Orders of the Day — Constitutional Reform Bill [Lords] — 1st Allotted Day

House of Commons, 31 January 2005.

Clause 1 — The rule of law

Bill Cash (Conservative, Stone)

I beg to move amendment No. 364, in clause 1, page 1, line 7, at end add—

'(2) In this section "the rule of law" means in particular the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying both that law and the common law.'.

Bill Cash (Conservative, Stone)

These are very deep issues. In fact, we can say with confidence that the Constitutional Reform Bill, which opens "Part 1, Clause 1, The Rule of Law", is not an insignificant matter, to say the least.

In dealing with clause 1, I have tried to achieve a definition of the rule of law. The Bill establishes duties and obligations, boldly asserting:

"This Act does not adversely affect . . . the existing constitutional principle of the rule of law, or . . . the Lord Chancellor's existing constitutional role in relation to that principle".

Bearing in mind the fact that there must be some profound reason behind the Government wanting to achieve this, I believe that we must have a proper definition of what the rule of law actually means. I have suggested that it should be defined as meaning

"in particular the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying both that law and the common law."

I have chosen the words carefully because of a House of Lords case in which Lord Bridge made an important judgment on what we can call the Grampian case. The wording that he gave and the wording that I have used vary slightly for a specific reason. He said that the rule of law was

"the sovereignty of the Queen in Parliament in making law and the sovereignty of the Queen's courts in interpreting and applying the law".

Far be it from me to do more than offer suggestions about how the definition might otherwise be worded, but I am moving the amendment because at the heart of the question of the interpretation of the sovereignty of the Queen in Parliament is the fundamental fact that it is down to judges to give effect to the statutes that are passed in the House. By using the words, "that law", and referring them back to statutes passed by the Queen in Parliament, I am saying that doing that is the prime duty of judges.

There are rather esoteric cases about which it is said that judges might be given a jurisdiction in respect to the prerogative, but I disregard that for practical purposes. There is absolutely no doubt that the sovereignty of the Queen's courts extends to the common law. However, when we consider the interpretation of treaties, the key point is that only treaties that have been given statutory effect would fall under the parameters of my amendment.

Oliver Heald (Conservative, North East Hertfordshire)

Does my hon. Friend accept that in his attempt to define the rule of law, he is defining an element of it, rather than the complete territory covered by the expression? For example, the rule of law says that there should not be arbitrary use of power and that discretion should be conferred on a Government in a limited manner. Does he agree that he is attempting to define an important aspect of the rule of law?

Bill Cash (Conservative, Stone)

That is why the amendment includes the words, "in particular". My hon. Friend refers to the arbitrary use of power, but that would of course be dealt with under the rubric of the common law because that is the arena in which the judiciary rightly have not only sovereignty, but the right to intervene. One can immediately think of a series of common law remedies. With respect, I disagree with my hon. Friend's interpretation of my amendment because it does not leave anything out—it is inclusive. I am saying, however, that the specific reference to the words, "that law", refers back to treaties to which statute has given effect. We all know that treaties do not have any effect in domestic law unless they are implemented by statute, and the Bill would be greatly improved if it made that clear.

John Redwood (Conservative, Wokingham)

Does my hon. Friend accept that directly acting European law, such as a European regulation that did not require the express consent of, or translation by, Parliament, would still be covered by his doctrine, because it would emanate originally from the European Communities Act 1972?

Bill Cash (Conservative, Stone)

Absolutely. That is where we enter extremely deep territory. We shall come on to those questions a little later.

The fact is that it is open to the UK Parliament, where it is prepared to do so, as a matter of political will that I think is well overdue, to express itself by statute inconsistently with the European Communities Act 1972. In McCarthy's v. Smith, Lord Denning, and in the case of the metric martyrs, Lord Justice Laws, made it crystal clear that judges are under an obligation to give effect to the latest, subsequent, inconsistent, clear and unambiguous enactment of the House.

For reasons that I shall not go into at this point in the debate, serious doubts arise both in the context of the European constitution and also in relation to the question of judicial drift, where it is becoming increasingly clear that judges tend to regard a separate body of law as being somehow superior to that which is enacted in the House. Not only must that be stopped, it must be clearly dealt with in relation to Bills such as this. Indeed, I have tabled new clauses entitled "Supremacy of Parliament" in relation to both the European Communities Act 1972 and the Human Rights Act 1998.

It is well established not only in McCarthys v. Smith and in the metric martyrs case that subsequent legislation passed by the House must be given effect by the judges but also in the context of the Human Rights Act, which I suspect is a matter of considerable concern to the Government at present. By passing that Act, despite my dire warnings and those of others as to what would happen, the Government have in fact found themselves in a considerable judicial or jurisdictional mess. Indeed, in the cases of Simms and O'Brien, as I said when I occupied my previous position on the Opposition Front Bench, Lord Hoffmann unequivocally stated that it was open to the British Parliament to legislate inconsistently with, or even to repeal, the Human Rights Act 1998. He said that if the Government did so, they would have to bear the political cost, but the bottom line is that it is open to Parliament to legislate, as I said in my previous capacity, with respect to both the European Communities Act 1972 and the Human Rights Act 1998, inconsistently with those enactments. It is the duty of judges to give effect to enactments providing that the enactments in question are clear and unambiguous.

That is what I mean by the words "that law" in my amendment. The rule of law means the rule of law exercised by judges in interpreting statute law and the common law. It is unnecessary for me to go into further detail on that question, as I have made my position abundantly clear.

Edward Garnier (Conservative, Harborough)

How does my hon. Friend's proposal in amendment No. 364, and the wording that he has been explaining, alter the current position?

Bill Cash (Conservative, Stone)

It is a clear statement of what is in my view the current position, with a proviso, although I would not want to appear pedantic. In the Grampian case, Lord Bridge stated the same proposition in slightly different wording. As I said when I moved the amendment, he has said that the rule of law means

"the sovereignty of the Queen in Parliament in making law and the sovereignty of the Queen's courts in interpreting and applying the law".

I say with the greatest respect to such a noble and learned judge that it might have been preferable to have made it clear that the law that was being applied was both that made by Parliament in statute and the common law. For reasons that we have discussed, that would have been a little more precise. I do not want to criticise anyone for having made a slightly shortened version of what I was saying, but I think that the amendment is an improvement.

The question of the prerogative is separate. It is a matter of concern that treaties are made by prerogative and that there is an increasing tendency for those treaties, by judicial drift, to be given a greater status than they have in the context of the making of statute law. Treaties, including of course the European Community's treaties and other agreements such as the European convention on human rights, can have full effect in domestic law only if they are supported and enacted by statute.

Edward Garnier (Conservative, Harborough)

A moment ago, my hon. Friend said that it would be open to the House to repeal the Human Rights Act 1998, which would simply remove the ability of English courts to try European convention points in the courts of England and Wales. Decisions would have to go to the European Court of Human Rights to be justiciable. What would my hon. Friend say if this Parliament not only repealed the Human Rights Act, but passed an Act removing us from the European convention? How would courts under his definition of the rule of law deal with that? Presumably, our membership of the European convention on human rights is a treaty matter and dealt with by the prerogative, and therefore not within the power of this House or this Parliament to affect.

Bill Cash (Conservative, Stone)

I do not agree with that at all. I suspect that my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) is about to leap to his feet. We had an interesting and quite heated exchange with the Foreign Secretary on this question on 16 September two years ago, when I was on the Front Bench, when he asserted that international treaties have primacy over statute. Of course, that is complete nonsense. After much further questioning over the following year, both written and oral, he eventually conceded that that was wrong.

I refer my hon. and learned Friend to the Commissioners for Revenue and Customs case and to the judgment of Lord Diplock in—I think—1967, in which he unequivocally stated that it is open to any statute to break a treaty. I paraphrase, but I have the full text in front of me if my hon. and learned Friend is interested. The bottom line is that this is very important territory and that is why I am so concerned that there are those who would like to bury the question of the supremacy of Parliament and would rather that it was not given the coverage that I would prefer.

Keith Vaz (Labour, Leicester East)

The hon. Gentleman will know that the Second Reading of the European Union Bill will be taking place next week, so I am sure that we will have more of this in that debate. Can he think of an example in recent history of a Lord Chancellor acting contrary to the principles set out in clause 1(b) of this Bill?

Bill Cash (Conservative, Stone)

I can say unequivocally that we have seen a serious invasion of the principles on which our constitution has been constructed, since 1688 at any rate—over and over again. That problem has worsened. It is extremely disturbing that that tendency has been perpetuated and entrenched by the Government, who have behaved wantonly with regard to the rights and principles on which our constitution is based. We could be here all day discussing that.

Richard Shepherd (Conservative, Aldridge-Brownhills)

I am not a lawyer, but there is a simple but important constitutional principle at stake. It has been adumbrated by parliamentary Committees, and it deals with the relationship of treaties to law. Treaties that exercise a prerogative power are subordinate to the legislative process. The European Communities Act 1972 has the force of law in Britain only because Parliament has thus legislated. Similarly, the European Court of Human Rights is subject to detailed legislation, so one can say that it meets the constitutional test. Other treaties, however, are pure exercises in prerogative power, and are therefore gainsaid by any direct reference in British law that is contrary to any of their provisions.

Bill Cash (Conservative, Stone)

I am grateful to my hon. Friend for that explanation and the reaffirmation of the position. It is important to consider what a constitution is. In the United Kingdom, we understand it to be the whole system of government and collection of rules, which would effectively be translated into a justiciable statute, as the courts would have the power to interpret the provisions of the Bill. That raises the stakes considerably. Parliament is involved, but only to a limited extent, in the making of treaties, which are laid before the House for 21 days under the Ponsonby rule. In a 2002 All Souls lecture, Lord Steyn said that

"the supremacy of Parliament is the paramount principle".

I wish to reassert that principle, and it is a matter of grave concern that it has been subject to continuing erosion by judicial drift. The cases of McCarthy's v. Smith, the metric martyrs and so on demonstrate that the European Union has assumed a legal personality, so we are in extremely dubious and difficult territory. In the 1964 case of Costa v. ENEL, and also in the Simmenthal and Internationale Handelsgesellshaft cases, the European Court of Justice has asserted its supremacy and superiority of jurisdiction not only over the laws of member states but over their constitutions. We acknowledged its primacy in the European Communities Act 1972, but only in respect of laws that had been enacted and functions conferred at that time.

The whole thing has got completely out of control, and we now have a deepening to the point where the European constitution could effectively become the rule of law for the United Kingdom. Under article 1.6, it is clear that the European constitution—through the European Court of Justice, with the revocation of the treaties, and the reassertion of primacy over the new treaty, which is completely new—would have the effect of subordinating the will of the legislators in the House to decisions that were taken by the European Court of Justice.

In other words, the rule of law and the principles contained in the Bill would subordinate the people of this country in their choices in general elections to the jurisdiction of the European Court of Justice in relation to all the matters in respect of which powers were conferred under the European Union Bill, which we are about to consider. Perhaps I can leave things at that for this purpose—although this is a very serious and deep question, we need to consider other matters today—but the bottom line is that this matter ought to be clarified, and the amendment is one way to achieve that.

Oliver Heald (Conservative, North East Hertfordshire)

In our constitution, there is no true separation of the powers of the three main institutions of the state: the legislature, the Executive and the courts. Although we have three such bodies, their powers are mixed and mingled. The Executive come from the legislature, but each is supported by an interdependent civil service, and in the case of Parliament, by the House authorities. The courts are independent in their judgments, but the senior judge is a member of the Cabinet as Lord Chancellor, and the courts are run by the civil service, which is part of the Executive.

In such a constitution, strength comes from being part of the mixture and having a place at the table where power is exercised—in Cabinet. The Executive are stronger by being part of the legislature and by having a majority there. Parliament can benefit from holding Ministers to account in a very direct way, using questions, statements, debates and Select Committees. The post of Leader of the House is a senior Cabinet appointment. The courts benefit from having a senior Cabinet Minister—the Lord Chancellor—at the seat of power, arguing for judicial independence and being the Prime Minister's conscience by advocating the importance of the rule of law.

It is a sad reflection that the Prime Minister did not appreciate any of those important considerations when he set about abolishing the post of Lord Chancellor on the back of a reshuffle. It was a back-of-the-envelope job, decided at short notice, without even consulting the Lord Chief Justice, and done in the cosy atmosphere of the chums around the sofa at No. 10—of course, by that time the chums no longer included the then Lord Chancellor.

Lord Butler has expressed his concerns about the way in which the Prime Minister conducts his business, and particularly about the fact that the advice of senior civil servants is often not considered. We now learn from documents released under the Freedom of Information Act 2000 as a result of my requests that the most senior civil servant in the Department advised against dismantling the Lord Chancellor's role very strongly indeed. He said:

"My advice is that the Lord Chancellor should resist all proposals to dismantle his office . . . the fact that the Lord Chancellor is also a senior Minister is a particular advantage".

The Prime Minister made the changes without even considering such advice. He may well feel in retrospect that it would be better never to have started the process of abolishing such an important post; it has brought him nothing but trouble and hasty backtracking.

Clause 1 recognises the constitutional principle of the rule of law and the Lord Chancellor's role in that context, and that the clause itself need not be justiciable. However, the clause does not go far enough. The Bill does not recognise the twin principles of the rule of law and parliamentary sovereignty. It does not urge the Lord Chancellor to use his best endeavours to ensure respect for the rule of law, which is a key role for him to act with other Ministers and in Cabinet. The rule of the law is not explained in any detailed measure in our constitution, and we agree with the Government that to make it justiciable would give judges too wide a scope to determine our constitutional law.

At its simplest, "the rule of law" is used to denote that law rules, that all a Government's powers are derived from statute or the royal prerogative, and that individual rights cannot be infringed without the authority of one or other source of power. However, it goes further in asserting that where discretionary power is given to the Executive, it should not be arbitrary power, and that society is entitled to expect established principles of fairness and justice from its ruler.

Taking a wide interpretation of that principle, there are respectable arguments that certain provisions in anti-terrorist legislation could be regarded as infringing the rule of law, and provisions limiting the rights of terrorist suspects might be said to fall within that category. The Government do not accept that analysis, but the Lord Chancellor's role is to air such concerns in Cabinet, if only to explain why he does not agree.

The doctrine of the sovereignty of Parliament is a doctrine of the courts: Parliament is sovereign only because the courts say that it should be. Until the middle of the 18th century, common law judges generally held the view that the sovereignty of Parliament was subordinate to the wisdom of the common law. That doctrine fell away in the 19th century, and now we all readily admit that Parliament is sovereign. Nevertheless, that sovereignty is an expression of the courts, not of Parliament.

Richard Shepherd (Conservative, Aldridge-Brownhills)

In one way or another, I am listening to a rewriting of our constitution. Many of us say that the sovereignty of Parliament is a valid constitutional concept because it represents the sovereignty of the people, which is inalienable. My difficulty with my hon. Friend's argument is that we are discussing very big constitutional themes. I do not know how the rule of law is defined, who defines it, how it is a constitutional document and how we can safeguard it. Perhaps my hon. Friend will point out where the rule of law is satisfactorily defined in the Bill so that we, the people—let us use the language of constitutions—can determine whether the Bill is consonant with the rule of law.

Oliver Heald (Conservative, North East Hertfordshire)

The answer might be that academics identify various categories of the rule of law, which cover everything from the simple statement that "the law rules", to examining issues involving arbitrary power and discretion. The term can be used very widely.

I agree with my hon. Friend the Member for Stone (Mr. Cash) that a case exists for placing parliamentary sovereignty at the core of the definition of the rule of law and including it in clause 1. My method, new clause 8, involves recognising a separate principle concerning the sovereignty of Parliament in clause 1. Clause 1 is included in the Bill because of the proposed abolition of the role of the Lord Chancellor, and it defines exactly what his roles have been in the past, given that his current role is being changed. The original proposal was to abolish him completely, but we have made a little progress on that point.

New clause 8(2) would require the Lord Chancellor to

"use his best endeavours to ensure that the rule of law is respected"

by Ministers other than himself, which is our understanding of what a Lord Chancellor does in Cabinet. If a Minister proposes a draft legislative measure that, in the Lord Chancellor's opinion, is about to impinge on the rule of law, it is his constitutional duty to speak up in Cabinet and say so, which is what new clause 8(2) would allow. That point should be made clear on the face of the Bill.

Keith Vaz (Labour, Leicester East)

I return to the point that I made to the hon. Member for Stone (Mr. Cash): can the hon. Member for North-East Hertfordshire (Mr. Heald) think of an example of a Lord Chancellor in the present Administration or the previous Administration who has not discharged his functions according to clause 1(b)?

Oliver Heald (Conservative, North East Hertfordshire)

It is because we believe that the proud tradition of the role of Lord Chancellor is to uphold the principles of the rule of law that we are so anxious to have such a provision on respecting the rule of law added to the Bill.

Richard Shepherd (Conservative, Aldridge-Brownhills)

How can we possibly know? I presume that the Lord Chancellor's advice is given in confidence to the Cabinet. We will not know one way or the other. That is part of the reason why one wants to tickle out what these provisions mean.

Oliver Heald (Conservative, North East Hertfordshire)

I agree that we want to add to the Bill that part of the Lord Chancellor's duty should be to speak up in Cabinet for the principle of the sovereignty of Parliament. Of course we do not know exactly what happens in Cabinet until the memoirs are written, and the 30-year rule no longer applies. It is my impression, however, with which I hope that my hon. Friend might agree, that successive Lord Chancellors—senior figures in their own right, legally qualified, and towards the end of their career—have been prepared to stand up for the independence of the judiciary, the rule of law and the important role of the sovereignty of our Parliament. We would like to preserve the Lord Chancellor's existing duties in respect of the rule of law, and to ensure that the change in the more general duties of the office of Lord Chancellor does not alter the important duty to bring to the attention of other members of the Government any proposed action that may offend against the rule of law.

Vera Baird (Labour, Redcar)

I follow what the hon. Gentleman is saying, but I am concerned about the way in which he has chosen to try to do it. First, if he accepts that the Lord Chancellor's existing constitutional role is to protect the rule of law, why is he concerned? Clause 1(b) expressly says that

"the Lord Chancellor's existing constitutional role in relation to that principle"

must survive. He is therefore just repeating an existing provision. It concerns me that, in fact, his new clause 8 would erode that duty, because all that new clause 8(2) would require the Lord Chancellor to do is to

"use his best endeavours to ensure that the rule of law is respected".

New clause 8(1) separates the two, saying,

"Together with the sovereignty of Parliament, the rule of law shall continue to be a central principle",

but requires the Lord Chancellor to protect only the second, not the first.

Oliver Heald (Conservative, North East Hertfordshire)

That is exactly the point made by my hon. Friend the Member for Stone—that the rule of law comprises the sovereignty of Parliament and the courts, and that it is therefore wrong to describe the sovereignty of Parliament as separate from the rule of law. My view is that both are true. The sovereignty of Parliament is a separate principle, but it is on that that the most important parts of the rule of law are based—that the courts in this country implement laws passed by Parliament, and that the sovereignty of that Parliament is implicit in that principle. I fully accept that that is arguable. The key difference now is that for the first time we are seeking to set that out in statute.

The hon. and learned Member for Redcar (Vera Baird) says, as did the Lord Chancellor in the other place, that the provision that the existing constitutional role is not adversely affected is adequate. Given that part 1 of the Bill is designed to have a declaratory effect, however, we want to go one stage further and include the reference to respect and best endeavours. We feel that that takes the provision a little further and improves it.

Patrick Cormack (Conservative, South Staffordshire)

Is not this House at something of a disadvantage? I do not wish to make any disparaging or facetious comments about the Under-Secretary of State for Constitutional Affairs, the hon. Member for Shipley (Mr. Leslie), who is extremely diligent and tries extremely hard, but it is a great pity that a Cabinet Minister is not dealing with this issue. Is it not also a pity that, because the Attorney-General is not a Member of this House, and the Solicitor-General, a Law Officer of the Crown who is a Member of this House, is not present, we are at a disadvantage because of the way in which the Government are treating this House in that context?

Oliver Heald (Conservative, North East Hertfordshire)

I do not want the Lord Chancellor to end up in the House of Commons. I like the fact that he is in the House of Lords. We will debate that later. I am somewhat surprised that the Solicitor-General has not seen fit to come here today, but there are doubtless reasons for that.

Keith Vaz (Labour, Leicester East)

rose—

Oliver Heald (Conservative, North East Hertfordshire)

I want to deal with the issues raised by my hon. Friend the Member for Stone, who seeks to define the rule of law as including the sovereignty of the Queen in Parliament and of the courts. In my view, they are indeed part of the rule of law and are at the heart of the statement of the rule of law, which is that "law rules". He also seeks to clarify the law in an area of academic contention. He wants to establish whether the UK Parliament and courts are sovereign, so that Parliament can pass an Act that effectively disapplies the European Communities Act 1972 or the Human Rights Act 1998 on a case-by-case basis, given that such Acts were passed to recognise international obligations, and expressed themselves as affecting future obligations as well as past.

Section 2(1) of the 1972 Act incorporated all existing EC legislation into UK law and

"All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties".

Section 2(4) of the 1972 Act provides that past or future laws shall be construed, and shall have effect, subject to the provisions of section 2. The effect is to give primacy to EU law—as it now is—in certain areas of competence. As was explained as early as 1967, in the White Paper entitled "Legal and Constitutional Implications of UK Membership of the European Communities":

"The Community law having direct internal effect is designed to take precedence over the domestic law of the Member States. From this it follows that the legislation of the Parliament of the United Kingdom giving effect to that law would have to do so in such a way as to override existing national law so far as inconsistent with it . . . It would also follow that within the fields occupied by the Community law, Parliament would have to refrain from passing fresh legislation inconsistent with that law as for the time being in force. This would not involve any constitutional innovation. Many of our treaty obligations already impose such restraints—for example, the Charter of the United Nations".

Bill Cash (Conservative, Stone)

rose—

Richard Shepherd (Conservative, Aldridge-Brownhills)

rose—

Oliver Heald (Conservative, North East Hertfordshire)

May I just finish this point?

This issue came into focus during the Factortame case, which concerned the UK's obligation under EC law to allow Spanish fishermen to fish in UK waters within prescribed quotas. The UK enacted laws in 1988 under which, to be entitled to fish UK waters, a vessel would have to register as British. Some 94 boat owners took the UK to court, claiming that those laws were incompatible with the relevant EC treaty and the common fisheries policy. Their case ultimately proved successful in the European Court, and UK law had to be changed.

However, the interesting point came when an application for interim relief was made, in the first instance, to the UK divisional court. The court granted relief, but the decision was overturned on appeal and the Court of Appeal's ruling was upheld in the House of Lords. When the matter came before the European Court, the UK argued that Community law did not oblige or enable a national court to grant interim relief suspending the application of a national measure. The European Court ruled that where a national court would have granted interim relief to protect directly effective Community law rights but for the national measure, it must set aside the national measure. The full effectiveness of Community law would be impaired, it said, if a jurisdictional rule in the law of a member state prevented its national courts from granting interim relief.

The House of Lords was under a Community law obligation to give effect to the European Court ruling, because it was automatically brought into English law by operation of section 2(1) of the 1972 Act. Since then, many have argued that if the law changing the fishing registration arrangements had expressly disapplied the 1972 Act, it would have been incumbent on UK courts to uphold the UK law, because of the sovereignty of Parliament.

There has also been debate about the extent to which the decision on interim jurisdiction would affect situations where a different jurisdictional rule is involved, and about the extent to which the sovereignty of Parliament might be affected. It is clear that the old rule that a new Act takes precedence over an old one, and that any inconsistency is resolved by the doctrine of implied repeal, has been modified by the 1972 Act and by the Human Rights Act. Express disapplication of these provisions would be required in order to make an effective change in the law, if such a change conflicted with EU law. My hon. Friend the Member for Stone asked whether even that would be enough, and whether, if Parliament expressly disapplied the 1972 Act in respect of a particular Act, that would be effective in UK courts.

Some argue that the European constitution takes this a step further, making citizens directly bound by the legal supremacy of Union institutions. My hon. Friend the Member for Stone has pursued these issues with Ministers, as has my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), and the answer to a written question reflects what they wished to establish. The Minister stated:

"The ultimate guarantee of parliamentary sovereignty lies in the power of Parliament to repeal all or any of the Acts which give effect to the EU treaties in this country. It is within Parliament's power to legislate contrary to the UK's treaty obligations. This of course includes legislation that might impact on the effective implementation of Article I-10(1)—

that is, of the proposed European constitution. The Minister's reply continued:

"The result of so doing, however, would be to place the UK in breach of its treaty obligations." —[Official Report, 15 December 2003; Vol. 415, c. 732W.]

What my hon. Friend the Member for Stone seeks to add to the Bill would, in his view, place that principle of parliamentary sovereignty firmly on the face of the Bill. It seems hard for the Government to deny him. The Minister may say that that is unnecessary, but that argument might apply equally to clause 1 itself, yet the Government accept the necessity of the declaratory effect.

As the then Minister for Trade and Investment, who is now the Minister for Energy and E-Commerce, said in answer to a debate initiated by my hon. Friend on 24 March 2004:

"our position has been entirely clear, and we have held it throughout. Parliament already has the power to legislate contrary to our treaty obligations"—[Official Report, Westminster Hall, 24 March 2004; Vol. 419, c. 317WH.]

He went on to cite Lord Denning, who said in the case already mentioned, Macarthy's Ltd. v. Smith, that it is always within Parliament's power to legislate contrary to the UK's treaty obligations. The Minister went on to point out that this would cause a good deal of trouble. It would certainly lead to serious discussions within the EU, but the question before us is not whether to have such an argument, but whether we are able to pass such a law, if we choose to do so, in a way that is effective in the UK courts. I believe that we are entitled to do that. Ministers seem to agree, so there is no reason not to add the words contended for by my hon. Friend.

It is right to make it clear that the issue is of concern more widely than just to UK Conservatives. In both Germany and Denmark there is the belief that certain aspects of their constitutional law take precedence over EU law. That was asserted by the German constitutional court in the Maastricht judgment in 1994. It was hoped that there would be no conflict, but the judgment asserted the German court's right to disapply an inconsistent EU law. In Poland, senior academics argue that EU law has no primacy over the country's constitution.

The most recent statement of the law in this area in the UK came from Lord Justice Laws in the so-called metric martyrs case, Thoburn v. Sunderland city council. After describing a hierarchy of statutes and identifying the European Communities Act and the Human Rights Act as "constitutional statutes", he went on to say:

"Ordinary statutes may be impliedly repealed. Constitutional statutes may not."

That is controversial. He continued, less controversially:

"For the repeal of a constitutional Act or the abrogation of a fundamental right to be effective by statute, the Court would apply this test: is it shown that the legislature's actual—not imputed, constructive or presumed—intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible."

He stated that what is required are

"unambiguous words on the face of the later statute".

My hon. Friend wishes to have parliamentary sovereignty written into the Bill, and there is no reason not to do that. He may disagree with the EU more than some— probably including me—but the provision is not about an argument with the EU. It is about the powers of Parliament and the courts, and I believe it reflects the current state of the law.

Paul Tyler (Liberal Democrat, North Cornwall)

I shall be brief, as I am agog to hear how the Minister will respond to the interesting discussion between two Conservative Members, one on the Front Bench and one on the Back Bench. From what the hon. Member for North-East Hertfordshire (Mr. Heald) said, I am not clear whether he prefers his new clause or the amendment tabled by the hon. Member for Stone (Mr. Cash).

Oliver Heald (Conservative, North East Hertfordshire)

I said the new clause and the amendment were not inconsistent. I hope to have a separate Division on new clause 8 in due course.

Paul Tyler (Liberal Democrat, North Cornwall)

I understand that point, which is very interesting, but as I read it, the amendment and the new clause could not be included in the Bill together, so there is a potential conflict of interests.

I pay tribute to our briefing from the Select Committee on Constitutional Affairs on the Bill and on the amendment. I hope to see that innovation more often from Select Committees. My right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), the Chairman of that Committee, ensured that its third report of the 2004–05 Session set out an interesting and useful analysis of the way in which the Bill started its life in the House of Lords, referred to the concordat, to which much reference has been made—no doubt more will be made this evening—and included a helpful clause-by-clause comparison. The Minister may now be regretting that his colleagues in the other place decided to include clause 1, thus enabling us to have this sort of discussion. It might have been easier if it had been left out.

Nevertheless, we welcome the clause, and we want to be sure that it will be sufficient as it stands. That is surely what our business is. As a non-lawyer with some experience of the law as a recipient, I have always inclined to the view that the simpler the law can be, the less it can be misunderstood and misinterpreted. I start from the basis that the Bill as it stands, which is very simple and straightforward, is preferable to either of the alternatives that we are considering.

I understand the concern of the hon. Members for North-East Hertfordshire and for Stone about providing further definition and exploring issues of enforceability. I fear that I lost the drift—that is probably the right word—of the argument of the hon. Member for Stone. He said—I hope that I am quoting him correctly—that his amendment would ensure that there was a clear statement of the current position, but he then paused and said that he had a proviso. His comments about the proviso went on for two or three more minutes, so the clarity of the position that he was describing was rather lost. It was curious that he then stepped further into the future and sought to anticipate the effect of the European constitution, which is not even before the House yet. As I understood it, his position is that he is not in favour of it, so it was curious that he tried to anticipate it.

Keith Vaz (Labour, Leicester East)

Does the hon. Gentleman agree that the phrase "best endeavours" in new clause 8 would weaken the effect of clause 1(b)?

Paul Tyler (Liberal Democrat, North Cornwall)

I understand that point. The hon. Member for Stone was asked about the enforcement of the provision, given the fact that the Cabinet and its Committees sit in private. How could such provision ever be enforced? I think that it could be interpreted as weakening the Bill as it stands.

I am afraid that I am very much with the hon. and learned Member for Redcar (Vera Baird), in that I do not understand the necessity of the further definition. If anything, it would dilute and reduce the impact of clause 1 as it stands. The most interesting point about the argument of the hon. Member for North-East Hertfordshire is that he is obviously edging towards a complete and comprehensive written constitution. That happens to be the position of my right hon. Friend the Member for Berwick-upon-Tweed, myself and our party. As far as I am aware, such a position does not represent the views of the Conservative party. Surely, a constitution is needed precisely to define and codify to avoid overlap, lacunae and turf wars. That is, after all, the basic argument for a European constitution, and it will be interesting to hear whether that argument will be put from the Conservative Front Bench.

Bill Cash (Conservative, Stone)

Will the hon. Gentleman give way?

Paul Tyler (Liberal Democrat, North Cornwall)

I am just about to conclude.

My point for the Minister is that I find it difficult to understand what would be added if the amendment or the new clause were included in the Bill, when as I see it, we already have a very clear statement of the rule of law. It seems to me that that is all we should be seeking to achieve.

John Redwood (Conservative, Wokingham)

I support my hon. Friends the Members for North-East Hertfordshire (Mr. Heald) and for Stone (Mr. Cash) in saying that the sovereignty of Parliament should be clearly recognised as an important principle in the Bill and in clause 1. I do not see how the Government can, in fairness, reject that plea, although I am sure that they will find ways of doing so that are unfair. In fairness, if they think that their Bill requires an assertion that the Lord Chancellor must uphold and work for the rule of law, it is surely important to recognise the fundamental principle of our legal system that all statute law emanates from the power of the people expressed through their Parliament.

As my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) reminded us, power ultimately comes from the people, who entrust it for a period of years to their elected representatives until it returns to the people when a new Parliament has to be elected. It used to be a fundamental principle of our excellent British constitution, as recorded in a variety of documents over the years, that no Parliament could bind its successors. That principle is crucial if the people are to have power over their legislators and to be able to choose different legislators at the date of dissolution and subsequent election if the previous legislators have not suited their will and purposes. That is why some of us have been worried by the issue that bedevilled the early part of the discussion on this big Bill: whether European law can now effectively bind future Parliaments, and whether treaty law can do what statute law cannot do and thwart the will of the British people should they change their minds about things done in their name by previous Parliaments through the European Union.

Therefore, it is welcome to discover, as my hon. Friend the Member for North-East Hertfordshire pointed out with some extremely well chosen quotations, that the two Front Benches—the official Opposition and the Government—are united in upholding the view that, ultimately, the sovereignty of Parliament is still intact, that the powers of the European Union emanate from the European Communities Act 1972, and that what Parliament can create it can amend or remove. There is strong disagreement in our country about whether it would ever be wise or desirable to test that point by passing suitable legislation in this House to amend the 1972 Act, but it is welcome to know that the main interests in the House agree that that can be done legally under our system, in which the Queen in Parliament is sovereign. It would therefore be welcome if that principle were written clearly into this grand, declaratory Bill, which begins with the wide-ranging and high-flown clause that we are debating.

Another issue to which the Minister should respond is how far the request for, or requirement on, the Lord Chancellor goes to observe the rule of law as we understand and define it. That would not be difficult were the Lord Chancellor a happy inheritor of the tradition of our rule of law and common law, but it would be less comfortable for a Lord Chancellor who was a moderniser and reformer and who wanted to make fundamental changes in the way in which the rule of law is understood and enforced. For example, does the Minister believe that any Lord Chancellor could take any action that he or she liked as regards how future jury trials should be conducted, or whether juries should be involved? Under clause 1, can any Lord Chancellor take whatever view he or she wants to take on imprisonment without trial or without identifying an offence or charge, or does there come a point at which the Lord Chancellor is acting beyond his or her remit because the rule of law is defined by our common law and traditions, and by the many fine words and judgments that have gone before?

The debate is interesting and apposite and I look forward to assurances from the Minister that the intention is to create limits on how far a Lord Chancellor can go in wrecking, destroying or undermining the liberties and rights of subjects under the common law.

Bill Cash (Conservative, Stone)

Does my right hon. Friend acknowledge that had the Merchant Shipping Act 1988, which gave rise to the difficult decision in the Factortame case, started with the words, "Notwithstanding the European Communities Act 1972", as I suggested back in those days, we would not have got ourselves into this judicial mess as regards our internal constitutional position? Will my right hon. Friend note that, on 12 January, Professor Alan Dashwood stated that in the context of a Bill that began with the words, "Notwithstanding the European Communities Act 1972", whether

"there has been a shift of ground law or not with an unwritten constitution like we have, you can only wait and see how the judges would react to that Act of Parliament."

That is matter of concern, and it is why I have been pressing the point. Does he agree that we must pursue that?

John Redwood (Conservative, Wokingham)

I have already said that I fully agree with my hon. Friend and also my hon. Friend the Member for North-East Hertfordshire that it is a good idea to identify the sovereignty of Parliament as central in the first clause of such an important constitutional Bill. Should some future Parliament contain a majority that wished, for example, to disapply some Community law or change Community arrangements without a new treaty having been negotiated, it would be a prudent precaution to begin the legislation with an express repeal or amendment of the part of the 1972 Act that Parliament wished to alter. I am sure that the judges of our country would understand, under the rule of the sovereignty of Parliament, that it was good law that should be enforced.

Vera Baird (Labour, Redcar)

If the right hon. Gentleman wants to guarantee that the Lord Chancellor supports the sovereignty of Parliament above all else, why does he support new clause 8, which does not give the Lord Chancellor a duty to do that? It separates the rule of law from the sovereignty of Parliament and gives him a duty to support only the second and not the first, whereas clause 1 clearly gives the Lord Chancellor a duty to support both.

John Redwood (Conservative, Wokingham)

Clause 1 does not expressly state that the sovereignty of Parliament is crucial. As I understand new clause 8, the principle of the sovereignty of Parliament would be above all others. Clause 1, as amended, would therefore bind not only the Lord Chancellor, but everyone else in the judicial process. That would be welcome. It is a suitable point at which to sit down in the hope that the Under-Secretary will rise soon to reassure us on those matters.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

The remarks of my hon. Friend the Member for North Cornwall (Mr. Tyler) about the Select Committee report were kind and much appreciated. I hope that it proves useful to hon. Members in identifying the issues that have not yet been resolved.

Considerable changes have been made to the Bill, many of which respond to issues that the Committee raised and were subsequently raised in the Lords. I am pleased about that, but the Bill has never appeared to me either to make, or purport to make, changes to the sovereignty of Parliament. Indeed, it does not purport to make changes in the rule of law. A question therefore arises about the necessity of the clause and any amendments to it.

I welcome clause 1 because it became clear in Committee and in the other place that there was much concern among the judiciary and more widely that the future Secretary of State for Constitutional Affairs—as he was then to be—would not have or recognise the same duty to assert the rule of law in Cabinet discussions as was previously assumed to be the case. That was based on a rather rosy view of what happened in previous Cabinets, especially if we look back to some earlier, very political Lord Chancellors.

More recently, we have had senior Lord Chancellors of different parties, of the sort that the Committee hoped we would get in future—people who had reached the end of their political career, were not looking for further office and did not have ambitions for other Cabinet posts. We believed that a model had been developed in which the Lord Chancellor upheld the rule of law. Perhaps an even more pressing reason for our support for that model was that the moment that the Lord Chancellor stopped sitting as a judge, it became inappropriate for him to take the judicial oath. Alternative provision was eventually included in the Bill, but the disappearance of his swearing the judicial oath was viewed as yet another way in which his commitment to the rule of law might be undermined.

Even in recent times, one can make speculative comparisons about how far different Lord Chancellors would impress on their colleagues the importance of the rule of law. I remember Lord Irvine publicly dressing down a Minister on the independence of the judiciary, but I challenged the current Lord Chancellor because I could not find an example of his doing the same. I made suggestions about when he might have done so, for example, when the then Home Secretary, addressing the Police Federation, said, "We want only judges who help us to do our job." That obviously seemed to him to be an entirely innocent statement, but to me and others it seemed to represent a contradiction of the principle that judges are there to reinforce the rule of law, and not to do what happens to be convenient for the Government. The presence of this provision in the Bill is therefore welcome, as it addresses precisely those concerns.

John Taylor (Conservative, Solihull)

Before the right hon. Gentleman leaves that important point, does he agree that the ultimate supremacy of the judiciary is essential, because it is always open to an affected party to take a member of the Executive before the court on judicial review? That is why his remarks on this subject are so very important.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

That is so. Most people take the term "rule of law" to mean that nobody—including Governments and Ministers—is above the law. We see the rule of law being threatened in certain countries when people start to behave as though they are above the law. In Zimbabwe today, for example, we see the judiciary struggling to maintain the rule of law while the Executive are determined to ignore its actions or to override them in various ways. That is a classic example of the dangers that can result when those in power cease to recognise the rule of law. Such people often have at their disposal the physical means to contravene the rule of law, whatever the courts might do to insist that they recognise it.

Richard Shepherd (Conservative, Aldridge-Brownhills)

When lawyers, including our top lawyers, are presented with an Act of Parliament that abrogates what the right hon. Gentleman and I think of as the rule of law, they are bound to accept it. That is why a layman such as me needs the rule of law to be clarified and defined, and not simply through reference to that vague hinterland of Dicey or to judges' ruminations on the matter. The right hon. Gentleman was right to remind us of what the then Home Secretary said.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

There is a lot to be said for Dicey and his definitions in this field.

The trouble with placing a definition in statute is that it is inclined to narrow rather than to widen. The judiciary has a very good record of using to the maximum the breadth of statute law for the protection of the individual, and I would not want to undermine that by an excessively tight definition, or by a definition that seemed to point us in one direction rather than another. I fully understand, however, the various reasons that have been introduced in support of the amendment. It has been worth introducing them because they have opened up the opportunity for a debate on the issue. Some of the arguments will be able to be considered on another day and in another context, especially those relating to the supremacy of Parliament, which the Bill does not attempt or purport to change.

Bill Cash (Conservative, Stone)

Does the right hon. Gentleman accept that the issue at the heart of this debate is not the rule of law, but the rule of which law? In the context of the European debate, there are competing assertions as to which law is superior. When we talk about the rule of law, therefore, the necessity to get this right is dependent on the question that gives rise to it. In other words, we need to arrive at a definition that asserts the sovereignty of this Parliament, precisely because the European Court of Justice asserts that the constitution of Europe, or the existing treaties, have priority over our own laws, and, in the case of the constitution, over our constitutional arrangements in this Parliament as well.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

I understand the point that the hon. Gentleman is making. It is one that he has been determined to make on many occasions. However, this part of the Bill addresses the duty of the Lord Chancellor and asks whether he has the express duty to uphold the rule of law. It does not ask in what areas the rule of law presents dilemmas or problems relating to the state of the law, or to which part of the law has superiority. International law issues come into that question, and they are important issues. They are not, however, what this clause seeks to define. Perhaps we are getting back to the Gilbertian expression by a Lord Chancellor:

"The Law is the true embodiment of everything that's excellent . . . and I, my Lords, embody the Law."

That is quite a good description of the way in which Lord Chancellors of the time viewed the matter, but we have moved on since then.

The Bill needs to ensure that the person who holds the office that is, quite usefully, still going to be known as Lord Chancellor, despite its substantially changed character, should recognise that it is part of his duty to remind his fellow Cabinet Ministers of their obligation to the rule of law, and that they should not even appear to want to threaten or compromise it. He should have the authority of statute when he does so.

Richard Shepherd (Conservative, Aldridge-Brownhills)

I am very attracted to the arguments of the right hon. Member for Berwick-upon-Tweed (Mr. Beith), the distinguished Chairman of the Speaker's Committee on the Electoral Commission. He addressed himself to what he took as a rough guide to what the rule of law is: no one is above the law. But the rule of law has to be more than that, does it not? Does it not have anything to do with the process of law or the nature of the law? We can all be equal under a tyranny that manufactures laws to imprison us. That is why some of us are very nervous about a Bill that begins with clause 1, "The rule of law". I ask the right hon. Gentleman this: is it the Dicey definition? Is it protected by the conventions that form it, or as judges have advanced it into the 21st century?

These are probing questions. I want to be given some of the answers, with the certainty that I expect from able and competent lawyers—a certainty that I do not have, as a mere representative of Aldridge-Brownhills. What constitutes this concept? We observe the judges seizing a principle of which, when I was a child, we had little cognisance: judicial review. This whole development is outside statute law. Do I object to that? Not necessarily. I puzzle over it sometimes, but I know that between some point in my youth and now the law has changed when it comes to how Governments are held to account.

I do not want to make a meal of it, but these are terribly deep and important principles that inform our freedoms and liberties. My hon. Friends on the Front Bench want to safeguard a concept of the rule of law, and, in all fairness, I do not doubt that the Government do as well. However, the Bill refers to

"the existing constitutional principle of the rule of law".

I return to my original question: what is that? No authority that is a constitutional authority states unchallenged, "This is the principle". We debate the concept and we argue about it. The intention of the Bill, and of clause 1 in particular, however, is to reassure us that the independence and the integrity of the judiciary are safeguarded.

I am struggling to decide whether the Bill is in fact more sinister than the Minister attractively suggested. Indeed, he suggested that it was not sinister at all. I do believe in the principle of the rule of law, but it is a Shepherd principle. Each of us probably has a principle of the rule of law, but as often as not it is half Dicey, half the development of judicial activism. It is how we think it ought to be if it is to secure our liberty and freedom. That is the difficulty with measures such as this, which touch on constitutional principles.

I am glad to observe that the Liberal Democrats have come in behind Shepherd and want a written constitution. That would set out such matters clearly. I know, however, that my hon. Friends on the Front Bench and my hon. Friend the Member for Stone (Mr. Cash) are trying to establish a protection for us all. That is why we talk about the primacy of Parliament or, as I should like it to be called, the primacy of the people. In the end, all these Bills and Acts are constructed only through the authority of the people who send us here on our temporary mission as Members of Parliament.

Oliver Heald (Conservative, North East Hertfordshire)

I strongly agree with my hon. Friend on his last point. He fairly made the point that the rule of law means a range of things to different people. My hon. Friend the Member for Stone (Mr. Cash) is not seeking to define the whole of what the rule of law may mean. He is trying to home in on one aspect. I believe that defining what the rule of law should mean for this purpose is well worth doing.

Richard Shepherd (Conservative, Aldridge-Brownhills)

I accept that, but we will come to clause 4 presently. Again, that which it directs judges to consider as sources of law is way beyond anything that we presently acknowledge as having direct effect in British law. That is why, when I think about what the rule of law means in the context of the wider Bill, I am not dismissive of the sovereignty of Parliament. I have no doubt that that is the most fundamental authority for this country and its constitution. However, that constitution is not enacted. It has been developed and accepted by the courts across a period of time. We could say that it is part of the rule of law, but we saw the assault on what a judge seemed to deem constitutional Acts. We are not sure in our own minds, and our courts are not sure, what constitutes a constitutional Act. Even when a judge mentions the special category of constitutional law—these are particular pieces of legislation or statute that we should look at very carefully—it is contradicted by others.

Therefore, there is no certainty as to what this means. I want all the protections for our traditional freedoms—the first in the continent of Europe. That is why the Bill is important. I accept the Government's arguments on that. I understand the purpose behind the Bill, some of which I have no difficulty with, but when we come to this clause and to clause 4, the significance of which I will not go into now, I am very diffident. Therefore, I will support the new clause and the amendment, which is a probing and interesting amendment that, as we all understand, has wider connotations than just the European Communities (Amendment) Act. Because of clause 4, it can touch on tribunals and a number of things, all of which are important. Therefore, I will support the amendment.

Edward Garnier (Conservative, Harborough)

These are mighty issues and I feel even more diffident than the good Shepherd, my hon. Friend the Member for Aldridge-Brownhills, in discussing them, but I shall try to join the discussion to this extent.

My hon. Friends the Members for North-East Hertfordshire (Mr. Heald) and for Stone (Mr. Cash) seek to amend clause 1. Clause 1 is fundamentally intellectually dishonest, because it says:

"This Act does not adversely affect",

and it sets out what it does not adversely affect in subsections (a) and (b), but hanging like a ghost in the background is the implication that some other Act, either existing or, more likely, a future Act, may well do so.

The clause seems to fall into the category of an early-day motion set into legislation. In my view, Acts of Parliament should not set out wishes or declarations, but should deal with concrete issues. I am not convinced that

"This Act does not adversely affect . . . the Lord Chancellor's existing constitutional role"

in relation to

"the existing constitutional principle of the rule of law",

not least because it is difficult to define what the rule of law is. The Opposition side had an interesting exchange about that. I am doubtful that the Bill will not change—and change quite radically—the Lord Chancellor's existing constitutional role, so I am wholly sceptical about clause 1.

I am glad that my hon. Friends have spoken in support of their amending provisions, because they have enabled us to have a useful debate, but I am not sure that the two respective sets of arguments—both where they coincide and where they differ—answered the problems effectively.

Bill Cash (Conservative, Stone)

That happened because we were each seeking a solution to a problem that we viewed in common. Unfortunately, we did not come together to discuss the wording. Had we done so, we probably would have arrived at something slightly different on both counts. That does not alter the powerful reason for seeking to elucidate the deep questions that lie at the heart of the clause.

Edward Garnier (Conservative, Harborough)

I do not know whether that is an explanation or an excuse, but it does not get us much further.

Bill Cash (Conservative, Stone)

It is a plea in mitigation.

Edward Garnier (Conservative, Harborough)

I am grateful to my hon. Friend for putting forward that plea.

I believe that the strength of our constitution depends on the mutual respect and understanding of the powers and duties pertaining to each part of our constitution. There seems to me to be a growing gap between parliamentarians and the law, and between practitioners and academics on the legal side, and they increasingly seem to inhabit a different country. We no longer speak the same language or seem able to communicate in terms of mutual understanding. That is why we often hear speeches in the House that attack the judgments of judges and also why, thank goodness, we hear Lord Chancellors, as in the case of Lord Irvine, criticising the Home Secretary for intemperate remarks about the judiciary. If Lord Irvine did not understand the finer art of diplomacy, he certainly understood the difference between these two aspects of the constitution—the respective roles of the Executive and the judiciary. Such understanding seems to be dying rapidly and it is cured neither by clause 1 nor, I fear, by the amendment and new clause that my hon. Friends have proposed. That worries me.

Oliver Heald (Conservative, North East Hertfordshire)

Does my hon. and learned Friend accept that one advantage of new clause 8 is that it places a duty on the Lord Chancellor to do something specific—namely, to

"use his best endeavours to ensure that the rule of law is respected"—

and, I would add in parenthesis, to do so in the Cabinet? At least the conscience role of the Lord Chancellor is clearly set out there beyond peradventure. Is that not something worth doing?

Edward Garnier (Conservative, Harborough)

It might be if I thought that it would be effective, but how is it to be enforced? How do I know, as a citizen or even as a Member of Parliament, whether the Lord Chancellor is using his best endeavours in the Cabinet to ensure that the rule of law is respected? I do not know. I have to trust the Lord Chancellor to do so. I can trust the Lord Chancellor if I respect both the man or woman who occupies that office and the office itself, but the problem is that the Bill undermines the office. The Government want less authoritative and respected holders of that office, so my faith in the Lord Chancellor's ability to ensure that the rule of law and the different roles of the Executive and the judiciary are respected is diminished to that extent.

When the late Lord Hailsham of St. Marylebone was Lord Chancellor, he said that it was his duty to defend the independence of the judiciary "to his final breath". He was not interested in "best endeavours". Although I understand that that expression is used day in, day out in court undertakings and consent orders, it is not what I expect to find in an Act of Parliament describing the duties of a Lord Chancellor. It sounds a bit wimpish and I view it as utterly unsuitable for an Act of Parliament. I am not even convinced that, if the phrase were to be included in the Bill, it would be enforceable. It would not, so why are we writing yet another early-day motion sort of provision into a piece of legislation?

Bill Cash (Conservative, Stone)

I would like to help my hon. and learned Friend in respect of his concern about the origin of the definitions and the amendment's attempts to deal with the definition of the rule of law. I refer him and the House to the case of X v. Morgan-Grampian of 1991 and the judgment of Lord Bridge. For practical purposes, I modelled my wording precisely on what he said, although I adjusted it slightly to take account of the European dimension of the problem. I hope that it helps my hon. and learned Friend to know that my amendment was based on the judgment of a very senior Law Lord.

Edward Garnier (Conservative, Harborough)

I have no doubt at all that my hon. Friend spent a considerable time studying law reports and legal textbooks. I am also sure that the expressions used in his amendment are well sourced, in so far as they emanate from eminent judges. What I am concerned about, however, are the practical consequences of placing his provisions into an Act of Parliament. I am worried that playing the Government's game by amending the Bill, rather than striking out clause 1 entirely, might be falling into the trap that the Government have set for us.

The rule of law will not be protected one bit more by clause 1—still less, I am afraid, by new clause 8 or amendment No. 364. I understand all the arguments advanced by my hon. Friend the Member for Stone, in particular that our government and law-making systems have been internationalised over the past 20, 30 or 40 years. He and I have fears about further internationalisation of our domestic government system in the forthcoming year. I also understand that, as that happens, competition for influence and the demands of others to influence us will grow.

That is a real concern for my hon. Friend, for myself and, I hope, for every Member in the House. We face a vast and, in many ways, unwelcome cultural change in respect of how this country is run. Power is seeping away from this Chamber and this Parliament, as is the ability of our courts to uphold the rule of law, whether it be the common law as revealed by the courts or statute law as interpreted by the courts. All that is seeping away to other places. As both Members of the House and citizens of this country, we need to be wary of that, to debate it and to do our best to protect against it.

What really concerns me is that new clause 8, amendment No. 364 and clause 1 amount to nothing more than a lot of writing. They have enabled us to conduct this interesting discussion, but they do not protect our constituents or underpin the office of the Lord Chancellor, which the Bill as a whole fundamentally destroys.

Chris Leslie (Labour, Shipley)

The Government are and remain strongly committed to the principle of the rule of law. Both sides of the debate so far agree that the Lord Chancellor has and will continue to have a vital role in ensuring that the rule of law is upheld. In my view, however, we must be careful not inadvertently to disturb other crucial arrangements of our constitution in the process of framing statute law. The issue of how best to make provision for the rule of law in the Bill was extensively debated in the other place, with various amendments tabled and discussed. There, and to a certain extent in our debate today, two points have been commonly agreed: first, the Lord Chancellor has always had a role connected to the rule of law that we would not wish to lose or diminish; and, secondly, the duty of the Lord Chancellor is in general political, rather than a duty to be enforced in the courts. Clause 1 meets both those concerns by acknowledging that the Lord Chancellor has a duty in respect of the rule of law and that that duty is not cognisable as a matter of law.

Clause 1 preserves and reinforces the status of the rule of law as a principle of the constitution—uniquely, incidentally, in statutory language in this country—and is thus a powerful statement of our commitment to that principle. I think that the hon. Member for North Cornwall (Mr. Tyler) agreed with that point. It will ensure that the reformed office of Lord Chancellor will continue to have deliberations informed by that principle in the same way as the current office of Lord Chancellor, but in a manner that will not have wider or unintended effects.

I wish to address the arguments surrounding new clause 8 and amendment No. 364. New clause 8 is almost identical to a provision moved and subsequently withdrawn by the Opposition on Report in the House of Lords. The Government oppose it for broadly the same reasons as we outlined at that time. Including the question of parliamentary sovereignty in the same clause as the rule of law raises difficult questions about the relationship between those two principles, and that between them and other principles that are not mentioned in the Bill, such as collective responsibility, ministerial accountability to Parliament and the proper scope of judicial review. That problem is exacerbated by the reference in new clause 8 to the rule of law being a "central principle", which tends to imply that some sort of ranking of different constitutional principles is occurring.

Additionally, we, like the hon. and learned Member for Harborough (Mr. Garnier), are worried about the precise meaning of the phrase "best endeavours" in the new clause, and concerned not only about how the Lord Chancellor's best endeavours might be measured, but about how they might interact with other constitutional conventions, such as the Lord Chancellor's role as a Cabinet Minister subject to normal collective responsibilities.

Oliver Heald (Conservative, North East Hertfordshire)

Of course that is deliberate. Does the Minister accept that the rule of law is an overarching principle that comprises the various other points that he raised?

Chris Leslie (Labour, Shipley)

We are in danger of becoming a theoretical academic institution instead of focusing precisely on the provisions that should be included in the Bill. Clause 1 says that nothing in the Bill will adversely affect the rule of law, although I understand that there are different interpretations and definitions of that. When I respond to the points made by the hon. Member for Stone (Mr. Cash), I shall explain why it would be neither helpful nor useful to go into definitions of the rule of law, not least for the reasons outlined by the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who said that statute tends to narrow definitions rather than widening them usefully.

Subsection (2) of new clause 8 places an emphasis on ensuring respect for the rule of law. That could be taken as implying that the Lord Chancellor has a current duty to enforce the law against others, but that has never been his responsibility. Furthermore, there is some confusion about the meaning of subsection (3) of new clause 8. For example, would it mean that no judicial remedy would lie against the Lord Chancellor for a breach of duty if it did not lie there before? Could a court henceforth take the existence of a duty into account when deciding a question before it, and if so, how? Although I would not wish to pick too many holes in the drafting of the provision, we would be embarking on difficult territory if we started to set different worthy constitutional principles alongside each other or rank them in such a manner that they became judicially enforceable in different ways.

Subsection (3) of new clause 8 implies that the Lord Chancellor might have existing duties in relation to the rule of law that are currently enforceable via judicial remedy, but we do not agree with that proposition. There are specific duties enforceable on Ministers that could be said to be part of the rule of law, such as those under the Human Rights Act 1998, but there are no duties in relation to the rule of law as a whole.

Bill Cash (Conservative, Stone)

Is not the Minister somewhat hoist by his own petard? The problem that he is describing arises due to the fact that the Government have taken all the conventions, rules and assumptions that the courts have developed for centuries and attempted to compress them into the Bill, especially into clause 1. They have thus created the problem. We did not want to have to define the rule of law in itself because we thought that it was already well established. The Government have created a problem by attempting to put that in statute, which will be subject to administrative review.

Chris Leslie (Labour, Shipley)

The inclusion of the clause was not wholly an Executive-determined move. It was the product of much debate and extensive discussion in the other place. In fact, I am glad to say that the Liberal Democrats, who still support clause 1, recognised that the wording of the clause was broadly adequate because it confined itself to the Bill and stated that nothing in the Bill adversely affected the established rule of law. The shadow Lord Chancellor, Lord Kingsland, reasonably and decently withdrew the amendment that he moved in the other place. He said that the debate was

"a good example of constructive thinking between the Government, the Liberal Democrats and ourselves. We are entirely content with the outcome."—[Official Report, House of Lords, 20 December 2004; Vol. 667, c. 1540.]

What a shame that the hon. Member for North-East Hertfordshire (Mr. Heald) is taking a slight step back from the more rational approach of his shadow ministerial colleagues in the other place.

Amendment No. 364 would define parliamentary sovereignty as an aspect of the rule of law. As I said, we know that the rule of law is a complex principle and that many eminent legal minds and constitutional thinkers have failed to agree precisely what it entails and where it begins and ends. That is why I agree with the right hon. Member for Berwick-upon-Tweed, the Chairman of the Constitutional Affairs Committee, that including a definition of it in the Bill would be not only unnecessary, but perhaps a little dangerous.

I cannot agree that even the apparently simple definition in the amendment is either adequate or sufficient. Even if we were to agree that a definition of the rule of law was desirable in statute, it is debatable as to whether parliamentary sovereignty would be referred to within that definition or set out separately as a free-standing principle. Again, the problem is that the amendment tries to bring the two principles together without explaining the relationship between them. When the matter was debated in the other place, it was accepted that picking out specific aspects could lead to the undesirable listing of differently ranked constitutional principles.

Bill Cash (Conservative, Stone)

On the ranking of principles, does the Minister deny that there is uncertainty in judicial and academic circles about the question that I put to the right hon. Member for Berwick-upon-Tweed (Mr. Beith) on competing claims as to which law is superior? When Professor Alan Dashwood, the professor of European law at Cambridge, gave evidence to the European Scrutiny Committee, he made it clear that it is down to judges to decide that. If that is the case, it is most unsatisfactory from the point of view of asserting parliamentary sovereignty—I understand that the Government now agree with me on that.

Chris Leslie (Labour, Shipley)

I have said it before and I shall say it again: I see parliamentary sovereignty as absolutely prime in our constitutional settlement. I am slightly loth to embark on a discussion with the hon. Gentleman about treaties and how they interact with, or impinge upon, parliamentary sovereignty; suffice it to say that I do not think that anything in the Bill undermines parliamentary sovereignty. On the contrary, the Bill helps to enhance our constitutional settlement by making the different functions of the legislature, the judiciary and the Executive clearer. For those reasons, and for the reasons that I gave in comments on both the amendment and new clause 8, it would not be wise to include those provisions.

Clause 1 adequately and judiciously hits the mark in helping to placate those who may feel that in some way the change in the office of Lord Chancellor is diminishing that officeholder's role, and in defending the existing principle of the rule of law. That is why clause 1 is in the Bill and I urge hon. Members to withdraw their amendments.

Oliver Heald (Conservative, North East Hertfordshire)

After hearing the Minister's comments, I remain convinced that not only the rule of law but the sovereignty of Parliament should be referred to in the first declaratory clause—clause 1. In due course—it will be much later on—I shall want a separate vote on new clause 8.

The amendment proposed by my hon. Friend the Member for Stone (Mr. Cash) can be divided on immediately, so if he wants to press the matter I shall support him. The sovereignty of Parliament and the rule of law should be defined in the Bill, and my hon. Friend is right to say that the sovereignty of Parliament is the basis of the rule of law, and to define the rule of law as involving in part—he uses the words "in particular"—the sovereignty of Parliament and the courts.

Bill Cash (Conservative, Stone)

It is unnecessary to add to what I have said already. I certainly want to press the amendment to a Division.

Clause 4 — Guarantee of continued judicial independence

Chris Leslie (Labour, Shipley)

I beg to move amendment No. 18, page 2, line 24, leave out '("the Minister")'.

Chris Leslie (Labour, Shipley)

These amendments are purely matters of drafting improvement and consistency and do not affect policy. After one sentence, I give way.

Patrick Cormack (Conservative, South Staffordshire)

The Minister is unfailingly courteous and always tries to help. I wanted to intervene at this stage because I have a point not of order but of substance, which I want the Minister to address. We have spent two hours of the first three hours allocated and have discussed one amendment. There has clearly been no filibustering; many Members have not taken part because they have felt that they should leave matters to those who are leading on the issue. We now have less than an hour to complete consideration of the first group of clauses. Some very important subjects will clearly not be debated. Will the Minister discuss with the Leader of the House and others responsible for deciding the programme whether we can have a fourth day on this Bill? It is absurd that whole chunks of a Bill of this magnitude, which has come to this House having been thoroughly discussed in another place, will be dispatched without anybody saying anything about them.

Chris Leslie (Labour, Shipley)

We have not debated just one amendment; we have debated two separate amendments on a very big issue. What can be much bigger than the issue of the rule of law? I am not surprised that we took some time on that. However, having listened to the hope expressed by the hon. Gentleman, I shall try to be briefer so that we can make as much progress as possible. Perhaps we shall even finish consideration ahead of schedule, leaving time for other matters.

Gwyneth Dunwoody (Labour, Crewe and Nantwich)

I have been sitting quietly trying to listen to the debate. This Bill is important to those of us who are not lawyers and who are trying madly to find a way through much of the provision, which impinges fundamentally on parliamentary privilege. The point made by the hon. Member for South Staffordshire (Sir Patrick Cormack) is not about the content of individual amendments; it goes rather deeper. If such a Bill is programmed—as this one is—the House will not debate it. My hon. Friend has called in aid debates in another place, not once but several times. It is bizarre that in seeking to amend a House of Lords Bill the House of Commons is praying in aid the House of Lords. We should be debating the Bill here.

Chris Leslie (Labour, Shipley)

Indeed we are debating it here. We are at the beginning of our extensive debates on these matters. I say to my hon. Friend that I will try to be as brief as possible to allow as wide a debate as possible.

The amendments replace references to "Minister" with "Lord Chancellor" throughout the Bill. The Bill as introduced into the Lords last year sought to abolish the office of Lord Chancellor and therefore set down many functions as the responsibility of the "Minister". Since then, we have listened to concerns about abolition, expressed here and in the other place. The Government accept the decision of the House of Lords to retain the title and formal office of Lord Chancellor. Whether the post holder is called "Secretary of State for Constitutional Affairs", "Lord Chancellor", or has both titles, is not of great significance.

As I said on Second Reading, what matters most is the substance of the post, the nature of the job, and whether it is reformed so that the post holder no longer has conflicting duties. If the role of the head of the judiciary can pass to the Lord Chief Justice, and with it many of the judicial functions that are incompatible with the political functions of a Cabinet Minister, the office of Lord Chancellor can continue in that substantially reformed way. The Bill therefore retains the office of Lord Chancellor, but in a significantly altered and more appropriate form. To ensure that the Bill's terminology is consistent, the Government amendments replace references to the Minister with references to the Lord Chancellor. They ensure that it is immediately clear to everyone who reads the Bill that the Lord Chancellor is the Minister responsible for exercising those functions, so they do not need to cross-refer to another part of the Bill. That follows the precedent that functions vested in the Lord Chancellor in statute are, for the sake of clarity and ease of understanding, vested specifically in that office rather than in "the Minister".

Oliver Heald (Conservative, North East Hertfordshire)

As I have already mentioned, the decision to abolish the post of Lord Chancellor was misconceived. It was a back-of-the-envelope decision made on the back of a reshuffle by cosy chums sitting around in No. 10, without the usual safeguards of consultation and measured consideration in Cabinet. It was clearly wrong to try to abolish such a pivotal role in that way, and the amendments represent recognition by the Government that the Prime Minister got it wrong. Conservatives and Members in the other place were right to battle hard to restore the Lord Chancellor's role and ensure that that ancient but important post was not abolished as planned. I therefore welcome the fact that in numerous instances throughout the Bill the word "Minister"—the Lord Chancellor would simply have been a Constitutional Affairs Minister—has been replaced with the words "Lord Chancellor", which reflects the success of my noble Friends in another place.

Paul Tyler (Liberal Democrat, North Cornwall)

I, too, welcome the clarification in the Bill, which reflects the views of Members from all parts of the other place and puts into effect the requirements of the concordat between the Government and the higher judiciary. I have some sympathy with the view expressed by Shakespeare that a rose

"By any other name would smell as sweet."

I am not sure how we would apply that to the post of Lord Chancellor, but the semantic significance of the amendments goes beyond the title given to his particular functions. On Second Reading, my hon. Friend the Member for Somerton and Frome (Mr. Heath) was concerned that by retaining the title of Lord Chancellor we were sending the message that there was not any change in his functions within the Executive and the hierarchy of the judicial system. That is not the case, so I regret that it has not been possible to find a better title. Indeed, my hon. Friend and others have argued that the Bill provided an opportunity to look at the boundary between the Department for Constitutional Affairs—Decaff, as it is commonly known, because it is said to be all froth and no substance—and the Home Office. This could have been the time to look more substantially and strategically at they way in which those two Departments interrelate. Logic, however, now dictates that references to the Minister throughout the Bill should be replaced with references to the Lord Chancellor. That is the settled will of Members from all parts of the other place and, I suspect, of Members of the Commons. I hope that we will now progress as fast as possible to the more substantial issues before us.

Patrick Cormack (Conservative, South Staffordshire)

I support the Government amendments, and I am delighted that the Government have seen sense and conceded the power of our arguments. References to the Lord Chancellor now appear in the Bill, but I think that the Minister would agree that it is important that people outside should not be confused. There is nothing confusing about changing some of the Lord Chancellor's responsibilities. That has happened before—in the middle ages, the Lord Chancellor was frequently a bishop or senior cleric—but if he has a dual title, as at present, people will get mixed up. We should not have a dual title for the man or woman who fulfils the role of Lord Chancellor. I should be delighted if a woman became Lord Chancellor—that would be a very good idea if we chose the right person—but whoever bears that important title, it should not be subsumed by another title.

Jonathan Djanogly (Conservative, Huntingdon)

My hon. Friend has made an important point about the confusion that has been engendered. That is not helped by the fact that the Government did not include these proposals in either their 1997 or 2001 manifesto.

Patrick Cormack (Conservative, South Staffordshire)

Indeed, that is the case, and the events that led to the introduction of the proposals have been rehearsed many times. The Prime Minister was suddenly confronted with what turned out to be the temporary retirement of the right hon. Member for Darlington (Mr. Milburn). He also had some sort of altercation with the then Lord Chancellor—one day, when memoirs are written, perhaps we will know precisely what did, or did not, happen. The proposals, however, were introduced without proper consideration or deliberation. As we said on Second Reading, the substance of the Bill should have been the subject of a White Paper and preferably a Green Paper and draft legislation as well. All that, however, is history.

Oliver Heald (Conservative, North East Hertfordshire)

Does my hon. Friend agree that that is particularly important, as it has emerged that Sir Thomas Legg, the permanent secretary in 2000, warned against dismantling the role of Lord Chancellor, and pointed to the numerous difficulties that that would create?

Patrick Cormack (Conservative, South Staffordshire)

Sir Thomas Legg has a reputation for wisdom, which is not shared by many members of the Government. We do not, I emphasise, want confusion. I am delighted that the Minister, in his winsome and emollient manner, moved the amendment. I just hope that he accepts the logic of the changes to the wording of the Bill, and will pass the message on to No. 10 that we do not want confusion visited upon us in future by having two titles for one Minister.

Richard Shepherd (Conservative, Aldridge-Brownhills)

I support the arguments made by my hon. Friends the Members for North-East Hertfordshire (Mr. Heald) and for Huntingdon (Mr. Djanogly), as well as by the hon. Member for North Cornwall (Mr. Tyler). I appreciate the fact that the Government have removed the words "the Minister" and re-emphasised the role of the Lord Chancellor. I would like to address amendments Nos. 7 and 8, but principally amendment No. 7, which asks for the deletion—

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

Order. We are discussing Government amendment No. 18.

Richard Shepherd (Conservative, Aldridge-Brownhills)

I see, we are on a separate group. Forgive me, Madam Deputy Speaker.

Edward Garnier (Conservative, Harborough)

While there is a hiatus, may I reinforce the point made by my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack)? I accept that the Minister is part of the Department for Constitutional Affairs, but we live in a strange country. The ministerial head of the Department could easily be called Lord Chancellor. I presume that, once the Bill is enacted, the title of Lord Chancellor will disappear for the transitional period, although that sounds very strange. Once that transitional period ends, however, let us celebrate our illogicality and have a Lord Chancellor who heads a Department with a different name.

Chris Leslie (Labour, Shipley)

There is not much further to add now, other than to say that I am glad that there seems to be a consensus that it is right to include these amendments and then move on to other more substantial parts of the Bill.

Amendment agreed to.

Bill Cash (Conservative, Stone)

I beg to move amendment No. 7, in clause 4, page 2, leave out lines 35 to 42.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to discuss amendment No. 8, in clause 5, page 3, leave out lines 24 to 31.

Bill Cash (Conservative, Stone)

Clauses 4 and 5 will impose a duty on the Lord Chancellor and Ministers to uphold the independence of the judiciary. Of course, as I mentioned earlier in relation to the whole Bill, that duty would be enforceable by the judiciary itself as a matter of statute in terms of judicial review. In this context, I would assert that that in itself represents a radical gear change in the interpretation of statute law and, indeed, in the principles to which I shall refer in a moment. Yes, of course, there must be judicial independence—I would not want anyone to suppose that amendments Nos. 7 and 8 would affect that principle in any way—but there is also the Oath of Allegiance and salaries, to which are connected security of tenure and other matters, including the role of judges as embedded in the Act of Settlement 1700. In fact, as we well know, a range of conventions, rules and principles have been enunciated over the past several hundred years and are accumulated in the current state of the rule of law and in the specific question of judicial independence.

Clause 4(7) goes too far, and the same applies under amendment No. 8, with respect to Northern Ireland, where much the same sort of thing obtains, although I have no doubt that Northern Ireland Members will want to make their own contribution on its application to Northern Ireland itself. I will therefore confine my remarks primarily to the issues that apply to the United Kingdom, rather than to Northern Ireland.

Scotland is mentioned in clause 4(2), which states:

"Subsection (1)"—

on the duty of the Lord Chancellor and others to uphold the continued independence of the judiciary—

"does not impose any duty which it would be within the legislative competence of the Scottish Parliament to impose."

Again, I would prefer to leave those matters to any Scottish Member who may wish to intervene—I see that the Advocate-General for Scotland is here—but subsection (2) must be considered in relation to the background of the supremacy of the United Kingdom Parliament. It is well established that the Scotland Act 1998 is ultimately subject to the question of whether or not the United Kingdom Parliament might decide to amend or repeal any part or all of the Scotland Act 1998 itself. That may be a matter of great contention in Scotland, but I believe that it represents good constitutional law in so far as the United Kingdom Parliament is concerned.

Clause 4(7) and the definition contained in subsection (8) go too far, because they would confer judicial independent in respect of international treaties. I believe that that would be to make radical, new law and entrench it in statue, given that those provisions would apply to treaties irrespective of whether they were endorsed by statute. Indeed, as I have mentioned already, we must remember that Lord Diplock made it clear in the commissioner of Excise case of 1967 that statute can, in fact, break treaties.

I shall now address the question of what the words mean. Subsection (7) says:

"In this section 'the judiciary' includes the judiciary of any of the following"—

of course it lists the Supreme Court, but it then refers to

"any other court established under the law of any of the United Kingdom".

I do not seek to knock out those words, for obvious reasons, although I have the gravest reservations about their necessity in the light of the development of our constitutional position. I have a certain sympathy, to say the least, with what my hon. and learned Friend the Member for Harborough (Mr. Garnier) said with regard to clause 1. Attempting to include all these things in statute and making them subject to judicial review is, in itself, an extremely unfortunate and dangerous course. However, that raises a particular question in respect of judicial independence: quis custodiet ipsos custodes? After all, the judges will be the ones who determine the question of judicial independence under the duty imposed by clause 4. What are we to do, therefore, about the reference to "any international court" in subsection (7)(c)?

Subsection (8) says:

"In subsection (7) 'international court'"—

here is the definition—

"means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of judicial nature, in pursuance of . . . an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or . . . a resolution of the Security Council or General Assembly of the United Nations."

I find that a radical departure from the existing state of affairs. Indeed, it is clear that the European Court of Justice and/or the European Court of Human Rights at Strasbourg are included in subsection (8), given the absence of any words to exclude them. In fact, subsection (8) does not refer to the International Criminal Court, and I rather think that that will be included, too. I find it astonishing that subsection (8) refers to a

"court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of . . . a resolution of the Security Council or General Assembly of the United Nations."

I look forward to hearing what the Minister has to say by way of justification.

Patrick Cormack (Conservative, South Staffordshire)

I am following my hon. Friend's comments with great interest and I can understand where he is coming from when we look at subsection (8)(a), but is he seriously suggesting that this country should flout Security Council resolutions when so much of what we have done in international affairs recently has been based on adhering to them?

Bill Cash (Conservative, Stone)

In a sense, that is my point. Indeed, in so far as it is clear that our existing arrangements respect those international tribunals, that is one thing, but it is quite another thing to impose the duty on the Lord Chancellor and other Ministers of the Crown as a matter of statute law to uphold the continued independence that arises in that context. It is a step change, which troubles me. If we, as a nation, decided that we did not support a particular Security Council resolution in relation to an international court, aspects of it might be applicable to us in the United Kingdom, in which case we might find that we are not prepared to accept the setting-up of that tribunal, still less the deliberations, conclusions and judgments passed by that court.

Edward Garnier (Conservative, Harborough)

Clause 4 is another example of clumsily drafted legislation, and the fact that my hon. Friend the Member for Stone has had to pose those questions through his amendment exemplifies that point. Clause 4 could be intended to prevent the Lord Chancellor—under the Government's regime, the Lord Chancellor will not necessarily be a senior lawyer, still less a Member of the House of Lords, but could be a highly political Minister on the make—and other political Ministers from seeking to influence British-appointed members of international courts or courts set up on an ad hoc basis under a United Nations resolution, such as the courts in Sierra Leone or Rwanda. In that case, the Lord Chancellor, who will not be a Member of the Lords or a member of the judiciary, would be inhibited by statute from ringing up Mr. Justice Somebody-or-Other and saying, "Look, we would find it politically convenient if you were to reach this particular conclusion in this international court." That is the most charitable explanation that I can provide for clause 4, but my hon. Friend the Member for Stone might have a more or less charitable explanation.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

Order. I hope that future interventions will be shorter than that one.

Bill Cash (Conservative, Stone)

That question should be addressed to the Minister, and I am also puzzled for the same reasons.

Clause 4(5) states:

"The Lord Chancellor and . . . Ministers . . . must not seek to influence particular judicial decisions thorough . . . special access to the judiciary",

That is not the same as how the judiciary—I am thinking of the European Court of Justice—interpret a law under which they claim a superior jurisdiction to not only our courts, but our laws and constitutions. A severe danger exists that that wording could leave open the probability that upholding the continued independence of the judiciary—in that case, the ECJ—and dovetailing it with the European Union Bill, which we are about to consider, could lead us into some extremely dangerous constitutional situations.

The Bill will probably displace the assumption that the judiciary in this country are obliged to give effect to the latest enactment of the European Communities Act 1972, if, as I put it to the Prime Minister the other day, the European constitution were turned down in a referendum and it were necessary to repeal the European Bill, as enacted.

In a nutshell, if my amendment were accepted, it would not change the existing situation. I have no idea why clause 4, which will take us into extremely deep and dangerous waters, has been included in the Bill, and I look forward to hearing what the Minister has to say. The Minister owes it to the House of Commons to be entirely candid as to why clause 4 has been included, because in my opinion it would be better if it were removed.

Oliver Heald (Conservative, North East Hertfordshire)

My hon. and learned Friend the Member for Harborough (Mr. Garnier) has already expressed my concerns better than I will.

My hon. Friend the Member for Stone (Mr. Cash) is concentrating on a situation in which conflict occurs between courts. I appreciate that he seeks to avoid a situation in which the Lord Chancellor, other Ministers or judges are expected to uphold the independence of an international court at the expense of a local court.

The aim of clause 4 is to ensure that each of the courts listed in subsection (7) is not subject to improper ministerial influence or denied the support that it requires in order to function. This part of the concordat, as expressed in the Bill, is designed to militate against the sort of scenario set out by my hon. and learned Friend the Member for Harborough.

Edward Garnier (Conservative, Harborough)

My hon. Friend may correct me on this point, because he has studied the Bill at greater length than me: am I right in thinking that the judicial appointments commission will not appoint judges to the International Criminal Court or to the other international judicial bodies to which we send judges, and that a non-legal Lord Chancellor could therefore require his politically convenient appointees to go only to those international bodies? Is my hon. Friend worried that the reason why the Government included that provision is that they fear that an ignorant Lord Chancellor will attempt to do precisely that at some future date?

Oliver Heald (Conservative, North East Hertfordshire)

I agree with my hon. and learned Friend about the mischief, which is our concern. If the Lord Chancellor is a politician on the make rather than a senior figure reaching the end of their career, if they sit not in the other place but here, if they are not a lawyer and if they are very different from a traditional Lord Chancellor, such concerns will emerge.

Patrick Cormack (Conservative, South Staffordshire)

Have we not been placed in this position because of the peculiar programming? Clause 4 is a logical consequence of clause 3, which demands that the Lord Chancellor be legally qualified. The person with whom we are dealing in clause 4 is therefore legally qualified, but we will debate clause 3 later, which makes nonsense of the whole Bill.

Oliver Heald (Conservative, North East Hertfordshire)

It is hard to argue with my hon. Friend's point. Perhaps he will take it up with the Minister in due course.

Our Ministers and judges should uphold the independence of all those categories of courts. As a country, we have a proud tradition of supporting the independence of the judiciary in international tribunals and courts, of which there are many examples, some of which were mentioned by my hon. Friend the Member for Stone. Given the history and importance of our involvement in a range of courts and tribunals, it would be wrong to do anything that suggests that we do not want to uphold the independence of those courts and that those courts are open to ministerial interference or interference through the non-provision of the necessary logistical support.

On this occasion, I find it difficult to support the amendment moved by my hon. Friend the Member for Stone. I do not want to derogate from the argument that I made earlier—the UK Parliament is sovereign and should be sovereign, and our courts should interpret our laws accordingly. I hope that my hon. Friend will consider his amendment and perhaps seek to find other ways in which to achieve his laudable intentions.

Paul Tyler (Liberal Democrat, North Cornwall)

I am glad to hear the hon. Gentleman's comments, as I, too, feel that clause 4 is critical to the whole Bill, and the amendments would dilute it. It is important to recall the context of clause 4 and the specific requirements placed on the Lord Chancellor, which it is extremely important for us to reiterate this evening.

The clause has two such requirements, extending to subsection (8), to which I shall refer in a moment. The first is the insistence that no opportunity of special access to exert pressure on any elements of the judiciary should be used. I take the point made by the hon. and learned Member for Harborough (Mr. Garnier) that one can imagine circumstances in which an appointee to some international body or tribunal who will not go through the normal judicial process could be under some form of influence or obligation to a political Minister. It is important that we recognise that.

It seems to me that the hon. Member for Stone (Mr. Cash) has tabled one of his bogeyman amendments, in which there is always somebody in Brussels, or some devilish foreigner, whom we must do down and keep in their place. He is making a mountain out of molehill, if one can do that with a bogeyman. He is trying to imply that there is some sort of inflated recognition in the subsection for the non-domestic court process. I do not read it like that—I simply read it, as the hon. and learned Member for Harborough said, in the terms that it is a proper precaution to be placed in the Bill, to ensure that the Minister does not have special access. We are advised that that need not in any way impede the way in which he operates to make sure that the public interest in matters relating to the judiciary, at any level of the administration of justice, is properly represented. That seems to me to be a perfectly proper approach.

If there is a problem with the wording, that is down to the Minister, and no doubt he will defend it—I hope that he will do so in a moment. I see some practical advantage, however, in making it clear in the Bill that we will not tolerate political interference with the judicial process, wherever that may lie.

David Heathcoat-Amory (Conservative, Wells)

Clause 4 seeks to give statutory form to the important principle of judicial independence, and who could possibly be against that? In fact, I have misgivings about the entire Bill, because taken as a whole, it will have the effect over time of politicising the judiciary, particularly allied to the advance of international human rights legislation. When judges are called on to make difficult and sensitive decisions about the right to life, to freedom of expression or to privacy, they are drawn down a political road. We have seen that in the United States, where appointments to the Supreme Court are matters of great partisan political interest. I hope that we can avoid that in this country, but the Bill does nothing positive to entrench what until now we have understood to be the independence of the British judiciary.

My support for amendments Nos. 7 and 8 is based on a narrower consideration. It seems to me that the definition of an international court includes the European Court of Justice. If not, the Minister must stop me now—if it is somehow excluded, the rest of my remarks fall. I take it that the definition in the clause of an "international court"—

"a court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of . . . an agreement to which the United Kingdom . . . is a party"—

obviously includes the European Court of Justice.

The problem about the independence of that Court is that it will be undermined by the European constitution. I draw the attention of the Committee to article 1–18, which lists the institutions of the European Union, including the Court of Justice of the European Union, as the ECJ will become known, the Council of Ministers and the European Commission—the executive branch of the European Union. The provision then states:

"The Institutions shall practise full mutual cooperation".

Therefore, the executive branch of the EU is to practise full mutual co-operation with the judicial branch. That is a fairly startling defiance of the principle of separation of powers, because it also applies in reverse: the European Court will have to practise full mutual co-operation with the executive.

I am a member of the European Scrutiny Committee, and we are currently taking evidence about the European constitution. A number of witnesses of great renown have come before us: people of judicial training, both in constitutional and international law, from more than one European country. We have asked them what they understand by that clause and those words. They are very worried; some of them are baffled. It is not an accident, however—those words were slightly changed during the negotiations in the Convention on the Future of Europe, which I witnessed. They are therefore deliberate. They are not permissive—they do not say that the European Court of Justice "may" co-operate with the executive but that it "shall". It is therefore a mandatory instruction. Our witnesses could give no other example in the world of a constitution that apparently undermines the independence of a court so dramatically.

Gwyneth Dunwoody (Labour, Crewe and Nantwich)

I would find this a lot more horrifying were I not already convinced that the European Court of Justice is a wholly political organisation. All the appointments during my time in the European Parliament were made on the assumption that the judge concerned was of a particular political colour. I therefore find it difficult to accept that this has suddenly become a problem; it has been so since the creation of that entirely political court.

David Heathcoat-Amory (Conservative, Wells)

The hon. Lady is right. It is an activist court, which takes as one of its duties the upholding of the European ideal and the advancement of European integration. I therefore accept what she says.

The European constitution, however, provided an opportunity to entrench a different doctrine of true independence, along the lines of the separation of powers, as we have discussed in our consideration of the Bill. That makes it all the more worrying to have written into the constitution a provision that obviously undermines that independence. The relevance for the Bill is obvious. We are giving the Lord Chancellor, and future Lord Chancellors, a duty to defend the independence of foreign courts and judges in those courts, yet the Government have signed a European constitution that breaches that independence. Therefore, my question to the Minister is: what will happen? Why are we giving the Lord Chancellor a duty to be independent, and why have we signed a constitution that undermines that independence?

Edward Garnier (Conservative, Harborough)

Has the European Scrutiny Committee, in its evidence sessions, heard any evidence about the meaning of the expression "full mutual co-operation"? I understand my right hon. Friend's argument that that could mean "do as you're told", but it might also mean that the two respect each other's separate roles. I am not sure whether we are just having a semantic argument, or whether there is some evidential basis for the concerns, which I can well understand.

David Heathcoat-Amory (Conservative, Wells)

I am not a lawyer, but I can read English and I do understand—I think—the following sentence:

"The institutions shall practise full mutual co-operation".

That would appear to mean that the judiciary must co-operate with the executive, but is that not a breach of the separation of powers, as understood by my hon. Friend the Member for Stone (Mr. Cash)? There may be an innocent explanation, but such an explanation was not advanced by the expert witnesses who came before the European Scrutiny Committee—quite the reverse. They said that either this was indeed a serious breach, or that hopefully—as one witness put it—the provision will simply be ignored. Well, I am not quite so innocent as that. When a provision is written into a constitution that shall have primacy over the law of all member states, we must take it seriously.

I am not being excessively mischievous or pessimistic in seeing—let me put it no higher than this—a problem, and the problem for us this evening is that this provision conflicts with the Bill. As I have said, although I am not a lawyer I can read, and we are about to pass into law a duty for the Lord Chancellor "to defend" judicial independence. More than that, the judiciary—in this instance, the European Court of Justice—will

"have the support necessary to enable them to exercise their functions",

so the necessary resources will have to be provided. In every way, therefore, we are supporting an independence denied by the European constitution.

Patrick Cormack (Conservative, South Staffordshire)

Of course we do not yet have the European constitution—and if my right hon. Friend and I have anything to do with it, we will not have it. The arguments that he is advancing this evening are added ammunition in the battle against that pernicious document—but putting that to one side, does he agree that clause 4 is not as damaging as my hon. Friend the Member for Stone (Mr. Cash) suggested in his speech?

David Heathcoat-Amory (Conservative, Wells)

I will be marching with my hon. Friend to secure a no vote on that pernicious document. He is right to suggest that the best way to prevent this conflict is to take out the European constitution, but the only means at my disposal this evening is removing the relevant words from the Bill. This House should not legislate to contradict itself.

Oliver Heald (Conservative, North East Hertfordshire)

Surely the Bill provides the good bit. Obviously, one can have many objections to the Bill, but clause 4 states that the Lord Chancellor should stick up for the independence of the judiciary and take the sort of steps for which my right hon. Friend is arguing.

David Heathcoat-Amory (Conservative, Wells)

I do not altogether accept my hon. Friend's assurances. To echo what my hon. Friend the Member for Stone said, we can envisage future conflict between different judicial systems, and in that case, I would rather uphold the independence of our domestic courts than put them on an equal footing with international courts.

The main purpose of my brief remarks has been to find out from the Minister how he intends to resolve this problem. He and his Government are in favour of the wording both in the Bill and in the European constitution, and that conflict needs to be resolved this evening.

Andrew Hunter (DUP, Basingstoke)

I will be very brief. I have some sympathy for the amendments tabled by my hon. Friend the Member for Stone (Mr. Cash) and the arguments that he advanced in support of them, but in reaching a conclusion on them, it might be helpful if the Minister answered the following two points. First, can he explain why the list of office holders in clauses 4(1) and 5(1) is so limited? Why does the Bill not impose a duty to guarantee the continued independence of the judiciary on other executive officers? Secondly, I am somewhat confused by the phrase "special access". For example, what special access do the First Minister and Deputy First Minister in Northern Ireland have to international courts that might so undermine their independence that lines 24 to 31 in clause 5 are needed? The right hon. Member for Upper Bann (Mr. Trimble) might like to comment on that.

David Trimble (UUP, Upper Bann)

While I was First Minister I had no special access to any member of the judiciary—at home or abroad. What puzzles me about this provision is its stating that one must not misuse special access. What about normal access?

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

I call Sir Patrick Cormack.

Patrick Cormack (Conservative, South Staffordshire)

I was not quite sure whether that was an intervention or a speech. We have heard two very brief speeches, and I shall try to make a third, because I want to hear what the Minister has to say.

I want to revert to the narrow but important point that I made in an intervention. I am tolerably comfortable with the clause, but only if the holder of the office—on whom enormously onerous responsibilities will be placed, by implication and by direct injunction in the clause—is sufficiently well versed in the law to be able to understand all these matters. That underlines the point that the Lord Chancellor should indeed be removed from the hurly-burly of everyday politics—to me, that means sitting in the other place—and should be a lawyer of considerable experience and distinction. I am baffled as to why we are going to deal with that issue, which is addressed in clause 3, after considering clause 4. I want the Minister briefly to acknowledge the importance of the point that I am making when he responds to those made by others.

Richard Shepherd (Conservative, Aldridge-Brownhills)

I, too, have difficulty with this provision. I am not sure in what way the Lord Chancellor can uphold the continued independence of the members of any international court—a point that applies, as has been said, to the putative European Court of Justice as defined in the European constitution, but also to the European Court of Human Rights. The Lord Chancellor has no role in the appointment of the overall judiciary of that court, yet it will give judgment directly on many of the issues confronting this nation. I am therefore very nervous about the inclusion of such a provision.

Of course many such courts, the validity of which it is difficult to recognise, are set up by prerogative power; their nature has not been established through the legislative process. I have a list of them, but I shall not read it out, given the lack of time and the need for the Minister to explain the reasoning behind the provision. In what way will the Lord Chancellor, or any Minister, affect the appointments to those international courts, and why are we using prerogative power through the back door to sign up to them? There is a further, wider principle, which the hon. and learned Member for Redcar (Vera Baird) and I have often discussed. Should not many of these treaties, which contain within them a legislative process, be legislated for through this House, so that we know what powers we are giving and to whom?

Chris Leslie (Labour, Shipley)

We have covered a number of different points, although I am not entirely convinced that all of them related to clauses 4 and 5, the latter of which deals with the provision as it affects Northern Ireland. That said, the points made were, of course, in order. The clauses set out clearly the responsibility of the Lord Chancellor and other Ministers of the Crown to uphold the continued independence of the judiciary. In answer to the hon. Member for Basingstoke (Mr. Hunter), all Ministers of the Crown are covered in that context. As the hon. Member for South Staffordshire (Sir Patrick Cormack) and Conservative Front Benchers have said, that is a pretty unobjectionable goal; indeed, it is a wholly admirable ambition.

Amendments Nos. 7 and 8 would limit that duty by removing international courts from the definition of "the judiciary". I shall explain briefly why that would not be appropriate. The removal of those subsections would not affect in any way the UK's participation in any agreement with any international courts that have been established, or alter in any way their jurisdiction over the United Kingdom. Even if that was the intention of the hon. Member for Stone when he tabled the amendments, they would not achieve it. There is no sound justification for limiting our respect for the international judiciary in that way. Just as Ministers should uphold judicial independence in this country, so they should uphold the independence of judges in properly constituted international courts and tribunals, wherever they may be. The judges of both types of court should be treated in the same way.

Paul Tyler (Liberal Democrat, North Cornwall)

I understand the point that the Minister is making, but is the position not even worse than that? The hon. Member for Aldridge-Brownhills (Mr. Shepherd) is right to say that those who are appointed as British representatives in any court may be appointed by royal prerogative rather than through the judicial system, so they may be more susceptible to pressure. If we removed the provision, the implication would be that it was acceptable to exert pressure on them.

Chris Leslie (Labour, Shipley)

Exactly. It would be perverse to argue that we should respect the judicial independence of judges in this country, but that Ministers should be free to undermine the independence of judges in international courts elsewhere.

Edward Garnier (Conservative, Harborough)

The Minister almost persuaded me that he had an argument, but he ruined it with that terrible answer to the hon. Member for North Cornwall (Mr. Tyler). Until now, nobody ever thought a Lord Chancellor would seek to influence a particular judge, in this country or elsewhere, in the making of a judgment or by use of special or normal access. The clause must go into the Bill because the Government intend to do something different to the nature of the relationship between the appointers of judges and the judiciary. The Minister should not argue that by removing the clause we would be doing something bad. Lord Chancellors have not sought to misconduct themselves in relation to judicial independence—

Chris Leslie (Labour, Shipley)

The hon. and learned Gentleman's argument is ridiculous. The purpose of the clause is to enshrine the protection of judicial independence. I pointed out, as did the hon. Member for North Cornwall (Mr. Tyler), that it would be perverse to remove the provision and leave a gaping hole in respect of judges in international courts. I am sure that even the hon. and learned Member for Harborough (Mr. Garnier) can see that.

To answer an earlier point, in some cases British judges sit on international courts. Are they to have their independence protected when sitting in the UK, but not when sitting on an international court? The credibility of clauses 4 and 5 depends on their covering all judicial decisions affecting the United Kingdom. The same standard needs to apply to the treatment of all judges, regardless of which forum they sit in. It makes no sense to afford less protection to some judges than to others.

The right hon. Member for Wells (Mr. Heathcoat-Amory) spoke about how we might in future be able to reconcile concepts of mutual co-operation with concepts such as judicial independence and separation of powers. I do not see any inconsistency between concepts of co-operation and concepts of independence in other legislation.

Bill Cash (Conservative, Stone)

Is the Minister prepared to say that as he understands it, the positive duty being imposed on Ministers would in no way create a situation in which there was any granting of an assumption that those who were adjudicating in international courts, including the European Court at Strasbourg and the one in Luxembourg—the European Court of Justice—in the interpretation that they place on legislation in the framework of the European Union and the European convention on human rights? Can the Minister give me satisfaction on that point?

Chris Leslie (Labour, Shipley)

In so far as I follow the point, it would be for UK legislation to give the legal basis for judicial decisions affecting domestic law, independent of which court was making those decisions. I do not understand the point that the hon. Gentleman is making.

David Heathcoat-Amory (Conservative, Wells)

The Minister presumably would not dream of placing an obligation on a British court to co-operate fully with the Government if that court were deciding on a case in which the British Government were a party, so how can he place such an obligation on the European Court of Justice?

Chris Leslie (Labour, Shipley)

I do not have the draft European constitution before me, but I am not sure that there are requirements for particular co-operation in specific individual cases. It may be possible for the judiciary, the legislature and the Executive to co-operate in partnership, as we do in this country. We signed up in the concordat to the idea that partnership does not exclude independent judicial decision making in particular cases. That is the fundamental point.

David Trimble (UUP, Upper Bann)

Is it not the case that clauses 4 and 5 impose a duty to uphold the continuing independence of judges individually? That presupposes that judges already are independent. The clauses do not impose a duty to pretend that they are independent if they are not. Therefore, if some international tribunal is clearly not independent in terms of appointments to it, its independence cannot be upheld.

Chris Leslie (Labour, Shipley)

Indeed. Clause 4(8) specifies that any international court established by treaty to which the United Kingdom is a party, or by other organisations in which the United Kingdom takes part, is to be independent. Such courts and tribunals are referred to in the Bill as legitimately organised and established. It would be wrong to allow the amendments to remove respect for and protection of judicial independence in international courts, as set out in the Bill. I hope the Committee will reject the two amendments.

Bill Cash (Conservative, Stone)

In the light of the discussions that we have had and the arguments that I have heard from the Opposition Benches, I still have grave concerns about the drafting of the clause. However, after careful consideration I have decided that we may be able to fight this battle another day, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

Jonathan Djanogly (Conservative, Huntingdon)

I am pleased to have the opportunity, albeit a brief one, to discuss the guarantee of continued judicial independence in the context of the Lord Chancellor's role, and I start with a quote:

"The Lord Chancellor provides a counter-balance to the judicial branch against the centralised power of government and Parliament. At the same time he is removed to the House of Lords, away from the full force of party politics. The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with a full understanding of legal culture and the rule of law. His tripartite role enables him to act as both a link and bulwark between the judiciary and the executive and the legislature."

Those were not the words of a Conservative commentator or an excerpt from an outspoken critic of the Bill. The Minister was trying to remember where they came from—they were the words of the Government when they defended the office of the Lord Chancellor before the Council of Europe in 2002.

While giving evidence to the Select Committee on the Lord Chancellor's Department a year later, the then Lord Chancellor, Lord Irvine, said that

"there is a bit of uniqueness about the Lord Chancellor's Department, which is that its business is dealing with an arm of the state called the judiciary. It is part of the separation of powers. We deal with, as I say, an arm of the state within the separation of the powers and this arm of the state values, and rightly, its judicial independence above all else. It does not want to be bullied by the executive. It believes that its function is to stand between the citizen and the state and to be absolutely robust in deciding when the state has acted contrary to the law."

Yet now, the Government wish abruptly to change the position on the office of Lord Chancellor—albeit that, grudgingly, they will not now change the name—and toss a long-standing part of our Government into the dustbin of history.

It is my belief that the position is too important to be restructured on the basis of a purely political premise masqueraded by the Government under the name of constitutional reform. The position of Lord Chancellor is an ancient one. Some of the most important statesmen in our history have served as Lord Chancellor. Under the Bill, it is now proposed that there will be no requirement that the Lord Chancellor will be a lawyer or have any law experience. Supposedly, according to the Government, a layman has more ability to advise a Prime Minister on legal affairs than a judge who has sat on cases and has training in the law. The Lord Chancellor's unique role in all three branches—Executive, judicial and legislative—gives him a unique opportunity to serve independently and non-politically.

Patrick Cormack (Conservative, South Staffordshire)

In the Bill as it stands, there is a requirement that the Lord Chancellor should be a lawyer, as set out in clause 3. Is it not therefore all the more important, in view of the sensible remarks that my hon. Friend is making, that clause 3 does indeed stand part of the Bill?

Jonathan Djanogly (Conservative, Huntingdon)

My hon. Friend makes a very important and pertinent point. I have been attempting to lay the ground for a discussion of clause 3 later.

In the short time that remains, I wish to mention that, in addition to clause 3, if there is a single action that could virtually guarantee the independent status of the role of Lord Chancellor it would be the disqualification of the Lord Chancellor from holding any other ministerial office. Perhaps we can deal with that issue when we come to clause 3.

I consider that the Government have paid too little attention to the need to guarantee judicial independence. We will return to these issues when we debate clauses 2 and 3.

Chris Leslie (Labour, Shipley)

The hon. Member for Huntingdon (Mr. Djanogly) has given good reasons why the clause should stand part of the Bill. It is a point of mutual agreement in all parts of the Committee that we want to provide an unequivocal guarantee of continued judicial independence. That guarantee is binding on all Ministers of the Crown and all those with responsibility for matters relating to the judiciary or the administration of justice. Through the clause, we are seeking to embed in statute the principle of judicial independence, which all in the Committee rightly regard as being of paramount importance in our constitution. Clause 4 does exactly that, and it also imposes particular duties for the purpose of upholding continued judicial independence. First, Ministers of the Crown must not seek to influence particular judicial decisions through any special access. Secondly, the Lord Chancellor must consider the need to defend continued independence throughout.

Edward Garnier (Conservative, Harborough)

I just want to record that it is a shame—indeed, it is more than a shame—

It being three hours after the commencement of proceedings on the Bill, The Chairman put the Question already proposed from the Chair, pursuant to Order [this day].

Question put and agreed to.

Clause 4, as amended, ordered to stand part of the Bill.

The Chairman then proceeded to put forthwith the Questions necessary for the disposal of business to be concluded at that hour.

Clause 6 — Representations to Parliament

Clause 7 — President of the Courts of England and Wales

Patrick Cormack (Conservative, South Staffordshire)

On a point of order, Mrs. Heal. My hon. and learned Friend the Member for Harborough (Mr. Garnier) just said in an extremely brief speech that something was a shame. To quote my favourite entertainer, Stanley Holloway, it is a shame and a sin that this Committee has not had the opportunity to discuss clauses 6 or 7 in the first three hours allowed for the Bill. I realise that you can do nothing about this matter tonight but could you, on behalf of the House, speak to Sir Alan and Mr. Speaker and see whether any representations can be made to those who draw up programmes to ensure that there can be some built-in flexibility, so that when the House is faced with a major constitutional Bill of this nature, it does not end up without any opportunity to discuss significant parts of it?

Edward Garnier (Conservative, Harborough)

Further to that point of order, Mrs. Heal, I wish to explain to you that what I thought was a shame was precisely what my hon. Friend has just said. Vast sections of this important Bill will never be discussed by the House. What is the point of the House if it is not allowed to discuss anything that the Government wish to impose on the people of this country?

Oliver Heald (Conservative, North East Hertfordshire)

On a point of order, Mrs. Heal. The role of the Master of the Rolls and the effect of the provisions on his role in the courts of England and Wales has not been mentioned. Perhaps it would be possible for the Minister to consider whether, in commenting on some of the other clauses that deal with judicial matters, he might reflect on the position of the Master of the Rolls.

Clause 5 — Guarantee of continued judicial independence: Northern Ireland

Chris Leslie (Labour, Shipley)

I beg to move, That the clause stand part of the Bill.

Clause 5 substitutes a new section for section 1 of the Justice (Northern Ireland) Act 2002, to ensure that provision made by that Act in relation to Northern Ireland is consistent with provision made in clause 4. Section 1 of the 2002 Act has not yet been commenced, and it already contains provision designed to place those with responsibility for the administration of justice in Northern Ireland under a duty to uphold the continued independence of the judiciary.

New section 1 specifies and extends the range of persons on whom the duty is imposed. Under the provision, the First Minister and the Deputy First Minister, Northern Ireland Ministers, and anybody with responsibility for the judiciary or administration of justice specific to Northern Ireland will be subject to a duty to uphold continued judicial independence. New section 1 also provides that, in upholding judicial independence, Ministers must not seek to influence particular judicial decisions through any special access to the judiciary. As I said earlier, we concluded that the term "special access" is essential to ensure that Northern Ireland Ministers remain free to seek to influence a particular judicial decision when appearing as a party to a court case. That answered the points raised by the right hon. Member for Upper Bann (Mr. Trimble), the former First Minister, who asked about the normal access arrangements. We need to ensure that the Administration would quite properly be able to make its own representations in a normal case in the normal way, if it were involved as a party to the case.

David Trimble (UUP, Upper Bann)

I appreciate that the Minister is trying to respond to the point that I made, which I was going to repeat. What he is saying, however, seems rather strange. He is referring to enabling the First Minister or other Ministers to make representations if they are parties to an action, but that is not access. I think that the word "access" has a different meaning. There is still a problem in using the term "special access", because it must be special in contradistinction to other things. Representation is quite different from access.

Chris Leslie (Labour, Shipley)

Even then, representation in a court is also access to it. We hope that the phrase "special access" strikes the correct balance between Ministers' legitimate activities while protecting the independence of the judiciary and ensuring that when there are special circumstances in the course of their duties requiring access to Ministers, those cannot be abused. Moreover, by virtue of clause 5(2), the new duties imposed by new section 1 to the 2002 Act have UK-wide territorial extent, so protection extends to the judiciary throughout the United Kingdom.

David Trimble (UUP, Upper Bann)

I welcome new clause 1(1), particularly its reference to the First Minister, the Deputy First Minister and Northern Ireland Ministers. It is particularly desirable to put clearly on the record the duty of Northern Ireland Ministers generally to uphold the continuing independence of the judiciary. I merely reflect that this underlines, too, how crazy it would be to have certain persons who were so closely linked with the greatest bank robbery in British history as Ministers.

Nigel Dodds (DUP, Belfast North)

Some of the points that arise on the clause arose in the debate on clause 4. No one can argue with the general principle of the guarantee of continued judicial independence in Northern Ireland, but I am slightly concerned and puzzled as to why it should be thought necessary to have a reference in new section 1(4)(c) to "international court" when the provision refers to Northern Ireland Ministers and the judiciary. That point was raised by my hon. Friend the Member for Basingstoke (Mr. Hunter) during the previous debate.

More generally, I come to some of the issues that arose during the previous debate about European law and its impact on domestic law. In Northern Ireland, some of the implications of that have been to our detriment. Section 24 of the Northern Ireland Act 1998 states:

"A Minister or Northern Ireland department has no power to . . . do any act"

which

"is incompatible with any of the . . . rights"

in the European convention on human rights or within Community law.

At the moment, there is a considerable threat to planning law in Northern Ireland from a number of European directives and that has raised a number of concerns. We would strongly resist anything that increased that threat or undermined domestic law and jurisdiction of the courts.

More generally on judicial independence, in the light of our experience since the Anglo-Irish agreement of 1985, the notion of a duty on the First Minister and Deputy First Minister to uphold the continued independence of the judiciary in Northern Ireland is worth mentioning. Since that agreement, it seems to many people that it has been commonplace for the Government of the Irish Republic to have a say in the process of judicial nominations in Northern Ireland. Indeed, it is widely accepted that on at least one occasion, the Republic's view that someone should not be nominated prevailed. Viewed in that light, the concept of an independent judiciary seems somewhat abstract. If and when the Northern Ireland Assembly returns, it is unlikely that the process would be any less contentious or political because although removing the power from the Lord Chancellor more generally might make the process more transparent, only time will tell what the longer-term implications are.

Chris Leslie (Labour, Shipley)

During my earlier comments, I explained the broader principles of why we advocate clause 5 as part of the Bill, and nothing that I said was undermined by the comments of the hon. Member for Belfast, North (Mr. Dodds). Far be it from me to become too deeply involved in some of the points that he raised. They are on the record and my ministerial colleagues will see them. I stand by my assertion that clause 5 should stand part of the Bill.

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.

New Clause 1A — Lord Chief Justice of Northern Ireland

Chris Leslie (Labour, Shipley)

I beg to move, That the clause be read a Second time. New clause 1A makes provision for a new statutory office and title of President of the Courts of Northern Ireland, which will be assumed by the Lord Chief Justice of Northern Ireland. The new clause sets out the responsibilities of the President of the Courts of Northern Ireland and the courts to which the presidency applies. His responsibilities, which are similar to those already provided for in respect of the Lord Chief Justice of England and Wales, include representing the views of the Northern Ireland judiciary to Parliament, the Lord Chancellor and Ministers of the Crown generally and, when the Northern Ireland Assembly is restored, to the Assembly, the First Minister, the Deputy First Minister and Northern Ireland Ministers.

The new clause also provides that the Lord Chief Justice of Northern Ireland will be head of the judiciary in Northern Ireland—a post that is, by convention, held by the Lord Chancellor. The Lord Chancellor will of course continue to have ministerial functions in respect of courts administration on a broadly similar basis to that for England and Wales.

The new clause is straightforward and mirrors many of the existing provisions for the consequential changes to the post of head of the judiciary in England and Wales by virtue of the reforms of the office of the Lord Chancellor.

David Trimble (UUP, Upper Bann)

I welcome the new clause, which, as the Minister said, mirrors provisions elsewhere in the Bill. It leaves just one question in my mind: why was not the clause in the Bill to begin with?

Andrew Hunter (DUP, Basingstoke)

I have two brief questions for the Minister. First, on paragraph (b), will he explain the mechanisms whereby the President of the Courts of Northern Ireland can represent the views of the judiciary to the Assembly? I am advised that there are no established mechanisms for that, and it would be helpful if the Minister would explain the practicalities of that dimension.

Secondly, on paragraph (c), some confusion and bewilderment has been expressed about the inclusion of the concept of the welfare of the judiciary of Northern Ireland. What do the Government have in mind as regards the inclusion of the word "welfare"?

Chris Leslie (Labour, Shipley)

In reply to the points made by the hon. Member for Basingstoke (Mr. Hunter), other clauses relate to representations to Parliament and, similarly, to the Northern Ireland Assembly. They would be written representations, the nature and extent of which would be as prescribed in those other clauses.

On respecting and advocating the welfare of the judiciary, those are general phrases found elsewhere in legislation covering the role of the head of the judiciary in ensuring that proper facilities and arrangements are made for its work in the normal course of its duties.

The right hon. Member for Upper Bann (Mr. Trimble) asked why the provision was not included earlier. I do not have the whole history of the genesis of the Bill in front of me, but suffice it to say that I am glad that the provision is here now and that we can make it complete and perfectly formed in the way that we propose.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

Clause 2 — Requirement of membership of the House of Lords

Chris Leslie (Labour, Shipley)

I believe that the clause should not stand part of the Bill and I therefore urge my hon. Friends to vote against it. It was included in the other place and we wish it to be removed. I shall explain why the Government take that view.

We oppose the concept, although we understand why their lordships would prefer to keep the reformed office of Lord Chancellor in their Chamber. However, they are wrong and I hope that we can delete the clause. They have fundamentally misunderstood the changed nature of the ministerial post. The title of Lord Chancellor may remain, but gone are the duties to select the judiciary on his own and the power to sit as a judge.

If the Lord Chancellor is no longer solely responsible for selecting the judiciary, can no longer sit as a judge and is no longer head of the judiciary, there remains no reason to be inherently distant from public accountability or parliamentary scrutiny. Of course, we propose nothing that would prevent the Lord Chancellor from being a Member of the House of Lords, but there is no good reason for the clause explicitly to prevent someone's appointment simply because they happen to be an elected representative.

It would be odd if a Prime Minister could appoint anyone except someone who happened to be elected. Deliberately to exclude an individual who was chosen to sit in Parliament by democratic means would appear perverse to most people.

Oliver Heald (Conservative, North East Hertfordshire)

rose—

Chris Leslie (Labour, Shipley)

Including, I hope, the hon. Gentleman.

Oliver Heald (Conservative, North East Hertfordshire)

Certainly not. Is not it obvious that the other place has a far less partisan manner of debate and that it is far better for the sort of figure who upholds the independence of the judiciary to come from such an environment, be approaching the end of a career but have the necessary great seniority rather than being some young politician who is starting in the Cabinet, has ambition and wants perhaps to make a name for himself?

Chris Leslie (Labour, Shipley)

The hon. Gentleman is clearly talking about himself again. I wish he would not indulge in relating his personal ambitions, but I am sure he will go a long way in politics. There is nothing to stop a Member of the House of Lords being a young person, perhaps with less experience and knowledge of the world than the hon. Gentleman expects. We are therefore focusing on clause 2, which suggests that membership of the House of Lords is inexorably connected with the nature of the reformed ministerial post. It is different from the former office of Lord Chancellor because of the other changes that the Bill makes. It would be perverse to suggest that anyone could be appointed to the post of Lord Chancellor by virtue of a peerage and being put in the House of Lords but not if they were elected, even if an elected person was, by common consent, the best person for the job. It is nonsense.

The person who fulfils the reformed office of Lord Chancellor will be a Minister of Cabinet rank, responsible for more than £3 billion of taxpayers' money. Why prevent for ever the possibility of taxpayers holding to account, through this Chamber, that individual who is responsible for spending their money? Junior Ministers, who answer to the Lord Chancellor, can try their best to account to the elected House, but should not at least the option exist of having the responsible Cabinet Minister account to elected representatives? It would be strange for the House to accept the proposition of the hon. Member for North-East Hertfordshire (Mr. Heald) that any future Lord Chancellor must always be protected from the full force of politics while accepting that his junior Ministers should not be so protected.

In agreeing the concordat that is associated with the Lord Chancellor's reformed functions, the Lord Chief Justice said in evidence to the Select Committee:

"My firm support for the Concordat reflects the fact that I see no difficulty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional Affairs by the Concordat. I do not consider that such a Minister requires any enhanced status or particular title to enable him or her to exercise those functions."

That helps to underline why membership of the House of Lords is an unnecessary qualification for being appointed as Lord Chancellor.

Like many other Ministers in the House of Commons, for example Ministers with perhaps quasi-judicial decision-making responsibilities under the Town and Country Planning Acts, the Lord Chancellor will have to act with neutrality and impartiality in some functions. That should not prevent a Lord Chancellor from being chosen by a Prime Minister from either House of Parliament.

Times change and change is now necessary. Until the 14th century, the Lord Chancellor was always a cleric. Does that mean that we have broken a cardinal rule by departing from that practice? Are we worse off because the Lord Chancellor's duties have evolved since the days when he was primarily a secretary to the King? I do not believe so.

The post of Lord Chancellor has evolved and continues to evolve. It is now time to end the unnecessary qualification that that Minister must be unelected. We should accept the possibility that, one day, the right person for the post might be a Member of the House of Commons. The Lord Chancellor should simply be the best person for the job, sometimes drawn from outside the ranks of elected representatives and sometimes not.

I urge hon. Members to remove clause 2 from the Bill.

Jonathan Djanogly (Conservative, Huntingdon)

Lord Lloyd of Berwick successfully moved an amendment on Report in the other place to require the Lord Chancellor to be a Member of the House of Lords. He made various comments that are worth repeating. He said:

"The issue was, I would submit, very clear; whether the job that I have described, and which was agreed, should be performed by the Lord Chancellor in this House, or whether it could be performed by a Minister in the House of Commons. That was what the debate was actually about.

Yet, the Lord Chancellor now says that all that was in issue was a name, a shell without the kernel, so that the Lord Chancellor would become just another name like the Lord President of the Council and the Lord Privy Seal. I cannot accept that as a fair reading of the debate that took place in Committee."

He continued:

"I therefore come to the fourth and last argument that has been advanced. It is said that the Prime Minister should be free to appoint whoever he wants to run the courts—free to appoint a Member of the other place who is not a lawyer and could be quite junior in Cabinet ranking. That is the real difference between the two sides in this debate. In my view, the task of defending judicial independence in the Cabinet is of such critical importance that it should be given to a senior judge or lawyer who is a Member of this House and not to a politician on his way up the greasy pole."—[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 750–51.]

Peter Bottomley (Conservative, Worthing West)

Is not that point illustrated by the fact that, during the few hours when there was no Lord Chancellor in the botched Cabinet reshuffle, the Government decided to make major changes to the judiciary? That emphasises why we should always have someone around who will say to the Prime Minister and his modernisers, "Don't go so fast with our independent judiciary."

Jonathan Djanogly (Conservative, Huntingdon)

My hon. Friend makes a good point. That strange moment in history was especially bizarre because the Lord Chancellor appeared to say that there was a need to modernise at a time when the constitution was working well rather than waiting until it had become weak. When something does not work and is weak, such as—dare I say it?—the dome, not much appears to be done about it.

Vera Baird (Labour, Redcar)

Will the hon. Gentleman explain how putting the Lord Chancellor in the Lords provides greater protection if the person who is appointed is a young and ambitious peer who hopes to get on in politics?

Jonathan Djanogly (Conservative, Huntingdon)

I shall come to that in a moment. A package of issues is involved here, the conclusion of which is the part of the Bill that we are now defending, and we have to look at those issues in context.

Lord Lloyd of Berwick surmised that the evidence given in Select Committee was almost overwhelmingly in favour of his amendment, citing

"the views expressed by the Law Society; those expressed very firmly by the House of Commons Constitutional Affairs Committee; the views expressed by the noble and learned Lord, Lord Bingham, on many occasions . . . when he was Lord Chief Justice; and in the Law Lords' evidence to the Select Committee, and so on."—[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 753.]

That position is widely held.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

The Committee strongly asserted its view that the occupant of the post should be a senior person who is not looking for further political office. However, not everyone in the House of Lords fits that description, and not everyone in the House of Commons would be disqualified on those grounds.

Jonathan Djanogly (Conservative, Huntingdon)

I thank the right hon. Gentleman for making that point. I shall come to his Committee's recommendation in a moment, and he might wish to comment further then.

Vera Baird (Labour, Redcar)

I am sorry that the hon. Gentleman has said what he just did, because the House of Lords Select Committee did not recommend that the Lord Chancellor should be a peer. Opinion was divided on that issue. Neither did the Committee on which the right hon. Member for Berwick-upon-Tweed (Mr. Beith) serves say whether the Lord Chancellor should be a peer or not. In fact, it expressly stated that it found no compelling argument that he should be. The hon. Member for Huntingdon (Mr. Djanogly) should be careful to ensure that he is right when he says that he is giving the overwhelming view of all sides.

Jonathan Djanogly (Conservative, Huntingdon)

I shall not dispute what the hon. and learned Lady has said. I was quoting from Hansard, and it is on the record. She has made her point and I thank her for that.

The requirement for the Lord Chancellor to be a senior lawyer is part of a package that is represented in clauses 2, 3 and 4. In respect of clause 4, we are saying that, for judicial independence to work, the Lord Chancellor needs to be a Member of the House of Lords and to be a senior lawyer. In effect, we are saying that the Lord Chancellor should not just be a full-time politician like any other running a Department; he should be slightly removed from the intensity of political pressure, in order to fulfil the Lord Chancellor's important historic role of acting as guardian of the rule of law and representative of the judiciary.

That would best be achieved by his being a Member of the House of Lords, because the atmosphere in the other place is less political. Furthermore, a peer would be likely to be a senior individual who had reached the latter stages of his or her career, and would therefore be less likely to be swayed towards unquestioning support for the Government on the basis of a promise of political advancement. Lord Howe of Aberavon said:

"Secretaries of State do not always realise it, but their functions can be shuffled around at will. Secretaries of State are relatively small beer compared with the importance of the Lord Chancellor's position."—[Official Report, House of Lords, 7 December 2004; Vol.667, c. 764.]

That is indeed a sobering thought for the average Secretary of State.

The House of Commons Select Committee on Constitutional Affairs published its report on 25 January 2005. It states:

"Assuming that the House retains the Bill to an extent in the format in which it arrived from the House of Lords, on balance we prefer to keep the office of the Lord Chancellor and its distinctive status, different from that of all other members of the Cabinet, because as we said in our earlier report when contrasting the role of the Lord Chancellor with other ministers, 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 the temptations associated with possible advancement)'."

The report goes on to say:

"Although it may be more likely that someone in the House of Lords as at present constituted has the seniority and lack of aspiration towards further office which we considered desirable, it is by no means certain, and there will be suitable candidates for the post in both Houses."

I take the point that the Committee makes there. However, that is surely overcome to some extent by the flexibility of the other place to appoint people in a faster and more direct way than exists in this House.

The Lord Chancellor should be a politician at the end of his career, not a junior politician on the make. The Lord Chancellor is the guarantor of judicial independence, and the Government's proposals to open the position to a Member of the House of Commons who might be relatively junior and need not have a legal background would weaken the Lord Chancellor's ability to defend judicial independence against more powerful colleagues. The Bill as it stands will help to ensure that the Lord Chancellor's position as the guarantor of judicial independence is maintained. It would strengthen the office, and the Government should leave this clause alone.

Paul Tyler (Liberal Democrat, North Cornwall)

My colleagues and I would like to support the Government in rejecting this requirement and to insist that it is much more important to retain flexibility. Frankly, the arguments adduced by the hon. Member for Huntingdon (Mr. Djanogly) were very dubious indeed.

Oliver Heald (Conservative, North East Hertfordshire)

Will the hon. Gentleman give way?

Paul Tyler (Liberal Democrat, North Cornwall)

Not at this stage; I have hardly started. Let me advance my argument first, then we can see what the hon. Gentleman has to say.

The hon. Member for Huntingdon did not refer to the fact that the concordat, which is extremely important, now accepts that this flexibility would be useful. Furthermore, I reject the selective way in which he quoted from the Select Committee chaired by my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith). It was absolutely outrageous. He left out the vital sentence at the end of the recommendation. He led up to it perfectly properly, by saying:

"Although it may be more likely that someone in the House of Lords as at present constituted has the seniority and lack of aspiration towards further office which we considered desirable, it is by no means certain, and there will be suitable candidates for the post in both Houses."

He did not, however, go on:

"There does not, therefore, seem to be a compelling argument for insisting that the Lord Chancellor must be a member of the Upper House."

Oliver Heald (Conservative, North East Hertfordshire)

The hon. Gentleman has quoted the concordat. Is he aware that Lord Woolf said of the Judges Council that

"the council considered it preferable, but not vital, that the Lord Chancellor should be a Member of this House."—[Official Report, House of Lords, 7 December 2004; Vol. 667. c. 758.]?

So both the Constitutional Affairs Committee and the Lord Chief Justice believe that that is preferable.

Paul Tyler (Liberal Democrat, North Cornwall)

That is not what was said. It was not thought to be essential; even the hon. Member for Huntingdon knows that.

Jonathan Djanogly (Conservative, Huntingdon)

Will the hon. Gentleman give way?

Paul Tyler (Liberal Democrat, North Cornwall)

Let me just advance this argument a bit further. Let us see whether the hon. Gentleman can quibble with this. First and foremost—

Jonathan Djanogly (Conservative, Huntingdon)

Will the hon. Gentleman give way?

Paul Tyler (Liberal Democrat, North Cornwall)

Oh, come on then.

Jonathan Djanogly (Conservative, Huntingdon)

I thank the hon. Gentleman for giving way. He attacked what I said earlier, and it is only fair that I should be allowed to answer him. The point is that I questioned the very conclusion that he has reached. No, I did not quote the whole report, but I addressed the issue to which he has referred, and I questioned it. He might wish to answer the questions that I posed.

Paul Tyler (Liberal Democrat, North Cornwall)

I would like to do so, but first and foremost, the hon. Gentleman should recognise that the Select Committee took evidence and thought very carefully indeed about this issue. Hon. Members on both sides of the House are members of that Committee. Its report stated very clearly that its recommendation was that it was not essential for the Lord Chancellor to be a Member of the House of Lords. That was a balanced judgment from an all-party Select Committee reporting back to the House in very good time so that we could take account of hon. Member's views in our debate this evening. The Select Committee also said:

"The size and budget of the DCA (now over £3 billion) has grown considerably in recent years and it might be thought desirable that its Minister be answerable to the House which controls supply."

Perhaps the hon. Gentleman is about to say that the House of Lords should in future have a role in determining the Supply issue, which has always been an important function of this House. We have always said that the other place should not be able to intervene on issues of that kind, so unless he wants to change the constitution in that way, I am afraid that his argument simply collapses.

That is not the only anomaly in the Conservatives' argument. It is also extraordinary that they think it preferable that this very important post should be held by someone who is basically an appointee of the Prime Minister of the day, rather than that he or she should have a mandate from the electorate. This House provides every single one of us with a responsibility not only to Parliament and to our party, but to our constituents and to the electorate at large. It is curious, as my hon. Friend the Member for Somerton and Frome (Mr. Heath) said on Second Reading, that anyone should

"want to institutionalise that arrangement, so that every future Lord Chancellor—every future Secretary of State for Constitutional Affairs—had to be a crony of the Prime Minister of the day, because only by that patronage does anyone appear in the other place".—[Official Report, 17 January 2005, Vol. 429, c. 597.]

The Conservative party, my party and, I hope, the Labour party are absolutely determined to make the other place an elected House in due course. I think that the hon. Gentleman's party is still signed up to making a majority of those in the other place elected—I believe that 80 per cent. was the last proposal. My party is also committed to the election of a majority of those in the other place. I am not sure about the hon. Gentleman's views, but a substantial number of his colleagues in both Houses—including their leader in the Lords, and the Lord Chancellor himself—are committed to making the other place more democratic and more representative. That, after all, was what all Labour Members of Parliament were committed to at two general elections, and what they had a mandate to implement. It has not happened yet, and I suppose we should not hold our breath.

The hon. Gentleman referred to an anomaly. He assumes a continuation in the other place of appointees of the Prime Minister of the day. If he is now resiling from the policy of his own party, let him say so.

Jonathan Djanogly (Conservative, Huntingdon)

rose—

Oliver Heald (Conservative, North East Hertfordshire)

rose—

Paul Tyler (Liberal Democrat, North Cornwall)

I will respond to an intervention from whichever hon. Member wishes to speak.

Jonathan Djanogly (Conservative, Huntingdon)

The hon. Gentleman is kicking the ball way out of the baseball park—[Laughter]—or even the football ground. How can he pre-empt the form of a future elected upper Chamber? If there happened to be a list system, which his party would presumably propose, a certain number of advocates could be stuck on the list—whoever his party wished.

Paul Tyler (Liberal Democrat, North Cornwall)

You would probably call me to order, Mrs Heal, if I spoke at length about the proportional representation system that I—along with members of the hon. Gentleman's party and members of the governing party—hope to include in a draft Bill in a couple of weeks; but it will not be a list system.

This Bill, we hope, will ensure that the Lord Chancellor of the future is the best person for the job. We would wish to ensure not just that that person was accountable to the Prime Minister and Cabinet of the day, in terms of collective responsibility, but that he or she was accountable to the nation at large through Parliament. We accept the argument that the best way to achieve that is to prevent any discrimination against any individual holding the post.

I find extraordinary the way in which members of the Conservative party so patronisingly describe all those in the other place as being at the end of their careers—on the verge of their dotage, according to the hon. Member for Huntingdon. We believe that the occupant of this important post, responsible for a considerable budget for a very important Department, should be answerable, in the best possible way, to whichever House of Parliament of which he or she is a Member, and through Parliament to the people of this country. It would be absurd to prevent that improvement from being made by the Bill simply because of an assumption that the current Prime Minister will always block real reform of the other place.

We will support the Government in a Division to remove prescription and discrimination that we consider unnecessary and undesirable. We accept the view of the Select Committee, which has thought about the matter very carefully, that on balance it would be best to dispose of this proposal now.

Vera Baird (Labour, Redcar)

It strikes me as absurd that it should be suggested that in a democratic society in the 21st century we should legislate to ensure that a Minister of the Crown with a budget of £3 billion is never to be answerable to the House of Commons. That is an utter democratic absurdity, completely inconsistent with the democratic state that we have reached.

Oliver Heald (Conservative, North East Hertfordshire)

The hon. and learned Lady appears before judges all the time. The Judges Council says that that would be preferable, because it is looking for someone who is not particularly partisan and party political to do the important job of upholding judges' independence. What is wrong with that?

Vera Baird (Labour, Redcar)

Let me make two corrections. First, I do not appear before judges all the time. Unlike several of the hon. Gentleman's colleagues, I am a full-time professional Member of Parliament who does not see this as a part-time job to come to in the evenings. Secondly, Lord Woolf may have mentioned that the Judges Council had thought it preferable, but what he eventually said was this:

"I see no difficulty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional Affairs by the concordat. I do not consider that such a Minister requires any enhanced status or any particular title to enable him to exercise those functions."

I am sure I have made my point firmly enough, but let me repeat it. What other democratic institution anywhere in this century will legislate to remove from democratic control a Minister of the Crown with a budget of £3 billion? The short answer is none. I want to be able to ask, on behalf of my constituents, questions about the organisation of the courts, questions about the use of the legal aid fund, questions about the quantum of the legal aid fund—and that is exactly the right way for politics to be carried out. I should have the Minister in question answerable to me in the House of Commons. The Opposition would legislate to make that utterly impossible, and to emasculate—I wish there were a feminine term—a Member of Parliament, preventing that Member from performing a very important function. That is a democratic absurdity.

What do the Opposition say? They say that even if a Member of the House of Commons is 60 or 70 years old, intent on retiring at the next election with no wish for further advancement, having already shown himself to be a great statesperson who everyone agrees could do the job, he shall be stopped from doing it unless he gives up his constituency, which he may be very happy to serve and which may be very happy for him to serve it. That applies to Members on both sides of the House. The best person for the job, who all in this House may agree is the best person for the job, will be excluded.

Jonathan Djanogly (Conservative, Huntingdon)

Does that extend to the Attorney-General's being in the House of Lords? While we are at it, does the hon. and learned Lady agree that the Attorney-General should be the Lord Chief Justice?

Vera Baird (Labour, Redcar)

Simultaneously or consecutively?

Jonathan Djanogly (Conservative, Huntingdon)

Consecutively.

Vera Baird (Labour, Redcar)

Frankly, it is not a matter to which I have given any thought, but the hon. Gentleman is welcome to intervene and tell me whether he thinks it is a good idea.

Jonathan Djanogly (Conservative, Huntingdon)

I think it is a very poor idea, but can we return to the first point? Does the hon. and learned Lady think that the Attorney-General should be in the Lords?

Vera Baird (Labour, Redcar)

I think it is a moot point. I am very puzzled by the other suggestion, that he should become the Lord Chief Justice; I am not sure where that has come from. I have obviously missed a bit of gossip somewhere along the way. The hon. Gentleman can update me on where he read that.

Shall we stick to the point? Why is it necessary to oust the Lord Chancellor, whoever he may be, from the House of Commons? First, he is no longer to be a judge at all. The Tories were very happy when the Lord Chancellor was a political appointee who appointed the judiciary. That seems to be to be a much more dangerous position than anything currently proposed in the Bill. Indeed, the Bill remedies that. Now, however, the Lord Chancellor will not do that either. He will not appoint the judiciary; as is now, I think, commonly approved, the judiciary will be appointed by a judicial appointments commission, quite separate from the Lord Chancellor. The recommendations will certainly be given to him, but the transparency of the process, and the limitations of his role in that process, make it very clear that he has less potential to intervene in judicial independence and less potential to appoint cronies—not that anyone has ever really suggested that that is what a Lord Chancellor has done. He is not a judge, so why do we need him to be a peer? He does not appoint the judges. Why do we need him not to be in the House of Commons? He is not in charge of discipline for the judges any more. He is not in charge of removal any more, on his own. It is all hedged around with qualifications and limitations. Very little of his role is to be applied to judges. So why is it now necessary to remove him to the House of Lords, when his role in the judiciary is much smaller? It is not necessary to do that to protect the judiciary. If that is why the Opposition say that that should be done, it is incomprehensible in context.

On the concordat with the Lord Chief Justice, he pronounces himself satisfied that there is no threat to judicial independence from anywhere. I have just quoted him. He says that he is perfectly happy that the person should be in either House. He feels that being a peer would make no measurable difference and would not improve the situation. He speaks on behalf of the judiciary. If the judiciary is not concerned that that figure, who will still have an important though much reduced role, should be in the Commons, surely no one has a leg to stand on. Those are the very people whom the Opposition are pretending are likely to be threatened by the presence of the Lord Chancellor in the political hurly-burly.

The Lord Chief Justice himself, who must have been negotiating now for over a year on the issue and gone through it in extraordinary detail, has pronounced himself utterly satisfied that this measure is completely unnecessary. One just gropes around for the reason for the proposal. I cannot find one. It is easily demonstrated that there is much less control over the judiciary now with this official, and therefore less reason to be concerned about his presence in what I call the political hurly-burly without believing that it is worse in here than it is in the other place.

The hon. Member for Huntingdon (Mr. Djanogly) did not do fairly by the two Select Committees that have laboured mightily, reported properly and taken evidence on the issue. He did not say as clearly as he should have done that the House of Lords Select Committee, to which this Bill was, unusually, sent for very careful and long-term consideration, did not say that the Lord Chancellor should be a peer. It was divided on the issue. As has been made clear from the horse's mouth and from the horse's colleague, the Committee of the right hon. Member for Berwick-upon-Tweed (Mr. Beith) did not say anything of the sort either. The hon. Member for North-East Hertfordshire (Mr. Heald) is talking to me all the time about it being preferable. That is a very different thing from it being compulsory.

Oliver Heald (Conservative, North East Hertfordshire)

Of course, it is a different thing. I have never said anything else, but the point is that we want the best and what is preferable is obviously a lot better than what is not.

Vera Baird (Labour, Redcar)

We want the best Lord Chancellor and the best Lord Chancellor may be in this House. The hon. Gentleman will exclude the best person, if he or she is here, from being appointed to that office.

Chris Leslie (Labour, Shipley)

The hon. Member for North-East Hertfordshire (Mr. Heald) has now begun to speak in riddles to justify his point. He talks about it being preferable but the clause that he is advocating reads:

"No person is qualified to be Lord Chancellor unless he is a member of the House of Lords."

It talks not about preference but about "must be". Will my hon. and learned Friend comment?

Vera Baird (Labour, Redcar)

I agree completely.

Oliver Heald (Conservative, North East Hertfordshire)

Is not the key point that, if the measure were passed, the preferable position would have been achieved?

Vera Baird (Labour, Redcar)

The preferable position is achievable now without the that measure. Surely that is not beyond the hon. Gentleman. Let me move on because I am satisfied that it is not beyond him. He is starting to have to talk in riddles because he has lost the rational basis for what he is putting forward. The testimony from all the interested parties, Committees of both Houses and the judiciary is that he is wrong and he is completely out of it, so he is starting to talk in riddles.

The purpose of the measure has nothing to do with judicial independence. Its purpose may be to avoid any suggestion of improper influence in the courts system because of too close control over the Lord Chancellor's appointment by the Prime Minister, perhaps—by any Prime Minister—or too much interference by other politicians. Of course, avoiding allegations of cronyism is very important but it must be said that the current Lord Chancellor is both a peer and a lawyer and that has not avoided such allegations against him. Indeed, on Second Reading, the hon. and learned Member for Harborough (Mr. Garnier) suggested that there was something wrong with the appointment of Lord Justice Potter as the president of the family division because he had been the pupil master of the Lord Chancellor.

Edward Garnier (Conservative, Harborough)

Since the hon. and learned Lady and I had a spat on the last occasion, I checked precisely what I did say. If she looks at the record, I said that there was something illogical about the Government advancing the arguments that they were advancing for a judicial appointments commission when their current Lord Chancellor was prepared to appoint judges in the way that he did. I had no criticism of the individual appointment. Lord Justice Potter will make a very good president of the family division. However, I do not want to get sidetracked. I have some better arguments to put to her in a minute.

Vera Baird (Labour, Redcar)

I doubt whether the hon. and learned Gentleman is going to muster very good arguments but I wait with bated breath for all of them. What he said was:

"The Minister says that the Government want to modernise the operation of the judicial appointments system and make it transparent. Why then did the Lord Chancellor for the transitional period, as he likes to call himself, appoint his pupil master as president of the family division?"—[Official Report, Monday 17 January 2005; Vol. 429, c. 557.]

If the complaint were about a lack of transparency in the current methodology, which is what I think the hon. and learned Gentleman is now suggesting, he could have mentioned the appointment of any judge over the last period after the institution of the Bill, but he did not choose to mention the appointment of Lady Hale, Mr. Justice Bean or Mrs. Justice Dobbs. He chose to mention the appointment of Lord Justice Potter, the pupil master as the president of the family division. It seems that that was a slur. There would have been no point in mentioning that particular individual if it had not been intended to slur the Lord Chancellor. I regret to say that the consequence was that it became dangerously close to slurring Sir Mark Potter, who is an absolutely excellent appointment.

Peter Bottomley (Conservative, Worthing West)

My hon. and learned Friend the Member for Harborough (Mr. Garnier) just said that he was making the point that the present arrangements allowed the Lord Chancellor to pick the new head of the family division. It is a pity that the Committee has had to hear the hon. and learned Lady refer copiously to her notes, which must have been written before my hon. and learned Friend made his intervention, because what she said in the last two or three paragraphs paid no attention to what he said and to what the Committee heard.

Vera Baird (Labour, Redcar)

First, that is utterly incorrect and secondly I am not reading from my notes. I am reading from the Hansard of what the hon. and learned Gentleman said last time. Would the hon. Gentleman like to borrow it? I am happy to hand it across.

Peter Bottomley (Conservative, Worthing West)

I repeat, my hon. and learned Friend said that he was illustrating the present method of appointment. Everything that the hon. and learned Lady said after that ignored what he said and that may not be regarded as the greatest courtesy to the Committee.

Vera Baird (Labour, Redcar)

The hon. Gentleman is wrong yet again. I heard what the hon. and. learned Gentleman affected to have said last time. That is what he has tried to put right tonight. I have read what he did say last time and what he said last time was a calculated slur on the current Lord Chancellor for seeking to "appoint his pupil master". Otherwise, as I have said, if the complaint is about the lack of transparency, why not complain about that lack in the other 10 judicial appointments made over the last few months? The position is utterly clear. It does not matter how many times the hon. Member for Worthing, West (Peter Bottomley) rises, he cannot erase what was said in Hansard.

The fact that the current Lord Chancellor is a peer has not stopped him from being slandered on the basis that he is somehow inappropriate and not independent because he was once the flatmate of the Prime Minister. That, too, has been said innumerable times by Conservative Members. Neither has being a peer or, indeed, a lawyer, protected him from the allegation that he is inappropriate because he did not stop the ouster clause from being placed in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, though, of course, that never happened. Scandalous and silly attacks against the current Lord Chancellor have been made and the fact that he is a peer has not protected him from them.

It is ironic that the very party that has tried to use the fact that the current Lord Chancellor is known to the Prime Minister and was appointed to the peerage to become Lord Chancellor by the person who was his flatmate when they were both lawyers as evidence that the system is somehow under threat from the Prime Minister's cronyism is the same party that is now saying that the way to protect the legal system from an inappropriate threat is to ensure that the next Lord Chancellor has exactly the same professional qualifications as a senior lawyer and exactly the same status as a peer as the current Lord Chancellor. Conservative Members repeatedly say the opposite of what they previously said from one week to the other, tying themselves in silly knots. The current Lord Chancellor is, incidentally, an absolutely excellent holder of that office—and he would be if he were in the House of Commons.

What protection are we to derive from the fact that the next Lord Chancellor must, if the Tories have their way, be a peer? Well, we would be so well protected that Lord Archer or anyone else in the peerage who had been convicted of a criminal offence could become Lord Chancellor. Such people are not debarred from holding their peerage. I guess, also, that the son of a son of a son of a son of a son of a notable peer, in whom the strain of high merit has grown a little thin over the years, could equally be appointed Lord Chancellor. By the skin of our teeth, we have just escaped the possibility that the Lord Chancellor could be someone convicted in South Africa of being involved in an attempted coup against the Government of Equatorial Guinea—the son of a former Prime Minister. Happily, he has only a hereditary baronetcy, but it is pretty close. [Interruption.] Some Conservative Members are acknowledged experts in the ranking of the hereditary peerage and have a degree of understanding way beyond my own in that respect.

That shows how much protection there is in ensuring that someone is a peer. It does not make the slightest bit of sense. It is clear that making the Lord Chancellor a peer provides no protection. It is the calibre of the person that matters, and the calibre can be high, irrespective of whether he or she is chosen from the House of Commons or the other place. The overwhelming case for him to be in the Commons centres on the answerability argument.

Let me now deal with the second proposal—that the Lord Chancellor should be a senior lawyer. It is not just a senior lawyer, though, but one with particular qualifications—

George Stevenson (Labour, Stoke-on-Trent South)

Order. The hon. and learned Member will know that the issue of the Lord Chancellor being a lawyer is dealt with in clause 3, which we shall come to in a moment. We are currently debating the particular issue of membership of the House of Lords.

Vera Baird (Labour, Redcar)

I am grateful for that guidance. The hon. Member for Huntingdon in opening for the Opposition, referred to the two issues as a package, so it seemed right for me to deal with them in the same way, but I shall return to that matter later.

Edward Garnier (Conservative, Harborough)

I shall not follow the hon. and learned Lady down the somewhat acerbic and personalised route that she took, because doing so advances neither her own arguments nor the general tenor of the debate. She is, of course, perfectly entitled to make her remarks and deliver them in whatever tone she wishes. I would not want to prevent her from doing so.

I would like to concentrate on some of the differences in the two sides of the argument, not because I believe that one side is necessarily right and the other necessarily wrong, but because I merely want to express my opinion. I am not saying that, if either or both of clauses 2 and 3 were removed from the Bill, civilisation as we have known it for the last 3,000 years would cease to exist. It is silly to put such arguments into our minds, but it is important to appoint the best person for the job of Lord Chancellor.

Given how the Bill has been amended and how the functions of the office of Lord Chancellor are to be radically changed, it would be more honest, in the end, to describe the Secretary of State for Constitutional Affairs—the head politician of the £3 billion a year public Department—as the Lord Chancellor. The person who will hold the title of Lord Chancellor after the Bill is enacted will not be a Lord Chancellor as we have all understood it for the past 30, 40, 50 or perhaps 100 years. He will still less be the same sort of Lord Chancellor who existed in the days of Henry II or even Henry VIII. We are dealing with the title "Lord Chancellor" differently from how Lord Irvine, Lord Gardiner, Lord Hailsham, Lord Kilmuir and any other relatively recent, but not extant, Lord Chancellor would have understood it.

I described the Bill and clause 1 as intellectually dishonest, and there is something intellectually dishonest about pretending that the Lord Chancellor will be anything but a politician who heads a spending Department. The title will be continued for political convenience and to prevent people from having hissy fits about its removal, but the job will not.

We must be clear about the situation. I am perfectly prepared to have a Lord Chancellor with functions and a remit that are much more restricted than those of the current holder of the office. In the 1950s, the Lord Chancellor's Department had a tiny number of civil servants and little spending power. Beyond his ceremonial role, the Lord Chancellor did little more than chair the House of Lords and deal with the appointment of the judiciary. The judiciary was taken only from the Bar of England and Wales in the 1950s. There were only between 2,000 and 3,000 barristers in those days—perhaps not even as many as that—so it was perfectly possible for the Lord Chancellor personally to know the candidates from the Bar of England and Wales who would be of suitable quality for high judicial office.

I understand that that is no longer possible. The Bar of England and Wales now numbers between 10,000 and 12,000 people and there are about 70,000 to 80,000 practising solicitors in England and Wales. Those people form the pool from which the judiciary may be selected, so the Lord Chancellor cannot possibly be expected to know all 80,000 to 95,000 lawyers who could be eligible for judicial office. The Lord Chancellor's job and functions are thus completely different from those in the 1950s and the early 1960s, but for all sorts of reasons—good and bad—we want the title to continue. As I said a moment ago, however, we are misleading ourselves if we think that the Lord Chancellor, as head of the Department for Constitutional Affairs, is doing anything like the job of the old Lord Chancellor.

We also fool ourselves and perhaps get into a bit of a muddle if we try to rely on the words of Lord Woolf as being for or against the argument. During the previous Parliament, the then Home Secretary—he is now the Foreign Secretary—thought it appropriate to rely on extracts of correspondence that he had had with the then Lord Chief Justice, Lord Bingham. He made the mistake, as others have done in court and perhaps in the Chamber, of reading only an extract. He cited the extract in support of the Government's policy to curtail jury trials, but if he had read the whole letter, he would have discovered that the then Lord Chief Justice's views on the matter were not as he hoped that the House would understand. Similarly, those who agree with the Government's view on clause 2 should not look for too much support for their position in what Lord Woolf has said, or is reported to have said. There are two reasons for that. First, I suspect that his views, as expressed publicly, are designed to lead to some sort of compromise and are not necessarily the views that he might express in private. I have not discussed the matter with him, so I have no way of proving that one way or the other. I merely caution Members against relying too much on extracts from letters or documents penned by the Lord Chief Justice in support of arguments that they want to make.

The rest of the debate is in Hansard.