throw a little light on the situation.
I endorse what the right hon. Member for Berwick-upon-Tweed (Mr. Beith) has said. It is central to the Government's proposals, as I see them embodied in this Bill, that there should be no suggestion of political ministerial interference in the way in which rules of court are drawn up. The Government were certainly proposing yesterday a form of judicial process for dealing with those against whom there was suspicion of being implicated in terrorism. It is very strange that in yesterday's Bill the formula that was proposed for the rules being made should be so different from the one the Minister is now properly putting forward.
I hope that the Minister will be able to respond to that point. It seemed axiomatic from the presence on the Front Bench yesterday of the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy), that there had been at least discussion with the Department for Constitutional Affairs in relation to yesterday's anti-terrorism Bill. I hope that the Minister will take the opportunity, as we are in a discursive frame of mind, which perhaps yesterday was difficult to pursue, to explain why he is going down this sensible route, while in an area where it would appear that a judicial process of some description is being set up, he is not following it.
I think that the correct position is that, under the Bill that was considered yesterday, the Lord Chancellor has discretion to formulate the first set of rules, but under schedule 1 to this Bill, if the Lord Chancellor does not do that, those rules will be made in the ordinary way. Certainly, subsequently, once those rules are launched, they will be dealt with by amendment and by substitution in the ordinary way. The argument that is being advanced is not relevant to the Bill that we are considering.
I encourage my good colleague on the Select Committee on Constitutional Affairs and the Minister to reflect on one further point. In order to achieve what the hon. and learned Gentleman has just described for the purposes of the Prevention of Terrorism Bill, the Lord Chancellor could have simply relied on the schedule that we are now discussing. I do not understand why it was felt necessary to include those provisions yesterday. Paragraph 5(1) of schedule 1 allows the Minister to give the Lord Chief Justice
"written notice that he thinks it is expedient for designated rules to include provision that would achieve a purpose specified in the notice."
That seems to go directly to the situation that we have in the other Bill. The Lord Chancellor may be concerned that certain kinds of evidence need protection and therefore the rules of the court may have to preclude the person who is the subject of the proceedings being fully aware of the evidence against him, or even of what he is charged with or described as having done. A specified purpose could be put in the notice. In order to protect national security, the rules must make provision for certain parts of the evidence not to be disclosed. That is quite a controversial provision. It did not need the sledgehammer of yesterday's legislation to do that, because the Minister has provided for it in the schedule. I refer again to paragraph 5(1):
"This paragraph applies if the Minister gives the Lord Chief Justice . . . written notice that he thinks it is expedient for designated rules to include provision that would achieve a purpose specified in the notice."
Why is that not good enough?
Order. I remind hon. Members that we are today discussing the Constitutional Reform Bill.
I understand that there is a sort of overflow of feeling from yesterday's proceedings on the part of some hon. Members, although I have to admit in my defence that I was not the Minister for the Prevention of Terrorism Bill. Therefore I will not be drawn into that, not least because we are talking about Government amendments Nos. 490 and 370, which are pretty far removed from that point. However, I understand the issue that has been raised.
My hon. and learned Friend the Member for Dudley, North (Ross Cranston) is correct. He rightly explained that the arrangements that are set out in the Prevention of Terrorism Bill, which we discussed yesterday, are special. In any case, my understanding is that the rule-making arrangements in that Bill, for example, are UK-wide, not just England and Wales-wide, and that the same approach is taken with respect to the similar UK-wide rules in the Constitutional Reform Bill. If I am wrong, I apologise in advance to the right hon. Member for Berwick-upon-Tweed (Mr. Beith).
The Lord Chancellor confirmed in open session this morning that the powers in the Prevention of Terrorism Bill, as opposed to those that we are discussing now, are not UK wide. That is to say that no Minister has the power to direct the Court of Session to have certain rules. That provision simply does not exist and the Lord Chancellor confirmed as much today, so the Minister may be basing his argument in such a complex area on a mistaken premise.
I will certainly defer to the judgment of my superior, the Lord Chancellor. As one of his junior Ministers, I would not seek to demur from his judgment. My general point, which was not related to the Prevention of Terrorism Bill, was that there are slight differences between UK-wide rule-making arrangements and England and Wales-wide arrangements, and that those are set out in different provisions in the Constitutional Reform Bill. I understand and hear what hon. Members say on that, but ultimately I do not think that that affects the validity of Government amendments Nos. 490 and 370.
Amendment agreed to.
Amendment made: No. 370, page 56, line 26, leave out paragraph 15.—[Mr. Leslie.]
Schedule 1, as amended, agreed to.
Clause 11 — Powers to give directions
Question proposed, That the clause stand part of the Bill.
The clause introduces schedule 2, to which there are substantive amendments later and which provides for the transfer of functions in connection with practice directions.
As with rules, the making of practice directions for courts and tribunals is clearly a judicial matter and that power will transfer from the Lord Chancellor to the Lord Chief Justice. However, the Lord Chancellor must have some involvement in practice directions that may impact on his duty to ensure the efficient running of the administration of the court system. Therefore, as agreed with the Lord Chief Justice, the Lord Chancellor's concurrence will be required for making directions.
It would be inappropriate, however, for the Lord Chancellor to have a power to intervene in making directions that concern guidance as to the law or the making of judicial decisions. Therefore, his concurrence will not be required for those types of directions. Further, the Lord Chancellor should not have a veto over directions that concern the criteria for allocating judges to hear individual cases. Those are essentially a judicial matter, but about which the Lord Chancellor, as the responsible Minister, should be consulted.
In practice, the power to make directions would usually be delegated by the Lord Chief Justice to the heads of division. Others may make directions only with the consent of the Lord Chief Justice and the Lord Chancellor.
I was going to engage in a small debate on amendment No. 371, which we shall reach in a moment. It would almost be possible to do that now, but, in order to follow properly the rubric, I am happy to restrain myself and simply flag up to the Minister that I shall return to the issue in a moment.
I have one question for the Minister that, again, he can answer now or in the next debate. He has alluded to the fact that, as we know, there has been discussion with the judiciary as a whole. Can he indicate whether there are any matters that are the subject of Government amendments today that do not have the agreement of the judiciary? Is there any remaining area of controversy between the Government and judges following all the consultation, particularly in relation to the transfers of powers from one office holder to another, as proposed in the Bill?
My understanding is that there are no more areas of dispute on amendments to the Bill between the Lord Chief Justice and the Lord Chancellor. After so many months—years, even—of consideration of the Bill, I am glad that we have now achieved consensus with the judiciary on its contents.
Question put and agreed to.
Clause 11 ordered to stand part of the Bill.
Schedule 2 — Powers to give directions
Amendments made: No. 35, in page 58, line 30, leave out 'Minister' and insert 'Lord Chancellor'.
No. 36, in page 59, line 6, leave out 'Minister' and insert 'Lord Chancellor'.—[Mr. Leslie.]
I beg to move amendment No. 371, in page 59, line 10, at end insert—
'(2A) Sub-paragraph (1) does not apply to designated directions to the extent that they consist of criteria for determining which judges may be allocated to hear particular categories of case; but the directions may, to that extent, be made or given only after consulting the Lord Chancellor.'.
With this we may take Government amendments Nos. 372 to 375.
At present, schedule 2 provides a uniform mechanism for making practice directions across all jurisdictions and in all levels of court. It provides for the Lord Chief Justice to make practice directions with the concurrence of the Lord Chancellor, except, as I explained earlier, where those directions relate to the application and interpretation of the law or judicial decisions.
The exception to that general approach, agreed in the concordat, is where the practice directions relate to deciding the appropriate level of judge to hear particular classes of case. It was agreed that for those directions the Lord Chief Justice would be required only to consult with the Lord Chancellor rather than to seek his concurrence. Amendments Nos. 371 to 375, agreed with the Lord Chief Justice, qualify the existing practice direction-making mechanisms in schedule 2 in relation to that class of practice directions.
In cases where directions set out criteria for allocating judges to hear particular categories of case, the Lord Chancellor will be consulted rather than required to give consent. That is in recognition of the fact that such directions are essentially matters for the judiciary, after taking into account any ministerial views.
I am mindful of what the Minister has said, but on reflection I wonder why it is felt that the Lord Chancellor needs to retain control over the allocation of judges to hear particular categories of case.
I appreciate that the role of the Lord Chancellor will be to continue to ensure the smooth overall administration of the courts process. Also, I am obviously reassured by what the Minister said about the fact that the Lord Chancellor will not have the power to allocate a particular judge to a particular case. That is important, because, given the Government's wish to ensure judicial independence or a move towards the separation of powers—I prefer the expression "judicial independence"—any suggestion that a tame judge is being appointed to deal with a case that might be controversial for the Government must be avoided.
Equally, however, I wonder to what extent it can be seen as part of administration, rather than simply the sensible working procedure of the courts, that the Lord Chancellor should be able to allocate particular categories of cases. Those who will know which judges are best suited to dealing with certain categories of cases are going to be the heads of division—or, indeed, the Lord Chief Justice. Why, then, the continuing need for the Lord Chancellor to make the decision, even if it is in consultation with the Lord Chief Justice?
The reality, as I understand, is that the Government are keen to move towards greater flexibility—that is, judges moving around more between different categories of case, if such cases are in their expertise and, I dare say, if those judges have received the proper training from the judicial studies board. In those circumstances, why not leave it to the Lord Chief Justice to make the decisions? Why involve the Lord Chancellor and give him a right of veto? After all, if the system is breaking down the Lord Chief Justice ought to be in a position to do something about it.
I am probing a little. It would be helpful if the Minister would amplify his remarks.
I understand and in some ways agree with the hon. Gentleman that heads of division are often best placed to know about some of these matters, but that is the rationale behind some of our amendments. They move away from the consent requirement to a requirement for consultation. The hon. Gentleman seems to be suggesting that the consultation element itself is not necessary, although I think he must admit that there is a residual public policy interest in knowing the level of a judge who is to hear a particular class of case. We think that we are striking the right balance in moving away from the concurrence requirement, and I feel that in some respects that is in the spirit of the hon. Gentleman's argument.
The Minister and the Government have been moving in what I regard as a very sensible direction. The question is, why have they not gone further?
I hope I have understood the position correctly. In the Crown court there are some judges who, as we barristers used to say, have their licence to kill: although they are Crown court judges, they are entitled to hear murder cases. The same applies to rape and other very serious offences. As I understand it, the Lord Chancellor will retain a determining direction over that category of cases. Why? The person who will actually make the decision is the Lord Chief Justice.
I must make a concession to the Minister, and accept that there is a logistics issue. One of the reasons for identifying judges who can hear particular categories of case is need. If there is a discussion between the Lord Chief Justice and the Lord Chancellor, the Lord Chief Justice may say "We need more judges on the south-eastern circuit who can try murder cases." I believe that there are three or four Crown court judges who are clearly capable of doing that, but in those circumstances why cannot the Lord Chief Justice do it on his own?
There may well be a large number of other categories that can be considered. A Crown court judge may be doing only general civil work, family law work or work on children's law. The list is endless. I also recognise that there is a lock-on effect. If—in, I suppose, a reversal of the process—the Lord Chief Justice were to say that a particular judge should no longer deal with a particular category of case, which does occasionally happen when it is felt that a judge does not show enough familiarity with a category, the Lord Chancellor may be required to say that the Judicial Appointments Commission should think of appointing another judge to boost the number.
I realise that a dialogue will be necessary, but I do not quite understand why the buck must stop with the Lord Chancellor. The Minister may be able to provide complete reassurance on that, however.
I understand where the hon. Gentleman is coming from, but the buck would not stop with the Lord Chancellor. As I have said, the amendments move away from concurrence towards consultation, which ultimately gives the power to the Lord Chief Justice. I think that consultation is necessary simply for the smooth running of the courts, which are of course a partnership between the judiciary and the Executive when it comes to administrative, resourcing and staffing requirements. We need to know if the Lord Chief Justice feels that a different level of judge should hear a particular class of case. For information purposes as much as anything else, we feel that a consultative element is needed. I hope that that satisfies the hon. Gentleman.
The Minister's argument was extremely cogent, and I am happy to accept it. I accept, of course, that the amendments move away from concurrence; but I hope that the Minister will forgive me if I say that I am always slightly hesitant when something can be done only after someone else is consulted. Although the amendments allow for the possibility of the Lord Chief Justice consulting the Lord Chancellor and, after the Lord Chancellor has said no, going ahead with his action, I suspect that in reality, considerable influence over the decision-making will remain with the Lord Chancellor. Nevertheless, I understand the Minister's point.
Amendment agreed to.
Amendments made: No. 372, page 59, line 11, after 'If', insert 'sub-paragraph (1) applies but'.
No. 37, page 59, line 11, leave out 'Minister' and insert 'Lord Chancellor'.
No. 38, page 59, line 12, leave out 'Minister' and insert 'Lord Chancellor'.
No. 373, page 60, line 14, at end insert—
'(6) Subsection (2)(a) does not apply to directions to the extent that they consist of criteria for determining which judges may be allocated to hear particular categories of case; but the directions may, to that extent, be given only—
(a) after consulting the Lord Chancellor, and
(b) with the approval of the Lord Chief Justice.'.
No. 374, page 60, line 33, at end insert—
'(5) Subsection (2)(a) does not apply to directions to the extent that they consist of criteria for determining which judges may be allocated to hear particular categories of case; but the directions may, to that extent, be given only—
(a) after consulting the Lord Chancellor, and
(b) with the approval of the Lord Chief Justice.'.
No. 375, page 61, line 7, at end insert—
'(5) Subsection (2)(a) does not apply to directions to the extent that they consist of criteria for determining which judges may be allocated to hear particular categories of case; but the directions may, to that extent, be given only—
(a) after consulting the Lord Chancellor, and
(b) with the approval of the Lord Chief Justice.'.—[Mr. Leslie.]
Schedule 2, as amended, agreed to.
Clause 12 — Transfer of appointment functions to her majesty
Question proposed, That the clause stand part of the Bill.
Clause 12 introduces schedule 3, which provides that appointments to the judicial offices listed in it will in future be made by Her Majesty The Queen on the recommendation of the Lord Chancellor, rather than by the Lord Chancellor himself. The appointments are those of district judges, High Court masters and registrars, and the senior district judge or chief magistrate. The relevant appointing provisions are amended, and the power to assign district judges to districts and district registries is transferred from the Lord Chancellor to the Lord Chief Justice. The power to determine the salaries of civil district judges and High Court masters and registrars is made subject to the proviso that their salaries cannot be reduced, which brings them into line with the district judges (magistrates courts) and more senior members of the judiciary. Those appointments are also listed, with others, in schedule 12, meaning that they are in future to be made on the basis of selection by the Judicial Appointments Commission.
I have a factual question for the Minister, which he may be able to answer now or may answer when we debate the schedule. It may have been covered earlier, but as far as I am aware, it has not been.
What is the maximum number of district judges whom we are currently allowed to have in England and Wales, and how many are currently in office? What is the maximum number of High Court masters and registrars and the number in post, and what is the maximum number of senior district judges—the old chief magistrates?
I have a supplementary question about chief magistrates. The change in terminology is still relatively recent. When people went along to the magistrates courts, they used to know the person who, they are now told is the senior district judge, as the local stipendiary magistrate or the local resident magistrate. Will those appointed according to this process always be appointed with a geographical title attached to their appointments? For example, if someone were appointed to the Tower Bridge magistrates court would that be the appointment, and if that person were then moved would the move take place formally or could that person informally, without any process, be transferred from Tower Bridge to Camberwell Green or from Camberwell Green to Greenwich? Would he be attached to his court from now on, or would he be appointed and, once appointed, be able to be moved around according to the jurisdiction of his superiors?
I understand the hon. Gentleman's points. Ever since the term "stipendiary magistrate" became "district judge (magistrates courts)", it has been necessary to make the position clear and comprehensible. My understanding is that there is no maximum number of district judges and magistrates courts set out in statute and, not surprisingly, I do not have to hand the exact number that we have in England and Wales at the moment. Perhaps I can write to the hon. Gentleman on that point.
I am aware of the hon. Gentleman's point on the geographical nature of the district judges. I do not think that there is any specific formality attached to the geographical area in a district judge's title. Nor do I think that anything formally limits them from being redeployed elsewhere, but if I am wrong, I shall put the correct answer in my letter to the hon. Gentleman.
Question put and agreed to.
Clause 12 ordered to stand part of the Bill.
Schedule 3 — Transfer of appointment functions to her majesty
I beg to move amendment No. 644, in page 63, line 6, leave out 'Supreme Court' and insert 'Senior Courts'.
With this it will be convenient to discuss Government amendments Nos. 645 and 647 to 650.
Government new clause 44—Renaming of the Supreme Courts of England and Wales and Northern Ireland.
Government new schedule 3—Renaming of the Supreme Courts of England and Wales and Northern Ireland.
Government amendments Nos. 651 to 666.
This group of amendments gives effect in part to the recommendations of the Select Committee on the Bill in the other place that the supreme court of England and Wales and the Supreme Court of Judicature of Northern Ireland should be renamed and, when necessary to avoid confusion, the short titles of legislation relating to these courts should also be changed.
The supreme court of England and Wales, as it is now known, is to be renamed the Senior Court of England and Wales, and the Supreme Court of Judicature of Northern Ireland will be renamed the Court of Judicature of Northern Ireland. The renaming does not affect the courts in question in any other way than changing the names by which they will be known. The new names were selected in consultation with the senior judiciary in each jurisdiction with a view to avoiding confusion not only with the creation of a new United Kingdom supreme court, but with other courts. There are also references in the Bill that will require amendments in line with the general renaming, and many of the amendments in this group are consequential on the change.
We now come to the first bone of contention of the afternoon. It is quite a small bone, but it irritates me sufficiently to make me want to take the matter forward. Indeed, unless I can persuade the Minister to change his mind, I shall probably divide the House.
The Minister knows that we were against the setting up of a supreme court of the United Kingdom. In those circumstances, he will probably agree that there was no need to consider renaming the current Court of Appeal, which is covered by the Supreme Court of Judicature Act 1873. I have to accept that, for the purposes of the Bill as it now stands, we are going to have a supreme court of the United Kingdom. However, the Minister's proposal to rename the courts covered by that Act "Senior Courts" strikes me as bizarre. We do not have any junior courts, and the expression "Senior Courts" is an odd one.
I do not see the new name catching on anyway because, as the Minister well knows, nobody refers to the High Court and the Court of Appeal by anything other than those titles. Only lawyers are aware of the fact that the High Court and the Court of Appeal were created by the Supreme Court of Judicature Act in the 19th century. Those titles offer a correct description of the purpose those courts were set up to fulfil. Although we are going to have a supreme court of the United Kingdom, those courts are, in reality, the supreme court of England and Wales, and I can think of no good reason for changing their title. I am not sure that the Minister, in his very brief speech, provided me with a persuasive reason for going back on that viewpoint.
This matters because we must consider the issue in the context of the English and Welsh judicial system. The reality is that the House of Lords, in its current role, is half removed from the mainstream judicial process. Appeals to the House of Lords take place only in fairly exceptional circumstances. It spends a great deal of its time turning down applications for leave to appeal, not because the issues involved are not interesting, but because they do not raise the kind of point with which the House of Lords considers it should concern itself. The Minister has not suggested that the new supreme court should approach its work load any differently from the way in which the House of Lords has done, although I acknowledge that one or two small areas of devolution law will be transferred from the Judicial Committee of the Privy Council to the new supreme court.
Why not leave well alone? There is not going to be a muddle and the court does not need another name. "Senior Court" is a rather sad name. It has a sad feel to it—
It sounds like a pensioner.
Yes, that is rather what it sounds like. It also has a slightly prissy tone because of the way in which it contrasts the senior court with other courts. As the Minister knows, judges from other courts are now invited to sit in the Court of Appeal and, sometimes, on judicial review proceedings in the Supreme Court of Judicature.
For all those reasons, I urge the Minister to drop the idea. We do not need the amendments, and if he wants to press on with them I shall vote against them unless he can provide me with an extraordinarily cogent reason for changing my mind.
I do not anticipate a day full of great controversy. Nor do I expect there to be a huge number of votes. Indeed, if there are, our colleagues could be somewhat surprised. I think that this is the only occasion on which there might be a vote, and I shall be voting not with the hon. Member for Beaconsfield (Mr. Grieve) and his colleagues but with the Minister. That is because I accept the Minister's proposition, which is consistent with the view taken by my colleagues. I understand the argument put forward by the hon. Member for Beaconsfield, but I support the Minister's proposal, although we might view it slightly differently.
My colleagues and I have argued for years that there should be a modern judicial system, that we should have a supreme court separate from the Judicial Committee in the House of Lords, and that we should separate the judicial system from the legislature. That is why we have supported the thrust of the Bill. We shall therefore create a supreme court of the United Kingdom, wherever it ends up sitting. That has been slightly controversial, but I understand that the preferred location is still over the road at the Middlesex guildhall.
In the light of that, the renaming of the next tiers of courts—the Court of Appeal and the High Court—as the "Senior Courts" represents an understandable and straightforward shorthand. Subject to only the supreme court being above them, they are the next in the hierarchy. "Senior" might be a slightly trite or mundane word, but at least it describes their position. They are the courts to which we look up, and they are in the hierarchy of senior courts. The hon. Member for Beaconsfield said that we have no junior courts. Well, it is a bit like "The Screwtape Letters". We do not have senior devils and junior devils. However, we do have junior courts—bluntly, the magistrates courts and the county courts are the junior courts. Colloquially, people know that. They know that cases start in a magistrates court and that, on appeal, they go up the hierarchy. People also know that if they are dissatisfied with what happens in the county court, an appeal on the civil side will go to the High Court. So I think that the shorthand is understandable. It will be more understandable if we distinguish between the supreme court and the others.
Lastly, it seems to me that, by definition, we cannot have more than one supreme something. Something is either supreme or it is not. I, like the hon. Member for Beaconsfield and others, am a lawyer, and I was brought up to be able to walk around with the white book, a great volume of all the rules of the Supreme Court of Judicature. One of the failings of the current system is that that was basically the rules of all the senior courts from, I think, the Judicial Committee of the House of Lords all the way down through the Court of Appeal to the High Court. I stand to be corrected if the House of Lords is not included, but that is my recollection—I have not looked at it for a long time.
I was going to raise a separate issue with the hon. Gentleman. He will be aware that there have been at least some suggestions lurking around that there will be a new unified court structure in which the High Court and lesser courts, or junior courts, would effectively be merged. It is not clear in what direction that is going. Certainly, however, the Government seem to be quite keen, for instance, on getting rid of some of the distinctions between the divisions in the High Court. The whispers are no more than that. Were that to happen, of course, we would be back to the drawing board anyway, as the Court of Appeal would become potentially quite distinct from the High Court. Whether that is desirable is another matter, but the hon. Gentleman might feel that that reinforces the reason for just leaving it well alone. I think that the distinction is perfectly obvious.
These are not issues that will ultimately make a fundamental difference. This Bill has been thought about and talked about for years and years. The reform of the judicial system has been thought about for a long time. My judgment is that we ought to try to get the best possible outcome and the simplest structure.
I want to deal with the two points raised by the hon. Member for Beaconsfield. There might be a further debate later about whether we structure the court system hierarchically and vertically. Ultimately, we might end up with a supreme court, with the Court of Appeal below that and the senior courts below that. The words may change eventually.
Divisions might also be considered. There are arguments for different divisions of the court system. There might well be an argument now for having an administrative division of the High Court. There is certainly an argument for reviewing where some of the boundaries come in work done. The family division is a relatively new one and is worth while. Eventually, we might amend the title of the Queen's bench division, because that is a general title relating to the famous courts of yore which used to sit Downstairs, but it does not mean much to someone who is not a lawyer and has not studied legal history. That is not an argument for changing it categorically.
I shall end where I began. This is a sensible proposal for the time being. I am sure that, in time, a Government will say that further work needs to be done and the judges might say that they want to propose further reforms. Let us have one supreme court, let it be known as the supreme court, let it be recognised as the supreme court and let us have the courts under it regarded for the time being as the senior courts. I think that most people will understand what is meant by that.
I was not proposing to speak in this debate until I heard the hon. Member for Beaconsfield (Mr. Grieve). When we started proceedings this afternoon and I looked through the long list of proposed amendments and the important aspects of policy being changed, of all the matters on which I thought that we would divide I never believed that it would be on the question of a name.
I fully support the Government on their proposal, which is a sensible and clear enactment of the modernisation process. I am really puzzled, however, about why the hon. Member for Beaconsfield chooses to get cross about this name. It is quite obvious for all those who practise in the courts what these courts are called. All that this seeks to do is to clarify the situation.
Let me reassure the hon. Gentleman that the last thing that I can be described as on this matter is cross. If the vote goes against me, I shall not lose hours of sleep as I toss and turn in my bed and consider gnashing my teeth about the infamy that the Government have perpetrated. Nothing could be further from the truth. I just happen to think that the Government are wrong. Seeing that these are matters on which the House's opinion is sought, and must be sought, I stand by my view that it is a silly idea.
I did not expect the hon. Gentleman to be cross as he is very friendly, even though he is a member of the Opposition. I remember how cross he was at the Dispatch Box last night when dealing with the Bill that we were considering then. He read out from Mr. Speaker's provisional selection all the aspects of that Bill that could not be discussed. He put the case eloquently. Of all the elements in the current provisional selection, however, the renaming of the supreme courts of England, Wales and Northern Ireland is hardly of earth-shattering importance. I wonder why we must waste 15 minutes on a Division if he is not going to stay up all night worrying about it.
I have a simple suggestion for my hon. Friend the Minister, who has conducted these proceedings in an absolutely brilliant way, despite all the opposition of the Conservative party, which said that it would oppose everything that he did, root and branch. It has come down to this. Let us have a competition called, "Name that court". Let us use the Conservative party website and let Opposition Front-Bench Members text their views on what this court should be called. If he is prepared to allow that to happen, perhaps the hon. Member for Beaconsfield will not force the issue to a vote.
I support my hon. Friend the Member for Beaconsfield (Mr. Grieve), who has been maligned in this short but interesting debate. What is in a name? It is tradition, history and continuity, which established who we are and where we come from. With the Government's hectic modernising reforms, particularly in the constitutional area, we worry that they have no sense of history or tradition, and no understanding of why things are as they or have been named as they were. They seem to want to root out everything that was not created after 1997.
By defending some names, and the larger institutions that they represent in many cases, we are saying that all is not wrong because it was thought up a long time ago, because it has evolved and served us well over many centuries or because it has some idiosyncrasies or quirks that do not seem rational or logical to the modernising mind of Labour and new Labour. We are saying to the Government that they should pause. Do they really need to dream up this ghastly name today and shove it through so that we will be cursed for the weeks and months ahead, if not years, with having to call our courts "Senior"? I believe that is a word that the Americans use to describe pensioners, which creates an unfortunate impression for the important bodies that the Government are trying to transmute.
I often feel that this Government are in the alchemy business, but they take gold and transmute it into base metal rather than the other way around. What is in the name is what we stand for, who we are and how these great institutions have come about. If we destroy the name and the institution at the same time, something magic has gone.
I am going to accuse the hon. Member for Beaconsfield (Mr. Grieve) of being a Conservative. I know that the Leader of the Opposition might be considering changing their party's name, possibly to move to a new era, but the hon. Gentleman exemplifies that they remain Conservatives. Despite the eloquence of my argument, he has almost resolutely said that he will not be persuaded, whatever I say.
The hon. Member for Beaconsfield says that it is bizarre to change the title of this cluster of courts now known as the supreme courts of England and Wales to the senior courts, not the superior courts—we chose not to go for superior as there are other superior courts of record elsewhere. One of the justifications for calling them senior courts was that we wanted to avoid the word superior. We did that in consultation with the judiciary, who now agree that the concept of senior courts is right, and not least that it should be courts—plural—as we are talking about a cluster of courts. That is not reflected in the current name of the supreme court for England and Wales.
If, in the bigger picture, we are creating a new United Kingdom supreme court, for those in the wider country who are not immersed in the world of the law as the hon. Member for Beaconsfield might be we need to avoid confusion and have wider understanding and comprehension of how our courts work in this country, right up to the UK supreme court. That is why we think that it makes good sense, as do the judiciary, to change the title to "Senior Courts of England and Wales".
I was sorry that the hon. Gentleman and other Opposition Members seemed to say that there was something sad in the term "Senior". I think that seniors are happy and wonderful people. He seems to have a sense that they are somehow miserable and not to be favoured. I am all in favour of seniors, and I want to put that on the record, too. I do not see the logic of his conservatism.
The hon. Member for Southwark, North and Bermondsey (Simon Hughes) and my hon. Friend the Member for Leicester, East (Keith Vaz) adequately explained why now is the time to move to the title of "Senior Courts of England and Wales". I commend the amendments to the House.
Question put, That the amendment be made:—
Schedule 3, as amended, agreed to.
Clause 13 — Other functions of the Lord Chancellor and organisation of the courts
I beg to move amendment No. 491, in page 5, line 35, leave out 'certain functions of' and insert 'functions to or from'.
With this it will be convenient to discuss the following: Government amendments Nos. 492, 376, 377, 493 to 498, 378, 499 to 501, 379, 502 to 507, 380 to 385, 508, 509, 386 to 395, 510 to 512, 396 to 400, 513, 401, 514, 402, 404, 405, 515, 406 to 408, 516, 409 to 411, 517, 412, 413, 518 to 527, 415 to 420, 528, 421 to 425, 529, 530, 427 to 429, 531 to 534, 430 to 433, 535 to 538, 434, 435, 539 to 544, 436 to 453, 545 to 556, 454, 557, 456 to 459, 558, 460 to 462 and Government new schedule 1.
This group of amendments is very substantial—the most substantial that we will debate today—and makes detailed and technical amendments to schedule 4 in five separate areas. It will therefore assist the Committee and perhaps speed debate if I set the scene and list the areas affected before considering each in more detail, thereby providing an overview of this "super-group" of amendments.
Schedule 4, which is a key part of the Bill, gives effect to the concordat agreed between the Lord Chancellor and the Lord Chief Justice. It provides for the Lord Chancellor's current statutory functions relating to the judiciary and to the organisation of the courts to be amended, so that they require consultation with, or the concurrence of, the judiciary, or transferral to the Lord Chief Justice or to another senior judicial office holder.
The amendments are designed to complete the schedule and to make sure that it fully reflects concordat principles. Five separate areas are covered. The first batch of amendments in the group covers a number of individual functions in Northern Ireland under legislation that extends throughout the United Kingdom, and it introduces a new schedule relating to Northern Ireland that corresponds to schedule 4. The second batch contains provisions that support arrangements for ending the Lord Chancellor's ecclesiastical patronage and, as the Government announced on 2 March 2004, its future exercise by the Prime Minister.
The third batch of amendments makes arrangements for appointments and removals from tribunals that cover the whole of the United Kingdom or other parts of the UK in addition to England and Wales. The fourth batch makes a number of corrections and updates to ensure that the transfer of functions is fully in line with the concordat. The fifth batch transfers to local registering authorities in England the power to set fees for local charge services, with the exception of fees for personal searches of the register.
Before the Minister finishes summarising the amendments and deals with the detail, can he say how many transfers of patronage in respect of Church of England livings are expected as a result of this shift from the Lord Chancellor to the Prime Minister?
I will come to that issue in a moment. I want first to talk about Northern Ireland appointments, removals to UK tribunals, the introduction of the new schedule and, in that context, amendment No. 491 and the associated amendments. Those amendments cover a number of individual functions in Northern Ireland and create new roles for the Lord Chief Justice of Northern Ireland. In addition, a new schedule relating to Northern Ireland is introduced that corresponds to schedule 4, which affects England and Wales. Amendment Nos. 491 and 492 amend clause 13 to provide for the transfer of the Lord Chancellor's functions in Northern Ireland, and for the introduction of the new schedule. Amendments Nos. 493 to 558 amend schedule 4 to deal with a number of the Lord Chancellor's functions in legislation with UK-wide extent.
To return to the intervention from the hon. Member for Southwark, North and Bermondsey (Simon Hughes), as stated in the Lord Chancellor's written statement to the House on 2 March 2004, the Crown's ecclesiastical patronage rights currently exercised by the Lord Chancellor will remain with the Crown. The basis of the Lord Chancellor's exercise of this patronage is historical; it is not based in statute. In future, that patronage will be exercised on the advice of the Prime Minister, who already deals with a range of ecclesiastical appointments. Passing responsibility for exercising this patronage can be achieved through non-statutory means.
The amendments to the Pluralities Act 1838, the Ecclesiastical Leasing Act 1842, the Inclosure Act 1859, the City of London (Guild Churches) Act 1952 and the Pastoral Measure 1983 are consequential on that transfer, and change statutory references to the Lord Chancellor in provisions relating to patronage to reflect the decision to transfer such matters to the Prime Minister. [Interruption.] I have been inspired to point out that some 442 aspects of ecclesiastical patronage will be transferred to the Prime Minister; I hope that that is not too precise a figure for the hon. Member for Southwark, North and Bermondsey. Those amendments will ensure that the ending of the Lord Chancellor's ecclesiastical patronage is satisfactorily completed and that any uncertainty is removed. They have of course been discussed with the Church, and agreement has been reached on this outcome.
Amendments to the Ecclesiastical Licences Act 1533 and the Public Notaries Act 1843 relate to the Lord Chancellor's functions in respect of appeals under those Acts.
Sadly, my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) is not with us. If he were, I feel certain that he would be able to advise us of the significance or otherwise of these provisions. In his absence, can the hon. Gentleman tell the Committee whether, as it stands, this represents, following Bagehot, a dignified or an efficient part of the constitution? In other words, in practice, is the Prime Minister going to take advice and, if so, from whom, or is he seriously going to preoccupy himself with any significant number of these nominations?
I shall give way to the right hon. Gentleman, who has conducted wider inquiries into some of these matters, in a few moments.
The Prime Minister, in his capacity as First Lord of the Treasury, already provides advice to the sovereign on a wide range of ecclesiastical appointments, and officials dealing with parish appointments are already based at No. 10 Downing street, but currently work both for the Prime Minister and the Lord Chancellor. It makes pragmatic and practical sense to continue with the rationalisation of these arrangements in the light of responses to consultation on the issue.
Does the Minister recall that the Constitutional Affairs Committee had an interesting evidence-gathering session on this matter? It was made clear that the same officials would continue to do the work. Rarely, in my experience, has a group of public officials been so widely commended by the customers and clients of their work. If any other course of action were to be adopted, such as a transfer of these functions to the Church authorities, there was no agreement as to which part of the Church's structure they should be attached to.
The right hon. Gentleman has neatly summed up the rationale behind many of the amendments, which is why I would not demur from them.
Will the hon. Gentleman guide us as to the connection, if any, between these provisions and what are known as Royal Peculiars? Arrangements stemming from the 10th to the 15th century governed the relationship between the papacy and the Crown and established spiritual jurisdiction in respect of colleges and prebends. Windsor castle is one example, not to mention St. Stephen's, Westminster and many others in my constituency—for some reason, Staffordshire and Shropshire have a significant number of these Royal Peculiars, otherwise sometimes known as royal free chapels.
My question is whether the transfer from the Lord Chancellor to the Prime Minister will in any way affect those Royal Peculiars. I have an idea that, unbeknown to some people, the residual spiritual jurisdiction vested in the Crown as a result of the Royal Peculiars might be of some assistance at some point in time in respect of the problems that have arisen with Windsor castle. I wonder whether the Minister—
Order. The hon. Gentleman has made his point; he is making an intervention.
I would not want to accuse the hon. Gentleman of trying to grab the headlines—certainly not in this debate, at least. My understanding is that many of the Royal Peculiar functions are already undertaken under prime ministerial patronage, but I will try to check on the point, in case I am wrong. The amendments that we are proposing in this group make no further changes in that respect; they are simply designed to amalgamate the ecclesiastical patronage arrangements of the Lord Chancellor with those of the Prime Minister. Other functions are more judicial in that they relate to appeals under legislation such as the Ecclesiastical Licences Act 1533 and the Public Notaries Act 1843, so they are transferred in line with the ending of the judicial role and functions of the Lord Chancellor. The amendments also provide for the Chancellor of the High Court to delegate the function of hearing appeals to another judge.
I have a somewhat less esoteric question for the Minister, whom I commend on his mastery of the brief in connection with such a detailed issue. The daffodil in my buttonhole suggests that I might be an Anglican, but I am part of the disestablished Church, not a member of the Church of England. Having said that, I do not believe that denominations are important. There is one Church and denominations have often been a curse, not a merit, of that Church.
Given that we are talking about the transfer of ecclesiastical functions to the Prime Minister—as my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) said, there is a well established system of officials who deal with these matters—will the Minister give an assurance on the record that there will always be consultation with the "customers or clients", to use my right hon. Friend's words, or the parishioners before the Prime Minister makes any appointments under his new powers?
I suspect that that will be the case. I can give that undertaking in so far as we do not propose to make any changes to the practice of making those patronage appointments. It is simply a matter of the formality of who will make the appointments on the advice of the Prime Minister to the Queen.
The third tranche of amendments in the group deal with the Lord Chancellor's powers to appoint and remove from tribunals that have a UK-wide jurisdiction. Amendments Nos. 399 and 430 transfer the Lord Chancellor's duty to consult the Secretary of State for Health or the chief medical officer in respect of certain tribunal appointments.
The others deal with tribunals with a UK-wide jurisdiction or a jurisdiction covering more than one part of the UK. Those require special arrangements in respect of some appointing and delegating functions and removals from office. The power to remove usually lies with the Lord Chancellor, with the agreement of the Lord Chief Justice of England and Wales, but in respect of Scottish members, removal should be with the agreement of the Lord President of the Court of Session; and in respect of Northern Irish members, removal should be with the agreement of the Lord Chief Justice of Northern Ireland. Those seem to me sensible and appropriate changes. The relevant judge in each case is referred to in the amendments as the "appropriate senior judge".
The fourth group of amendments deal with miscellaneous technical changes to schedule 4. For example, amendments Nos. 442 to 444 provide for the Lord Chief Justice to appoint someone other than the Master of the Rolls to the post of head of civil justice, bringing the legislation into line with the appointment procedure for the heads of criminal and family justice in clauses 8 and 9, which we discussed earlier. Amendment No. 397 transfers to the Lord Chief Justice the Lord Chancellor's power to prescribe new business for the central office, which we will now call the senior courts. There are also a series of amendments to omit statutory references to the now redundant power of the Lord Chancellor to alter rules made by rule committees.
Why are there so many amendments? Is it because the Minister did not bother to check the provisions in the first place, or is it simply that the Government are making it all up as they go along and that this is the new material that they have recently come up with?
Neither of those two options apply. We have certainly consulted the judiciary and many of the amendments are a consequence of that. We have also had a prolonged period of scrutiny of the legislation, including, as the right hon. Gentleman will recall, scrutiny by a special Select Committee in the other place, not to mention debate and suggestions from the Constitutional Affairs Committee. Not all the amendments arise from those particular considerations, as many stem from consequential changes to other pieces of legislation. I realise that the volume of amendments is a burden on the Committee, but it is right and necessary to be as accurate as possible.
I shall come back later to the point raised by my right hon. Friend the Member for Wokingham (Mr. Redwood). If the head of civil justice is not to be Master of the Rolls, what is the purpose of having a Master of the Rolls? In other words, what would he do?
There may well be other tasks for the Master of the Rolls to do in place of having the post of the head of civil justice. I have already set out, in our discussions on clauses 8 and 9, the point of having some flexibility among the senior judiciary. We will always have persons to head the senior divisions of our courts. There will not be vacancies for long in respect of any of those posts, but we need to ensure that we retain a degree of flexibility. That idea was not simply thought up by my Department, but in agreement with the Lord Chief Justice and others.
I am not quite sure what the Minister is getting at. If the Master of the Rolls is not going to carry out the job allocated to him, why should not the person who subsequently gets his job be called the Master of the Rolls?
That is because the Vice-Chancellor was head of civil justice. The Bill changes a number of titles among the senior judiciary. The president of the civil division of the Court of Appeal will have that post, but we must put the new arrangement in place to allow greater flexibility. If it will help the hon. Gentleman, I shall write to him with some more detail about our discussions with the Lord Chief Justice on this matter. The arrangements in the Bill are ones that we have agreed with him, as I set out earlier.
I want to raise another matter that may have been dealt with earlier when I was not present, but will the Master of the Rolls retain his judicial oversight of solicitors? Is that role to be transferred as well?
Our intention is that the Master of the Rolls will retain that function in relation to solicitors.
There are a number of other minor and technical amendments in this group that serve to change the wording in various places, alter references to sections and paragraphs, provide cross-referencing to other legislation, and so on. In addition, they correct the Bill's provisions when a function's transfer is not entirely in line with the concordat arrangement.
The most significant change, however, is to the renewal of recorder appointments set out in Government amendment No. 385. The new provisions mirror what has been the practice for some time—that is, that appointments are automatically renewed except where there are grounds for non-renewal. The Bill will now require the Lord Chief Justice's agreement to the grounds given for non-renewal or removal from office, and to any decision that those grounds are fulfilled in any particular case. The remaining amendments correct how some existing functions of the Lord Chancellor are modified, and delete incorrect provisions. Amendment No. 447 provides that the Home Secretary will be involved in a new power relating to the making of criminal procedure rules. Other amendments ensure that the Lord Chancellor's functions relating to the making of those rules are correctly reflected in the relevant statutory provisions.
The fifth set of amendments in this group alters the Local Land Charges Act 1975 to give local authorities in England the power to set local land charge fees, but not personal search fees. At present, there is considerable variation between local authorities when it comes to keeping local land charge records. Local land charge fees are set nationally, by the Lord Chancellor. Local fees that reflect a local authority's circumstances will encourage better local accountability, efficiency and transparency, and will be fairer to local authorities and their customers.
Government amendment No. 390 implements one element of the action plan set out in the September 2002 local government White Paper and announced by my noble Friend Lord Rooker during the Committee stage of the Housing Bill. It will allow local authorities to set fees at a level which, taking one year with another, will enable them to recover an amount up to, but not in excess of, the costs incurred by providing local land charge services.
The amendment does not change the position in respect of fees for personal searches, of which a full review will be undertaken before any decision is made. It does not change the position in Wales either, as local land charge fees have been set by the National Assembly for Wales since 31 December 2004.
I imagine that the question of local land charges will be of interest to many hon. Members, but the Minister just said that local authorities will not be allowed to make a profit from the provision of that information. I support delegating powers to local government, but will he say why a flat rate cannot be introduced? Will not it be slightly confusing for consumers if the amount varies between local authorities? People often do not know which is the relevant local authority, so is there not a possible complication that could be avoided?
It would defeat the purpose of the reforms set out in the 2002 White Paper if local authorities were not to be given extra freedom and flexibility, even in this small way. Most hon. Members recognise that reinvigorating local democracy means that some functions must be shifted to local authorities, so that they can be accountable for their decisions. The hon. Gentleman suggests a flat rate, but I suspect that that would require subsidy from somewhere else. That would defeat the purpose of the provision, and the burden would fall on taxpayers in other areas. Our proposal will encourage greater efficiency in this part of a local authority's work. Delegating the power to determine fees to local authorities may well mean that those fees will be lower than is currently the case nationally. However, the requirements that local authorities can charge only as much as the costs incurred will provide a measure of protection for the public.
With those comments, I hope that the amendments in this very large group can stand part of the Bill.
The amendments mainly deal with concordat issues and for the most part are fairly innocuous. However, I was fascinated to learn a little more about the Royal Peculiars.
Hidden away in this huge list is Government amendment No. 390, which the Minister has just explained. That would allow local authorities to set the fees for searches of the local land charges register. Opposition Members are not satisfied about the addition of this late amendment to the Bill. The Government have set aside little enough time for debate on this important and substantial measure, even without the introduction of this substantive provision on the final day of Committee. The amendment is not connected with the rest of the Bill, even though the Minister did his best to tie it all in.
The Government's control of timetabling has collapsed over recent weeks, so perhaps I should not be surprised that they have lumped together land charge fees with the creation of the new supreme court. That approach, however, seems to be a little bit on the tacky side.
The small amount of time made available for debate of this matter is especially inappropriate, as the provision is not without controversy. The Council of Property Search Organisations is the trade association for the property search industry. It, and other providers of property search information, have contacted various hon. Members to explain the difficulties associated with the proposed change.
The Bill will require each local authority in England and Wales to specify the fees for services relating to local land charges. Such charges are matters of a public nature: they relate to property, and people interested in a property ought to be aware of the associated charges. Matters covered include tree preservation orders, planning obligations, enforcement notices and designation as a conservation area. Details of local land charges can be obtained either through an official search carried out by local authorities in accordance with section 9 of the 1975 Act, or by means of a personal search by an applicant under section 8 of that Act.
The amendment does not apply to personal searches of the register, which the Department for Constitutional Affairs has said will be the subject of a further review. At present, the Lord Chancellor sets the fees for the different types of local land charge searches. The standard fees are £6 for an official search, and £11 for a personal search. The Government have made available draft guidance for proposed new charges.
When setting their own fees, local authorities will have to ensure that, taking one financial year with another, those fees do not exceed the cost of providing the services in question. They will also have to take into account guidance from the Lord Chancellor. The draft guidance made available by the Government covers the calculation of costs, and related matters.
The proposals have developed out of the 1997 review "Report of an Efficiency Scrutiny of Central Consent Regimes for Local Authorities" and the 2001 White Paper entitled "Strong Local Leadership, Quality Public Services". That sounds like a good new Labour tag if ever I heard one.
The hon. Member for South Ribble (Mr. Borrow) introduced a private Member's Bill on this topic last year, but that was withdrawn when the Government announced their intention to bring forward an amendment such as the one under discussion today. The proposals reflect the fact that the cost of providing local land charge services varies considerably between authorities. That variation arises out of the different ways that local land charges registers are maintained. For example, that information may be held electronically or on paper.
A key argument in favour of such a change would be the desirability of devolution from central Government, removing the need for local government to make applications for fee increases and for new central Government orders to be issued. The hope would be, equally, that requiring local authorities to set fees that reflect their own costs would encourage transparency and efficiency. The result ought to be lower charges for consumers.
The Opposition are not opposed in principle to the idea of allowing local authorities to set their own fees in this context. Indeed, my hon. Friend the Member for South Holland and The Deepings (Mr. Hayes) introduced an amendment to that end to the Housing Act 2004. Although that amendment was withdrawn, we still have reservations about the detail and timing of Government amendment No. 390.
If the Government are intent on allowing local authorities to set their own fees, they should go further in requiring local authorities to improve the services that they provide in relation to local land charges. According to CoPSO, some local authorities still take up to eight weeks to produce local land charges searches. If vendors have to provide local search results as part of home information packs from 2007 onwards—we could debate whether they should do so in the first place—that will only add to the importance of ensuring that local authorities can provide an efficient service. Simply allowing local authorities to set fees to cover their costs does not provide an incentive for them to improve services and move swiftly towards the full electronic delivery of property information.
In accordance with the Government's draft guidance, local authorities cannot operate cross-subsidies to keep council tax down generally, to cover the cost of providing personal searches information—of course, that is specifically excluded from Government amendment No. 390—or to cover the costs of holding property information and generally running their local land charges departments. However, that must be seen in the context of some local authorities' very poor track records in providing at-cost services and transparent accounting.
Will local authorities be able to set their fees to subsidise the cost of collecting and storing property information, providing personal search requests or carrying out other council services? Again, how will the Minister encourage poor-service councils to pull up their socks and start delivering value for money?
It is essential that the Government make it clear that the intention behind devolving this power is to reduce costs and increase transparency for the benefit of local land charges customers, not to create a new source of local government revenue on the back of the service that local councils are required to provide by law. Will the Minister please guarantee that there will be a significant reduction in the costs of gaining access to local land charges information as a result of Government amendment No. 390?
I make none those points in relation to local authorities out of a desire to attack local government. On the contrary, I have a great deal of sympathy for the difficulties faced by local authorities under the Government. Let us take local planning departments. Only before Christmas, the Government slipped out their latest stealth tax plans: a huge increase in planning fees charged to the public—up by an average of 39 per cent. from April—while cutting planning delivery grants to local planning departments, so that they see no real increase in their resources.
Perhaps our biggest criticism relates to the timing of Government amendment No. 390. The Office of Fair Trading is presently conducting a market study of the property search industry that is due to report this summer. It is considering how consumers' needs are met and the structure of the property search market, as well as investigating complaints from property search companies about difficulties in gaining access to property information held by local authorities.
The Government have already accepted the need to wait for the study's findings in relation to personal searches. Yet they are still forcing through Government amendment No. 390 today in relation to official searches, tacked on to a barely related Bill. Bearing it in mind that those proposals have been in circulation for a number of years, my hon. Friends and I suggest that it would be much more sensible to wait the relatively short time until the OFT report is published. That would allow for a single comprehensive review of local property search markets and the role of local authorities.
Could my hon. Friend help the Committee by giving some sort of broad-brush illustration of the extent of the disparity between the highest charges that are imposed and the lowest? While he is about it, given that he has rightly focused on service delivery, will he offer us an insight into which are the best performing local authorities in terms of cost-effectiveness and speed of response?
Order. Before the hon. Gentleman goes too far down that road, it would be a very good idea if the Committee were to stay in order and relevant to the amendments under discussion.
Thank you, Mr. Gale. Let me just respond to my hon. Friend by saying that he makes an important point. At the moment, of course, the charges are the same everywhere, but he refers to what we will have to consider in years to come if we do not get it right now.
To sum up, I have pointed out that many outstanding issues remain, and I look forward to hearing the Government's response to those that I have raised.
I shall be brief. I raised this issue in my last intervention on the Minister. First, I start from the presumption that it is reasonable to include such proposals in the Bill because it relates to the devolution of powers that were the Lord Chancellor's, although perhaps it could be argued that they could be included elsewhere. Legislation is often a vehicle to which appropriate things can be attached, as the vehicle goes past, but I understand that the Bill is not entirely inappropriate for such proposals.
Secondly, I start with the presumption that local government should have much more power to raise its income, to spend it and to be much more free from Government interference, direction and control. People would be encouraged to vote if they thought that voting for local councils could make a big difference—and the bigger the difference, the better.
The questions asked by the hon. Member for Huntingdon (Mr. Djanogly) have been raised with us generally, and I am sure that they have been raised with the Government. The Minister needs to assure us that the best value for money and the most efficient service to the consumer can be achieved. I appreciate that we will never get different local councils to carry out searches in the same number of days. There should be a maximum number of days, but the council's efficiency will determine how quickly it is done.
If a council is not allowed to charge more than its costs, however, the only variable is the efficiency of that local authority in delivering that service at the cost that is worked out for the service as a whole. The variation cannot be great. We are talking about small sums. The land search charges cost pounds, not tens, twenties, fifties or hundreds of pounds, so we are talking about one of the smaller costs in the search for houses that for so many people goes on for so long. There are none the less real concerns. The more helpful the Minister can be, the better. If he could also refer the debate on this matter to his colleagues in the Office of the Deputy Prime Minister who deal with local government so that we can be sure that, from the date of handover, there is some immediate scrutiny to ensure that an overview is taken of how local councils perform in the first few years of their new power, that would be encouraging.
It would be useful, if the Minister catches your eye again, Mr. Gale—if he could give us some idea of what range of charges we might be in for if the proposal is adopted. Like my hon. Friend the Member for Huntingdon (Mr. Djanogly), I have some doubts about the Government doing this now. The Conservative party favours more local autonomy, but it would be useful to know why now. It would certainly be useful to know what the consequences might be.
I presume that the Minister has looked at the figures for the costs around the country, and it would be helpful to the Committee to know what the range is and what the biggest increase might be. We consider this important matter in the context of mortgages just having been regulated very expensively and clumsily; the threat or promise of sellers packs coming in, which may also be expensive and cumbersome for people who are selling their houses; and a big escalation in stamp duty.
The costs of buying a house and moving have got a lot dearer. We a considering a very small element of the cost, but we should worry about any element of it, given the history under the Government of big increases in the costs of buying a home, particularly for those who are trying to buy their first home, against the background of a rising market and increasing tax and regulatory costs. It would be helpful to the Committee if the Minister gave us some guidance on average costs and the range of costs around the country, so that we know what we might be in for.
I share my right hon. Friend's scepticism and uncertainty about the proposal. Does he agree that alarms bell ring when Ministers talk about the importance of allowing charges that would reflect local authorities' costs, given that they include labour costs? That is partly because some local authorities are manifestly more inefficient than others and devote a much larger slice of labour time to the fulfilment of prosaic tasks.
My hon. Friend has made an important and original point about labour costs. Some councils are not efficient at delivering such services, which is why the Committee needs some guidance on current experience, the range of costs and what they may mean in the worst and best locations. It would be helpful to know that before coming to a decision on this proposal and the others in the rag-bag of amendments, changes and clarifications before us.
I am slightly surprised that the hon. Member for Huntingdon (Mr. Djanogly) queried why we are discussing this matter on the schedule. As the hon. Member for Southwark, North and Bermondsey (Simon Hughes) said, we are talking in broad terms about the Lord Chancellor's functions, the shift from his old guise to the new guise, and where the different functions should be vested and transferred to. Local land charge fees may be a small area, but for some time now we have had a desire to move decisions to local level rather than having a central diktat. I thought that the Opposition also wanted to move away from that, but perhaps I am wrong.
I am surprised that the Minister is surprised at the way in which my hon. Friend the Member for Huntingdon (Mr. Djanogly) properly performed his Front-Bench duty. The Minister should not take offence. The policy may be right or it may be wrong, but it is, at least, a source of surprise to some of us that such matters have been included in the Constitutional Reform Bill. We had thought that the Bill covered a variety of matters of slightly greater long-term constitutional significance to the fabric of the United Kingdom than is epitomised by a debate on land charges.
The hon. Gentleman may be right, and perhaps I should not have used the word "surprised", because I am not shocked and aghast that the Opposition should have raised the matter. Given that we are discussing the functions of the Lord Chancellor and that one of them is to set local land charge fees, I am not astonished that we are discussing the matter today.
The fact that the fees are crudely set centrally means that the Department for Constitutional Affairs can do nothing but approximate what those fees should be. Widely varying methods are used to produce the information requested in exchange for those fees. Localised setting of fees will help, even in a small way, to improve transparency for local government, and it could be a spur to greater efficiency. The hon. Gentleman referred to the labour costs that go into the process of searches and so on and if there is better local accountability, in theory some local residents may query why charges are set at a higher level than in other areas that are more efficient and have lower charges.
There is also scope for local authorities to be innovative in the way in which they deliver information about land. The right hon. Member for Wokingham (Mr. Redwood) asked what is involved. We are talking about searches relating to restrictions and obligations on particular pieces of land or, more generally, inquiries about the status of land and whether it is a conservation area, is subject to enforcement notices, and so on.
Local authorities may want to consider providing information through the internet and other electronic means instead of having a paper-based system. That might be a preferable route, and we should consider transferring the centralised fee-setting arrangements to local authorities without allowing them to make a profit from the arrangements. The Lord Chancellor will be able to issue guidance to local authorities to ensure that they are aware of their obligations under other legislation. The idea is not new. Its genesis dates from as long ago as 1997 and might not have been under the present Administration. I caution hon. Members about that in case they favoured the suggestion at that time.
I hope that I have been able to answer some of the points raised by the hon. Member for Huntingdon. There will be no opportunity for cross-subsidisation because there will not be a profit element. The time has come to give that small amount of extra freedom and flexibility to local government. We are discussing the functions of the Lord Chancellor, and now is the time to make the amendment.
Amendment agreed to.
Government amendment made: No. 492.
Clause 13, as amended, ordered to stand part of the Bill.
Schedule 4
Other functions of the Lord Chancellor and organisation of the courts
Government Amendments made: Nos. 376, 377, 493 to 498, 378, 499 to 501, 379, 502 to 507, 380 to 385, 508, 509, 386 to 395, 510 to 512, 396 to 400, 513, 401, 514, 402, 404, 405, 515, 406 to 408, 516, 409 to 411, 517, 412, 413, 518 to 527, 415 to 420, 528, 421 to 425, 529, 530, 427 to 429, 531 to 534, 430 to 433, 535 to 538, 434, 435, 539 to 544, 436 to 453, 545 to 556, 454, 557, 456 to 459, 558 and 460 to 462.
Question proposed, That the schedule, as amended, be the Fourth schedule to the Bill.
The schedule is important in at least one respect; I want to raise a matter relating to habeas corpus. The first amendment in part 1 of the schedule refers to the Habeas Corpus Act 1679 and, understandably, removes the reference to
"the lord chauncellour or lord keeper"
During my 22 years in this place—it is 22 years today—I had never had occasion to go into the No Lobby and pull out the volume of statutes that includes habeas corpus. It is exciting to do so. I remember looking at it when I was at school, at university and at other times. It is a wonderful volume, containing the earliest statutes that we have. It goes back to the very first statutes in 1235–36 during the reign of Henry III. The page is well thumbed and almost falling out, so I shall talk to the Library staff to ask if it can be put into good order.
I congratulate the hon. Member for Southwark, North and Bermondsey (Simon Hughes) on his 22nd anniversary in this place. I hope that I will be in order, Mr. Gale, if I gently suggest to the hon. Gentleman that it would be entirely fitting for him to have a photographic representation of the way he is so painstakingly perusing the book in front of him. It is emblematic of the way in which he goes about his business in this place.
The hon. Gentleman is very kind. There are little excitements in life. A commendation the other day said how much better people do if they are brought up to read and explore books and to understand them. This is one example, which I share, of the excitement of finding an item of constitutional importance in a book. I commend it to the Committee.
The schedule would amend clauses 1 and 2 of the Habeas Corpus Act 1679 by removing the references to the "lord chauncellour". Those clauses are very long. I hope that the Minister will be able to tell me what is left to us by way of protection. That was a huge issue yesterday, and it will properly be a huge issue for the Lord Chancellor and the judges of the supreme court and others in the future. It is very important to ensure that at any stage a judge can order that someone who has been detained is brought to court to give them a chance to have their say. I ask out of ignorance, because I have not investigated what amendments have been made to the Habeas Corpus Act 1679 before. I guess that we do not amend it often and that this is a rare moment in history, hidden away in schedule 4.
The 1679 Act is
"for the better securing the liberty of the subject and for prevention of imprisonments beyond the seas."
In essence, clauses 1 and 2 provide for the body—the person—to be brought before a judge to ensure that they are detained lawfully. After the amendment of the Act by schedule 4, which will remove the most senior judge, the Lord Chancellor, what will we be left with in terms of the judges in front of whom a person detained can be brought? Which judges will have power to call for someone to be brought before them?
The phrase that will be left in the Act appears to include judges generally. Does that mean, in the phraseology that the Minister used earlier, junior judges, such as a magistrate, a district judge or a local county court or Crown court judge? Would it include High Court judges? I hope so. Would it include Appeal Court judges? I suppose that it might. Would it include the Lord Chief Justice? I hope that it would, because we need to know that the most senior judge in the land has the power, if necessary, to use habeas corpus to ensure that citizens of this country retain their liberty.
I am impressed by the hon. Gentleman's erudition. The issue he raises has significance for the Bill that we discussed yesterday, in confused and farcical circumstances. I was glad that the Home Secretary, in answer to my intervention, confirmed that habeas corpus would be retained under that Bill.
I draw the hon. Gentleman's attention to the fact that habeas corpus has often been described as
"the most important writ known to the constitutional law of England".
In the case of Cheblak, in 1991—fairly recently—it was said:
"Authorising its issue in appropriate cases is regarded by all judges as their first duty, because we have all been brought up to believe, and do believe, that the liberty of the citizen under the law is the most fundamental of all freedoms."
I am sure that we are united in wishing to ensure that we do nothing to reduce the protection of the citizen's liberty by the courts.
I have three further questions. First, I seek the Minister's confirmation, possibly on advice, that the provision remains a United Kingdom provision. I ask that conscious of the presence of Scottish Members. Whatever the mechanisms involved, the same right should apply in each of the four countries of the UK. Secondly, is it still the case that the law provides that people may also be brought before "barons of the said court", as well as before a judge? If so, who are those barons? Some judges are barons, in that High Court judges are knighted, but there are also barons by inheritance. I may be getting beyond my depth in matters of the honours system, but I ask out of ignorance.
Thirdly and very importantly, there are provisions in the Act that relate to the nearness of the judge to the person detained. One of the big issues in criminal justice recently has been the concern to ensure that magistrates courts are near the communities that they serve. That applies as much in the Minister's home area as it does in mine. Do the habeas corpus rules apply in the same way as was originally drafted back in 1679? In the proposals to change the distribution of courts, have the Government taken into account the consideration of distance, as provided in the 1679 Act? The Act states that
"upon security given by his owne bond to pay the charges of carrying backe the prisoner if he shall bee remanded by the court or judge to which he shall be brought according to the true intent of this present Act and that he will not make any escape by the way make returne of such writt or bring or cause to be brought the body of the partie soe committed or restrained unto or before currently the lord chauncelior or lord keeper of the great seale"—
those are the words that will be deleted—
"of England for the time being or the judges or barons of the said court from whence the said writt shall issue or unto and before such other person and persons before whome the said writt is made returnable according to the command thereof".
Then comes the distance provision:
"and shall likewise then certifie the true causes of his detainer or imprisonment unlesse the committment of the said partie be in any place beyond the distance of twenty miles from the place or places where such court or person is or shall be resideing and if beyond the distance of twenty miles and not above one hundred miles then within the space of ten dayes, and if beyond the distance of one hundred miles then within the space of twenty days after such delivery aforesaid and not longer."
It would be no consolation to me if I were being held unlawfully in 2005 to be told that the reason I did not have to be brought before a court for 10 or 21 days was that the court was more than a certain distance from where I was being detained. That provision may have been practical 500, 600 or 700 years ago, but it should no longer apply. I would be interested to know whether the provisions have been changed to allow people the speediest possible justice. Will there always be a court near enough so that someone can be brought before a judge at the first available opportunity?
Schedule 4, though dense, is vital to the Bill. It establishes the appropriate responsibilities of the Executive and the judiciary. It ends the judicial role of the Lord Chancellor and gives effect to the principles set out in the concordat. It sets out the bulk of the amendments to existing legislation, including the example cited by the hon. Member for Southwark, North and Bermondsey (Simon Hughes), dealing with the current functions of the Lord Chancellor that relate to the judiciary, his role as judge and the organisation of the courts. It also transfers functions to the Lord Chief Justice, requiring the concurrence of, or consultation with, the Lord Chancellor as appropriate. Some functions remain with the Lord Chancellor, requiring the concurrence of, or consultation with, the Lord Chief Justice as appropriate.
The schedule also enables the Lord Chief Justice to delegate functions conferred on him by the Bill to other judicial office holders, and that is essential to ensure sufficient flexibility and to ensure that the Lord Chief Justice can continue to fulfil his primary role as a judge. It is important to mention that by virtue of schedule 6, the functions conferred on the Lord Chancellor cannot be transferred to another Minister by an order of the Ministers of the Crown Act 1975. That is essential, given clause 4 and the Lord Chancellor's particular duties in relation to judicial independence.
I am not a lawyer, nor do I have the well thumbed textbook of statutes before me that the hon. Gentleman has.
The Minister can have it.
I would rather the hon. Gentleman did not pass it across to me. I will try my best to answer some of his questions about the Habeas Corpus Act 1679. We do not propose to make any substantive changes to that Act. However, it will no longer need to refer to the Lord Chancellor because he will no longer be a judge or have a judicial role. That is the only change that we are making, so all the other references to judges in the Act will remain. The hon. Gentleman asked about different kinds of judges, and my understanding—with the caveat of my lack of legal qualifications—is that the provisions apply to High Court judges and above. No jurisdictional changes are proposed to the Act as it applies throughout the country. I think that the reference to barons of the High Court is another way of describing judges of the High Court.
The hon. Gentleman asked about access to justice and the 20 and 100 miles provisions. We do not propose to change those provisions in this Bill. However, other Acts might well have repealed or amended them, although I cannot say that for certain.
I hope that I have answered the hon. Gentleman's questions. Nothing in the schedule will undermine the principles of habeas corpus, which will remain strong. However, as the Lord Chancellor will no longer be a judge, we need to change references to him in myriad Acts of Parliament, just one of which is the Habeas Corpus Act 1679. I hope that my explanation has been helpful and has elucidated a little more why schedule 4 should stand part of the Bill.
I thank the Minister for his reply. If he comes across other useful information, I am sure that he will be able to share it with Opposition Front Benchers and other hon. Members. I am reassured that the Government stand by habeas corpus. If the access to justice provisions regarding distance have not already been amended, I suspect that a habeas corpus amendment Bill will come down the tracks from somewhere in the House before too long.
Question put and agreed to.
Schedule 4, as amended, agreed to.
Clause 14 — Lord Chancellor's Oath
I beg to move amendment No. 355, in page 6, line 9, leave out from 'that' to end of line 14 and insert
'I will well and truly serve our Sovereign . . . . . . . . . .in the office of Lord High Chancellor of Great Britain and that I will faithfully and at all times uphold the continued independence of the judiciary and the rule of law, in accordance with the laws and usages of this Realm.".'.
Clause 14 sets out a new oath to be sworn by incoming Lord Chancellors. Perhaps I should apologise at this point to you, Mr. Gale, because I am about to start a lot of swearing. The proposed oath reads:
"I . . . do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible . . . So help me God."
The new oath will be brought into force by inserting proposed new section 6A into the Promissory Oaths Act 1868.
The current oath taken by the Lord Chancellor is governed by the existing provisions of the 1868 Act. Section 5 of the Act, in conjunction with the first part of its schedule, requires the Lord Chancellor to take both the oath of allegiance and the official oath. The oath of allegiance reads:
"I . . . do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors, according to law",
and the official oath reads:
"I . . . do swear that I will well and truly serve Her Majesty Queen Elizabeth II in the office of"—
Lord Chancellor, for example—"So help me God."
Those oaths are the same as those taken by other Ministers of State.
Clause 14(1) makes it clear that that position will not change under the Bill, because it says that the new Lord Chancellor's oath will be taken
"in the same manner as the official oath".
However, up to now, section 6 and the second part of the schedule to the Promissory Oaths Act provided that the Lord Chancellor had to swear the same judicial oath as judges in England and Wales, namely:
"I . . . do swear that I will well and truly serve our Sovereign Lady Queen Elizabeth II in the office of"—
Lord Chancellor, for example—
"and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will. So help me God."
The swearing of that judicial oath is one of the key things that marks the Lord Chancellor as different from other Ministers. It reflects his occasional judicial function in the Appellate Committee of the House of Lords.
In line with general consensus, the Lord Chancellor's judicial function will not exist in the future. As a consequence, the view seems to be, as Lord Woolf said in Committee in another place, that it would be inappropriate for the Lord Chancellor to take the judicial oath. Paragraph 2 of schedule 14 will thus amend the schedule to the Promissory Oaths Act 1868 so that future Lord Chancellors will not have to swear the judicial oath.
The Lord Chancellor's judicial function was not the only reason why it was right for him to swear the judicial oath. By swearing that oath, he became inextricably linked to the judiciary, the independence of which he was charged with upholding in Cabinet. His requirement to
"do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will"
reflects the unique constitutional position of the Lord Chancellor in upholding the rule of law in our country.
My hon. Friend understandably referred to the rule of law in our country. However, we discussed clause 4 of the Bill some weeks ago, and he might recall that I drew attention to subsections (7) and (8) of it. Those provisions make it clear that the definition of "the judiciary" will extend far beyond this country into a realm of other judiciaries, such as those of the International Court of Justice, the European Court of Justice—by implication and necessity—the European Court of Human Rights, the International Criminal Court and even the General Assembly of the United Nations. Thus the oath will apparently relate to an extraordinary range of matters. The situation is bizarre and we need to get to the bottom of it. The definition of "judiciary" needs to be clarified.
My hon. Friend makes a good point. I could add the Privy Council to his list because other Commonwealth countries could be included.
As Lady Justice Arden told the House of Lords Select Committee that considered the Bill, a possibility has arisen of replacing the judicial oath with a new oath, although the Committee was divided on the merits of that proposal. In any case, the Government have pursued that option by drafting clause 14. With amendment No. 355, my hon. Friends and I are attempting to suggest a more appropriate replacement for the judicial oath than that proposed by the Government. We suggest that the oath should read:
"I . . . do swear that I will well and truly serve our Sovereign . . . in the office of Lord High Chancellor of Great Britain and that I will faithfully and at all times uphold the continued independence of the judiciary and the rule of law, in accordance with the laws and usages of this Realm."
The first purpose of our amendment would be to bring strength and focus to the new oath. Both versions of the oath rightly refer to the Lord Chancellor's duty to uphold the independence of the judiciary and the rule of law. However, our version would remove an unusual requirement for which the Government have provided. Their version means that the person taking the oath would effectively, and somewhat bizarrely, swear to uphold administrative efficiency. However, pursuing such an aim could prove to be at odds with protecting the overriding principles of judicial independence and the maintenance of the rule of law.
Our version of the oath focuses on the key constitutional issues that should, above all else, remain the driving force behind the Lord Chancellor's actions. Our oath sets out clearly that whatever the pressures faced by a Lord Chancellor—be they political or otherwise—it is at all times his or her duty to uphold such vital constitutional principles. Underlining that duty becomes even more important in the wake of the Government's decision to override the clear view of the other place that the Lord Chancellor should remain a Member of that House and a person who has held judicial office or has senior legal experience.
We have added the words
"in accordance with the laws and usages of this Realm"
to the oath. They mirror the wording of the judicial oath and highlight the need for the Lord Chancellor to respect both the laws of the country and, perhaps even more significantly in practice, all the traditional conventions that have been so important in shaping our constitution.
The Committee is well aware of the cavalier manner with which the Government treat those important protections offered by custom and convention. It was very nearly the case that we were not able to have this debate on the Floor of the Chamber, as a result of the Government's disregard for convention.
Why does the hon. Gentleman persist in saying that nonsense? Does he not realise that the Government have given many days on the Floor of the Chamber? Judging from the number of Opposition right hon. and hon. Members present, it seems that they do not want to participate. The only thing on which we have voted so far is the name of a court.
The hon. Gentleman was here when we debated these matters before. He knows full well the official Opposition's position and that we stated that not enough time was given to discuss this important constitutional Bill. I maintain that that is our position.
I know that my hon. Friend does not need my protection, but he must not be deflected from his legitimate purpose by the synthetic indignation of the hon. Member for Leicester, East (Keith Vaz). I encourage my hon. Friend to focus on the weaker part of the Government's proposed oath. Personally, I do not object to the removal of the reference to the sovereign and the way in which they have phrased the first part of the oath, although it is a legitimate point to debate. Does he accept that it is ridiculous for the Government to include the reference to
"efficient and effective support of the courts",
resources for which will be provided, unless they choose to include the word "adequate"? The oath says nothing about the adequacy of resources, over which the Lord High Chancellor will have no influence in any case, so this is just pompous windbaggery. It adds nothing.
I thank my hon. Friend for his input and agree with him. It is highly debatable as to whether administrative efficiency should be included in the oath. I do not think that it should be.
In this context, it should be clear why it is necessary to point out specifically the importance of abiding by the law and usages of this realm. As the noble and learned Lord Howe of Aberavon put it in the other place, our suggested wording would also provide a "desirable sense of continuity". We do not believe that a difficulty arises if the Lord Chancellor's oath in some way mirrors the judicial oath.
The noble Baroness Ashton of Upholland raised that point for the Government on Report when faced with similar amendments tabled by Lord Howe. We do not accept that the wording of our amendment would result in ambiguity in relation to the reformed status of the office of Lord Chancellor, simply because the Lord Chancellor's oath bears some similarity to the existing judicial oath. On the contrary, we would welcome it if the Lord Chancellor were still to be reminded of his continuing duty with respect to the rule of law.
Our amendment contains a specific reference to well and truly serving our sovereign. That again reflects words previously sworn by Lord Chancellors as part of the judicial oath. It would serve as an important reminder of the principle that justice in the United Kingdom flows directly from the Crown. I dare say that it would provide a much more fitting and British tone to the oath, by contrast with the Euro-friendly Government version. Perhaps the Government are ensuring that the oath is European constitution-compliant, although I am sure that they need not worry themselves about that becoming necessary.
I am not persuaded by the hon. Gentleman. Let me make three brief points. The rule of law subsumes the notion of the laws and usages of the realm. The elimination of those words does not subtract from the importance of the principle of the rule of law. In retrospect, I realise that I went on at inordinate length on Second Reading about what the rule of law entails. I went back to Dicey—
I will on this occasion.
I also talked about modern definitions, but there is no suggestion that we are excluding the notion of the laws and usages of the realm. Both oaths take into account defending the independence of the judiciary, which is fundamental. The objection seems to be to the words in relation to ensuring the provision of adequate resources. If there is one thing that we have learned from history, and by examining the judicial systems of other countries, it is that courts cannot function effectively without adequate resources.
I am appreciative of the fact that the hon. and learned Gentleman has purloined—I emphasise "purloined"—my word "adequate" without permission. I do not begrudge him the use of that word, but the trouble is that the Government, in their proposed formulation for the oath, say nothing about the adequacy of resources. That adjective is not used at all. The oath simply says:
"provision of resources for the efficient and effective support of the courts".
Unless they are adequate, what is the point of including that subordinate clause? If the Government want to include the word "adequate", we should hear that from the Minister pretty quickly.
I did borrow the word, but I did not purloin it. The words
"the duty to ensure the provision of resources for the efficient and effective support of the courts"
require the provision of adequate resources. There is no difference between us on the need for there to be adequate resources.
The hon. and learned Gentleman might reflect on the earlier part of the Bill, which prescribes the functions of the Lord Chancellor. It says that he
"must have regard to the need for the judiciary to have the support necessary to enable them to exercise their functions",
which imposes a statutory duty. It is extraordinary that that phrase should be used, because it requires him to swear an oath to provide for something that is within not his competence, but the competence of Parliament to provide, which itself is constrained by the golden rule and various other things. Without making too much of this, the Lord Chancellor might even get into a situation in which he seriously perjures himself.
I do not accept that analysis. Obviously, resources ultimately have to be voted for by Parliament, but the function of the Lord Chancellor, or the Secretary of State for Constitutional Affairs, will be to press the Government for adequate resources. The Department has a range of responsibilities. There are many functions for it to perform. In terms of the allocation of resources within those functions, the Lord Chancellor is simply acknowledging—this reflects the earlier stipulation, as the hon. Gentleman rightly said—the obligation to ensure that the courts are adequately funded. I have no difficulty with the oath as it stands. In fact, it is a helpful reminder that we cannot simply wish that the courts are working properly. We have instead to provide sufficient resources so that they work effectively in practice.
This is an important matter, on which other hon. Members have done more research than I have. However, I want to deal with two issues, one of which has not been touched on.
First, when we take our seats in this place, we are given the option of swearing or affirming, as people are in courts up and down the land. In this modern age, in which people may not wish to swear, either from reasons of belief or faith or from conviction, they should have the option of affirming, no matter whether it is the Lord Chancellor or someone becoming a Member of the House of Commons. Personally, although I have a faith, I have never taken an oath by swearing, because I think that it is wrong. I have always affirmed here and in other places such as courts where I have given evidence, and I do not see why the Lord Chancellor of the future should not have the same option.
I think that I can assure the hon. Gentleman that there is nothing to prevent the Lord Chancellor from doing just that. As I understand it, any oath can be turned into an affirmation.
If the Minister can assure me of that, I shall be encouraged.
When we discussed this in another era, we mentioned that the Promissory Oaths Act 1868 allows for affirmation to apply to such oaths.
I am reassured and need not pursue that. I am satisfied with the consensual view that there is an option available.
I do not want to break the consensus, but I want it to be worthy of support, and I am not absolutely sure that it is. It is all very well to be told that that is what the 1868 Act says, but it seems to me—the hon. Member for Southwark, North and Bermondsey (Simon Hughes) may think that I am being pedantic, but so be it—that if the alternative of an affirmation is to exist, it would be sensible to say so in the Bill.
That would certainly be my preference. As I read it, other parts of the Bill expressly give the option of oath or affirmation, but not this one. That led me to believe that affirmation might not be possible, despite the Minister's assurance, which I accept. I am conscious that we are at a late-ish stage of the Bill, but it would be better if it were included for the avoidance of doubt.
Secondly, of the two options before us, I prefer the amendment tabled by the hon. Member for Huntingdon (Mr. Djanogly) and his hon. Friends to what the Government set out in the Bill, not least because it keeps the two fundamental jobs in question—upholding the independence of the judiciary and the rule of law, and the historical rights and duties that go with that—and does not add the novel obligation to do with being a good housekeeper. I can see potential merit in Ministers swearing, by oath or affirmation, to be good housekeepers. I assume that if we pass the Bill unamended, all future Lord Chancellors will have to swear to
"discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible."
I agree that it would be better still if it said, "adequate resources", because that would add an extra protection that "efficient and effective support" does not have.
It strikes me that this will be a unique, governmental, ministerial obligation. Is it the start of a trend? Will the Minister and all his colleagues, when they take office, have to make some affirmation or public declaration that they will be responsible for the efficient and effective support for, in the case of the Home Secretary, the prisons or the police service, or, in the case of the Deputy Prime Minister, local government? In that sense, I would much enjoy going back to my old job of administrative lawyer, because many challenges could be made in court that Ministers were not doing their jobs properly. This will be the first time that we have this modernist oath saying, in effect, "I am going to look after the buildings as well". If that is really what it means, it makes one's great moment a bit banal. One arrives at the end of one's career, with the Lord Chancellor of Great Britain—[Interruption.] Well, under this new system someone might then be transferred to be something like the Under-Secretary of State for Northern Ireland as the next job. I would hope that we could have a slightly less banal oath than "Here I am, I will look after the rule of law, defend the independence of the judiciary, and make sure all the courts have enough curtains, cleaners and cleaning materials to do the job." If it really means that, there is a huge amount more work to do.
Does the hon. Gentleman concede that if the Government do not appoint enough judges, build courts and provide staff for judges, the rule of law and the independence of the judiciary will not be protected?
The hon. and learned Gentleman, in his previous role as Solicitor-General, would have dealt with such matters much more regularly than most of us. If this is just words—dressing—it should not be in the Bill. If it gives me—the citizen—or my constituents in Southwark and Bermondsey a remedy allowing them to say, "Look, I do not want to wait six months for my court hearing, or to go across the country to a court because the court that used to be here has been closed", it will be worth something. If it is all about saying, "I'm going to do my best to make sure there are enough resources", that is great, but we could have a lot of argument about the amount of resources and why all Ministers should not be subject to the same oath of affirmation.
Would the hon. Gentleman like to extend that thought to the question of why the Prime Minister, for example, should not swear such an oath to provide all the public resources that people want and apparently need? Why not the Chancellor of the Exchequer? Why does the poor Lord Chancellor have to be required to carry out these duties, when the real responsibility lies even further up the chain than him?
That is a proper question, and I would be grateful for an answer from the Minister as to whether it is intended to oblige the officeholder to carry something out, and whether there is a remedy if they do not.
All I would say to the hon. Member for Stone (Mr. Cash) is that if this does get written into the Bill, and if the Tories were ever to return to government, although some of us hope that that will not happen, it may act as a Tory Government's brake on starting a tax-cutting, public-expenditure-reducing agenda that some of his hon. Friends might be keen on. For my part, I am keen to ensure that we hold Ministers to account, but if it is just to be the poor Lord Chancellor who is to be in the firing line, I did not know that he had access to resources other than by going to ask the Chancellor of the Exchequer, who is not governed by the same proposals.
I am delighted to support amendment No. 355, which gives a few traditionalists on this side of the Committee the opportunity to form a square against the horde of modernisers led by the Minister and ably supported by the hon. and learned Member for Dudley, North (Ross Cranston) and the hon. Member for Leicester, East (Keith Vaz), who want to destroy the last vestiges of tradition that surround the law. I am not a lawyer—the hon. and learned Member for Redcar (Vera Baird). She has not spoken, so I was not about to blame her for this.[Interruption.] I apologise to my north-east neighbour,
It is important for people of this country who believe in the importance of the law that there should be some dignity and respect attached to it, because that gives it something additional to the normal run of life. It makes judges stand out; people talk about the majesty of the law. That is very important if one is to engender the respect of the population for the legal system and the judiciary. They need some traditions, and over the years we have been wiping those out. We wiped out the assizes, quarter sessions and all sorts of aspects of the tradition of the law and replaced it with things such as this rather dull and banal version of the oath that we see today.
I remember the introduction of new rules and regulations about juvenile courts. The idea was to make them far more user-friendly for those who were brought before them. Judges and magistrates were made to sit informally in small rooms, and that was meant to help young offenders. Of course, it did not. The respect of young offenders for the system of the courts and justice declined, as we have seen. It is ironic that the Government are now so fond of reversing that process by introducing naming-and-shaming antisocial behaviour orders.
I agree with the hon. Member for Southwark, North and Bermondsey (Simon Hughes) that the oath is banal and nonsensical. It is interesting to look at a copy of the Promissory Oaths Act 1868—one can get it online, believe it or not—and the original words. It says that the Lord Chancellor will swear that he or she
"will do right to all Manner of People after the Laws and Usages of this Realm without Fear or Favour, Affection or ill will. So help me GOD."
Those are ringing words—words of tradition—to be replaced by this banal oath whereby he promises to ensure the adequacy of curtains, drains or other things, as the hon. Member for Southwark, North and Bermondsey said. I believe that we should resist this change, and I hope that my hon. Friends will push the amendment to a Division.
Buried in this debate are some pretty important questions, as my hon. Friend the Member for Hexham (Mr. Atkinson) has just pointed out. It is about the abolition of the traditional quality of the office of Lord Chancellor. In deliberations in Cabinet, certainly until the present Cabinet, the Lord Chancellor by any standards carried weight and authority second only to and possibly exceeding that of the Prime Minister when it came to matters of constitution including constitutional reform, which is the subject of this Bill. After all, the role of the Lord Chancellor, excluding his judicial functions, is to maintain the security of the constitution of this country, which is what this Bill is meant to be all about.
So, having regard to the exchanges that we have just had on the Lord Chancellor's oath, it is something of a surprise that the proposed oath does not emphasise the responsibility to maintain the constitution of this land, including the supremacy of Parliament, and to protect it against invasions from international treaties—European treaties and the like. Article 1.6 of the European constitutional treaty—I do not know whether the Lord Chancellor had anything to say on the subject—makes it clear that the constitution has primacy over the laws of the member states in relation to the competences conferred upon it. That brings us straight to the function of the Lord Chancellor in relation to the European Court of Justice. The Court has increased competences. Article 1.20 makes that clear. The role of the Lord Chancellor in Cabinet ought to be to give advice to the Prime Minister on the impact of the European constitutional treaty on the constitution of this country, including the impact on the making of laws in this country. I do not know whether the present Lord Chancellor has done so; I know that Lord Kilmuir did.
If there is inconsistency between the laws prescribed by this Parliament and the laws that emanate from the European Union, the rule of primacy under section 2 of the European Communities Act means that our laws would be overridden. In the context of the constitution, which ought to be a central question for this Constitutional Reform Bill, I would have expected the Lord Chancellor to point out that the European constitution in relation to the declaration made in respect of article 1.6 on the role of the European Court of Justice says that the case law relating to primacy shall be in accordance with the decisions of the Court of Justice. The European Court asserted in the Costa v. Enel case and the Simmenthal case and others that the constitution and the laws of the European Union override our constitution and all treaties and obligations.
So we have a serious problem on our hands. I do not know why the oath does not include a reference to maintenance of the constitution as a prime function of the Lord Chancellor. It could be said that all this is wrapped up in the expression "the rule of law". We debated that earlier. I am glad to say that the Opposition and the Conservative party as a whole supported my Back-Bench amendment on what the rule of law meant. The amendment to clause 1 sought to include our Parliament and asserted that the rule of law included ensuring that the supremacy of Parliament was maintained. I wonder whether that is understood by the Minister, and whether he is prepared to concede that point in respect of the words "the rule of law".
The Minister wrote to me the other day on the subject and said that he did not think that in the context of the Bill it was necessary to go into all these questions. Well, I am going into them now, and I would like an answer from the Minister. He does not think that it matters. Other people in the Committee and in the country at large are extremely concerned to know whether the rule of law includes maintaining the supremacy of Parliament.
If the Minister considers the body of law that relates to the legislative supremacy of Parliament, which I do not need to go into in detail, thank heavens, today, it is abundantly clear that this Parliament has to be maintained as the legislative body for the nation, over and above prerogative and international treaties. That is what the rule of law means. That is what the Lord Chancellor is being required to swear he will maintain. I want to hear the Minister, in the light of his letter to me, assert that, and confirm that when the Lord Chancellor swears that oath regarding the rule of law, he is also swearing to maintain the supremacy of Parliament. It is an extremely simple point and I want to hear it from the Minister's lips. If he is not prepared to put it in writing, perhaps he will be a little more forthcoming on the Floor of the Committee. It is a central issue. It came up today in Foreign Office questions. It is a new primacy, a new treaty and a new doctrine that is being applied under the aegis of the European Communities Act 1972. I want a simple answer. Will the Lord Chancellor, when swearing the oath, be swearing as a matter of duty and perjury that he will uphold the supremacy of Parliament?
Some people may say that this is just meandering round words, words, words. In the exchange with Alice in "Through the Looking Glass", we read that a word
"means just what I choose it to mean . . . The question is . . . which is to be master—that's all."
This is not just a jokey matter to be discussed flippantly in Committee. Over and over again we have tried to get a clear statement from the Government with respect to where we are going under the European Union Bill. We know that they are not disposed to tell us when the next stage will take place, but it is incumbent—
Order. I am beginning to think that I have heard this before in another context. I am therefore bound, after 10 minutes, to remind the hon. Gentleman that we are choosing between the words proposed in the amendment and those that are in the Bill. His remarks should be confined to that, and not cover the wider issue, about which I know he feels the most enormous concern. We must concentrate on the words before us.
Indeed, I entirely agree, Sir Alan, that we should concentrate on the words contained in the oath. With respect to the rule of law, I have made my point on that and I do not need to repeat it. But I want an answer. That is why I insist relentlessly on pressing the matter on the Minister.
I move on to the next question—the wording that the Government have chosen to defend the independence of the judiciary. Before you came into the Chamber, Sir Alan, you may have observed that I raised the question in the context of clause 4, because the oath cannot be separated from the functions that are being conferred on the Lord Chancellor in part 1. The expression "the judiciary" is defined. We all thought we knew what the judiciary was, but now we find that it relates to a range of jurisdictional functions set out in clause 4(7). That cannot be separated from the oath because the Bill defines what the judiciary is.
Subsection (7) states that
"'the judiciary' includes the judiciary of any of the following—
(a)
the Supreme Court;"
Of course it should—
"(b) any other court established under the law of any part of the United Kingdom;—
I agree entirely—
"(c) any international court."
That includes the International Criminal Court and the International Court of Justice, which is specifically mentioned in subsection (8), which states that
"'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"—
Order. The hon. Gentleman does not need to read out the whole clause. The Committee has already considered clause 4. It now stands part of the Bill, so a mere reference would be adequate.
I understand, Sir Alan, although we have a fair amount of time to consider these matters, which we were denied yesterday. The definition of "international court" also includes functions in pursuance of
"a resolution of the Security Council or General Assembly of the United Nations",
which anyone would regard as rather curious in the context of a judiciary whose independence, as a matter of duty and of oath, must be sustained by the Lord Chancellor.
Let us put that in the context of what judicial independence means. I have set the framework and I am now leading up to that crucial question. In 1950 Lord Denning, no less, stated in a seminal lecture:
"No member of the Government, no member of Parliament, and no official of any Government department has any right whatever to direct or influence or to interfere with the decisions of any of the judges."
That is what is meant by the definition in the Bill. The oath refers to the upholding of the independence of the judiciary.
This is not a light matter. Apparently, in 1994, a serious problem is supposed to have arisen when the president of the Employment Appeal Tribunal and the then Lord Chancellor fell out over the question of judicial independence.
Order. The hon. Gentleman forces me to say again that the definition of the independence of the judiciary was dealt with in clause 4. That now stands part of the Bill. The matter before us now is entirely to do with the content of the oath. It is not a redefinition of what we have already dealt with in clause 4.
I just say that the issue that arose in that instance involved a dispute between Lord Mackay of Clashfern and others. A debate took place on the relationship between the Executive and judges in the House of Lords. As Lord Lester of Herne Hill pointed out, the Lord Chancellor will command the confidence of his judicial colleagues only if he "will protect the judges" and that included independence from any improper interference. I do not need to go into the details of that case but its significance is that, in relation to the swearing of an oath to maintain judicial independence—as you have indicated, Sir Alan, we do not need to go into what that would involve because we have already discussed it on clause 4—the question of what the consequences would be if the Lord Chancellor were to behave in a manner that involved improper interference with the judiciary remains important. That would also apply to the category of activity in relation to the judiciary within the general remit of the definition of international court, which again I do not need to go into because we have covered that already.
Order. What I want the hon. Gentleman to go into is the wording of the oath and little else besides. To employ again words that Lewis Carroll may have used, the significance of this matter is what I think it is, not what the hon. Gentleman thinks it is.
That is very interesting. I can only say that I am now at liberty, therefore, to move on to the next question, which relates to the provision of resources.
Before my hon. Friend moves on, can he assist me with regard to the wording in the oath? Reference is made to the independence of the judiciary. Does he take that to mean the judiciary in Britain, or would it mean the judiciary worldwide? Would it encompass judges of the European Court, whom some of us do not think are judges in the proper sense at all?
I thought that the cavalry would come to my aid in an intervention at some point. Sir Alan has made it abundantly clear that he does not care for me to go down the route of discussing those international courts. We have had over the past 15 years or so a considerable amount of discussion on the subject and there are differences of opinion, but, in a nutshell, the fact is that the provision goes far too far. That is where the problems lies. I have no idea how it would be possible to discharge an oath to defend the independence of the judiciary which is not confined to the United Kingdom. That is relevant to the definition that we have here. How on earth could the Lord Chancellor be put in a position in which he is under an obligation to give effect to an oath relating to the activities of judiciaries elsewhere in the world? That is impossible and absurd.
I move to the next question, which concerns the discharge of
"my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible."
My hon. Friend has not covered the important point of how the wording of the oath relates to the duties of the Privy Council in relation to our colonies. Could he say something about that?
Order. Certainly not.
I sense that you are not concerned to hear more on that subject, Sir Alan—you have made it clear that you do not particularly like my hon. Friends' line of inquiry. I happen to find it interesting and others may do so as well. At the risk of continuing to move down that path, I shall eschew the opportunity of considering the Commonwealth, about which I could expound at length.
Reading the wording of the oath, I am at a loss to understand what the position would be if the Lord Chancellor was an atheist. Does the Lord Chancellor have the option of affirming rather than swearing an oath if he happens not to believe in God?
That important point is not covered as far I can judge, other than to say that that requirement—indeed, duty—is in place and that, irrespective of our interesting discussion on the Promissory Oaths Act 1868, the option would be available to the Lord Chancellor to affirm. I suppose that if he had a problem of conscience with regard to the swearing of the oath, he could experience the same problem as Bradlaugh, in 1868 I think, when he was required to swear an oath, but, being a Quaker—I look to the hon. Member for Southwark, North and Bermondsey (Simon Hughes) for guidance on this—and a contemporary of John Bright, was allowed to affirm. Hence, I think, the hon. Gentleman's remarks. If the Lord Chancellor was an atheist, he could be in difficulties if he was required to swear the oath in question.
Leaving aside that important point—for which I am grateful to my right hon. Friend the Member for East Yorkshire (Mr. Knight) and which goes to show how many unpleasant man traps there are in the oath—I turn to the
"duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible."
I may add that the following sentence is:
"So help me God."
The Lord Chancellor will certainly need divine assistance if he is to fulfil that obligation. I made the point in an intervention that it would be extraordinary to single out the Lord Chancellor to swear an oath to maintain public expenditure, whereas the Chancellor of the Exchequer and the Prime Minister, who ultimately decide whether the Lord Chancellor gets his money, are not placed under the same requirement.
That seems a little odd, but I could also mention the issue of court closures, for example. It is not impossible that somebody might not only pursue the Lord Chancellor for failure to carry out the administrative functions regarding the provision of resources that are laid down in clause 4, but tackle him on whether he is in breach of his oath. That would be an extraordinary state of affairs.
Order. The hon. Gentleman—I will say it one more time—should be talking about the content of the oath and not diverting into areas that are not relevant to the amendment. If he cannot accept my rulings, I have other powers.
I have to say, Sir Alan, that if the words are to be
"discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible",
I cannot see why it should be out of order for me to talk about what those words mean.
In that context, I conclude with the words "So help me God".
That applies to us all following the hon. Gentleman's speech, thorough and comprehensive though it was.
Amendment No. 355 suggests an alternative to the oath proposed in the Bill. While I understand some of the sentiments expressed by Members, I hope to explain briefly why I do not think it is the right alternative and why I think it would be best to retain the version in the Bill.
The oath set out in clause 14 covers the three principal areas of the Lord Chancellor's role. It covers the rule of law and judicial independence, but it also covers the running of the courts. There has been some pooh-poohing of the notion of the efficacy and efficiency of resourcing of the courts—I shall explain why it is important in a moment—but those duties are key to the Lord Chancellor's Office in its reformed state, and also distinct from those of any other Minister.
The Lord Chancellor's oath as contained in the Bill outlines the fundamental responsibilities of the office holder in a form that avoids the problem of overlap with the judicial oath. That, too, is key. My hon. and learned Friend the Member for Dudley, North (Ross Cranston) had his own rationale for why the phrase
"in accordance with the laws and usages of this Realm"
in the existing oath need not remain—he felt that it was already encompassed in the concept of the rule of law—but it is also crucial to note that that is currently integral to the judicial oath.
An oath whose purpose is to declare the Lord Chancellor's essential functions should clearly now reflect the fact that that Lord Chancellor will no longer sit as a judge. We will no longer have a judicial Lord Chancellor, which is why we need a new oath distinct from the judicial oath. By rejecting that phrase we are not, of course, implying that the Lord Chancellor should not be bound by the law when exercising his functions—he or she will be bound by it—but there is no need to specify that in the oath, especially if terms are borrowed from the judicial oath.
Let me now deal with the crux of the matter. I think that most of the objections are a result of a feeling that the new oath is not phrased in as romantic and flowing a way as the existing one. It is important for us to mention the Lord Chancellor's responsibilities in relation to the provision of effective support for the court system. Some Members may consider that very concrete and pedestrian, but it is important none the less.
I do not know whether those who are present were involved in scrutiny of the Courts Act 2003, but part 1 imposes a new statutory duty on the Lord Chancellor to ensure the provision of resources for the "efficient and effective" support of the courts. The Act was debated and approved in a specific context of concern from Members in all parts of the House who felt that we needed to be more certain that resources would be provided for the efficient and effective administration of the courts. It is because that duty was imposed then that we need it to be mentioned in the new oath. If the purpose of the Lord Chancellor's oath is to set out the essential responsibilities of the office, this vital area of duty ought not to be overlooked.
First, will the Minister tell us what power the Lord Chancellor has, other than influence, to ensure that he or she has the money with which to do the job? I presume that it will have to be obtained from the Chancellor of the Exchequer: there are no own revenues, or very few. Secondly, what does this mean in practice? What can anyone do if the Lord Chancellor of the day does not fulfil his or her obligation? What right have I to take the Lord Chancellor to court in those circumstances?
As I was implying, we debated this during the passage of the Courts Act 2003. The reason that we explicitly put this duty into that Act was to provide a justiciable provision on the duty to provide resources for the efficient and effective running of the courts that was more firmly enshrined in our constitutional framework. Not many people, including those in the media, commented on that at the time, but the measure represented an important step forward.
If the measure is already enshrined in law, why is it necessary for it to form part of the oath?
The oath does not stand on its own as a piece of legislation. It is a formal expression by which the prospective post holder reaffirms their commitment to the important principles set out in our constitution and in statute. It supplements what is already in statute. Some might say that it is not a necessity, but we feel that the oath adds the extra virtue of underlining to every new post holder the responsibilities and duties that they will have. That is why we want to continue to have an oath, albeit in a different form.
Will the Minister answer the question that I asked earlier? Will it be possible for a Lord Chancellor to affirm instead of taking the oath, if that is what he or she wishes to do?
Yes. I addressed that point before the right hon. Gentleman came into the Chamber, in response to a question from the hon. Member for Southwark, North and Bermondsey (Simon Hughes). The hon. Member for Stone (Mr. Cash) asked about the rule of law and whether the measure encompassed the supremacy of Parliament in the oath. We have already debated that matter in other parts of the Bill and I do not want to go into it again. We have now agreed a definition of the rule of law. Some people certainly feel that the supremacy of Parliament should be included in it, but we have deliberately not included a formal definition of the rule of law in the Bill. We feel that the oath is better and more comprehensive in the proposed new form and I hope that the House will reject amendment No. 355.
We have had a full and interesting debate on the Lord Chancellor's oath. We heard persuasive arguments from my hon. Friend the Member for Stone (Mr. Cash) on the implications of oaths in the context of the rule of law, the supremacy of Parliament and the independence of the judiciary. The Minister said that there could possibly be an overlap with the judicial oath. Indeed, he stated that that was the key problem. We disagree with him, not least because of the Lord Chancellor's interest in protecting the interests of the judiciary. There is therefore no need to break the historic link with the judicial oath.
We find the Minister's remarks unpersuasive and wish to stand by amendment No. 355 to show that justice in the UK flows from the Crown, to remind the Lord Chancellor of his continuing duty with respect to the rule of law, to oppose the idea that an oath should be tied into adequate resources and to some kind of judicial efficiency, to remind the Lord Chancellor of his unique role as a Minister in protecting judicial independence, and to preserve the sense of continuity that exists with this historic role.
Question put, That the amendment be made:—
Clause 14 ordered to stand part of the Bill.
Clause 15 — Speakership of the House Of Lords
Question proposed, That the clause stand part of the Bill.
Clause 15 introduces schedule 5, which vests the functions currently vested in the Lord Chancellor as Speaker of the other place in the generic office of Speaker of the House of Lords. The provisions remove the automatic link in primary legislation between the Lord Chancellorship and the speakership of the other place, ensuring that the other place can, under its own Standing Orders, appoint any person to be its own Speaker rather than, as is currently the case, having the Speaker selected by the Executive. The person then appointed will be empowered to carry out all the functions currently attached to the speakership of the House of Lords. It is for the other place to settle its own arrangements for presiding over its own proceedings.
The Government acknowledge that discussions in the other place, following the report of its Select Committee established to examine the speakership, have taken place and we have encouraged the other place to consider appointing as its Speaker a Member other than the Lord Chancellor. The report of the House of Commons Constitutional Affairs Committee notes that it is reasonable to assume that the Lord Chancellor who, after all, has the responsibility for running a large Government Department should not also be Speaker of the House of Lords. That is also the Government's view, so I support clause 15 and schedule 5.
Until recently, I had not appreciated that the proposals in clause 15 and schedule 5 were part of the provisions of the Bill. A Member of this House gets into a debate about the conduct of affairs in the other place only with some trepidation, but I have a sort of interest that I should declare, in that I was the first Parliamentary Private Secretary to a Lord Chancellor.
In the previous Conservative Government, I had the privilege to serve Lord Mackay of Clashfern—for my money, one of the finest Lord Chancellors that this country has produced. As his PPS, I saw for myself something of the Lord Chancellor's different roles and the value of having the person in that post as Speaker of the House of Lords.
There is a difficulty that this House needs to consider and it relates to the use of the word "Speaker" in both Houses. I do not feel entirely comfortable with that, as the word has a particular resonance in the British Parliament. I feel strongly that that resonance is best protected if the word "Speaker" is used solely in connection with the House of Commons. I regret that the House of Lords is considering using the word for the person who chairs its proceedings, and I also regret that the Lord Chancellor will no longer be the automatic choice as Speaker in the other place.
On a point of procedure, I am slightly surprised—as an amateur in these matters—that clause 15 should have such lax wording. It states:
"Schedule 5 contains amendments relating to the Speakership of the House of Lords."
I hope that the Minister, when he winds up this short debate, will confirm that the wording is sufficient to give effect to the amendments contained in schedule 5.
Those amendments are surprisingly wide ranging. One might have imagined that the simple change proposed in the clause would have required relatively few consequential changes, but no fewer than eight Acts of Parliament will have to be altered as a result. I suppose that the changes to the Ministerial and Other Salaries Act 1975 could have been predicted, but I hope that the Minister will confirm that the clause does not have wider implications. For example, the Lord Chancellor at present has power in relation to ecclesiastical patronage. Schedule 5 deals with the Church of England Assembly (Powers) Act 1919, and I should be interested to know where in the Bill that ecclesiastical patronage power is covered.
The problem is that the significant constitutional changes proposed in the Bill were rushed in the first place. The consequences for the organisation of business in the House of Lords were not properly considered when the Department for Constitutional Affairs was created. The matter at issue in clause 15 and schedule 5 is not of a piece with the rest of the Bill. Essentially, the Bill describes how this country's legal processes will work in the future. It sets out important questions of a strategic nature that have to do with our systems of criminal and civil justice, but we must also consider the importance of symbols of power and authority.
That is why I was so disappointed by the earlier debate about the proposed titles for the courts. I do not think that the word "senior" is appropriate, given that the word "supreme" has served us so well for so long. That usage is infinitely preferable, as such symbols matter. For that reason, we should also be concerned about the changes proposed in clause 15 and schedule 5.
The authority of the other place derives in part from the mystique attached to the title of Lord Chancellor, who chairs its proceedings. That is another reason for concern. The British constitution is not unwritten as it has been set out in scores of Acts of Parliament, conventions and documents, but it is precious and delicately balanced. Often, apparently insignificant changes can have quite big consequences, and it is a matter of great regret that one consequence of the over-hasty creation of the Department for Constitutional Affairs in 2003 is that we are now having a rushed debate about how the other place should organise its proceedings, and about the role of the Lord Chancellor in those proceedings.
I do not suggest for a minute that the status quo is necessarily the right position to occupy, but the post of Lord Chancellor has evolved over the centuries to meet the needs of changing judicial and political structures. I think that I am correct in saying that it is the oldest post left in the British constitution—except, of course, for the monarch. The Lord Chancellor's Department—to which I feel such personal attachment, having served as a Parliamentary Private Secretary there—was created in 1885. The Lord Chancellor only gained power over the courts under the Courts Act 1971. Of course, the Government created the Department for Constitutional Affairs only about two years ago, so I accept that there should be change.
I am not saying that the Lord Chancellor should necessarily always be the Speaker of the House of Lords, but I am attracted to that solution. I am concerned that the Minister, in his opening remarks, did not give a sufficient explanation of why we need to rush this change. The argument about separation of powers of the Government or Executive, Parliament and the judiciary—the different elements of the constitution—lies at the heart of much of our debate, but I have always seen the attraction of the Lord Chancellor occupying different roles. Certainly, the last Labour Lord Chancellor found no difficulty with those roles, and Conservative holders of the office have had no problem with that either.
The hon. Gentleman said that he did not mind the Lord Chancellor occupying different roles. Is he saying that he supports the view that the Lord Chancellor should continue to sit as a judge?
That probably takes us rather wide of the clause. I would not have changed the status quo at all; I was entirely content with the status quo. I belong to the school of thought that says, "If it ain't broke, don't fix it." The speakership of the House of Lords was not broken and it did not need fixing. The Government have not really adduced an argument about why that should be changed.
If we are to separate out the judicial role, I might understand that—I might regret it, but it is happening—but it does not necessary follow that that great historic symbol, the Lord Chancellorship and his role as the Chairman of proceedings in the House of Lords also needs to change. Frankly, as someone who saw Lord Mackay of Clashfern perform that role with great distinction, I am totally unpersuaded by the case for change, so perhaps the Government are throwing the baby out with the bathwater.
The clause and schedule 5, to which it gives effect—at least, I think that it gives effect, depending on the reassurance that I get from the Minister—are a bridge too far. We need much more justification for a change that may appear trivial, but could lead to confusion between the two Houses and removes an ornament to the British constitution that does no harm and brings great pleasure, distinction and a sense of historic continuity.
My final thought is that Parliament should treasure historic continuity whenever it possibly can; it should throw away traditions and customs only when it is forced to do so by changing circumstances. When it is not necessary to change, it is necessary not to change. That is an important principle with small and big things, and it should be applied now. I am not persuaded by the case for the clause or schedule 5.
It is a pleasure to follow the hon. Member for Mid-Worcestershire (Mr. Luff), but he is wrong on this issue. The Minister was spot on in the way in which he introduced this new proposal. It cannot be right, surely, that a senior member of the Government should, in conducting his or her duties as a Cabinet Minister, come before the House of Lords and act as a Speaker for that House. That is what the hon. Gentleman proposes.
It should be a matter for the House of Lords to decide how it elects the person who will chair its proceedings. It is right that we should modernise the role of Lord Chancellor. Of course we are keeping the title, so the hon. Gentleman need not worry about that. We have still got that title—the campaign has been won—but the role has been modernised. As a part of that process, it is essential that the other place should be able to find and elect its own Chairperson, so that it is not chaired by a member of the Government who sits in the Cabinet and therefore cannot possibly be seen to be impartial in his or her work.
Irrespective whether or not I accept that argument, is the hon. Gentleman entirely happy with the use of the word "Speaker" to describe the role in the other place as the alternative to the title "Lord Chancellor"? I would certainly prefer it to "Chairperson"—the phrase that he just used.
The hon. Gentleman was not in his place earlier when we had a debate about names, and whether we should have an attachment to a name or to the functions of the office. It must be left to the other place to decide. I believe that the words "Mr. Speaker" mean the Speaker of the House of Commons, and I am sure that many other titles could be found, in ancient Acts of Parliament or elsewhere, to describe somebody who chairs the proceedings in the other place.
In any case, the Chair in the other place should not be the Lord Chancellor. We have won the battle to retain the title of Lord Chancellor and we should let him get on with being the Secretary of State of a major Department. The other place should choose whom it wants to chair it. I hope that it does not use the same title as we have because it is special to the House of Commons, but it can use any other title it wants.
I agree with the hon. Member for Leicester, East (Keith Vaz), as I so often agree with him on the Constitutional Affairs Committee. The hon. Member for Mid-Worcestershire (Mr. Luff) is, uncharacteristically, behind the flow of events, not least in that we had a brief but enlightening debate on ecclesiastical patronage at the relevant point earlier this afternoon. I am entirely satisfied with the way in which the matter has been handled, as it was much in line with the evidence heard by the Committee.
I should declare an interest on the matter of a Speaker for the House of Lords, as my wife is a member of the other place. The clause is necessary to allow the House of Lords to make its own choice of Speaker. If we do not accept the clause, certain functions will have to be exercised by the Lord Chancellor that the House of Lords might consider should be exercised by the person who is its Speaker—or whatever title is used. That is the main reason for this provision: it is not that the House of Commons is deciding who should chair proceedings at the other end of the building. However, I agree with the hon. Member for Mid-Worcestershire that significant disadvantages would arise should the Lords decide to call that person the Speaker. There are also some reasons in the history of that Chamber that make that title inappropriate. The role played by the Lord Chancellor in the House of Lords is very different from that played by any occupant of the Chair in this House. The role in the Lords is much more restricted. The other place may yet choose a different title and we have our own reasons for hoping that it does so.
In that context, does the right hon. Gentleman share my regret that the clause we are debating is entitled "Speakership of the House of Lords"? That appears to carry the presumption that the other place should choose to use the word "Speaker" and I hope for some reassurance on that point from the Minister.
I am sure that we will, because it is a generic title. The clause had to be called something in order to detach the positions referred to in statute from the Lord Chancellor. We are cutting the cord between those functions and the Lord Chancellor so that they can be available to the person who presides over and acts as the formal representative of the House of Lords in the future. I am sure that the Minister will reassure us that we are not seeking to determine what title the House of Lords uses or, indeed, whether the role of the person who chairs remains much as it is now. My judgment, from talking to my friends in the other place, is that on the whole the Lords like the slightly Quaker meeting style of proceeding that they have. It suits them, and what we are doing today in no way interferes with their right to decide, other than sending a signal that we do not think it appropriate that the Executive should make available one of their senior Ministers for that purpose.
Clause 15 deals with the future of the speakership of the House of Lords. It introduces schedule 5, which provides for the replacement of references in primary legislation to the Lord Chancellor in his capacity as Speaker, with references to the title of "Speaker of the House of Lords". On Third Reading in the other place, Lord Falconer conceded that the choice of Speaker of the House of Lords was a matter for the other place alone. The Government's intention of course is that the provisions in the Bill—now clause 15 and schedule 5—would allow the House of Lords to choose whomsoever it wished to fill that role without a future need to amend primary legislation.
It is worth briefly setting out the background to these provisions. The other place established a Select Committee in July 2003 for the purpose of considering future arrangements regarding the speakership. That followed in the wake of the Government's announcement of their intention to abolish the office of Lord Chancellor. The Committee's report in November 2003 made a series of recommendations, including that a single secret ballot should be used to elect the Speaker, the Speaker's term should last for five years with the possibility of renewal and the Speaker's title should be "Lord Speaker".
The report also recommended that the Speaker's ceremonial role should be retained as that which currently exists for the Lord Chancellor, and that the Speaker should welcome new Members and help them to learn the customs and traditions of the House. It said that the Speaker would play an important role in receiving and entertaining overseas Speakers and other parliamentarians visiting Westminster.
A debate on the speakership was held in the other place during the Bill's Report stage. During that debate, Lord Campbell of Alloway moved an amendment on behalf of the Opposition to retain the Lord Chancellor as Speaker. Lord Kingsland eloquently set out the case for retaining the present position. He said:
"I cannot allow the moment to pass without expressing a view about the Speakership of your Lordships' House. This is a very important issue which requires careful thought and upon which taking the wrong decision could change the whole character of the House. That is why I submit that the clause on the Speakership and the accompanying schedule should not remain part of the Bill."
The Bill and the review of the speakership of the House conducted by Lord Lloyd of Berwick and his Committee were predicated on the assumption that the office of Lord Chancellor would no longer exist. However, their lordships' House has now determined not only that the office should continue to exist, but that the Lord Chancellor should remain in their lordships' House. Of course, owing to Government amendments that were agreed to in Committee in the Commons, we are now in the rather unhappy position that the Lord Chancellor will not necessarily have to be a Member of the other place. However, we are yet to hear their lordships' views on that.
Did my hon. Friend notice whether any reference was made to the fact that the Attorney-General was a Member of the House of Lords, although he should be in the House of Commons?
I do not think that exact historical comparisons between the two offices can be made, but I hear what my hon. Friend says.
My hon. Friend quoted our noble friend Lord Kingsland, who indicated that the change could have a significant impact on the character of debates in the House of Lords and the nature of that House. If that were the case, surely the change would also have important consequences for this House. Do we have any idea of the nature of the changes that Lord Kingsland envisaged?
I think that Lord Kingsland was talking from a historical perspective. He was thinking about the sort of House that people had known and enjoyed and the unnecessary nature of the changes.
The role of the Lord Chancellor remains and the official Opposition believe that it should include the speakership of the other place. Lord Kingsland said:
"For my part, I wish to see the Lord Chancellor continuing in his historic role as Speaker of the House. The ancient office and high degree of that office reflect and embody the authority and precedence of this House."
Removing the Lord Chancellor from his role as Speaker goes far beyond the sensible, incremental changes that have occurred in the other place, such as no longer requiring the Lord Chancellor to robe or preside at Divisions. As Lord Kingsland put it, the measure would be
"a wholesale change that would dispense with the traditions of your Lordships' House and could see us moving towards a full-time Speaker with authority over the House." —[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 885–6.]
The Conservative party, like the Government, agrees that the decision about the speakership is ultimately one for the other place itself. The view that my hon. Friends and I are presenting in this debate reflects the views of Opposition peers during the Bill's passage through the other place, namely that the Lord Chancellor should remain Speaker in that House. Although the Government insist that the Bill does not compel the other place to remove the Lord Chancellor from the speakership, that important decision will effectively be taken before the other place can properly debate the proposals.
While the other place has had to consider the question of who should be its Speaker, it is unfortunate to see a structure that has been little used in the Lords being put into play. It would be unwise to give the holder of the speakership of the Lords the title of "Speaker", because constitutionally speaking, he would not speak for peers. All peers constitutionally have a right of access to the sovereign, so the role of Speaker in the Lords is entirely different from that of Speaker in the Commons. To have competing claims on the role of Speaker can only lead to confusion. The term is confusing not just constitutionally—hon. Members in the Committee understand full well what is going on in that regard—but for normal people as well. As my hon. Friend the Member for Mid-Worcestershire (Mr. Luff) said in his eloquent speech, symbols matter. The confusion cannot be good for understanding how Parliament is run, which is surely an important part of our democracy.
The hon. Gentleman is making heavy weather of this. Whatever the personal view of Members of the House of Commons, surely it is up to the other place to decide what it wants to call the person who will chair its proceedings.
That is the single point on which we agree, but it is a matter of context, history and how the change is made. We think that it is being done in the wrong way.
I heard the points raised by the hon. Members for Mid-Worcestershire (Mr. Luff) and for Huntingdon (Mr. Djanogly), although I tend to agree more with the Chairman of the Select Committee on Constitutional Affairs, the right hon. Member for Berwick-upon-Tweed (Mr. Beith), and my hon. Friend the Member for Leicester, East (Keith Vaz) in their interpretation of clause 15 and schedule 5. I assure the hon. Member for Mid-Worcestershire that they are adequately drafted. I was interested to learn that he was the first Parliamentary Private Secretary to a Lord Chancellor. I do not know whether a plaque has been put up in any corner of the building, or even in Selborne house on Victoria street, as a commemoration of that.
Obviously, use of the word "Speaker" is of concern. Although the clause and schedule are entitled "Speakership of the House of Lords", it was, as the right hon. Member for Berwick-upon-Tweed set out, for the purpose of finding a generic way of describing the aspects under consideration that we used the reference, first made in legislation in the Clerk of the Parliaments Act 1824, to the Speaker of the House of Lords. That is not necessarily of our choosing, and nor should it be taken that it is our preference for what the actual title should be in the other place. Their lordships have yet to give their view on their future arrangements, both for the practice of chairing and presiding over their proceedings and for the title.
I am aware of legitimate concerns expressed by hon. Members on both sides of the Committee about duplicating a title from one House to another. However, they will understand that it is not for me, as a member of the Executive, to dictate to Members of the other House the Government's preference for what that title should be. I am quite sure that their noble lordships, in their usual manner, will listen carefully to the views expressed here.
I agree with every word of that. Clearly, it is not for the Executive to dictate that decision. However, seeing as this is our one opportunity to express a viewpoint in Committee, it is sensible to do so.
I cannot deny that, and all hon. Members have made their points loud and clear.
Although we hope that the amendments made in clause 15 and schedule 5 will allow the Lord Chancellor no longer to be the presiding officer of the other place, they do not prevent that particular peer from continuing in that post. It is a choice for the other place, but it allows that flexibility so that any other peer can take the presiding officer role. That is a fundamental aspect of what we propose. We hope for a greater separation between the legislative and Executive functions in the other place. One aspect of that is removing the presiding officer function of the Lord Chancellor, but ultimately that has to be a decision for the other place.
It is a little perverse that a Prime Minister should be able to dictate to a House of Parliament who its presiding officer will be. Hon. Members would not necessarily tolerate that in respect of the House of Commons, but for some reason we have that arrangement in the other place. This is a healthy change, and if hon. Members were to reflect on it outside the partisan realm, they would probably come to the same conclusion. I hope that helps to answer some of the points raised by hon. Members and that clause 15 and schedule 5 can be accepted.
Question put and agreed to.
Clause 15 ordered to stand part of the Bill.
Schedule 5 agreed to.
Government amendments Nos. 30 to 47 made.
Clause 16 — Transfer, modification or abolition of functions by order
Question proposed, That the clause, as amended, stand part of the Bill.
Clauses 16, 17, 18 and 19 and schedule 6 operate together. They provide a framework within which the Lord Chancellor can give effect to the spirit of the Bill and the principles of the concordat. They provide the necessary powers to complete the application of the concordat to functions not included in the Bill and for their entrenchment in the office of Lord Chancellor, where they are to be exercised wholly or in part by that Minister. The purpose of this, as agreed with the senior judiciary, is to guarantee further the independence of the judiciary and the new partnership between the judiciary and the Executive that the concordat achieves.
Clause 16 has a cross-reference to schedule 6 in terms of the protected functions, three of them specifically and the fourth relating to a great long list that goes on for six pages—in the schedule, not the body of the clause. Given that that is the sacrosanct stuff, why is it not in the substance of the clause? I always try to look at a Bill from the point of view of somebody reading it having never done so before and trying to find out what the law is, and it would be easier if all the functions were in the same place. Future generations who read the Bill after it becomes law would then know what are this great list of functions that cannot be transferred—the six pages of other Acts under which the Lord Chancellor has responsibilities, including all sorts of things such as patronage, vice-chancellorships and nominations. It would be helpful to provide a simple linked document listing all those things so that people are always able to lay their hands on the information and do not have to spend a week, a month or a year doing all the cross-referencing. It is nonsense that they should have to check 100-odd Acts of Parliament in order to know what the Bill is talking about, although I am sure that it is administratively possible. I would be grateful for the Minister's reassurance that he will look into it and try to ensure that this bit of our system is modernised.
I understand the hon. Gentleman's desire in general for statute law clarification and codification to make for easy reading, and I apologise for the fact that that is not always the case. However, I am absolutely assured that the provisions set out in clauses 16, 17, 18 and 19 and schedule 6 achieve what we want them to achieve, and that they are clear to those who are versed in reading these matters.
To elaborate somewhat, clause 16 provides for the transfer, modification or abolition of existing functions of the Lord Chancellor or for the exercise of those functions concurrently by another person—the concordat aspect. They are principally aimed at functions in primary legislation enacted since the introduction of this Bill or in secondary legislation or in prerogative instruments elsewhere.
Clause 16 introduces schedule 6, about which the hon. Member for Southwark, North and Bermondsey (Simon Hughes) is concerned, and which lists functions of the Lord Chancellor that cannot be transferred to anyone else. Those functions relate to the Great Seal, the judiciary, judicial appointments and the organisation of the courts. The clause allows the addition of functions to schedule 6 where those functions that have been transferred are modified by an order under clause 16, but the order-making power cannot be used to transfer, modify or abolish functions listed in that schedule. In other words, they give that protection to those particular aspects of the role of Lord Chancellor, and they are there to add that greater protection. That was the purpose of the amendments. They are a consequence of the concordat. I hope that that gives a little succinct clarity as to the nature of schedule 6.
I am pleased that schedule 6 is present. As I understand the reasoning behind it, it is that the Government and the other place considered that there were functions discharged by the Lord Chancellor which were such that they should not be done by any other Minister. Some of those relate to administration, but have judicial aspects to them. The vast bulk of the list illustrates that.
The Minister may agree with me that the schedule highlights the extent to which the Lord Chancellor, despite the changes that have been brought into being, continues to have important semi-judicial or at least administratively judicial functions that will not go away. In those circumstances, does the Minister agree that that highlights the need to ensure—something we shall come on to in a moment—that his position is made separate and distinct from that of other Ministers?
In many ways, schedule 6 comes at the apex between judiciary and Executive. It is there in quite a formal sense to provide assurances and protections about those particular functions that relate to the Great Seal, judicial appointments, the judiciary in general and the organisation of the courts, which many would prefer not to be undertaken by other Ministers. Schedule 6 is amendable only by primary legislation, although it can be added to, but not taken away from. That is a good principle on which clarity can be gained with regard to the respective functions of the Lord Chancellor versus the judiciary.
I apologise if I did not hear the Minister do so, but will he address the question about the six pages of specific functions? Is he able to find a way of putting what they mean in a somewhat more accessible place?
I am reluctant to give an absolute commitment that my officials will spend too long redrafting, even if it is only in the simple form of a helpful ABC guide to the role of the Lord Chancellor. However, I suspect that we will need to have something of that ilk to aid officials' understanding of where the Lord Chancellor's functions do and do not start. I will certainly look into it, but I imagine that there is an expense in the drafting arrangements.
I hope that I have detailed sufficiently the nature of clause 16 and some of the clauses associated with it and that the Committee will agree to let it stand part of the Bill.
Question put and agreed to.
Clause 16, as amended, ordered to stand part of the Bill.
Schedule 6 — Protected functions of the minister
Government amendments Nos. 48 to 51 made.
I beg to move amendment No. 559, in page 150, line 6, at end insert 'and (c)'.
With this it will be convenient to discuss Government amendments Nos. 463, 560, 464, 465 and 561.
As I have already said, schedule 6 protects certain judiciary, court and Great Seal-related functions of the Lord Chancellor. These functions cannot be transferred by order under clause 16 or by order under section 1 of the Ministers of the Crown Act 1975. That is essential, given clause 4 and the Lord Chancellor's particular duties in relation to judicial independence. Amendments Nos. 463 to 465 provide for the addition to and deletion from schedule 6 of certain functions that the Lord Chancellor exercises in England and Wales. Amendments Nos. 559 to 561 amend schedule 6 to provide for the protection of certain judiciary or court-related functions that the Lord Chancellor exercises in Northern Ireland so that they cannot be transferred by an order under clause 16 or to another Minister by an order under the Ministers of the Crown Acts. They ensure that protection is afforded to those functions that the Lord Chancellor exercises in respect of Northern Ireland.
Amendment agreed to.
Government amendments made: Nos. 463, 560, 464, 465 and 561.
Schedule 6, as amended, agreed to.
Clause 17 ordered to stand part of the Bill.
Government amendments made: Nos. 52 to 54.
Clause 18, as amended, ordered to stand part of the Bill.
Government amendments made: Nos. 55 and 56.
Clause 19, as amended, ordered to stand part of the Bill.
New Clause 10 — Functions of the Lord Chief Justice during vacancy or incapacity
'(1) This section applies during any period when—
(a) the office of Lord Chief Justice is vacant, or
(b) the Lord Chief Justice is incapacitated.
(2) During such a period—
(a) any function of the Lord Chief Justice may be exercised by the senior Head of Division;
(b) anything which falls to be done in relation to the Lord Chief Justice may be done in relation to the senior Head of Division.
(3) The senior Head of Division is—
(a) the Master of the Rolls, or
(b) the President of the Queen's Bench Division, if the office in paragraph (a) is vacant, or
(c) the President of the Family Division, if the offices in paragraphs (a) and (b) are vacant, or
(d) the Chancellor of the High Court, if the offices in paragraphs (a), (b) and (c) are vacant.
(4) For the purposes of this section—
(a) the Lord Chief Justice is to be regarded as incapacitated only if at least three of the Heads of Division declare in writing that they are satisfied that he is incapacitated;
(b) in such a case, the Lord Chief Justice is to be regarded as incapacitated until at least three of the Heads of Division declare in writing that they are satisfied that he is no longer incapacitated.
(5) In this section—
(a) "Lord Chief Justice" means the Lord Chief Justice of England and Wales;
(b) "incapacitated", in relation to the Lord Chief Justice, means unable to exercise the functions of that office;
(c) "Head of Division" means each of the office holders referred to in subsection (3).'. —[Mr. Leslie.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
The purpose of the new clause is to ensure that there is continuity in the event that the office of Lord Chief Justice is vacant or if the office holder is unable to exercise his or her functions. We hope, of course, that the provisions will never be necessary, dealing as they do with such circumstances as unexpected resignation or death. They also deal with situations relating to ill health or other possible scenarios where the Lord Chief Justice is incapacitated. In such circumstances it is essential that procedures are in place to ensure that the functions that fall to the Lord Chief Justice can be exercised on his behalf so as to allow the smooth running of the judicial system. The new clause provides that the function would fall to the next most senior head of division. In such a case, the full powers of Lord Chief Justice would transfer temporarily to the next most senior member of the judiciary. That is an important safeguard.
The Minister has not quite explained why, at a late stage of the Bill, it was felt necessary to introduce the new clause. It would be useful to understand the reasoning behind the Government's decision. The current position, as I understand it, is that if the Lord Chief Justice is incapacitated, there are all sorts of conventions in operation about other people discharging his responsibilities. I appreciate that as we move to a more statutorily based system, it is desirable to spell the procedure out in the Bill. Nevertheless, the Government did not originally choose to do that.
The Bill was scrutinised at length in the other place, where the new clause was not inserted. I hope the Minister does not feel that I am pressing him needlessly. I am trying to understand why, instead of the informal system that existed, the system is to be set out in statute. Perhaps he could also clarify why that was not done earlier in the passage of the Bill.
The reason is quite simple. The Bill had a long gestation and long scrutiny. The new clause deals with a situation that came to our attention when we considered what would happen when the Lord Chief Justice, as opposed to the Lord Chancellor, is the head of the judiciary in England and Wales. Various issues arise, one of which is what happens in the event of a vacancy and how we could quickly fill it. That would not necessarily be a difficulty, should a Cabinet Minister—in other words, the Lord Chancellor—have a vacancy at that level. It was the realisation that we needed to make provision for those circumstances, which we all hope will never arise. They are well provided for, and new clause 10 deals with the matter adequately.
I am grateful to the Minister for that answer. I do not disagree with the reasoning. He may have to forgive me, but I was entertained to see that the Bill, which has received the closest possible scrutiny in the other place, should come to the Committee with what he has explained is a glaring lacuna. That is the benefit of having a system of scrutiny by both Houses of Parliament. What we had yesterday, for example, which was wholly inadequate scrutiny of legislation, is a classic example, leaving aside the principles behind legislation, of why we should be allowed to do our jobs properly.
This is an important issue relating to the functions of the Lord Chancellor. The issue of disqualification with respect to his having any future role raises questions that apply to the existing incumbent of that role and to those who may find themselves in a similar position on any future occasion.
Given the significance of the Lord Chancellor's role as described in the Bill, the early clauses, plus the other provisions that we have discussed today, make it clear that the Lord Chancellor has functions that, irrespective of the divorce of his role from the specifically judicial function, continue to have regard to the judicial question—
Order. I think that the hon. Gentleman is probably referring to a new clause that we have not yet come to. Perhaps he would like to keep his powder dry for the time being.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
New Clause 20 — The Lord Chancellor and Northern Ireland Courts
'In the Judicature (Northern Ireland) Act 1978 (c.23) after section 68 insert—
"68A Lord Chancellor's duty
(1) The Lord Chancellor is under a duty to ensure that there is an efficient and effective system to support the carrying on of the business of—
(a) the Supreme Court,
(b) county courts,
(c) magistrates' courts, and
(d) coroners' courts,
and that appropriate services are provided for those courts.
(2) The Lord Chancellor must, within 18 months of the coming into force of this section, and afterwards annually, prepare and lay before both Houses of Parliament a report as to the way in which he has discharged his duty under subsection (1)."'. —[Mr. Leslie.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
The new clause provides for a new section to be inserted in the Judicature (Northern Ireland) Act 1978, corresponding to section 1 of the Courts Act 2003, which the hon. Member for Southwark, North and Bermondsey (Simon Hughes) will remember we referred to in earlier discussions about the oath. The new clause will place a statutory duty on the Lord Chancellor to ensure that there is an efficient and effective system to support the court of judicature, county courts, magistrates courts and coroners courts in Northern Ireland, and that appropriate services are provided for those courts. It also requires that the Lord Chancellor lay before Parliament a report as to the way in which he has discharged his duty.
May we take this opportunity to understand more fully what it is intended should happen if devolution of powers arrives in Northern Ireland? In those circumstances, would this responsibility transfer to a Northern Ireland justice Minister, or would it remain with the Lord Chancellor? I assume that the new clause has been introduced because such devolution has not occurred, but I should be grateful if the Minister would clarify the Government's intentions on this particular responsibility.
I understand that these responsibilities would be transferred, but if I am wrong I will write to the hon. Gentleman. We debated the matter during one of the earlier days of the Committee stage. We referred to different aspects and whether they were excepted, transferred or devolved within the Northern Ireland framework. I refer him to some of my comments at that stage. I hope that that at least helps him in this respect.
I am grateful to the Minister. I welcome this provision. Perhaps we rather lost sight of the issue, but the original intention of devolution was to transfer powers to a justice Minister, although that does not mean that the Westminster Parliament abdicates all responsibility. What I am slightly less clear about, and the Minister may be able to clear up the matter in the letter, is whether, when that process is complete, as and when it happens—at the moment, it looks a very remote possibility unfortunately—the Lord Chancellor retains any residual responsibilities in respect of the good operation of the Northern Ireland judiciary such that he could intervene if for some reason or other there were a problem. That was the point on which I sought clarification from the Minister. I think that it is of some importance.
There will be an ongoing role for the Lord Chancellor, but it would be useful if I wrote to the hon. Gentleman on his point about Northern Ireland.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
New Clause 9 — Disqualification from holding further ministerial office
'Once a person has held the post of Lord Chancellor he is disqualified from holding any other ministerial office.'. — [Mr. Grieve.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
It is necessary to return to some of the basic issues surrounding the Bill to understand why we tabled the new clause. The old structure of the Lord Chancellor provided, as we have debated peripherally this afternoon, that he was a judge first and foremost. He was a judge with a hybrid role, because as well as sitting as the head of the judiciary and a Law Lord, and being Speaker of the House of Lords, he was a Minister.
As a Minister, one of the Lord Chancellor's duties was to ensure that the administration of justice and the court system operated correctly, so he was a departmental Minister. In addition to that he was—I believe that this expression has been used—the judge at the heart of Government, providing a moderating influence on colleagues in respect of the operation of the judicial system, if necessary, and sometimes legal advice. However, he did so not in a formal sense, as the Attorney-General does, but informally, expressing an opinion if the rule of law was in danger of being undermined.
The Lord Chancellor also had a role in protecting the judiciary when Ministers such as Home Secretaries got irritated that their Executive purposes were being thwarted by judicial decisions. As we know from the recent past with the previous Home Secretary—I have a funny feeling that we are beginning to see this with the current Home Secretary—the phenomenon is not unusual. I might add on a bipartisan basis that there have no doubt been previous Conservative Home Secretaries and others who at times felt equally frustrated by the judiciary's taking views of their decisions that they found unfortunate.
Nevertheless, in a country where the rule of law prevails, it is of great importance that Ministers should accept judicial decisions, and more importantly, as the Minister will have no difficulty accepting, that they should not use their political status to try to undermine the judiciary. It is easy for those who are subject to political pressures—sometimes from an electorate who are irritated by judicial decisions—to move to a position where they covertly or overtly criticise judges and their decisions. If that happens in this country, we shall face a serious situation that we have so far succeeded in consistently avoiding.
To illustrate the point, we could contrast that with the situation in France, a country that featured in yesterday's debate in relation to the merits of its judicial system. I remind the Minister that in a recent trial of a French Minister on serious charges of tax evasion and, I seem to remember, fraud, the situation became so bad that the judges trying the case said that they no longer felt safe to use the computers provided to them by the state to record their daily rendering of the case and their notes, because they were convinced that they were being hacked into. They started using their own laptops. There was a long litany of complaints about political interference in the judicial process. There were protectors of this Minister, or ex-Minister as he was by then. Indeed, he was the leader or chairman of a political party.
I am sorry to say that that is not the only such problem that has arisen in France over the past 30 or 40 years. Mercifully, we have succeeded in avoiding such problems in this country. It may sometimes be said that our system of law is slower than those of other countries, and it can make mistakes; but the reputation for integrity of English and, for that matter, Scottish and Northern Irish judges is remarkably consistent, and has not been called into question. Judges' sagacity may occasionally be called into question, but not their integrity. That is largely owing to the absolutely accepted convention in the Government that judges cannot be criticised, even if Ministers are hopping mad about what they have done.
One of the problems of the changes envisaged in the Bill is the alteration of the Lord Chancellor's status from that of a judge in the Government to that of any other Minister. He loses his judicial status—which we accept, because we recognise that he can no longer sit as a judge—but continues to have a unique role, which we highlighted when we discussed schedule 6: the role of carrying out functions that require him to behave as if he were a judge, and certainly to apply standards of independence and integrity. We also know that one of the reasons for the Government's accepting that the Lord Chancellor should take a particular oath when taking office, albeit not the original oath, is the fact that his role is different from that of every other Minister. We have debated what the terms of the oath should be, but I think there is a community of view throughout the Chamber that the Lord Chancellor has, or should have, a different status and oath.
One question that has been discussed both in the other place and here is whether the Lord Chancellor should be a Minister who can sit in either House of Parliament, or whether he should sit only in the other place. The Government have strongly expressed the view that he should be capable of being a Minister in the House of Commons, whereas we—as I have said, and as the Minister knows—have argued long and hard that he should be a lawyer sitting in the House of Lords. It will be interesting to see, when the Bill returns to the House of Lords, what it will make of the amendments that we have made to the relevant part.
We want the Lord Chancellor to be a lawyer in the House of Lords not because we think it is quite nice for him to be the Speaker in full fig on the Woolsack—although if the Lords wish him to be Speaker that will be possible—but because we think that it will provide at least a measure of further protection from the political interference that is, I fear, inevitable in a democratic Chamber where Members are likely to express, both privately and publicly, a range of sentiments on behalf of their constituents, including criticism of the judiciary. It is vital for the judiciary to be protected.
Is it still Conservative party policy to support an elected, or largely elected, second Chamber?
Yes, indeed. Clearly, if there were an elected or largely elected second Chamber, which we are not currently in a position to implement, the question of who apart from elected Members should be in the Lords would require careful consideration. If that were to happen, perhaps that would be the time when the Lord Chancellor would no longer have a role in the Lords. Equally, given that it is perfectly possible to preserve some non-elected functions in the Lords, it would be possible to keep him there.
I am sure that the Minister has had an opportunity to look at the paper on the subject produced by a cross-party group that included Labour Members, which I found fascinating reading. It makes an important contribution to the debate. It is apparent from the paper that the group saw scope for continuing to have non-elected Members in the other place, and for retaining a role for the bishops. I do not see the Lord Chancellor's being part of that arrangement as incompatible with those proposals. Those are all subjects for discussion, but I do not want to stray from the main issue.
The role of the Lord Chancellor in regard to the rule of law is clearly set out in clause 1, which states:
"This Act does not adversely affect—
(a) the existing constitutional principle of the rule of law, or
(b) the Lord Chancellor's existing constitutional role in relation to that principle."
Does my hon. Friend agree that, having hived off the judicial functions of the Lord Chancellor from that existing role by statute, a vast amount of extremely important functions would still be retained? In the light of that, the Lord Chancellor should not be reduced to the role of Secretary of State, which is an indivisible function. If I have an opportunity to speak later, I shall go into that matter further.
I agree with my hon. Friend. He heard me refer earlier to the powers in schedule 6, and other provisions in the Bill also make it clear that the Lord Chancellor remains a linchpin in terms of ensuring the independence of the judiciary, and the integrity of the judicial system and the dispensation of justice in this country. It is important that we get the right structures in place to ensure that that tradition, which the Lord Chancellor has honoured so well in the past, can continue.
That brings me to the issue surrounding the new clause. Currently, by virtue of taking the judge's oath in the Lords, the Lord Chancellor is effectively disqualified from taking any other ministerial office thereafter. He is a judge, and like any judge, he cannot go back to his professional career at the Bar—if he is a lawyer—when he ceases to be Lord Chancellor. He cannot become any other kind of Government Minister, and he has hitherto been required to remain in the House of Lords. He can continue to sit as a Law Lord, if he so wishes, until he reaches retirement age, and that is it. The great merit of that arrangement is that he has no desire for further preferment, and therefore has some immunity from the political pressures that can easily build up on a politician who feels that he still has a career in front of him.
The problem with the Government's proposals is that, having insisted that the Lord Chancellor need not be in the Lords and could be a Minister in this House—I suspect that if the Government get their way, that will inevitably happen—they will end up appointing quite a junior Minister in the pecking order of the Cabinet hierarchy in this House who is seeking to further his career. It is at that point that a Lord Chancellor could become particularly susceptible to pressure from colleagues trying to influence the system of judicial appointments, for example—an area in which the Lord Chancellor will still have important functions to perform, either with the judicial appointments commission or through his extensive powers under schedule 6—to do what the Prime Minister or other Cabinet colleagues want done.
Given that the Government are insisting on going down that road, and that they have rejected our view that the Lord Chancellor should be in the Lords—an arrangement that already provides that extra protection—the only solution is to have a clause in the Bill to ensure that the Lord Chancellor is disqualified from holding any other ministerial office when his period as Lord Chancellor comes to an end. In my view, that will ensure that he is somebody who is at the end or peak of his career when he is appointed, who has no further desire for preferment—
I wonder whether the rest of the House noticed that the hon. Gentleman used the words "at the end of his career". As he is entirely legally qualified to denigrate the independence of the judiciary, being professionally qualified himself, is he aware that he proposes that we elect as Lord Chancellor a man or woman who is, in effect, Eastbourne in ermine—someone at the end of their career? Is that really what we want? Do we want someone at the tail end of their career holding this supremely important position?
That is not what I said at all. When I referred to the appointee being at the end of his career, I meant someone who sees holding the office of Lord Chancellor as effectively the last thing he wishes to do before retiring from public life. That is a sensible measure. He must be in a position to resist political pressures from those around him. While it is true that the Prime Minister can dismiss a Lord Chancellor at will, it is also the case that if the replacement Lord Chancellor is similarly isolated from desires of political preferment, the position will be reinforced that he will not be able to succeed in getting much better from another Lord Chancellor.
There are compelling reasons for including the new clause. The appointee could be someone in their 30s or 40s who does not wish to continue with a career in politics thereafter—they need not be, as the hon. Gentleman suggested pejoratively, Eastbourne in ermine.
I was fearful that the hon. Gentleman was under some misunderstanding. My understanding of the new clause is that all that it would preclude is further ministerial office. One could remain in Parliament as a Back Bencher and take other public office. My hon. Friends and I will support the new clause, but it is clear that that is the specific reason, and it seems to me to be a very good one.
I am most grateful to the hon. Gentleman for his expression of support, because that is the intention. Given the way that public life works, in reality, the appointee might be someone of maturity, but that is not a bad thing. It is a question not of Eastbourne in ermine but of having a bit of experience of life and of politics and of having a good track record. That is exactly the benefit that past Lord Chancellors have given us, irrespective of which party they have come from. It is precisely to preserve that that we have tabled the new clause. Were the Government to accept it, it would go a long way towards meeting the criticisms that we have otherwise made about the danger of the Lord Chancellor being politicised, which, I think, would provide substantial reassurance. I hope that the Minister will respond positively.
I do not want to see in 10 years' time—if the Government get their way on this Bill—someone who is effectively a junior ministerial appointment in the House suddenly realising that they are in fact at the mercy of the political pressures with which they will inevitably be surrounded. We should be sensible. One of the reasons why our political system has worked well to prevent impropriety is that it is robust. What the Minister is doing, with the changes that he is introducing, is making it much less robust in terms of the Lord Chancellor's independence. I realise that that is theoretical, but theory will usually turn into practice if the safeguards are not there. The new clause provides those safeguards, and I commend it to the House.
The reformed office of the Lord Chancellor, as we envisage it, would take away the requirements to be a judge, lawyer or peer, because it is fundamentally a ministerial post that requires political accountability, not least for the £3 billion of public expenditure carried out by the Department for Constitutional Affairs and Lord Chancellor. The Government believe in the simple principle that the person appointed must be the best person for the job, on merit, and that there should not be false constraints that could jeopardise that choice. The assertion that all Lord Chancellors might somehow be corruptible because they could be induced by the prospect of another ministerial job not only is an insult to past Lord Chancellors—incidentally, they have had no such statutory restriction, including during the 18 years of the previous Administration—but provides an intriguing insight into how the Conservatives view ministerial life.
It is absolutely right that Lord Chancellors have no such statutory restriction, but equally, because they are judges they are in fact constrained in what they can do when they cease to hold that office.
But not in a ministerial context, and I am surprised that—[Interruption.] Statutorily, there is no such bar on former Lord Chancellors holding other ministerial posts. I shall elaborate on some other perverse consequences of the hon. Gentleman's new clause.
Once again, we confront the question of convention. I should be interested to hear from the Minister whether, during the period to which he referred, a Lord Chancellor held other ministerial office after ceasing to hold that one. The answer, I suspect, is that no one did, because the existing convention makes it completely impossible to do so. Throughout the Bill's passage, it has become clear that the Government loathe convention. They put it in the bin, yet convention has served this country very well. The Government then argue that because a certain practice was only convention, they need do nothing else, but that is precisely how the safeguards in our constitution are eroded.
The hon. Gentleman says with complete confidence that no Lord Chancellor has ever held any other ministerial post; my officials and I will look back through the history books to double-check that assertion. [Interruption.] He says that it is impossible for a Lord Chancellor ever to hold another ministerial post, but he is wrong. He talks about convention, but it is he who proposes to put a statutory bar on former Lord Chancellors holding another ministerial post. I am simply discussing the proposal before the House.
There would be other very significant disadvantages to such a statutory bar. For example, it might put the best person for the job off accepting it, if they felt that such a bar would be an artificial constraint on their future ministerial career. It would prevent that person from taking on any ministerial role—in which their skills and expertise might be of great value to the running of the country—even if it were blatantly obvious that they were the right choice for the post in, for example, a time of national emergency or crisis.
There could be other perverse consequences for public affairs. For example, because a post-holder could not hold any other ministerial post or perform any other role in public affairs, they would have a perverse incentive to hang on to their office. They might not resign at the time most others would consider appropriate, or when circumstances would normally suggest that they should. New clause 9 gives rise to all manner of oddities.
This point may have been dealt with, but my assumption is that, under the new dispensation, a Lord Chancellor could be sacked by the Prime Minister of the day—just as a recent Lord Chancellor allegedly was—or a retirement age could be established. Neither of those ideas is unmanageable: the first happens anyway; and even if the Bill does not provide for a retirement age, it could, and there is no reason why it should not.
The hon. Gentleman is introducing other elements such as retirement age and term limits, which are somewhat false constraints on the holding of ministerial posts. We should not have such constraints; rather, we should have the best person for the job. Of course, in normal circumstances it may well be that the best person for the job happens to be at the end of their ministerial career, but that will not always, axiomatically, be the case. Strength of character and political courage cannot be legislated for in the crude way suggested in new clause 9. If a post-holder is likely to be swayed by political patronage, they are as likely to be swayed by all sorts of other "temptations", such as European Union posts, international postings and directorships.
There are all manner of problems with new clause 9. We must keep focused on allowing the best person for the job to be appointed, whoever they may be. I urge Members to reflect on the fact that this is a new and reformed post of Lord Chancellor, which requires the right person. False barriers, age-related criteria and term limits are not typically features of our constitution as it relates to public affairs, nor should they be. We stick with the principle of appointment on merit, and I urge the hon. Member for Beaconsfield (Mr. Grieve) to withdraw the motion.
As I said a few moments ago, my hon. Friends and I will support new clause 9. The Minister knows that both Houses have supported the notion that the new Chancellor under the new arrangements should not have to be a Member of the House of Lords, should not have to be a judge and can therefore be someone from either House. The Minister also knows that we would have preferred the title "the Minister of Justice", but we accept that the opening up of opportunities is generally a good thing.
The argument that no special characteristics apply to the post does not hold up. For example, the Law Officers of the Crown have always been people who, in theory, could have been chosen from anywhere, but they have, in fact, been chosen from people with appropriate qualifications. The Minister of Justice under the new dispensation is someone who will for the first time be responsible to Parliament only for the justice system in this country—England and Wales in some respects and the whole of the United Kingdom in other respects. That is different from the present role.
I agree with the hon. Member for Beaconsfield (Mr. Grieve) that the job needs to be as protected as possible from the normal pressures of political aspiration and from the temptation to be popular with colleagues in order to obtain preferment. I cannot believe that, in future, there will not be people who would view it as a huge honour and privilege to serve for an indefinite term as the Lord Chancellor from either House of Parliament. I cannot believe that only an old person should be considered. I understand, in parenthesis, that Eastbourne has a declining average age rather than a rising one, and it may be a misrepresentation of Eastbourne to suggest that everyone there is old: indeed, many young people live there.
It is a Lib Dem target, no doubt!
And we hope that it will be a Lib Dem gain in the offing. I am grateful to the hon. Gentleman for that prompt.
The person we need could be a young person chosen by the Prime Minister of the day because they would bring a different style and character to the job. The key issue is that the person must not seek to carry out the functions of the job in a way that renders them a candidate for another ministerial office which is not responsible for the independence of the courts and the judiciary. We have talked about the oath that the person would be obliged to take. It need not preclude the person from going on to the Back Benches or from becoming a judge of the Court of Justice of the European Communities in Luxembourg or the European Court of Human Rights in Strasbourg. There is no need to preclude the person from sitting on the International Court of Justice, from being Advocate General in Luxembourg or from all sorts of other jobs. They could be chairmen or chairwomen of tribunals or serve in a variety of other public offices. The one thing that has to be renounced is preferment as a Cabinet Minister or Minister of the Crown.
I understand the hon. Gentleman's point and I do not wish to denigrate the virtues of the convention of having someone at the end of their ministerial career. However, I earnestly caution him to think very carefully before supporting a statutory bar. Surely he can envisage circumstances that could amount to a fettering of the democratic choice of the country in respect of an individual who could be excellent at being Lord Chancellor and also capable of going on to higher things. I believe that preventing that possibility through statute would be a backward step which would fetter the democratic choice.
I acknowledge that the issue is debatable, but I have thought about it and I come down very strongly, when it comes to this particular job, on the side of protecting people from the usual pressures to give in to colleagues in order to be seen to be advancing a particular party view.
Let us consider the present circumstances and a Bill such as this coming before Parliament, steered by the future Lord Chancellor, who could be a member of this House rather than the other place. Let us imagine that we are eight or nine weeks away from a general election and that a certain Bill faces the deadline that all its stages must be completed before Parliament is prorogued. Colleagues might exert all sorts of pressure to get the measure pushed through, but the compromises involved might not be in the interests of justice.
The party and political pressures faced by the person who is Minister of justice in all but name must be different from those faced by other office holders. The nature of democracy is that people are subject to such pressures, but the new system should provide protection for the person in that role.
One aspect of the Lord Chancellor's role has not been debated today but is very important. Traditionally, the Lord Chancellor brings weight and authority to Cabinet discussions of constitutional matters. He is also the Government's conscience, and that is not a light matter. That role goes back to Sir Thomas More, and beyond, and it has an unromantic but practical function. The Lord Chancellor traditionally has qualities that enable him to provide the Cabinet with advice that other Ministers cannot, for the reasons that have been set out. Does the hon. Gentleman agree that that is another reason for supporting new clause 9?
I do. The Bill will change the Lord Chancellor's historical role, but the holder of the office has always acted differently in Cabinet from other Ministers.
Finally, there has been growing controversy in recent days—not for the first time in history—about the role played in government and public life by the Attorney-General. I have no reason to impugn the current Attorney-General: I have met him a couple of times and found him to be entirely reputable, decent, honourable and straightforward. However, it would be foolish to deny that a debate is going on outside the House about his independence. The Attorney-General is one of the two Law Officers, and the other is a Member of this House. We must do everything that we can to protect the person who holds the new post that is being created, and his or her successors, from the political criticism that I have described—the task of upholding justice must not be compromised by the political expediency of the day.
Every week, we are asked how we can do more to get people to vote and believe in politics as a good thing. We are expected to raise the public perception of the role of politicians, and one small step in that direction would be to protect the person running the justice system in this country from the normal pressure exerted by party, friends and colleagues. I cannot believe that there will not be plenty of good candidates to choose from in every Parliament.
The Constitutional Affairs Committee has published two reports on the Government's proposals. In the first, it said that the Lord Chancellor
"has a special constitutional importance enjoyed by no other Member of the Cabinet and . . . is usually at the end of his career (and thus without temptations associated with possible advancement)".
That is a statement of fact, but the report also expresses an aspiration that that should continue. In our second report, the Committee reinforced that approach, although we did not say that the Lord Chancellor had to be a Member of the House of Lords.
New clause 9 is a genuine attempt to achieve that aspiration. One might believe that the convention was well established and that there would be no need for legislation, but the Minister's remarks made me realise that that is not so. He said that people might be reluctant to become Lord Chancellor because that would interfere with their future career prospects—an observation that goes to the heart of the concerns felt by me and by the Committee.
A story has been going around the Bar for some years that, when the present Lord Chancellor took office, the Lord Chief Justice suggested to him that, as he would not sit as a judge, it might be a mistake to take the judicial oath because it might cause him problems with his future career. I cannot help but think that one of the reasons why the Government resist this proposal so hard is the problem that it would pose to the present Lord Chancellor.
I make no prediction about the duration in office of the present Lord Chancellor—I will not even quote what the Lord Chief Justice was alleged to have said about his many endearing qualities—but something quite important is at stake. We have probably lost the conventions during the argument. We are considering a Minister with a substantial Department that involves a lot of spending, and there may be a case of his sitting in the House of Commons and it may not be essential for him to be a lawyer. If we start to add all those things together, the convention could go out with the bathwater. It is a valuable convention for all the reasons that have been given—I do not want to repeat them—and I see no other way to safeguard it or to signal that we think it important than by supporting the new clause, so I intend to do so.
I congratulate the Opposition on raising this serious issue; but, on balance, they are wrong. I accept all that the hon. Member for Beaconsfield (Mr. Grieve) has said about the need for my right hon. and hon. Friends to respect the judiciary, but mutual respect is needed. The judiciary itself must respect what Parliament has done and what the Executive do in accordance with our constitution, but there are three reasons why the Opposition are wrong on balance.
First, we are recasting the office of Lord Chancellor in relation to the statutory obligations that we have already considered in clauses 1 and 4, and the obligations to protect the rule of law and respect the independence of the judiciary. We are recasting the office in terms of the concordat, whereby the Lord Chief Justice, for example, has a much enhanced role. So the first reason is that the office has a different character.
The second point is that there is no comparable provision in the other jurisdictions to which we might look. I know the situation in Canada and Australia best of all, and there is no suggestion that their Attorneys-General, who occupy a role that combines that of our Attorney-General and Lord Chancellor, are precluded from going on to other high ministerial office. The best example that I know is Sir Nigel Bowen, who was a Conservative Attorney-General in Australia. I worked with him very closely on an inquiry. He became the Australian equivalent of Foreign Secretary, and there is no suggestion that he in any way pulled his punches, while Attorney-General, in protecting the independence of the judiciary.
The third reason is that convention is important—I agree with Member for Beaconsfield and the Liberal Democrats in that respect—but we should allow such conventions to develop. A convention may develop that the people who occupy the role ought not to go on to accept other ministerial office. The great office of Lord Chancellor has changed over the centuries depending on the historical context. My hon. Friend the Minister is absolutely right to say that we ought not to stifle the development and evolution of that office as it faces new challenges.
I am interested to hear the contributions that have been made. I am particularly grateful to the hon. Member for Southwark, North and Bermondsey (Simon Hughes) and the right hon. Member for Berwick-upon-Tweed (Mr. Beith) for their support. I note entirely what the Minister and the hon. and learned Member for Dudley, North (Ross Cranston) have said, but my view is that the new clause is important and I wish to press it to the vote.
Question put, That the clause be read a Second time:—
It being more than five hours after the commencement of proceedings in Committee, The Second Deputy Chairman, pursuant to Orders [17 and 31 January], put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
New schedule 1 brought up, read the First and Second time, and added to the Bill.
Government amendments Nos. 647 and 648 made.
Clause 22, as amended, ordered to stand part of the Bill.
Government amendment No. 57 made.
Clause 23, as amended, ordered to stand part of the Bill.
Government amendments Nos. 58 to 80 made.
Schedule 7, as amended, agreed to.
Government amendments Nos. 81 and 82 made.
Clause 24, as amended, ordered to stand part of the Bill.
Government amendments Nos. 83 to 87 made.
Clause 25, as amended, ordered to stand part of the Bill.
Government amendments Nos. 88 to 93 made.
Clause 26, as amended, ordered to stand part of the Bill.
Government amendments Nos. 94 to 98 made.
Clause 27, as amended, ordered to stand part of the Bill.
Government amendments Nos. 99 to 102 made.
Clause 28, as amended, ordered to stand part of the Bill.
Clauses 29 and 30 ordered to stand part of the Bill.
Government amendments Nos. 103 and 104 made.
Clause 31, as amended, ordered to stand part of the Bill.
Government amendments Nos. 105 and 106 made.
Clause 32, as amended, ordered to stand part of the Bill.
Government amendments 107 and 108 made.
Clause 33, as amended, ordered to stand part of the Bill.
Clause 34 ordered to stand part of the Bill.
Government amendment No. 109 made.
Clause 35, as amended, ordered to stand part of the Bill.
Government amendments Nos. 110 and 111 made.
Clause 36, as amended, ordered to stand part of the Bill.
Clauses 38 to 41 ordered to stand part of the Bill.
Government amendment No. 112 made.
Clause 42, as amended, ordered to stand part of the Bill.
Government amendments Nos. 113 to 115 made.
Clause 43, as amended, ordered to stand part of the Bill.
Clause 44 ordered to stand part of the Bill.
Government amendment No. 116 made.
Clause 45, as amended, ordered to stand part of the Bill.
Government amendment No. 117 made.
Clause 46, as amended, ordered to stand part of the Bill.
Government amendments Nos. 118 to 122 made.
Clause 47, as amended, ordered to stand part of the Bill.
Clause 48 ordered to stand part of the Bill.
Government amendments Nos. 123 to 125 made.
Clause 49, as amended, ordered to stand part of the Bill.
Government amendment No. 126 made.
Clause 50, as amended, ordered to stand part of the Bill.
Government amendments Nos. 127 and 128 made.
Clause 51, as amended, ordered to stand part of the Bill.
Clause 52 disagreed to.
Clause 53 ordered to stand part of the Bill.
Government amendments Nos. 129, 649 and 650 made.
Schedule 9, as amended, agreed to.
Government amendment No. 130 made.
Clause 54, as amended, ordered to stand part of the Bill.
New clauses 31, 43 and 44 and new schedule 3 agreed to.
Clause 55 ordered to stand part of the Bill.
Government amendments Nos. 131, 651, 574, 652, 653, 132, 575, 133, 654 to 657, 134 to 141, 576 to 579, 142, 580, 143, 144, 581 and 145 to 175 made.
Schedule 10, as amended, agreed to.
Clause 56 ordered to stand part of the Bill.
Government amendments Nos. 176, 582, 658, 659, 583, 660, 661, 177, 178, 640, 179 to 197, 584 and 198 to 202 made.
Schedule 11, as amended, agreed to.
Clause 57 ordered to stand part of the Bill.
Government amendment No. 203 made.
Clause 58, as amended, ordered to stand part of the Bill.
Government amendments Nos. 204 to 208, 585 and 209 made.
Clause 59, as amended, ordered to stand part of the Bill.
Government amendments Nos. 586 and 587 made.
Clause 60, as amended, ordered to stand part of the Bill.
Government amendment No. 588 made
Clause 61, as amended, ordered to stand part of the Bill.
Clause 62 ordered to stand part of the Bill.
Government amendments Nos. 215 to 218 made.
Clause 63, as amended, ordered to stand part of the Bill.
Government amendments Nos. 219, 589, 220, 590, 221, 591, 222, 223 and 592 made
Clause 64, as amended, ordered to stand part of the Bill.
Government amendments Nos. 224 to 228 made.
Clause 65, as amended, ordered to stand part of the Bill.
Government amendments Nos. 229 to 232 and 593 made.
Clause 66, as amended, ordered to stand part of the Bill.
Amendments made: Nos. 594 and 595.
Clause 67, as amended, ordered to stand part of the Bill.
Government amendment No. 596 made.
Clause 68, as amended, ordered to stand part of the Bill.
Clause 69 ordered to stand part of the Bill.
Government amendments Nos. 237 to 240 made.
Clause 70, as amended, ordered to stand part of the Bill.
Government amendments Nos. 241, 597, 242, 598, 243, 599, 244, 245 and 600 made.
Clause 71, as amended, ordered to stand part of the Bill.
Government amendments Nos. 246 to 250 made.
Clause 72, as amended, ordered to stand part of the Bill.
Government amendments Nos. 251 to 254 and 601 made.
Clause 73, as amended, ordered to stand part of the Bill.
Government amendments Nos. 602, 255, 603 and 256 made.
Clause 74, as amended, ordered to stand part of the Bill.
Government amendments Nos. 662, 562, and 622 to 625 made.
Schedule 12, as amended, agreed to.
Clause 75 disagreed to.
Government amendments Nos. 605 and 606 made.
Clause 76, as amended, ordered to stand part of the Bill.
Government amendments Nos. 262 to 265 made.
Clause 77, as amended, ordered to stand part of the Bill.
Government amendments Nos. 266, 607, 267, 608, 268, 609, 269, 270, 610 and 611 made.
Clause 78, as amended, ordered to stand part of the Bill.
Government amendments Nos. 271 to 275 made.
Clause 79, as amended, ordered to stand part of the Bill.
Government amendments Nos. 276, 612, 277, 278, 613, 279 and 614 made.
Clause 80, as amended, ordered to stand part of the Bill.
Government amendments Nos. 280 and 281 made.
Clause 81, as amended, ordered to stand part of the Bill.
Clause 82 disagreed to.
Government amendments Nos. 616 to 618 made.
Clause 83, as amended, ordered to stand part of the Bill.
Government amendments Nos. 285 to 288 made.
Clause 84, as amended, ordered to stand part of the Bill.
Government amendment No. 289 made.
Clause 85, as amended, ordered to stand part of the Bill.
Government amendment No. 290 made.
Clause 86, as amended, ordered to stand part of the Bill.
Government amendments Nos. 291 to 293 made.
Clause 87, as amended, ordered to stand part of the Bill.
Government amendment No. 294 made.
Clause 88, as amended, ordered to stand part of the Bill.
Government amendments Nos. 295 to 298 made.
Clause 89, as amended, ordered to stand part of the Bill.
Government amendments Nos. 299 and 300 made.
Clause 90, as amended, ordered to stand part of the Bill.
Government amendment No. 301 made.
Clause 91, as amended, ordered to stand part of the Bill.
Clause 92 ordered to stand part of the Bill.
Government amendment No. 302 made.
Clause 93, as amended, ordered to stand part of the Bill.
Government amendments Nos. 303, 626 and 627 made.
Clause 96, as amended, ordered to stand part of the Bill.
Government amendments Nos. 628, 304, 305, 629, 630, 307 and 631 made
Clause 97, as amended, ordered to stand part of the Bill.
Government amendments Nos. 308, 632 and 309 made.
Clause 98, as amended, ordered to stand part of the Bill.
Government amendments Nos. 310 and 311 made.
Clause 99, as amended, ordered to stand part of the Bill.
Clauses 100 to 103 disagreed to.
Government amendments Nos. 619, 620, 637 and 621 made.
Clause 104, as amended, ordered to stand part of the Bill.
Motion made, and Question put, That new clauses 11 to 19, 21 to 25, 28 to 30 and 42 be read a Second time:—
The House proceeded to a Division.
On a point of order, Sir Michael. Leaving aside the fact that hundreds of amendments are being pushed through at the end of the process without their being examined, new clause 42, which the Government have adopted, was tabled not as a Government amendment but as a Back-Bench amendment for consideration by the Committee. It has not been considered. Although it may be desirable, it alters substantially assurances that the Government gave in another place that the only criterion for the appointment of the judiciary would be merit. Is it in order for the Government to act in that way, especially when no notice was given to the Opposition or anyone else until early this afternoon that the Government viewed the new clause with favour? Consequently, it is impossible to consult sensibly on whether it should be supported.
I understand the hon. Gentleman's point but the Government's actions are clearly laid down in Standing Orders and are not a matter for the Chair. We must proceed with the Division.
On a point of order, Sir Michael. First, I congratulate you on making probably the longest contribution—
Order. If the hon. and learned Gentleman wishes to make a point of order, it would be more sensible if we first completed the Division and he raised it subsequently.
New Clauses 11 to 19, 21 to 25, 28 to 30 and 42 read a Second time, and added to the Bill.
Clause 110 ordered to stand part of the Bill.
Schedule 13 agreed to.
Clause 111 ordered to stand part of the Bill.
Government amendment No. 466 made.
Clause 112, as amended, ordered to stand part of the Bill.
Clause 113 ordered to stand part of the Bill.
Government amendment No. 319 made.
Clause 114, as amended, ordered to stand part of the Bill.
Government amendments Nos. 320 and 663 made.
Clause 115, as amended, ordered to stand part of the Bill.
Government amendments Nos. 321,638 and 467 made.
Clause 116, as amended, ordered to stand part of the Bill.
Clause 117 ordered to stand part of the Bill.
Government amendments Nos. 468 to 470 and 16 made.
Schedule 14 agreed to.
Clause 118 ordered to stand part of the Bill.
Government amendments Nos. 471, 472, 563 to 565, 473, 566, 474, 567, 475 to 478, 568, 569, 479, 480, 570, 571, 481 to 483, 572, 573, 484, 485, 368, 486, 664, 665, 487 and 666 made.
Schedule 15, as amended, agreed to.
Government amendment No 641 made.
Clause 119, as amended, ordered to stand part of the Bill.
Government amendments Nos. 322, 488, 489, 323 and 324 made.
Clause 120, as amended, ordered to stand part of the Bill.
Government amendment No. 642 made.
Clause 121, as amended, ordered to stand part of the Bill.
New Clauses 32 to 41 agreed to.
New schedule 2 agreed to.
Bill reported, with amendments
On a point of order, Sir Michael. I have a predictable point of order. I do not remember ever having been in the House previously when the proposals from the Chair for amendments, new clauses and new schedules have taken 27 minutes, without the Division. I do not pretend to be 100 per cent. accurate, but by my calculation there were 91 clauses, 8 schedules, 31 Government new clauses, one non-Government new clause, two new schedules and 102 amendments. Apart from asking whether anyone in this place keeps records—as I think that we have broken one—is there anything that we can do, if we anticipate that this is what is likely to happen, other than to ask the Procedure Committee to re-examine this process? This is the second day in a row—I understand that today's context is not as controversial as yesterday's—when a major constitutional Bill, on the Floor of the House, has not been debated. Many perfectly reasonable Government amendments that were made, and one or two new clauses and amendments from the Opposition, have not had a chance of debate. That does not do a service to the legislation or the cause and certainly does not do a service to Parliament.
Further to that point of order, Sir Michael. The hon. Member for Southwark and Bermondsey (Simon Hughes) completed the point of order that I was intending to make to you during the Division. I fully accept that that was perhaps not the most convenient time to take it. Is there no procedure, however, whereby a Minister who introduces a guillotine motion to curtail debate on a Bill, and on this Bill in particular, can be required to explain himself after the event so that he can justify, after what he has done, what he intended to do beforehand?
I presume that all Ministers come to the House with the good motive of wishing to allow the House ample time to discuss their legislation. Clearly, Sir Michael, you have been on your feet for nearly half an hour, which is probably the longest contribution that you have made on the Floor of the House since becoming a Deputy Speaker. I am delighted for you, but it is an abuse of our constituents and of our role as Members of Parliament, of which you are one, for a Government to deal with constitutional legislation, or any legislation, in this way. You may say that that is no more than a point of frustration, and not a point of order that you can deal with. None the less, the Government are increasingly abusing this place and we increasingly look to the Chair to protect us and the integrity of our procedures.
I appreciate that you, Sir Michael, are as much a servant as a master of this House and that you must do what the House—through the Executive telling Parliament what to do—dictates. We live by the fiction that we in this place are free agents, and that being understood I urge you to apply some pressure to persuade the Government to behave themselves.
I think that I have understood the hon. and learned Gentleman. On the first of several points that he made, concerning the Minister's providing an explanation, I am afraid that no allowance is made in our proceedings for requiring such an explanation, so there is nothing that the Chair can do about that.
On the original point of order from the hon. Member for Southwark, North and Bermondsey (Simon Hughes), all that I can say is that we have done things this evening absolutely correctly and as the House—until now, at least—decided that we should do them. I am sure that all his remarks will have been noted by everybody in the House; perhaps the House will want to return to this issue on another occasion.
Further to that point of order, Sir Michael. To be fair to the Government, it is worth recognising that a substantial number of the amendments involved putting back the words "Lord Chancellor", which is what the House desired.
That is absolutely true. A number of amendments were technical, but the House will be able to decide for itself which were and which were not. That is now a matter for the record.
Order for Third Reading read.
I beg to move, That the Bill be now read the Third time.
The Bill's Second Reading has been debated on the Floor of the House, followed by three full days in Committee on the Floor of the House. That process was agreed through the usual channels following discussion about there being insufficient time. We have had an interesting and long discussion in Committee, but even so a number of amendments, new clauses and schedules were adopted that we did not have time to discuss. Of course, that is always a matter of regret, but I pay tribute to the hon. Member for Worthing, West (Peter Bottomley), who leapt to my defence—that was unsurprising; nevertheless, I shall remember it—to point out that many amendments were consequential and drafting amendments that simply replaced the word "Minister" with the phrase "Lord Chancellor." Of course, that was not the Government's original intention; rather, it was a reflection of the debate and of having listened to concerns expressed here and in the other place. It was unfortunate that we had to go through such amendments one after the other, but they did constitute the bulk of those tabled.
That said, other matters arose as well, and in the light of the earlier request that I deal with them I shall try my best to do so.
In this spirit of comradeship, does the Minister accept that if the Government had thought before they spoke in creating this constitutional disarray—if they had asked the Lord Chancellor to agree not to sit as a judge and if they had agreed with the senior Law Lords that they should not take part in partisan debates—we would not have needed these provisions?
The hon. Gentleman has just spoiled his standing in my eyes with that contribution; if only things could have stayed as they were. I am afraid that I disagree with him on that point.
This significant Bill is driven forward by a number of fundamental principles, the first of which is clarifying the relationship between the three arms of the state—the legislature, the judiciary and the Executive—thereby allowing a Minister with an unambiguous constitutional role to focus on the administration of the courts and the justice system. Another principle is modernising the constitution to make it better fitted to carrying out its vital role in a modern democracy, and a third is providing the public with greater confidence in the clearer shape and nature of each of its branches.
I take the Minister back to what he said to my hon. Friend the Member for Worthing, West (Peter Bottomley), who was indeed right to say that many of the Government's amendments merely substituted the word "Minister" with the phrase "Lord Chancellor." One thing that has to be assessed when the usual channels negotiate how much time should be allowed for discussing a Bill is which issues will require close debate. In such circumstances, if the Government do not indicate beforehand that they will adopt Back-Bench amendments, there is no opportunity for Members to understand the Government's thinking or to ask for sufficient time to debate those issues.
I understand that the hon. Gentleman is talking about new clause 42, proposed by my hon. Friend the Member for Leicester, East (Keith Vaz). It is a simple new clause, which I can read out now that it has been adopted in the Bill. It states that the judicial appointments commission, in performance of its functions
"must have regard to the need to encourage diversity in the range of persons available for selection for appointments."
The provision is subject to clause 57, according to which selection must be "solely on merit" and the person should be "of good character". It is a simple and, I would have thought, wholly uncontentious new clause.
This admirable and worthy provision has been welcomed by the judiciary and its genesis lies with the Constitutional Affairs Committee. I would have thought that our adoption of it accords with the spirit of responding to debate and to suggestions from the Select Committee. Instead of rebutting these sorts of provisions, Opposition Members should listen and allow a level of dialogue to take place, even if not in this particular debate. I have sought to respond to appropriate suggestions, which is why I accepted the new clause.
New clause 42 has been available for Members to view in the amendment paper and hon. Members have been able to make their judgments about it. I accept that it is buried away in a number of other amendments, but it is there and it was wrong to vote against it. I regard voting against it as extremely regrettable. Perhaps, on further reflection, Opposition Members will accept the provision in the other place.
It is indeed the case that when the provision is subjected to proper scrutiny in the other place, those who follow the Conservative Whip will have had a further opportunity to discuss the matter and may decide that they are content with it. However, it is simply not good enough for the Government to adopt a Back-Bencher's new clause that is not their own without expressing their view on the Select Committee's report, when they know perfectly well that when the issue was extensively debated in the other place they accepted the centrality of basing judicial appointment wholly on merit. I fully accept that what the Government have done may not wholly dilute that aspect, but it nevertheless has an impact on it. The Government should not have behaved in that fashion.
I am getting mixed messages from Conservative Members. They say that we should respond to debate and not simply railroad Government amendments through. If sensible amendments are proposed by the Select Committee or by hon. Members, we are encouraged to respond to them. That is precisely what I have done. It is not my fault that we did not have sufficient time to debate that particular part of the Bill in full. It was a matter for hon. Members, some of whom—they are no longer in their places—spoke for considerable periods of time on matters connected with the oath and so forth, which others may feel was excessive. Nevertheless, what happened was all in order; if it were not, we would not have been able to adopt the new clause. I am glad that new clause 42 now stands part of the Bill and I hope that my hon. Friend the Member for Leicester, East will make some further comment on it later.
I return to my overview of why the Bill should have its Third Reading. It reforms the office of Lord Chancellor, removing the bloodlines between Ministers and present judicial roles and removing outdated functions. It ends the Lord Chancellor's judicial functions, ensuring that his responsibilities for the judiciary are exercised under a new transparent statutory arrangement in the form of a concordat with the Lord Chief Justice. Reform will enable that Minister to focus on his and the Government's main priority—the delivery of essential public services. We also recognise the Lord Chancellor's important role in the administration of the courts and in accounting for the appointment of judges.
The Bill gives all Ministers, particularly the Lord Chancellor, a statutory duty to uphold the independence of the judiciary. It creates a free-standing UK supreme court, separating the highest appeal court from the upper House and removing the Lords of Appeal in Ordinary from the legislature—a very important step forward. The Bill ensures that the judiciary's voice can be heard and represented to Parliament and that our highest appeal court will be visibly separated from the legislature by being housed outside the Palace of Westminster, our first preference being Middlesex Guildhall. It also puts beyond any doubt the independence from politics and the legislature of the UK's highest appeal court.
The Bill also sets up the new judicial appointments commission, an independent body responsible for selecting judges in England and Wales. It sets out the process to be followed in appointing judicial office holders and in making complaints to the ombudsman.The Bill defines the limitations of the Lord Chancellor's role in the appointment of judges, and provides real accountability over appointments. It is no longer appropriate for a Minister to have unfettered discretion in the appointment of judges. The Bill also makes provision for a new disciplinary process for the judiciary that is open, transparent and accessible. The JAC will have a positive and beneficial impact on the diversity of appointments, even though all will be made solely on merit.
A further series of amendments was adopted in Committee, largely in relation to enshrining the concordat and making parallel provisions for Northern Ireland. However, the Bill's rationale is clear and simple: it is to provide a modern footing for the relationship between the Government, the judiciary and Parliament.
The Bill restates and strengthens judicial independence and will ensure the better administration of the courts, with a full-time Cabinet Minister overseeing nearly £3 billion of public expenditure. It also makes clear the responsibilities necessary for the vital functions of a modern democracy.
Our constitutional history is one of the longest and most illustrious of any country in the world. It has evolved gradually, but constantly, over the centuries. Change and reform are core features of our system of governance; they are not alien to it. The changes in the Bill will further enhance and improve our constitution so that it is fit for the 21st century.
I commend the Bill to the House.
We now find ourselves at the end of a full day of business on the Constitutional Reform Bill. Hon. Members have covered a certain amount of it as a Committee of the whole House, but more than half the clauses have not been considered today. Hundreds of clauses and amendments remain unconsidered and the Government have adopted amendments tabled by Back-Bench Members that have not even been debated. It may be an academic matter to protest now, but the Government can take no pride in their handling of the timetable for a Bill of such constitutional significance.
This afternoon, some controversial proposals have been pushed through, among them provisions relating to the Lord Chancellor's oath, the speakership of the House of Lords, and the land charges search fees levied by local authorities. Of course, many of the clauses are not fundamentally in dispute as they deal with issues covered by the concordat between the Lord Chancellor and Lord Chief Justice. For example, the Opposition remain generally supportive of the judicial appointments commission—although, despite the wording in the Bill, we still fear the influence of a candidate's politics or crony potential on his or her chances of selection as a judge.
As we have made clear from the outset, Opposition Members are not opposed to those aspects of the Bill that bring into force the sensible redefining of the relationship between the judiciary and the Government. However, the positive measures implementing the concordat do not make up for the serious damage that this Bill, in its entirety, will do to this country's delicate constitutional balance which has protected Britain's people and judiciary so effectively up to now. I maintain the view that I expressed on Second Reading. This Bill represents nothing less than constitutional vandalism in the way it sets out to replace the long-standing Appellate Committee of the House of Lords with an unnecessary supreme court, as well as in its undermining of the historical office of the Lord Chancellor.
Indeed, the situation in relation to the Lord Chancellor has become much worse since Second Reading. The other place rightly saw fit to amend the Bill to require the holder of that position to be a member of the House of Lords and a person who had previously been a senior lawyer or judge. The argument for those requirements was entirely valid. They would ensure that the traditional upholder of the rule of law and the guardian of judicial independence had an understanding of the legal significance of events with which he or she might be confronted. By overturning those requirements, the Government have done nothing to further the rule of law that they purport, in clause 1, to uphold. Presumably, we are supposed to feel grateful that the Government have at least respected the Opposition amendment in another place that ensured that the position of Lord Chancellor remained in existence.
As I said, a new supreme court is being thrust upon us. I make no apology for reiterating the effects of that proposal. The creation of such a court will guarantee only unnecessary upheaval and exorbitant costs. The principle of the separation of powers does not require such a change, and neither does the Human Rights Act 1998, which has not been used successfully to challenge our present position. No lack of integrity and independence on the part of the Law Lords necessitates such action. Contrary to what the Government have previously maintained, we believe that the role of the Law Lords is widely understood by the British public.
A starting estimate of £30 million in set-up costs and an estimated £8.8 million in annual running costs will be required for the new court. By contrast, for a little over £168,000 a year, we already have a final appeal court in the Appellate Committee, which is admired at home and abroad for its authoritative rulings. The Lords of Appeal in Ordinary will be removed from Parliament, reducing the quality of debate and legislation in the other place. The Law Lords will lose the benefit of their existing location at the heart of government.
The many reasons for opposing the Bill have been made quite clear throughout the debates in the House. The Government are modernising for the sake of it, and the Conservative party cannot go along with that. I ask the House to take what may be its final opportunity to vote against the Bill, which is damaging to our constitution and wasteful and unnecessary in practice.
I want to speak briefly on Third Reading because we have rehearsed the arguments over so many days and, indeed, a number of months since the Government first published their proposals.
I pay tribute to the Minister, who has conducted himself eloquently and tirelessly in ensuring that the House has an opportunity to be provided with as much information as possible, and he has done it all with good humour. I thank him for the work that he has done in ensuring that the Bill passes all its stages.
I want to say how pleased I am that the Lord Chancellor and the Minister have worked so hard with the judiciary. Certainly, when these proposals were announced, some of those in the senior judiciary were concerned about some of them. There was concern in the judicial part of the House of Lords and a number of Law Lords were not consulted about what was happening. Since then, we have agreed the concordat with the Lord Chief Justice. I am glad that we worked with the judiciary because we have the finest judiciary in the world. It is important that the judiciary should be kept fully informed of the developments and properly consulted, and I now think that the judiciary support the reforms. I hope that the Minister will take the message from the House to those in the senior judiciary that we will consult them on matters that concern them and ensure that we consider their views.
What has saddened me tonight, however, is the attitude of the hon. Member for Beaconsfield (Mr. Grieve) and the Conservative party's decision to vote against diversity in the House. It is appalling that a party that claims to the black and Asian communities and on the gender issue that it is in favour of diversity should wish to vote against an innocuous clause proposed by the Government—new clause 42.
Hang on—wait a minute. The hon. Gentleman will attend an Asian function in the House this Saturday. He attended Baisakhi last year. I think that he even put a turban on his head in the middle of Baisakhi. He says to the ethnic minority community that his party is in favour of diversity, yet he comes to the House and votes against diversity. [Interruption.] He has had a lot to say. Let me just say that he should have known about the substance of new clause 42 and we cannot do his homework for him. He is a clever man and I should have thought that he would have established what that clause was intended to do.
First, it was originally proposed by myself, his hon. Friend the Member for Worthing, West (Peter Bottomley) and my hon. and learned Friend the Member for Dudley, North (Ross Cranston), who is, sadly, to retire from the House, despite his distinguished service in the Government and on the Select Committee on Constitutional Affairs. It is obvious that when the three individuals concerned all signed the same proposal, it is worth reading and considering very carefully.
Secondly, new clause 42 comes straight from Northern Ireland legislation. It reflects exactly what was intended in respect of the Northern Ireland Judicial Appointments Commission.
Will the hon. Gentleman give way?
I will when I have finished making my point.
The proposal has worked well in Northern Ireland and it was therefore appropriate to suggest it again. The third point is that the clause is specific on merit. No woman and no black or Asian person in this country wants to be appointed to any job on the basis of their colour or gender. The first and overriding consideration is merit, and that is exactly what new clause 42 states. That is why it is written in terms that allow merit to be the overriding consideration.
I am sorry to note that the hon. Gentleman's sensible points are, characteristically, marred by the malevolence of tone that he so habitually adopts. He knows that the Conservative party is proud of promoting diversity, but as a parliamentarian I want to ensure that the Government do what they promise. Central to the Bill has been their promise that judicial appointment wholly on merit would be preserved. If the Government wanted to table a sensible amendment, I would have expected them to do so in a way that guaranteed debate and with their views known to the House before they did so.
That was not an opportunity for the hon. Gentleman to make another speech. He is wrong and the message will go out to the community today that the Conservative party—despite what it said during the Leicestershire, South by-election when the Leader of the Opposition ran from mosque to mosque saying that he was in favour of diversity, despite what the shadow Home Secretary said at the Diwali function at the Dorchester hotel last year when he tucked into his chicken tikka masala and told everyone that he was in favour of diversity, and despite what the hon. Member for Beaconsfield says at ethnic minority community functions—when it came to the crunch, it voted against diversity. That is a shame on the Conservative party and a shame on the hon. Gentleman.
May I first thank the Minister? Although the Liberal Democrats did not like the programme motion, nor the fact that we did not debate so much of the Bill, he dealt with matters today with his usual expertise, competence, courtesy and friendliness. We are grateful for that because it helps to alleviate the other criticisms, which we do not lay largely at his door.
My hon. Friend the Member for Somerton and Frome (Mr. Heath) has had the conduct of the Bill through the House, except today, with the assistance of my hon. Friend the Member for North Cornwall (Mr. Tyler). My right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), who was in his place for most of the day and chairs the Constitutional Affairs Committee, gave his apologies as he had to be at another event now, but he has been assiduous in ensuring that the Committee and all its members played their full part in contributing to our deliberations. We owe them all our thanks.
The hon. Member for Leicester, East (Keith Vaz) raised, with his usual intensity, new clause 42, which was tabled by the hon. Member for Worthing, West (Peter Bottomley) and others. My colleagues and I supported that new clause and voted for it with enthusiasm. We believe that it should be added to the Bill, but I will not join the hon. Member for Leicester, East in criticising the hon. Member for Beaconsfield (Mr. Grieve) and his colleagues for saying that the new clause should have been debated in the House and in Committee. The Government did not say that they would support it. They are entitled to do so, but in the 27 minutes of unbroken recital of new clauses, new schedules and amendments, there was no chance to discuss any of them. It is proper to say that we should debate it.
I accept that no woman or member of a minority ethnic community wants to be promoted within the legal profession on any grounds other than merit. I also accept the huge pool of talent that there was, is and will be from women and black and ethnic minority communities. I have held the strong view for many years that they have been under-represented by miles in judicial appointments at the highest level. Only in the last 12 months has the first woman made it to the most senior court in the land. That delay has done us no credit, but I am pleased that it has happened at last.
None the less, we should have been able to have this debate and the new clause could then have been judged on its merits. That has been our view for a long time, and it is unreasonable to associate a lack of concern for these issues with the way in which the Conservative party voted on the issue.
Turning to the matter of substance, the Bill is important and substantial—all 227 pages of it. I think that it is the last of the Bills envisaged under the Cook-Maclennan agreements made before the 1997 general election by the right hon. Member for Livingston (Mr. Cook) and my colleague Lord Maclennan of Rogart, as he now is. Our parties put forward a set of constitutional proposals that we said we would want to introduce when either of us were in government. Labour was elected and did good things in its initial period in government, including passing the Human Rights Act 1998. That has been spoilt by the question of derogating, but that is a sad and separate story.
The time has long come for the reforming proposal that lies behind the Bill. I do not think that in any other modern or older democracy throughout the world, the roles of the Speaker of one of the Houses of Parliament, a Minister in the Executive and the most senior judge have been fused and carried out by one person. It is absolutely proper to argue that the roles should be separated.
I support a two-Chamber Parliament, with a principal Chamber and a second revising Chamber. In passing, may I say that I support a predominantly elected second Chamber and hope that we will have one before long? I think that that was on the Prime Minister's agenda at one point, but it has slipped a bit as he has changed his view in a retrograde way. It is self-evident that the two Chambers of Parliament should choose their own Speakers and call them what they want.
Additionally, there should be a Minister of Justice—he will now still be called the Lord Chancellor—who is accountable to parliamentarians, one hopes in the elected House of Commons. That will be the case in the future. There should also be a separate, independent and free-standing supreme court for the United Kingdom. It should be seen as separate from legislative and party pressures and able to do its new job. That is not to say that the Law Lords have not done a good job. We value hugely what they did as recently as December when they found that the Government had acted illegally and that the law of this country was contrary to the European convention on human rights. They thus effectively called on us to repeal the law, which we will inevitably now do. However, in modern democracies, courts and supreme courts are separate from the legislature, and the Bill will allow us to achieve such separation.
It is important that we modernise the way in which we appoint our judges. The system set out in the Bill is not perfect, but it is much better than the existing one. We will have an independent commission and independent scrutiny. I personally would have preferred a structure under which the nomination of the Prime Minister would also require approval by a Select Committee, as is the case in the American Congress, as well as involving the judicial commission process, because that would have provided for extra protection.
The Bill changes ancillary matters to do with such matters as the Privy Council and its appellate functions. Those changes needed to be made, so it is right for us to modernise our judicial process.
We need a judiciary that is modern, but above all independent. When Liberal Democrats have criticised the Bill, it has been because the Government have not adequately ring-fenced that independence—we had one such debate today. However, with a few reservations, we warmly welcome the Bill, so my colleagues and I will support it on Third Reading, as we have done throughout its passage. We hope that it will be on the statute book soon, whatever the date of the general election.
I am afraid that I cannot echo the enthusiastic praise for the Bill expressed by the hon. Member for Southwark, North and Bermondsey (Simon Hughes). I can, however, join in the general feeling of warmth shown towards the Minister, who has done his best in a difficult job. No doubt he had to comply with some pretty unattractive instructions, not least of which was ramming the Bill through Committee as quickly as possible with minimum inconvenience to the Government or anyone else, save for those who care about the courts, the office of Lord Chancellor and the creation of a judicial appointments commission.
I shall make my next point briefly because I gather from a Government Whip that the Labour party wants to get away early, having done its business. I am sorry that food takes a greater precedence over a debate on an important constitutional issue, but that is the Parliament we now have.
The judicial appointment commission is unnecessary, but it is the least harmful of the measures. The supreme court is an utterly unnecessary and hugely expensive way of so-called reforming the highest appeal court in our land. It is no more than an artificial way of resolving a dispute between the former Home Secretary and the former Lord Chancellor. It has produced a great deal of sadness and upset, and no identifiable benefit. I do not buy the line produced by the hon. Member for Southwark, North and Bermondsey that it is necessary to have the highest court of appeal outside Parliament. No one who has thought about that for more than 30 seconds has ever thought that the Judicial Committee of the House of Lords was anything other than a court and that its judgments were anything other than legal judgments, rather than political speeches, but the majority have had their day and that is the end of that, at least until we know the result of the general election.
On the Bill's contents—this is allied to my remarks on the supreme court—the office of the Lord Chancellor, in every sense of the word as it has been understood for many years, has been destroyed. The description of the pubic office that will be wrapped with the words "Lord Chancellor" is unrecognisable to anyone who has any interest in the history of the office. Indeed, in another guise it is possible that the Government could be sued for passing off the post-Bill Lord Chancellor as the Lord Chancellor. He is nothing of the sort.
There is some importance attached to that position beyond the point about the new role of the Lord Chancellor. He has traditionally been the protector of the rule of law, protector of the judiciary against political interference, and upholder of the independence of the judiciary at the highest levels of government. Of course, that will go because he will not be anything other than a political Secretary of State, and good luck to him. He will not, however, have the authority, either as a politician and still less as the head of the judiciary, to speak for it on such issues. We will have to rely on the Attorney-General who, at the moment, is a Member of the other place.
I am sad to say that we no longer have lawyers on the Labour Benches who appeal to the Prime Minister and are up to doing the important job of the Law Officer in this House. I regret the fact that the hon. and learned Member for Dudley, North (Ross Cranston) is no longer the Solicitor-General. He was extremely good at it. He was not an aggressive "punch you in the face" politician. He made the grave mistake of thinking about what he wanted to say before he said it, which did not necessarily appeal to the Government.
At the moment we are blessed with the right hon. and learned Member for Camberwell and Peckham (Ms Harman) as our Solicitor-General. No doubt she will long be in that office, and, if not long in that office, long remembered for her tenure of that office. However, I cannot put much faith in the Attorney-General's ability to protect the judiciary and uphold the rule of law when he suggested in the House of Lords today that the so-called précis of his advice on the legality of the invasion of Iraq was not a précis of anything that he ever said or wrote. It is extremely worrying that that is the quality of person who currently holds that office—irrespective of the Attorney-General's other merits—and that that is the state of affairs in which we find ourselves. I am not sure that I want to trust the independence of the judiciary to that sort of muddle.
I have said quite enough about the content of the Bill, and I want briefly to comment on the process by which we have reached its Third Reading. You, Mr. Speaker, will not have been present during the Committee stage, but will no doubt have had reported to you the fact that one of your deputies spoke for about half an hour simply to read out a list of clauses, amendments and other procedural material that we had no opportunity to debate. I congratulated him on making his longest contribution to the House since he became a Deputy Speaker. It is utterly regrettable that the House should allow itself to debate without proper consideration a book that claims to be a Bill and is as long and as thick as it is.
Those points are reinforced by what happened yesterday in this place, when we had to discuss the Prevention of Terrorism Bill in undue haste and when, in my submission, the procedures of this place were roundly abused by the Executive and the majority of Members of Parliament were prepared to let it happen, as they have again today. I do not know, Mr. Speaker, whether there is anything that we can realistically do about this suborning of the proper processes of deliberation in this place.
I am surprised that a Government with a majority of 165 do not have the self-confidence to allow their ideas, policies and legislation to be discussed and tested. It seems to me that a majority of 165 should allow a Government to be generous in their accommodation of other people's arguments, because they always know that they will win—that the compliant majority will deliver—and ought occasionally to do the decent thing and listen to arguments that they find unattractive. [Interruption.] I am hearing sedentary remarks from across the Chamber to the effect that tummies are rumbling, so I shall stop now and allow those Members to go away, enjoy whatever dinner it is that they wish to go to, and think a little more about the possibility that if they are re-elected, either as individuals or collectively, they may be forced to consider whether they have properly fulfilled their functions as Members of Parliament in holding the Executive to account. My view is that they have not, but should, and my concern is that this Bill and these proceedings are evidence of a total thoughtlessness—indeed, reckless disregard—for the people of this country in terms of how this House produces legislation.
I wish the House of Lords every opportunity to think hard about the Bill and to restore some common sense and constitutional propriety to our parliamentary procedures.
Question put, That the Bill be now read the Third time:—
Bill read the Third time, and passed, with amendments.
Business of the House
Ordered,
That the Care of Cathedrals (Amendment) Measure, Church of England (Miscellaneous Provisions) Measure and Stipends (Cessation of Special Payments) Measure, which were laid before this House on 24th February, be referred to a Standing Committee on Delegated Legislation.—[Mr. Watson.]
Petition
Fisheries
I have great pleasure in presenting the petition of the cod crusaders. The material allegations surrounding the petition are the story of two remarkable women from Fraserburgh in my constituency, Carol MacDonald and Morag Ritchie, the cod crusaders, who have been campaigning for the past three years against the common fisheries policy and the destruction and devastation that it has caused fishing communities the length and breadth of these islands. They have collected as the climax of their campaign a mighty petition of 250,000 signatures, which will be presented tomorrow to Her Majesty the Queen at Buckingham palace. They are supported in their endeavours by fishing organisations the length and breadth of these islands. Indeed, they have international support, too. The case that they are making is to reclaim control of fishing waters to avoid the inevitable consequences of a continuation of the destruction wrought by common fisheries policy control. They are supporting the Bills for jurisdiction that have been presented by me and other Members who advance that argument, which we intend to continue until it is successful.
The petition reads:
The Petition of the Cod Crusaders
Declares that the European Common Fisheries Policy has failed to conserve fish stocks. It has caused untold hardship for fishermen and their local communities and industries. The Common Fisheries Policy has proved to be ineffective and inadequate in the conservation and management of fish resources. It has resulted in bankruptcies; the uprooting of individuals and families; and the destruction of thriving communities.
The Petitioners therefore request that the House of Commons take action to withdraw the United Kingdom from the Common Fisheries Policy.
And the Petitioners remain, etc.
To lie upon the Table.
Sentences (Appeals)
Motion made, and Question proposed, That this House do now adjourn.—[Mr. Watson.]
I am pleased to have obtained the Adjournment debate to explore a serious issue of justice and, I hope, to help the Government towards some answers. I am especially delighted to be joined by my hon. Friend the Member for Gedling (Vernon Coaker), who has taken a strong personal interest in leniency of sentencing, but is prohibited by convention from speaking in the debate because he is a Government Whip. He has taken a close interest in all matters to do with his community and its fightback against crime, which he has been leading in his constituency. The fact that he is here tonight, after the close of business, shows how deeply he feels about fighting against the criminals for his constituents' rights. He has also told me that he is appalled by the Appeal Court decisions to which I shall refer shortly. He finds them indefensible.
We are both deeply disturbed that, after two high-profile cases in our city of Nottingham, the Appeal Court has reduced sentences, much to the mystification and anger of the Nottingham public, who are struggling vigorously to beat violent crime. Everyone is playing their part. The police, with 319 extra officers since 2001, are performing superbly. The city council and city police division are pursuing a neighbourhood policing policy, with restored beat officers, community support officers and city council neighbourhood wardens, whose visible uniformed presence has made a real impact in recent months. The community is playing its part, too, and if the police and city council act with urgency to create effective neighbourhood watch co-ordination, community participation will increase massively.
The local criminal justice board is becoming more aware of its responsibilities to the community as well as to fellow professionals. There are, therefore, some very good signs. However, one cannot help feeling that sometimes the judiciary can appear to operate in a different world from that which people on the estates in my constituency and in Gedling inhabit. The judiciary's world must be reunited with ours if we are to win the battle against violent crime.
My hon. Friend and I were delighted when our Labour Government introduced the right of appeal against the decision of a lower court to impose an unduly lenient sentence. That was a breakthrough, on which we would like to capitalise. We are now aware that there is no similar provision for review of leniency of a decision taken by the Appeal Court. We believe that that should be changed.
In addition, we believe that a review is necessary, with the intention of allowing not only the prosecution but Members of Parliament to represent—in an agreed and appropriate way—the public interest in their constituency to the judiciary, without compromising judicial independence, so that the wider impact of a sentence can be understood and possibly taken into account.
For the record, two cases inspired my hon. Friend and me to raise the subject tonight. The first was a brutal racially aggravated assault in Nottingham, North on Mr. Derek Senior. Despite the climate of fear that drug kingpins and their associates have created, he bravely gave evidence. The assailants were sentenced. The day after sentencing, Mr. Senior was shot four times. That sent shockwaves through the community. The Appeal Court subsequently reduced the sentences.
The second case is the murder of Marvyn Bradshaw. He was executed by O'Brien in error. O'Brien was trying to kill a family member of Nottingham's most notorious drug-peddling family. He was sentenced to life imprisonment, with a recommendation of a minimum of 24 years to serve. As he left the court, I am told that he abused his victim's family. Drug gang-related murders have hit Nottingham and chilled and intimidated our community. The Appeal Court reduced O'Brien's minimum sentence to 18 years.
We could go into more detail about the cases and their widespread impact on our local communities, as well as the detrimental consequences of the Appeal Court ruling. However, I can do no better than quote the words of Nottinghamshire's chief constable, Steve Green, with which I wholeheartedly agree. He says:
"In this debate, perceived inappropriate sentencing has had one of the most corrosive impacts on that confidence"
—public confidence, that is.
"At least with local magistrates and judges, there can be a perception that the sentencers have some idea of local concerns. They do not have the same perceptions about an Appeal Court which is remote from the communities affected by its decisions. There may be perfectly good legal reasons why sentences are adjusted in the Court of Appeal but those reasons are lost on the communities which they affect and leave people like you and I trying to put a sensible interpretation on these decisions and generally failing dismally and probably making things worse.
One way of restoring that confidence would, undoubtedly, be to give the prosecution the right to challenge lenient decisions made on appeal. That challenge may be on legal grounds but could also be used on the grounds that the amended sentence would undermine the local fight against a particular crime problem or our response to a single high profile case. I would not seek to, in any way, undermine the independence of the judiciary in any of this but that independence cannot be a barrier to the duty of the judiciary to promote public confidence in their work, wherever this is humanly possible."
I quoted that at length because I could not possibly match the eloquence of the chief constable, whose daily life consists of confronting the perpetrators of violent crime in our communities.
Let me draw on another eminent source, Professor Ralph Henham of Nottingham Trent university law school, who has written extensively on this subject. He suggested that
"the test for determining 'undue leniency' was restrictive and misleading to the general public. The public perception of justice cannot readily be equated with the need to prevent judicial errors of principle, which is the cornerstone of the Court of Appeal's approach. I suggested an objective test for undue leniency based on considerations of public perception with due regard to sentencing convention."
He said that
"it may be argued that the sentencing process must be seen to respond adequately to a social wrong done by recognising the wider social implications of appeal decisions. These include the need to recognise the rights of victims and the wider community to participation in the process, and that the 'balance of rights' should be part of the judicial process of sentencing. In correcting unduly lenient sentences the present test effectively excludes considerations of social justice and accountability."
He also said that
"one suggestion might be that the Chief Crown Prosecutor for the area is obliged to consider representations made by local MPs whenever the possibility of a reference . . . is being considered. A statutory amendment should set out the test to be applied. This should oblige the Court of Appeal to give due consideration to the views of the local community and victims as represented to the CPS. Any procedural changes would need to be carefully thought through, but the point of principle is sound, especially when the government is always emphasising the importance of restorative justice and putting victims at the centre of the CJS"
—that is, the criminal justice system.
Those are two sober views from eminent criminal justice professionals who are determined to help our communities fight violent crime. We believe that if the Appeal Court is minded to reduce the sentence on appeal, it should by required by law to consider the impact on the community. That is a simple statement of the point that we would like to reach. What we are not prepared to do this evening, or on any occasion, is bind the Solicitor-General's hands by making ridiculous demands. These are difficult, complicated issues, and there are many institutions whose interests we must balance before action is taken. We wish the Solicitor-General well as she deals with what is a deeply technical and constitutionally sensitive issue.
I understand that the courts now have victim impact statements before sentencing. If those are not currently available to the Appeal Court they should be made available to it, and should contain details of the impact on the wider community.
I would therefore like to ask the Solicitor-General not only to comment on the principle that my hon. Friend the Member for Gedling and I have raised this evening but to go away and, at her leisure, conduct a serious review of the two points that we have raised: the leniency anomaly that is now evident at Appeal Court stage; and the broader question of how the public interest, rather than just narrow legalisms, can be taken into account before reducing sentences on appeal.
I hope that Appeal Court judges will also listen to what has been said tonight. These issues might be arcane to members of the public—and indeed to many Members of Parliament—but I hope that those judges will not feel that they are being put under pressure or under the microscope. I hope that they will feel that they can be part of the criminal justice family of which all Members of Parliament and all those who serve in our communities are part. I hope that they will become part of the wider effort to ensure that we all do our bit to stamp on violent crime, wherever it takes place. Members of the community might look at how the appeal judges act and say that they are acting with indifference, but I know that that is not the case. However, it is very easy to blame others in the criminal justice system. Our actions must be clear and we must get across to the public that we are genuinely operating in their interests. The two cases that I have raised tonight illustrate that reducing sentences on appeal can have a dramatic effect on local confidence in the criminal justice system, not through malice but more through benign neglect.
My hon. Friend the Member for Gedling and I work every day of our working lives in this place and in our constituencies to rebuild confidence in our criminal justice system, and to bring people forward to give evidence in cases, often when they are under great stress. For two cases to knock the wind out of those efforts locally shows that Appeal Court judges must, within their remit and their judicial independence, keep more of a weather eye on the impact of their judgments locally. I hope that the Solicitor-General will be able to respond to what I hope has been the constructive spirit in which my hon. Friend and I have advanced these points on behalf of our communities, because our communities need the help of everyone in the criminal justice system, including Appeal Court judges, in the fight against crime. I thank the House for its time this evening.
I welcome the subject that my hon. Friend the Member for Nottingham, North (Mr. Allen) has chosen for this debate, and I acknowledge, as he has done, the deep interest of my hon. Friend the Member for Gedling (Vernon Coaker) in the matter, and his commitment to these issues. Both my hon. Friends have already taken the opportunity to convey to me the sense of injustice that their constituents feel about the sentences in the cases that have been raised tonight.
I was not surprised to see the subject that my hon. Friend the Member for Nottingham, North had chosen. Both he and my hon. Friend the Member for Gedling take a close interest in the question of crime and justice for their constituents. They focus not only on the question of sentences—which we are debating tonight—but on the fear of crime and on the effective response to crime by the police, prosecutors and courts that their constituents want, and to which they are entitled. Because of my hon. Friends' representations on the concerns of their constituents, I am in a better position than I would otherwise have been to understand the context of crime in Nottingham, which is where the impact of the Court of Appeal's sentencing decisions in these cases has been most deeply felt.
My hon. Friend the Member for Nottingham, North has argued for three things: first, for the courts to take into account the effect of their sentences on public confidence and, in particular, for the Court of Appeal to take into account the effect on public confidence locally of any reduction in a sentence that it might make; secondly, for more scope for—and public engagement in—a decision of the Law Officers to refer an unduly lenient sentence, along with a broad approach rather than a narrow legalistic one; and thirdly, for the opportunity to appeal an unduly lenient sentence when it is believed to have been imposed not by the court at first instance but following an appeal by the defendant against their sentence.
First, does the Court of Appeal take into account the effect of its sentence on public confidence? The answer is yes it does, and rightly so. Its sentence is important not only for the defendant and the victim in that case but, as my hon. Friend the Member for Nottingham, North graphically illustrated, for the wider public There are many occasions on which judges, at first instance, rightly explain how they have had regard to the effect on public confidence in respect of a particular type of offence, a particular type of victim or a particular locality when they impose a sentence. That is helpful not just for the defendant, victim and local community to understand how the sentencing decision has been reached, but if the defendant appeals against the sentence to the Court of Appeal, that Court can see in the papers why the judge took his or her view at first instance. It is also helpful for Law Officers, when we consider whether a sentence is unduly lenient, to see what considerations have been taken into account when a judge is sentencing, including whether he or she has recognised the effect on public confidence. The Court of Appeal will often reflect in its judgment its concerns for public confidence in the local community in the criminal justice system in relation to its sentencing decisions.
Secondly, one of the important developments in the way in which the Crown Prosecution Service handles cases is that prosecutors understand the importance of bringing to the attention of the court, in the sentencing exercise, the effect of a crime in a particular community, as well as challenging any factual errors in mitigation. It used to be felt that the prosecution's job was done as soon as the conviction had been obtained. Now prosecutors better understand that they have a role in bringing out the features of the case to assist the judge in sentencing and in challenging any wrong facts that might be put forward in mitigation. Helping the courts in the sentencing exercise is an important new role for prosecutors. When they do that at first instance, those points will be in the transcripts considered by the Court of Appeal should the defendant appeal.
On the issue of Members having the opportunity to prompt the review of a sentence, may I start by reminding the House how the unduly lenient sentence regime works? Anyone can refer a sentence to the Attorney-General or me and ask us to refer it to the Court of Appeal, even a member of the public, someone from a different part of the country or someone not involved in the case. Anyone can ask us to consider a case. Our jurisdiction, when a case has been brought to our attention, is simple: we have the power to refer a sentence from the Crown court to the Court of Appeal if we think that it is unduly lenient. It is not restrictive, nor do we interpret it restrictively, and it does not exclude any considerations. The only stipulation in the statute is the time limit—that we must refer the sentence to the Court of Appeal within 28 days. I therefore reassure my hon. Friends that setting out criteria in statute on what should be taken into account would not be of assistance. We step back, examine the sentence in the public interest and ask ourselves whether it is unduly lenient. It is as simple as that.
This is a very special jurisdiction. Parliament gave Law Officers the right to refer a sentence in order to ensure that sentences that are manifestly wrong, that would undermine public confidence in the community and that would undermine confidence in the judiciary, can be reviewed by the Court of Appeal.
What happens in the process? The facts of the case are agreed, and the case goes to the Court of Appeal. The offender is represented by counsel, and I or the Attorney-General are represented by Treasury counsel. In some cases, the Attorney-General has himself acted on a reference. The court will have before it all the case papers, including the victim impact statement, which should always have been put before the court in the first instance of sentencing. In other words, it should always be in the case papers before the Court of Appeal, which will always take them into consideration.The Court of Appeal will then judge whether the sentence is unduly lenient, and it can either confirm it as it is, or increase it. This jurisdiction is a safety valve to ensure public confidence and justice in individual cases.
The Attorney-General and I regard that power as one of the most important that we exercise, and we exercise it in the public interest, not on the Government's behalf. In every case that comes before us, we personally consider the file, the advice of Treasury counsel, and the advice of the lawyers in our excellent legal secretariat. It is very much open to any Member to ask us to look into a case and to consider referring it to the Court of Appeal. There is no need for Members to ask the chief Crown prosecutor to consider a case, although they can do so. Instead, they can come straight to us, and many do. Indeed one Member brought a case to my attention during the last Solicitor-General's questions, and after closely examining, it I did indeed refer it to the Court of Appeal as involving an unduly lenient sentence.
My hon. Friend asked what happens when a sentence is felt at first instance to be fair and not unduly lenient, but the defendant then appeals and the Court of Appeal, which is that much further away from the community that cares most about the case, reduces the sentence to such an extent that people feel that it is now unduly lenient. On the right to appeal against an unduly lenient sentence by the Court of Appeal as referred by the Law Officers, such an appeal can only concern a point of law, but it can be made to the House of Lords. As far as I am aware, that has never actually happened, but it is possible and such provision is made in statute. Law Officers can appeal against a Court of Appeal's unduly lenient sentence.
My hon. Friend asked me how that could work in respect of an appeal from the Court of Appeal's decision on a defendant's appeal against sentence. He has invited me to reflect on this point about an appeal against a sentence imposed by the Court of Appeal in an appeal by the offender against sentence—that sounds somewhat circular, but my hon. Friend will get the point—and I undertake to reflect further and write to him about it.
Perhaps I can conclude by assuring my hon. Friends the Members for Nottingham, North and for Gedling that I am acutely aware of their concern that the justice system should command the confidence of their constituents, and that the Attorney-General and I will continue to consider with the greatest attention their and their colleagues' representations about sentencing on their constituents' behalf.
My right hon. and learned Friend has been very generous in saying that she will think about this issue and write to us. Will she make a point of discussing it with the judges at the Court of Appeal, so that they understand that we are not trying to attack their Lordships in this regard? Rather, we want to pick their brains and to ensure that they do what I am sure they wish to do: relate their judgments to the community impact.
The judges in the Court of Appeal, who are very concerned about public confidence in the criminal justice system, will doubtless look carefully at the record of this debate in Hansard. I will consider these issues and get back to my hon. Friend, but it is very important that the Attorney-General and I have the opportunity to look at the statutes and the case papers. In doing so, we should take into account the representations made and the information given to this House about the concerns of his Nottingham constituents, and take note of the fact that he and my hon. Friend the Member for Gedling are ready to speak up for their constituents on these important issues.
Question put and agreed to.
Adjourned accordingly at four minutes past Eight o'clock.