Orders of the Day — Constitutional Reform Bill [Lords] — [3rd Allotted Day]

House of Commons, 1 March 2005.

Clause 8 — Head and deputy head of criminal justice

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 360, in page 4, line 29, at end insert 'in England and Wales'.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to discuss the following amendments:

No. 352, in page 4, line 34, at end insert 'in England and Wales'.

No. 353, in clause 9, page 5, line 2, at end insert 'in England and Wales'.

No. 354, in clause 9, page 5, line 4, at end insert 'in England and Wales'.

Dominic Grieve (Conservative, Beaconsfield)

I have a slight impression of living in the Chamber at the moment, but I hope that the afternoon will be a little more tranquil than yesterday.

The amendments are probing; they were designed, as the Minister will see, to write it into the Bill that when we are talking about a head and deputy head of criminal justice or a head and deputy head of family justice, we are dealing with England and Wales. I realise that that is what the Minister intends us to be dealing with. I certainly did not read the Bill as suggesting that we were covering Northern Ireland. I just wondered whether that should be clarified and whether there was any harm in not clarifying it.

It is noticeable that when clause 7 refers to the president of the courts in England and Wales it makes explicit to whom we are referring. While Scotland does not bother me, in the sense that it is a completely different jurisdiction, it seems to me that the amendment might just tidy up the Bill somewhat.

Chris Leslie (Labour, Shipley)

I echo the comments made by the hon. Member for Beaconsfield (Mr. Grieve). I am looking forward to a tranquil but quite long afternoon, looking at the weight of business in front of us.

Clauses 8 and 9 create new judicial leadership roles in criminal and family justice, namely, the head of criminal justice and the head of family justice. The first role will be exercised by the Lord Chief Justice or a person appointed by him. The second role will be exercised by the president of the family division. Those new offices will exist in the judicial system of England and Wales only. In Scotland, such responsibilities are the preserve of the Lord President of the Court of Session, and new equivalent clauses are being tabled for Northern Ireland.

While I understand the rationale for the amendments, I do not think that they are necessary, not least because clause 119 explicitly states that clauses 7, 8 and 9 extend only to England and Wales. There can be no possible ambiguity with the present titles in view of the extent provisions; they can apply only in the judicial system of England and Wales. The amendment would cause more confusion, as the statutory title Head of Civil Justice, which is established separately under the Courts Act 2003, does not refer to England and Wales. That title is not "Head of Civil Justice in England and Wales", even though it extends only to England and Wales.

So, first, as it is not necessary because of the nature of clause 119 and, secondly, for the sake of consistency with other statutory titles in the Courts Act 2003, I hope that the hon. Gentleman will recognise that the amendments are not necessary.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his response. I accept his comments, and will ask in a moment for leave to withdraw the amendment.

The Minister alluded to the size of the scrutiny that we have to carry out this afternoon. At the risk of straying a little from the precise matter under discussion, I should like to put it on record that it is unsatisfactory that we should have to consider hundreds of Government amendments at a late stage in the proceedings on the Bill. That is not because the amendments are contentious; many of them are not. However, their sheer volume makes proper scrutiny extremely difficult. I hope the Minister will take that back when considering how Bills are proceeded with in future.

Chris Leslie (Labour, Shipley)

I understand the position taken by the hon. Gentleman and I hope that in the course of today's business, which has broadly been agreed through the usual channels, we will be able to focus on matters of substance. The great majority of the amendments are consequential or supplemental to other principal aspects of the Bill. I hope we will not neglect debate on any signal or important aspects, and I do not anticipate that that will be the case.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I had not intended to make my comment at this stage, but as the issue has been raised, I shall do so. I have been observing progress on the Bill from a distance. My hon. Friend the Member for Somerton and Frome (Mr. Heath) has been doing the work and sends his apologies today. I am trying to catch up and deal with it. That gave me a chance to reflect on the huge number of amendments.

I make two observations. I accept that many are drafting and tidying-up amendments, and there are not many significant amendments. That will be reflected, I anticipate, by the relatively small number of votes today. However, if at this stage in the Bill we are dealing with so many amendments, of which almost all are Government amendments, that shows how necessary it is for Bills of constitutional significance to receive proper consideration. This is such a Bill, and it was considered at length in the House of Lords. Amendments such as those that we are debating, relating to the names of courts, whether they refer to England and Wales as well as Scotland, or whether they have United Kingdom titles, were debated and rightly so, because the courts have different names and traditions in different parts of the United Kingdom.

The Bill is a constitutional measure and we are giving it relatively good scrutiny, even though there is so much to amend at a late stage. That contrasts with the Bill that we considered yesterday, which was about the substance, not the process, of what the courts do. On that we had almost no chance for debate on—

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

Order. I have allowed the debate to go a little wide of the amendments before us. The remarks that have been made will be noted. I hope that we can now confine our remarks to the amendments under discussion.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I respect that, of course. I was trying to be careful about mentioning the names of courts, to make sure that I was well and truly in order, but I shall come back to that.

This is a small debate, which is quite proper, about the title of courts and the title of people in the courts. I hope we will learn the lesson that we need to give greater consideration to matters of substance, which are much more important.

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

I could make a similar comment about the sheer quantity of Government amendments, which cover provisions from the 16th century to the 20th century amending other statutes. That presents a practical problem for those who have to deal with it, and further illustrates the folly of trying to abolish the office of Lord Chancellor on a Thursday afternoon and discovering that it takes about a year to find out the vast extent of his functions.

The amendment relates to courts in England and Wales, and it is apposite to remind ourselves that we are not looking sufficiently carefully at the different implications of the legislation for England and Wales and for Scotland. I point out by way of illustration that it became clear at a Committee hearing this morning that the sort of powers conferred later in the Bill to make court rules for Northern Ireland, for example, do not arise from this Bill or from the Prevention of Terrorism Bill, which we discussed yesterday. It will not be possible for the Government to make rules imposing Special Immigration Appeals Commission procedures on the Court of Session in Scotland. In drawing attention to an England and Wales element in the present clause, the Conservative Opposition have usefully reminded us that we need to be careful about the different ways in which the two pieces of legislation impact on the different jurisdictions of the United Kingdom.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the right hon. Member for Berwick-upon-Tweed (Mr. Beith) for his comments, which echo the reasons why I saw fit to highlight the issue. I also agree with the hon. Member for Southwark, North and Bermondsey (Simon Hughes). Subject to those matters, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 25, in page 4, line 37, leave out 'Minister' and insert 'Lord Chancellor'.—[Mr. Leslie.]

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

Chris Leslie (Labour, Shipley)

I spoke earlier about the creation of the new judicial leadership roles and how, in clause 8, the head and deputy head of criminal justice are being created. I do not feel that I need to comment further.

Dominic Grieve (Conservative, Beaconsfield)

I welcome the creation and formalisation of the positions of deputy heads. In practice we have had a deputy head of criminal justice. There is ample evidence to show that that post was badly needed because of the over-burdening of the Lord Chief Justice with administrative work and the management of the courts. A deputy head of family justice has recently been created and I have no doubt that that is a desirable move as well. The formalisation of those posts is a sensible move, which I welcome.

Question put and agreed to.

Clause 8, as amended, ordered to stand part of the Bill.

Clause 9 — Head and deputy head of family justice

John Bercow (Conservative, Buckingham)

I hope I am not too late to ask the Minister a question about subsection (3), which at least in part replicates a provision of clause 8. I do not feel the need to expatiate at length on this important matter. I know that you, Mrs. Heal, will be relieved by that, as will the Minister, my hon. Friend the Member for Beaconsfield (Mr. Grieve) and representatives of the Liberal Democrats. It is purely a quizzical inquiry on my part.

Subsection (3) tells us that the Lord Chief Justice must not appoint a person under subsection (2)—that is, a deputy head of family justice—unless two conditions are met. One of those conditions is that the Minister has been consulted. I cannot criticise the subsection on the grounds that it is verbose. It is not. It is extremely short and pithy. However, I would welcome an explanation from the Minister as to exactly what that consultation must embrace. Is it a case of consulting the Minister and being guided by him or her, or is it simply a formal process of informing the Minister of the wish of the Lord Chief Justice, satisfying the Minister that that person is not of suspect character, and the decision then resting? I should like to be clear about what exactly is entailed. It is a very innocent inquiry, as are most of my inquiries, Mrs. Heal, as I am sure you will testify.

Chris Leslie (Labour, Shipley)

The hon. Gentleman is indeed exceptionally innocent and we love him for that, or at least I used to think that it was an endearing characteristic. Clause 9(3) contains the requirement for the Lord Chief Justice to consult the Lord Chancellor on who may be a suitable person for appointment as deputy head of family justice. It is apposite that the hon. Gentleman raises that matter because, at many other points throughout the consideration of the Bill, we will look at the difference between consultation and concurrent agreement between the Lord Chief Justice and the Lord Chancellor. The concordat between the two has in many ways framed the partnership that forms so much of the Bill.

In short, consultation does not require the Lord Chancellor or the Lord Chief Justice to do what the other expressly wishes to happen—it is a consultation—but the spirit of partnership will prevail. There will be an expectation that the one will seriously consider the views of the other party. Ultimately, however, the decision, as the clause sets out, rests with the Lord Chief Justice. I hope that that helps the hon. Gentleman to elaborate on that point, and I am grateful to him for raising it.

John Bercow (Conservative, Buckingham)

I am satisfied.

Question put and agreed to.

Clause 9, as amended, ordered to stand part of the Bill.

Clause 10 — Powers to make rules

Chris Leslie (Labour, Shipley)

Clause 10 introduces schedule 1, which provides for the transfer and amendment of functions relating to rule-making powers that are not made by rule committees but which are currently conferred on the Lord Chancellor alone. The making of rules of procedure for courts is clearly a judicial matter and the power will transfer to the Lord Chief Justice as detailed in schedule 1. However, the Lord Chancellor must have involvement in rules that may impact on his duty to ensure the efficient running of the administration of the court system. Therefore, as agreed with the Lord Chief Justice, his concurrence will be required.

The Lord Chancellor will also have a more general power to require changes to be made to existing rules, or to make new rules to achieve a desired outcome. That mirrors the proposals for rules made by rule committees.

Question put and agreed to.

Clause 10 ordered to stand part of the Bill.

Schedule 1 — Powers to make rules

Chris Leslie (Labour, Shipley)

I beg to move Government amendment No. 490.

Chris Leslie (Labour, Shipley)

These are purely technical amendments to schedule 1 and are consequential to amendments made elsewhere in the Bill in relation to the Lord Chancellor's rule-making powers. Amendment No. 490 to section 5 of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1996 clarifies that the rule-making power under section 5(1) of the Act is to be exercisable in accordance with the rule-making procedure under section 5(6), rather than the procedure under section 5(2).

Section 65(3) of the Mental Health Act 1983 relates to the exercise of jurisdiction of mental health review tribunals, subject to rules made by the Lord Chancellor under that Act. The Bill currently repeals the reference in subsection (3) to rules made "by the Lord Chancellor". Following reinstatement of the Office of Lord Chancellor, that reference will remain correct, and amendment No. 370 ensures that it is not repealed. I hope that these technical changes will stand in the Bill.

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

It is perhaps an opportune moment to point out that, whereas schedule 1 makes provision for the Lord Chief Justice or a judicial officer nominated by the Lord Chief Justice with the agreement of the Minister to make designated rules, the legislation that went through the House like a dose of salts yesterday goes in the opposite direction and gives the Lord Chancellor the power to make rules, subject to consultation with the Lord Chief Justice in matters relating to the subject matter of that Bill.

The schedule applies only in England and Wales. To exercise any rule-making power in relation to Northern Ireland, the Lord Chancellor has to bring forward a statutory instrument, which I think requires an affirmative order. The situation in Scotland is different again, in that he has no power to make rules and indeed the Government have no power to enforce upon the Court of Session any particular set of rules. It is a bit puzzling that, on Monday, we gave the Lord Chancellor responsibility to make rules subject to consultation with the Lord Chief Justice, while on Tuesday we are affirming that it is the Lord Chief Justice who makes rules subject to the agreement of the Minister.

Perhaps the Under-Secretary of State for Constitutional Affairs, the hon. Member for Shipley (Mr. Leslie), could reflect on that point and throw a little light on the situation.

Dominic Grieve (Conservative, Beaconsfield)

I endorse what the right hon. Member for Berwick-upon-Tweed (Mr. Beith) has said. It is central to the Government's proposals, as I see them embodied in this Bill, that there should be no suggestion of political ministerial interference in the way in which rules of court are drawn up. The Government were certainly proposing yesterday a form of judicial process for dealing with those against whom there was suspicion of being implicated in terrorism. It is very strange that in yesterday's Bill the formula that was proposed for the rules being made should be so different from the one the Minister is now properly putting forward.

I hope that the Minister will be able to respond to that point. It seemed axiomatic from the presence on the Front Bench yesterday of the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy), that there had been at least discussion with the Department for Constitutional Affairs in relation to yesterday's anti-terrorism Bill. I hope that the Minister will take the opportunity, as we are in a discursive frame of mind, which perhaps yesterday was difficult to pursue, to explain why he is going down this sensible route, while in an area where it would appear that a judicial process of some description is being set up, he is not following it.

Ross Cranston (Labour, Dudley North)

I think that the correct position is that, under the Bill that was considered yesterday, the Lord Chancellor has discretion to formulate the first set of rules, but under schedule 1 to this Bill, if the Lord Chancellor does not do that, those rules will be made in the ordinary way. Certainly, subsequently, once those rules are launched, they will be dealt with by amendment and by substitution in the ordinary way. The argument that is being advanced is not relevant to the Bill that we are considering.

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

I encourage my good colleague on the Select Committee on Constitutional Affairs and the Minister to reflect on one further point. In order to achieve what the hon. and learned Gentleman has just described for the purposes of the Prevention of Terrorism Bill, the Lord Chancellor could have simply relied on the schedule that we are now discussing. I do not understand why it was felt necessary to include those provisions yesterday. Paragraph 5(1) of schedule 1 allows the Minister to give the Lord Chief Justice

"written notice that he thinks it is expedient for designated rules to include provision that would achieve a purpose specified in the notice."

That seems to go directly to the situation that we have in the other Bill. The Lord Chancellor may be concerned that certain kinds of evidence need protection and therefore the rules of the court may have to preclude the person who is the subject of the proceedings being fully aware of the evidence against him, or even of what he is charged with or described as having done. A specified purpose could be put in the notice. In order to protect national security, the rules must make provision for certain parts of the evidence not to be disclosed. That is quite a controversial provision. It did not need the sledgehammer of yesterday's legislation to do that, because the Minister has provided for it in the schedule. I refer again to paragraph 5(1):

"This paragraph applies if the Minister gives the Lord Chief Justice . . . written notice that he thinks it is expedient for designated rules to include provision that would achieve a purpose specified in the notice."

Why is that not good enough?

Chris Leslie (Labour, Shipley)

I understand that there is a sort of overflow of feeling from yesterday's proceedings on the part of some hon. Members, although I have to admit in my defence that I was not the Minister for the Prevention of Terrorism Bill. Therefore I will not be drawn into that, not least because we are talking about Government amendments Nos. 490 and 370, which are pretty far removed from that point. However, I understand the issue that has been raised.

My hon. and learned Friend the Member for Dudley, North (Ross Cranston) is correct. He rightly explained that the arrangements that are set out in the Prevention of Terrorism Bill, which we discussed yesterday, are special. In any case, my understanding is that the rule-making arrangements in that Bill, for example, are UK-wide, not just England and Wales-wide, and that the same approach is taken with respect to the similar UK-wide rules in the Constitutional Reform Bill. If I am wrong, I apologise in advance to the right hon. Member for Berwick-upon-Tweed (Mr. Beith).

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

The Lord Chancellor confirmed in open session this morning that the powers in the Prevention of Terrorism Bill, as opposed to those that we are discussing now, are not UK wide. That is to say that no Minister has the power to direct the Court of Session to have certain rules. That provision simply does not exist and the Lord Chancellor confirmed as much today, so the Minister may be basing his argument in such a complex area on a mistaken premise.

Chris Leslie (Labour, Shipley)

I will certainly defer to the judgment of my superior, the Lord Chancellor. As one of his junior Ministers, I would not seek to demur from his judgment. My general point, which was not related to the Prevention of Terrorism Bill, was that there are slight differences between UK-wide rule-making arrangements and England and Wales-wide arrangements, and that those are set out in different provisions in the Constitutional Reform Bill. I understand and hear what hon. Members say on that, but ultimately I do not think that that affects the validity of Government amendments Nos. 490 and 370.

Amendment agreed to.

Amendment made: No. 370, page 56, line 26, leave out paragraph 15.—[Mr. Leslie.]

Schedule 1, as amended, agreed to.

Clause 11 — Powers to give directions

Chris Leslie (Labour, Shipley)

The clause introduces schedule 2, to which there are substantive amendments later and which provides for the transfer of functions in connection with practice directions.

As with rules, the making of practice directions for courts and tribunals is clearly a judicial matter and that power will transfer from the Lord Chancellor to the Lord Chief Justice. However, the Lord Chancellor must have some involvement in practice directions that may impact on his duty to ensure the efficient running of the administration of the court system. Therefore, as agreed with the Lord Chief Justice, the Lord Chancellor's concurrence will be required for making directions.

It would be inappropriate, however, for the Lord Chancellor to have a power to intervene in making directions that concern guidance as to the law or the making of judicial decisions. Therefore, his concurrence will not be required for those types of directions. Further, the Lord Chancellor should not have a veto over directions that concern the criteria for allocating judges to hear individual cases. Those are essentially a judicial matter, but about which the Lord Chancellor, as the responsible Minister, should be consulted.

In practice, the power to make directions would usually be delegated by the Lord Chief Justice to the heads of division. Others may make directions only with the consent of the Lord Chief Justice and the Lord Chancellor.

Dominic Grieve (Conservative, Beaconsfield)

I was going to engage in a small debate on amendment No. 371, which we shall reach in a moment. It would almost be possible to do that now, but, in order to follow properly the rubric, I am happy to restrain myself and simply flag up to the Minister that I shall return to the issue in a moment.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I have one question for the Minister that, again, he can answer now or in the next debate. He has alluded to the fact that, as we know, there has been discussion with the judiciary as a whole. Can he indicate whether there are any matters that are the subject of Government amendments today that do not have the agreement of the judiciary? Is there any remaining area of controversy between the Government and judges following all the consultation, particularly in relation to the transfers of powers from one office holder to another, as proposed in the Bill?

Chris Leslie (Labour, Shipley)

My understanding is that there are no more areas of dispute on amendments to the Bill between the Lord Chief Justice and the Lord Chancellor. After so many months—years, even—of consideration of the Bill, I am glad that we have now achieved consensus with the judiciary on its contents.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.

Schedule 2 — Powers to give directions

Chris Leslie (Labour, Shipley)

I beg to move amendment No. 371, in page 59, line 10, at end insert—

'(2A) Sub-paragraph (1) does not apply to designated directions to the extent that they consist of criteria for determining which judges may be allocated to hear particular categories of case; but the directions may, to that extent, be made or given only after consulting the Lord Chancellor.'.

Chris Leslie (Labour, Shipley)

At present, schedule 2 provides a uniform mechanism for making practice directions across all jurisdictions and in all levels of court. It provides for the Lord Chief Justice to make practice directions with the concurrence of the Lord Chancellor, except, as I explained earlier, where those directions relate to the application and interpretation of the law or judicial decisions.

The exception to that general approach, agreed in the concordat, is where the practice directions relate to deciding the appropriate level of judge to hear particular classes of case. It was agreed that for those directions the Lord Chief Justice would be required only to consult with the Lord Chancellor rather than to seek his concurrence. Amendments Nos. 371 to 375, agreed with the Lord Chief Justice, qualify the existing practice direction-making mechanisms in schedule 2 in relation to that class of practice directions.

In cases where directions set out criteria for allocating judges to hear particular categories of case, the Lord Chancellor will be consulted rather than required to give consent. That is in recognition of the fact that such directions are essentially matters for the judiciary, after taking into account any ministerial views.

Dominic Grieve (Conservative, Beaconsfield)

I am mindful of what the Minister has said, but on reflection I wonder why it is felt that the Lord Chancellor needs to retain control over the allocation of judges to hear particular categories of case.

I appreciate that the role of the Lord Chancellor will be to continue to ensure the smooth overall administration of the courts process. Also, I am obviously reassured by what the Minister said about the fact that the Lord Chancellor will not have the power to allocate a particular judge to a particular case. That is important, because, given the Government's wish to ensure judicial independence or a move towards the separation of powers—I prefer the expression "judicial independence"—any suggestion that a tame judge is being appointed to deal with a case that might be controversial for the Government must be avoided.

Equally, however, I wonder to what extent it can be seen as part of administration, rather than simply the sensible working procedure of the courts, that the Lord Chancellor should be able to allocate particular categories of cases. Those who will know which judges are best suited to dealing with certain categories of cases are going to be the heads of division—or, indeed, the Lord Chief Justice. Why, then, the continuing need for the Lord Chancellor to make the decision, even if it is in consultation with the Lord Chief Justice?

The reality, as I understand, is that the Government are keen to move towards greater flexibility—that is, judges moving around more between different categories of case, if such cases are in their expertise and, I dare say, if those judges have received the proper training from the judicial studies board. In those circumstances, why not leave it to the Lord Chief Justice to make the decisions? Why involve the Lord Chancellor and give him a right of veto? After all, if the system is breaking down the Lord Chief Justice ought to be in a position to do something about it.

I am probing a little. It would be helpful if the Minister would amplify his remarks.

Chris Leslie (Labour, Shipley)

I understand and in some ways agree with the hon. Gentleman that heads of division are often best placed to know about some of these matters, but that is the rationale behind some of our amendments. They move away from the consent requirement to a requirement for consultation. The hon. Gentleman seems to be suggesting that the consultation element itself is not necessary, although I think he must admit that there is a residual public policy interest in knowing the level of a judge who is to hear a particular class of case. We think that we are striking the right balance in moving away from the concurrence requirement, and I feel that in some respects that is in the spirit of the hon. Gentleman's argument.

Dominic Grieve (Conservative, Beaconsfield)

The Minister and the Government have been moving in what I regard as a very sensible direction. The question is, why have they not gone further?

I hope I have understood the position correctly. In the Crown court there are some judges who, as we barristers used to say, have their licence to kill: although they are Crown court judges, they are entitled to hear murder cases. The same applies to rape and other very serious offences. As I understand it, the Lord Chancellor will retain a determining direction over that category of cases. Why? The person who will actually make the decision is the Lord Chief Justice.

I must make a concession to the Minister, and accept that there is a logistics issue. One of the reasons for identifying judges who can hear particular categories of case is need. If there is a discussion between the Lord Chief Justice and the Lord Chancellor, the Lord Chief Justice may say "We need more judges on the south-eastern circuit who can try murder cases." I believe that there are three or four Crown court judges who are clearly capable of doing that, but in those circumstances why cannot the Lord Chief Justice do it on his own?

There may well be a large number of other categories that can be considered. A Crown court judge may be doing only general civil work, family law work or work on children's law. The list is endless. I also recognise that there is a lock-on effect. If—in, I suppose, a reversal of the process—the Lord Chief Justice were to say that a particular judge should no longer deal with a particular category of case, which does occasionally happen when it is felt that a judge does not show enough familiarity with a category, the Lord Chancellor may be required to say that the Judicial Appointments Commission should think of appointing another judge to boost the number.

I realise that a dialogue will be necessary, but I do not quite understand why the buck must stop with the Lord Chancellor. The Minister may be able to provide complete reassurance on that, however.

Chris Leslie (Labour, Shipley)

I understand where the hon. Gentleman is coming from, but the buck would not stop with the Lord Chancellor. As I have said, the amendments move away from concurrence towards consultation, which ultimately gives the power to the Lord Chief Justice. I think that consultation is necessary simply for the smooth running of the courts, which are of course a partnership between the judiciary and the Executive when it comes to administrative, resourcing and staffing requirements. We need to know if the Lord Chief Justice feels that a different level of judge should hear a particular class of case. For information purposes as much as anything else, we feel that a consultative element is needed. I hope that that satisfies the hon. Gentleman.

Dominic Grieve (Conservative, Beaconsfield)

The Minister's argument was extremely cogent, and I am happy to accept it. I accept, of course, that the amendments move away from concurrence; but I hope that the Minister will forgive me if I say that I am always slightly hesitant when something can be done only after someone else is consulted. Although the amendments allow for the possibility of the Lord Chief Justice consulting the Lord Chancellor and, after the Lord Chancellor has said no, going ahead with his action, I suspect that in reality, considerable influence over the decision-making will remain with the Lord Chancellor. Nevertheless, I understand the Minister's point.

Amendment agreed to.

Amendments made: No. 372, page 59, line 11, after 'If', insert 'sub-paragraph (1) applies but'.

No. 37, page 59, line 11, leave out 'Minister' and insert 'Lord Chancellor'.

No. 38, page 59, line 12, leave out 'Minister' and insert 'Lord Chancellor'.

No. 373, page 60, line 14, at end insert—

'(6) Subsection (2)(a) does not apply to directions to the extent that they consist of criteria for determining which judges may be allocated to hear particular categories of case; but the directions may, to that extent, be given only—

(a) after consulting the Lord Chancellor, and

(b) with the approval of the Lord Chief Justice.'.

No. 374, page 60, line 33, at end insert—

'(5) Subsection (2)(a) does not apply to directions to the extent that they consist of criteria for determining which judges may be allocated to hear particular categories of case; but the directions may, to that extent, be given only—

(a) after consulting the Lord Chancellor, and

(b) with the approval of the Lord Chief Justice.'.

No. 375, page 61, line 7, at end insert—

'(5) Subsection (2)(a) does not apply to directions to the extent that they consist of criteria for determining which judges may be allocated to hear particular categories of case; but the directions may, to that extent, be given only—

(a) after consulting the Lord Chancellor, and

(b) with the approval of the Lord Chief Justice.'.— [Mr. Leslie.]

Schedule 2, as amended, agreed to.

Clause 12 — Transfer of appointment functions to her majesty

Chris Leslie (Labour, Shipley)

Clause 12 introduces schedule 3, which provides that appointments to the judicial offices listed in it will in future be made by Her Majesty The Queen on the recommendation of the Lord Chancellor, rather than by the Lord Chancellor himself. The appointments are those of district judges, High Court masters and registrars, and the senior district judge or chief magistrate. The relevant appointing provisions are amended, and the power to assign district judges to districts and district registries is transferred from the Lord Chancellor to the Lord Chief Justice. The power to determine the salaries of civil district judges and High Court masters and registrars is made subject to the proviso that their salaries cannot be reduced, which brings them into line with the district judges (magistrates courts) and more senior members of the judiciary. Those appointments are also listed, with others, in schedule 12, meaning that they are in future to be made on the basis of selection by the Judicial Appointments Commission.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I have a factual question for the Minister, which he may be able to answer now or may answer when we debate the schedule. It may have been covered earlier, but as far as I am aware, it has not been.

What is the maximum number of district judges whom we are currently allowed to have in England and Wales, and how many are currently in office? What is the maximum number of High Court masters and registrars and the number in post, and what is the maximum number of senior district judges—the old chief magistrates?

I have a supplementary question about chief magistrates. The change in terminology is still relatively recent. When people went along to the magistrates courts, they used to know the person who, they are now told is the senior district judge, as the local stipendiary magistrate or the local resident magistrate. Will those appointed according to this process always be appointed with a geographical title attached to their appointments? For example, if someone were appointed to the Tower Bridge magistrates court would that be the appointment, and if that person were then moved would the move take place formally or could that person informally, without any process, be transferred from Tower Bridge to Camberwell Green or from Camberwell Green to Greenwich? Would he be attached to his court from now on, or would he be appointed and, once appointed, be able to be moved around according to the jurisdiction of his superiors?

Chris Leslie (Labour, Shipley)

I understand the hon. Gentleman's points. Ever since the term "stipendiary magistrate" became "district judge (magistrates courts)", it has been necessary to make the position clear and comprehensible. My understanding is that there is no maximum number of district judges and magistrates courts set out in statute and, not surprisingly, I do not have to hand the exact number that we have in England and Wales at the moment. Perhaps I can write to the hon. Gentleman on that point.

I am aware of the hon. Gentleman's point on the geographical nature of the district judges. I do not think that there is any specific formality attached to the geographical area in a district judge's title. Nor do I think that anything formally limits them from being redeployed elsewhere, but if I am wrong, I shall put the correct answer in my letter to the hon. Gentleman.

Question put and agreed to.

Clause 12 ordered to stand part of the Bill.

Schedule 3 — Transfer of appointment functions to her majesty

Chris Leslie (Labour, Shipley)

I beg to move amendment No. 644, in page 63, line 6, leave out 'Supreme Court' and insert 'Senior Courts'.

Chris Leslie (Labour, Shipley)

This group of amendments gives effect in part to the recommendations of the Select Committee on the Bill in the other place that the supreme court of England and Wales and the Supreme Court of Judicature of Northern Ireland should be renamed and, when necessary to avoid confusion, the short titles of legislation relating to these courts should also be changed.

The supreme court of England and Wales, as it is now known, is to be renamed the Senior Court of England and Wales, and the Supreme Court of Judicature of Northern Ireland will be renamed the Court of Judicature of Northern Ireland. The renaming does not affect the courts in question in any other way than changing the names by which they will be known. The new names were selected in consultation with the senior judiciary in each jurisdiction with a view to avoiding confusion not only with the creation of a new United Kingdom supreme court, but with other courts. There are also references in the Bill that will require amendments in line with the general renaming, and many of the amendments in this group are consequential on the change.

Dominic Grieve (Conservative, Beaconsfield)

We now come to the first bone of contention of the afternoon. It is quite a small bone, but it irritates me sufficiently to make me want to take the matter forward. Indeed, unless I can persuade the Minister to change his mind, I shall probably divide the House.

The Minister knows that we were against the setting up of a supreme court of the United Kingdom. In those circumstances, he will probably agree that there was no need to consider renaming the current Court of Appeal, which is covered by the Supreme Court of Judicature Act 1873. I have to accept that, for the purposes of the Bill as it now stands, we are going to have a supreme court of the United Kingdom. However, the Minister's proposal to rename the courts covered by that Act "Senior Courts" strikes me as bizarre. We do not have any junior courts, and the expression "Senior Courts" is an odd one.

I do not see the new name catching on anyway because, as the Minister well knows, nobody refers to the High Court and the Court of Appeal by anything other than those titles. Only lawyers are aware of the fact that the High Court and the Court of Appeal were created by the Supreme Court of Judicature Act in the 19th century. Those titles offer a correct description of the purpose those courts were set up to fulfil. Although we are going to have a supreme court of the United Kingdom, those courts are, in reality, the supreme court of England and Wales, and I can think of no good reason for changing their title. I am not sure that the Minister, in his very brief speech, provided me with a persuasive reason for going back on that viewpoint.

This matters because we must consider the issue in the context of the English and Welsh judicial system. The reality is that the House of Lords, in its current role, is half removed from the mainstream judicial process. Appeals to the House of Lords take place only in fairly exceptional circumstances. It spends a great deal of its time turning down applications for leave to appeal, not because the issues involved are not interesting, but because they do not raise the kind of point with which the House of Lords considers it should concern itself. The Minister has not suggested that the new supreme court should approach its work load any differently from the way in which the House of Lords has done, although I acknowledge that one or two small areas of devolution law will be transferred from the Judicial Committee of the Privy Council to the new supreme court.

Why not leave well alone? There is not going to be a muddle and the court does not need another name. "Senior Court" is a rather sad name. It has a sad feel to it—

Peter Atkinson (Conservative, Hexham)

It sounds like a pensioner.

Dominic Grieve (Conservative, Beaconsfield)

Yes, that is rather what it sounds like. It also has a slightly prissy tone because of the way in which it contrasts the senior court with other courts. As the Minister knows, judges from other courts are now invited to sit in the Court of Appeal and, sometimes, on judicial review proceedings in the Supreme Court of Judicature.

For all those reasons, I urge the Minister to drop the idea. We do not need the amendments, and if he wants to press on with them I shall vote against them unless he can provide me with an extraordinarily cogent reason for changing my mind.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I do not anticipate a day full of great controversy. Nor do I expect there to be a huge number of votes. Indeed, if there are, our colleagues could be somewhat surprised. I think that this is the only occasion on which there might be a vote, and I shall be voting not with the hon. Member for Beaconsfield (Mr. Grieve) and his colleagues but with the Minister. That is because I accept the Minister's proposition, which is consistent with the view taken by my colleagues. I understand the argument put forward by the hon. Member for Beaconsfield, but I support the Minister's proposal, although we might view it slightly differently.

My colleagues and I have argued for years that there should be a modern judicial system, that we should have a supreme court separate from the Judicial Committee in the House of Lords, and that we should separate the judicial system from the legislature. That is why we have supported the thrust of the Bill. We shall therefore create a supreme court of the United Kingdom, wherever it ends up sitting. That has been slightly controversial, but I understand that the preferred location is still over the road at the Middlesex guildhall.

In the light of that, the renaming of the next tiers of courts—the Court of Appeal and the High Court—as the "Senior Courts" represents an understandable and straightforward shorthand. Subject to only the supreme court being above them, they are the next in the hierarchy. "Senior" might be a slightly trite or mundane word, but at least it describes their position. They are the courts to which we look up, and they are in the hierarchy of senior courts. The hon. Member for Beaconsfield said that we have no junior courts. Well, it is a bit like "The Screwtape Letters". We do not have senior devils and junior devils. However, we do have junior courts—bluntly, the magistrates courts and the county courts are the junior courts. Colloquially, people know that. They know that cases start in a magistrates court and that, on appeal, they go up the hierarchy. People also know that if they are dissatisfied with what happens in the county court, an appeal on the civil side will go to the High Court. So I think that the shorthand is understandable. It will be more understandable if we distinguish between the supreme court and the others.

Lastly, it seems to me that, by definition, we cannot have more than one supreme something. Something is either supreme or it is not. I, like the hon. Member for Beaconsfield and others, am a lawyer, and I was brought up to be able to walk around with the white book, a great volume of all the rules of the Supreme Court of Judicature. One of the failings of the current system is that that was basically the rules of all the senior courts from, I think, the Judicial Committee of the House of Lords all the way down through the Court of Appeal to the High Court. I stand to be corrected if the House of Lords is not included, but that is my recollection—I have not looked at it for a long time.

Dominic Grieve (Conservative, Beaconsfield)

I was going to raise a separate issue with the hon. Gentleman. He will be aware that there have been at least some suggestions lurking around that there will be a new unified court structure in which the High Court and lesser courts, or junior courts, would effectively be merged. It is not clear in what direction that is going. Certainly, however, the Government seem to be quite keen, for instance, on getting rid of some of the distinctions between the divisions in the High Court. The whispers are no more than that. Were that to happen, of course, we would be back to the drawing board anyway, as the Court of Appeal would become potentially quite distinct from the High Court. Whether that is desirable is another matter, but the hon. Gentleman might feel that that reinforces the reason for just leaving it well alone. I think that the distinction is perfectly obvious.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

These are not issues that will ultimately make a fundamental difference. This Bill has been thought about and talked about for years and years. The reform of the judicial system has been thought about for a long time. My judgment is that we ought to try to get the best possible outcome and the simplest structure.

I want to deal with the two points raised by the hon. Member for Beaconsfield. There might be a further debate later about whether we structure the court system hierarchically and vertically. Ultimately, we might end up with a supreme court, with the Court of Appeal below that and the senior courts below that. The words may change eventually.

Divisions might also be considered. There are arguments for different divisions of the court system. There might well be an argument now for having an administrative division of the High Court. There is certainly an argument for reviewing where some of the boundaries come in work done. The family division is a relatively new one and is worth while. Eventually, we might amend the title of the Queen's bench division, because that is a general title relating to the famous courts of yore which used to sit Downstairs, but it does not mean much to someone who is not a lawyer and has not studied legal history. That is not an argument for changing it categorically.

I shall end where I began. This is a sensible proposal for the time being. I am sure that, in time, a Government will say that further work needs to be done and the judges might say that they want to propose further reforms. Let us have one supreme court, let it be known as the supreme court, let it be recognised as the supreme court and let us have the courts under it regarded for the time being as the senior courts. I think that most people will understand what is meant by that.

Keith Vaz (Labour, Leicester East)

I was not proposing to speak in this debate until I heard the hon. Member for Beaconsfield (Mr. Grieve). When we started proceedings this afternoon and I looked through the long list of proposed amendments and the important aspects of policy being changed, of all the matters on which I thought that we would divide I never believed that it would be on the question of a name.

I fully support the Government on their proposal, which is a sensible and clear enactment of the modernisation process. I am really puzzled, however, about why the hon. Member for Beaconsfield chooses to get cross about this name. It is quite obvious for all those who practise in the courts what these courts are called. All that this seeks to do is to clarify the situation.

Dominic Grieve (Conservative, Beaconsfield)

Let me reassure the hon. Gentleman that the last thing that I can be described as on this matter is cross. If the vote goes against me, I shall not lose hours of sleep as I toss and turn in my bed and consider gnashing my teeth about the infamy that the Government have perpetrated. Nothing could be further from the truth. I just happen to think that the Government are wrong. Seeing that these are matters on which the House's opinion is sought, and must be sought, I stand by my view that it is a silly idea.

Keith Vaz (Labour, Leicester East)

I did not expect the hon. Gentleman to be cross as he is very friendly, even though he is a member of the Opposition. I remember how cross he was at the Dispatch Box last night when dealing with the Bill that we were considering then. He read out from Mr. Speaker's provisional selection all the aspects of that Bill that could not be discussed. He put the case eloquently. Of all the elements in the current provisional selection, however, the renaming of the supreme courts of England, Wales and Northern Ireland is hardly of earth-shattering importance. I wonder why we must waste 15 minutes on a Division if he is not going to stay up all night worrying about it.

I have a simple suggestion for my hon. Friend the Minister, who has conducted these proceedings in an absolutely brilliant way, despite all the opposition of the Conservative party, which said that it would oppose everything that he did, root and branch. It has come down to this. Let us have a competition called, "Name that court". Let us use the Conservative party website and let Opposition Front-Bench Members text their views on what this court should be called. If he is prepared to allow that to happen, perhaps the hon. Member for Beaconsfield will not force the issue to a vote.

John Redwood (Conservative, Wokingham)

I support my hon. Friend the Member for Beaconsfield (Mr. Grieve), who has been maligned in this short but interesting debate. What is in a name? It is tradition, history and continuity, which established who we are and where we come from. With the Government's hectic modernising reforms, particularly in the constitutional area, we worry that they have no sense of history or tradition, and no understanding of why things are as they or have been named as they were. They seem to want to root out everything that was not created after 1997.

By defending some names, and the larger institutions that they represent in many cases, we are saying that all is not wrong because it was thought up a long time ago, because it has evolved and served us well over many centuries or because it has some idiosyncrasies or quirks that do not seem rational or logical to the modernising mind of Labour and new Labour. We are saying to the Government that they should pause. Do they really need to dream up this ghastly name today and shove it through so that we will be cursed for the weeks and months ahead, if not years, with having to call our courts "Senior"? I believe that is a word that the Americans use to describe pensioners, which creates an unfortunate impression for the important bodies that the Government are trying to transmute.

I often feel that this Government are in the alchemy business, but they take gold and transmute it into base metal rather than the other way around. What is in the name is what we stand for, who we are and how these great institutions have come about. If we destroy the name and the institution at the same time, something magic has gone.

Chris Leslie (Labour, Shipley)

I am going to accuse the hon. Member for Beaconsfield (Mr. Grieve) of being a Conservative. I know that the Leader of the Opposition might be considering changing their party's name, possibly to move to a new era, but the hon. Gentleman exemplifies that they remain Conservatives. Despite the eloquence of my argument, he has almost resolutely said that he will not be persuaded, whatever I say.

The hon. Member for Beaconsfield says that it is bizarre to change the title of this cluster of courts now known as the supreme courts of England and Wales to the senior courts, not the superior courts—we chose not to go for superior as there are other superior courts of record elsewhere. One of the justifications for calling them senior courts was that we wanted to avoid the word superior. We did that in consultation with the judiciary, who now agree that the concept of senior courts is right, and not least that it should be courts—plural—as we are talking about a cluster of courts. That is not reflected in the current name of the supreme court for England and Wales.

If, in the bigger picture, we are creating a new United Kingdom supreme court, for those in the wider country who are not immersed in the world of the law as the hon. Member for Beaconsfield might be we need to avoid confusion and have wider understanding and comprehension of how our courts work in this country, right up to the UK supreme court. That is why we think that it makes good sense, as do the judiciary, to change the title to "Senior Courts of England and Wales".

I was sorry that the hon. Gentleman and other Opposition Members seemed to say that there was something sad in the term "Senior". I think that seniors are happy and wonderful people. He seems to have a sense that they are somehow miserable and not to be favoured. I am all in favour of seniors, and I want to put that on the record, too. I do not see the logic of his conservatism.

The hon. Member for Southwark, North and Bermondsey (Simon Hughes) and my hon. Friend the Member for Leicester, East (Keith Vaz) adequately explained why now is the time to move to the title of "Senior Courts of England and Wales". I commend the amendments to the House.

Clause 13 — Other functions of the Lord Chancellor and organisation of the courts

Chris Leslie (Labour, Shipley)

I beg to move amendment No. 491, in page 5, line 35, leave out 'certain functions of' and insert 'functions to or from'.

Chris Leslie (Labour, Shipley)

This group of amendments is very substantial—the most substantial that we will debate today—and makes detailed and technical amendments to schedule 4 in five separate areas. It will therefore assist the Committee and perhaps speed debate if I set the scene and list the areas affected before considering each in more detail, thereby providing an overview of this "super-group" of amendments.

Schedule 4, which is a key part of the Bill, gives effect to the concordat agreed between the Lord Chancellor and the Lord Chief Justice. It provides for the Lord Chancellor's current statutory functions relating to the judiciary and to the organisation of the courts to be amended, so that they require consultation with, or the concurrence of, the judiciary, or transferral to the Lord Chief Justice or to another senior judicial office holder.

The amendments are designed to complete the schedule and to make sure that it fully reflects concordat principles. Five separate areas are covered. The first batch of amendments in the group covers a number of individual functions in Northern Ireland under legislation that extends throughout the United Kingdom, and it introduces a new schedule relating to Northern Ireland that corresponds to schedule 4. The second batch contains provisions that support arrangements for ending the Lord Chancellor's ecclesiastical patronage and, as the Government announced on 2 March 2004, its future exercise by the Prime Minister.

The third batch of amendments makes arrangements for appointments and removals from tribunals that cover the whole of the United Kingdom or other parts of the UK in addition to England and Wales. The fourth batch makes a number of corrections and updates to ensure that the transfer of functions is fully in line with the concordat. The fifth batch transfers to local registering authorities in England the power to set fees for local charge services, with the exception of fees for personal searches of the register.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Before the Minister finishes summarising the amendments and deals with the detail, can he say how many transfers of patronage in respect of Church of England livings are expected as a result of this shift from the Lord Chancellor to the Prime Minister?

Chris Leslie (Labour, Shipley)

I will come to that issue in a moment. I want first to talk about Northern Ireland appointments, removals to UK tribunals, the introduction of the new schedule and, in that context, amendment No. 491 and the associated amendments. Those amendments cover a number of individual functions in Northern Ireland and create new roles for the Lord Chief Justice of Northern Ireland. In addition, a new schedule relating to Northern Ireland is introduced that corresponds to schedule 4, which affects England and Wales. Amendment Nos. 491 and 492 amend clause 13 to provide for the transfer of the Lord Chancellor's functions in Northern Ireland, and for the introduction of the new schedule. Amendments Nos. 493 to 558 amend schedule 4 to deal with a number of the Lord Chancellor's functions in legislation with UK-wide extent.

To return to the intervention from the hon. Member for Southwark, North and Bermondsey (Simon Hughes), as stated in the Lord Chancellor's written statement to the House on 2 March 2004, the Crown's ecclesiastical patronage rights currently exercised by the Lord Chancellor will remain with the Crown. The basis of the Lord Chancellor's exercise of this patronage is historical; it is not based in statute. In future, that patronage will be exercised on the advice of the Prime Minister, who already deals with a range of ecclesiastical appointments. Passing responsibility for exercising this patronage can be achieved through non-statutory means.

The amendments to the Pluralities Act 1838, the Ecclesiastical Leasing Act 1842, the Inclosure Act 1859, the City of London (Guild Churches) Act 1952 and the Pastoral Measure 1983 are consequential on that transfer, and change statutory references to the Lord Chancellor in provisions relating to patronage to reflect the decision to transfer such matters to the Prime Minister. [Interruption.] I have been inspired to point out that some 442 aspects of ecclesiastical patronage will be transferred to the Prime Minister; I hope that that is not too precise a figure for the hon. Member for Southwark, North and Bermondsey. Those amendments will ensure that the ending of the Lord Chancellor's ecclesiastical patronage is satisfactorily completed and that any uncertainty is removed. They have of course been discussed with the Church, and agreement has been reached on this outcome.

Amendments to the Ecclesiastical Licences Act 1533 and the Public Notaries Act 1843 relate to the Lord Chancellor's functions in respect of appeals under those Acts.

John Bercow (Conservative, Buckingham)

Sadly, my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) is not with us. If he were, I feel certain that he would be able to advise us of the significance or otherwise of these provisions. In his absence, can the hon. Gentleman tell the Committee whether, as it stands, this represents, following Bagehot, a dignified or an efficient part of the constitution? In other words, in practice, is the Prime Minister going to take advice and, if so, from whom, or is he seriously going to preoccupy himself with any significant number of these nominations?

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

rose—

Chris Leslie (Labour, Shipley)

I shall give way to the right hon. Gentleman, who has conducted wider inquiries into some of these matters, in a few moments.

The Prime Minister, in his capacity as First Lord of the Treasury, already provides advice to the sovereign on a wide range of ecclesiastical appointments, and officials dealing with parish appointments are already based at No. 10 Downing street, but currently work both for the Prime Minister and the Lord Chancellor. It makes pragmatic and practical sense to continue with the rationalisation of these arrangements in the light of responses to consultation on the issue.

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

Does the Minister recall that the Constitutional Affairs Committee had an interesting evidence-gathering session on this matter? It was made clear that the same officials would continue to do the work. Rarely, in my experience, has a group of public officials been so widely commended by the customers and clients of their work. If any other course of action were to be adopted, such as a transfer of these functions to the Church authorities, there was no agreement as to which part of the Church's structure they should be attached to.

Chris Leslie (Labour, Shipley)

The right hon. Gentleman has neatly summed up the rationale behind many of the amendments, which is why I would not demur from them.

Bill Cash (Conservative, Stone)

Will the hon. Gentleman guide us as to the connection, if any, between these provisions and what are known as Royal Peculiars? Arrangements stemming from the 10th to the 15th century governed the relationship between the papacy and the Crown and established spiritual jurisdiction in respect of colleges and prebends. Windsor castle is one example, not to mention St. Stephen's, Westminster and many others in my constituency—for some reason, Staffordshire and Shropshire have a significant number of these Royal Peculiars, otherwise sometimes known as royal free chapels.

My question is whether the transfer from the Lord Chancellor to the Prime Minister will in any way affect those Royal Peculiars. I have an idea that, unbeknown to some people, the residual spiritual jurisdiction vested in the Crown as a result of the Royal Peculiars might be of some assistance at some point in time in respect of the problems that have arisen with Windsor castle. I wonder whether the Minister—

Roger Gale (Conservative, North Thanet)

Order. The hon. Gentleman has made his point; he is making an intervention.

Chris Leslie (Labour, Shipley)

I would not want to accuse the hon. Gentleman of trying to grab the headlines—certainly not in this debate, at least. My understanding is that many of the Royal Peculiar functions are already undertaken under prime ministerial patronage, but I will try to check on the point, in case I am wrong. The amendments that we are proposing in this group make no further changes in that respect; they are simply designed to amalgamate the ecclesiastical patronage arrangements of the Lord Chancellor with those of the Prime Minister. Other functions are more judicial in that they relate to appeals under legislation such as the Ecclesiastical Licences Act 1533 and the Public Notaries Act 1843, so they are transferred in line with the ending of the judicial role and functions of the Lord Chancellor. The amendments also provide for the Chancellor of the High Court to delegate the function of hearing appeals to another judge.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I have a somewhat less esoteric question for the Minister, whom I commend on his mastery of the brief in connection with such a detailed issue. The daffodil in my buttonhole suggests that I might be an Anglican, but I am part of the disestablished Church, not a member of the Church of England. Having said that, I do not believe that denominations are important. There is one Church and denominations have often been a curse, not a merit, of that Church.

Given that we are talking about the transfer of ecclesiastical functions to the Prime Minister—as my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) said, there is a well established system of officials who deal with these matters—will the Minister give an assurance on the record that there will always be consultation with the "customers or clients", to use my right hon. Friend's words, or the parishioners before the Prime Minister makes any appointments under his new powers?

Chris Leslie (Labour, Shipley)

I suspect that that will be the case. I can give that undertaking in so far as we do not propose to make any changes to the practice of making those patronage appointments. It is simply a matter of the formality of who will make the appointments on the advice of the Prime Minister to the Queen.

The third tranche of amendments in the group deal with the Lord Chancellor's powers to appoint and remove from tribunals that have a UK-wide jurisdiction. Amendments Nos. 399 and 430 transfer the Lord Chancellor's duty to consult the Secretary of State for Health or the chief medical officer in respect of certain tribunal appointments.

The others deal with tribunals with a UK-wide jurisdiction or a jurisdiction covering more than one part of the UK. Those require special arrangements in respect of some appointing and delegating functions and removals from office. The power to remove usually lies with the Lord Chancellor, with the agreement of the Lord Chief Justice of England and Wales, but in respect of Scottish members, removal should be with the agreement of the Lord President of the Court of Session; and in respect of Northern Irish members, removal should be with the agreement of the Lord Chief Justice of Northern Ireland. Those seem to me sensible and appropriate changes. The relevant judge in each case is referred to in the amendments as the "appropriate senior judge".

The fourth group of amendments deal with miscellaneous technical changes to schedule 4. For example, amendments Nos. 442 to 444 provide for the Lord Chief Justice to appoint someone other than the Master of the Rolls to the post of head of civil justice, bringing the legislation into line with the appointment procedure for the heads of criminal and family justice in clauses 8 and 9, which we discussed earlier. Amendment No. 397 transfers to the Lord Chief Justice the Lord Chancellor's power to prescribe new business for the central office, which we will now call the senior courts. There are also a series of amendments to omit statutory references to the now redundant power of the Lord Chancellor to alter rules made by rule committees.

John Redwood (Conservative, Wokingham)

Why are there so many amendments? Is it because the Minister did not bother to check the provisions in the first place, or is it simply that the Government are making it all up as they go along and that this is the new material that they have recently come up with?

Chris Leslie (Labour, Shipley)

Neither of those two options apply. We have certainly consulted the judiciary and many of the amendments are a consequence of that. We have also had a prolonged period of scrutiny of the legislation, including, as the right hon. Gentleman will recall, scrutiny by a special Select Committee in the other place, not to mention debate and suggestions from the Constitutional Affairs Committee. Not all the amendments arise from those particular considerations, as many stem from consequential changes to other pieces of legislation. I realise that the volume of amendments is a burden on the Committee, but it is right and necessary to be as accurate as possible.

Jonathan Djanogly (Conservative, Huntingdon)

I shall come back later to the point raised by my right hon. Friend the Member for Wokingham (Mr. Redwood). If the head of civil justice is not to be Master of the Rolls, what is the purpose of having a Master of the Rolls? In other words, what would he do?

Chris Leslie (Labour, Shipley)

There may well be other tasks for the Master of the Rolls to do in place of having the post of the head of civil justice. I have already set out, in our discussions on clauses 8 and 9, the point of having some flexibility among the senior judiciary. We will always have persons to head the senior divisions of our courts. There will not be vacancies for long in respect of any of those posts, but we need to ensure that we retain a degree of flexibility. That idea was not simply thought up by my Department, but in agreement with the Lord Chief Justice and others.

Jonathan Djanogly (Conservative, Huntingdon)

I am not quite sure what the Minister is getting at. If the Master of the Rolls is not going to carry out the job allocated to him, why should not the person who subsequently gets his job be called the Master of the Rolls?

Chris Leslie (Labour, Shipley)

That is because the Vice-Chancellor was head of civil justice. The Bill changes a number of titles among the senior judiciary. The president of the civil division of the Court of Appeal will have that post, but we must put the new arrangement in place to allow greater flexibility. If it will help the hon. Gentleman, I shall write to him with some more detail about our discussions with the Lord Chief Justice on this matter. The arrangements in the Bill are ones that we have agreed with him, as I set out earlier.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I want to raise another matter that may have been dealt with earlier when I was not present, but will the Master of the Rolls retain his judicial oversight of solicitors? Is that role to be transferred as well?

Chris Leslie (Labour, Shipley)

Our intention is that the Master of the Rolls will retain that function in relation to solicitors.

There are a number of other minor and technical amendments in this group that serve to change the wording in various places, alter references to sections and paragraphs, provide cross-referencing to other legislation, and so on. In addition, they correct the Bill's provisions when a function's transfer is not entirely in line with the concordat arrangement.

The most significant change, however, is to the renewal of recorder appointments set out in Government amendment No. 385. The new provisions mirror what has been the practice for some time—that is, that appointments are automatically renewed except where there are grounds for non-renewal. The Bill will now require the Lord Chief Justice's agreement to the grounds given for non-renewal or removal from office, and to any decision that those grounds are fulfilled in any particular case. The remaining amendments correct how some existing functions of the Lord Chancellor are modified, and delete incorrect provisions. Amendment No. 447 provides that the Home Secretary will be involved in a new power relating to the making of criminal procedure rules. Other amendments ensure that the Lord Chancellor's functions relating to the making of those rules are correctly reflected in the relevant statutory provisions.

The fifth set of amendments in this group alters the Local Land Charges Act 1975 to give local authorities in England the power to set local land charge fees, but not personal search fees. At present, there is considerable variation between local authorities when it comes to keeping local land charge records. Local land charge fees are set nationally, by the Lord Chancellor. Local fees that reflect a local authority's circumstances will encourage better local accountability, efficiency and transparency, and will be fairer to local authorities and their customers.

Government amendment No. 390 implements one element of the action plan set out in the September 2002 local government White Paper and announced by my noble Friend Lord Rooker during the Committee stage of the Housing Bill. It will allow local authorities to set fees at a level which, taking one year with another, will enable them to recover an amount up to, but not in excess of, the costs incurred by providing local land charge services.

The amendment does not change the position in respect of fees for personal searches, of which a full review will be undertaken before any decision is made. It does not change the position in Wales either, as local land charge fees have been set by the National Assembly for Wales since 31 December 2004.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I imagine that the question of local land charges will be of interest to many hon. Members, but the Minister just said that local authorities will not be allowed to make a profit from the provision of that information. I support delegating powers to local government, but will he say why a flat rate cannot be introduced? Will not it be slightly confusing for consumers if the amount varies between local authorities? People often do not know which is the relevant local authority, so is there not a possible complication that could be avoided?

Chris Leslie (Labour, Shipley)

It would defeat the purpose of the reforms set out in the 2002 White Paper if local authorities were not to be given extra freedom and flexibility, even in this small way. Most hon. Members recognise that reinvigorating local democracy means that some functions must be shifted to local authorities, so that they can be accountable for their decisions. The hon. Gentleman suggests a flat rate, but I suspect that that would require subsidy from somewhere else. That would defeat the purpose of the provision, and the burden would fall on taxpayers in other areas. Our proposal will encourage greater efficiency in this part of a local authority's work. Delegating the power to determine fees to local authorities may well mean that those fees will be lower than is currently the case nationally. However, the requirements that local authorities can charge only as much as the costs incurred will provide a measure of protection for the public.

With those comments, I hope that the amendments in this very large group can stand part of the Bill.

Jonathan Djanogly (Conservative, Huntingdon)

The amendments mainly deal with concordat issues and for the most part are fairly innocuous. However, I was fascinated to learn a little more about the Royal Peculiars.

Hidden away in this huge list is Government amendment No. 390, which the Minister has just explained. That would allow local authorities to set the fees for searches of the local land charges register. Opposition Members are not satisfied about the addition of this late amendment to the Bill. The Government have set aside little enough time for debate on this important and substantial measure, even without the introduction of this substantive provision on the final day of Committee. The amendment is not connected with the rest of the Bill, even though the Minister did his best to tie it all in.

The Government's control of timetabling has collapsed over recent weeks, so perhaps I should not be surprised that they have lumped together land charge fees with the creation of the new supreme court. That approach, however, seems to be a little bit on the tacky side.

The small amount of time made available for debate of this matter is especially inappropriate, as the provision is not without controversy. The Council of Property Search Organisations is the trade association for the property search industry. It, and other providers of property search information, have contacted various hon. Members to explain the difficulties associated with the proposed change.

The Bill will require each local authority in England and Wales to specify the fees for services relating to local land charges. Such charges are matters of a public nature: they relate to property, and people interested in a property ought to be aware of the associated charges. Matters covered include tree preservation orders, planning obligations, enforcement notices and designation as a conservation area. Details of local land charges can be obtained either through an official search carried out by local authorities in accordance with section 9 of the 1975 Act, or by means of a personal search by an applicant under section 8 of that Act.

The amendment does not apply to personal searches of the register, which the Department for Constitutional Affairs has said will be the subject of a further review. At present, the Lord Chancellor sets the fees for the different types of local land charge searches. The standard fees are £6 for an official search, and £11 for a personal search. The Government have made available draft guidance for proposed new charges.

When setting their own fees, local authorities will have to ensure that, taking one financial year with another, those fees do not exceed the cost of providing the services in question. They will also have to take into account guidance from the Lord Chancellor. The draft guidance made available by the Government covers the calculation of costs, and related matters.

The proposals have developed out of the 1997 review "Report of an Efficiency Scrutiny of Central Consent Regimes for Local Authorities" and the 2001 White Paper entitled "Strong Local Leadership, Quality Public Services". That sounds like a good new Labour tag if ever I heard one.

The hon. Member for South Ribble (Mr. Borrow) introduced a private Member's Bill on this topic last year, but that was withdrawn when the Government announced their intention to bring forward an amendment such as the one under discussion today. The proposals reflect the fact that the cost of providing local land charge services varies considerably between authorities. That variation arises out of the different ways that local land charges registers are maintained. For example, that information may be held electronically or on paper.

A key argument in favour of such a change would be the desirability of devolution from central Government, removing the need for local government to make applications for fee increases and for new central Government orders to be issued. The hope would be, equally, that requiring local authorities to set fees that reflect their own costs would encourage transparency and efficiency. The result ought to be lower charges for consumers.

The Opposition are not opposed in principle to the idea of allowing local authorities to set their own fees in this context. Indeed, my hon. Friend the Member for South Holland and The Deepings (Mr. Hayes) introduced an amendment to that end to the Housing Act 2004. Although that amendment was withdrawn, we still have reservations about the detail and timing of Government amendment No. 390.

If the Government are intent on allowing local authorities to set their own fees, they should go further in requiring local authorities to improve the services that they provide in relation to local land charges. According to CoPSO, some local authorities still take up to eight weeks to produce local land charges searches. If vendors have to provide local search results as part of home information packs from 2007 onwards—we could debate whether they should do so in the first place—that will only add to the importance of ensuring that local authorities can provide an efficient service. Simply allowing local authorities to set fees to cover their costs does not provide an incentive for them to improve services and move swiftly towards the full electronic delivery of property information.

In accordance with the Government's draft guidance, local authorities cannot operate cross-subsidies to keep council tax down generally, to cover the cost of providing personal searches information—of course, that is specifically excluded from Government amendment No. 390—or to cover the costs of holding property information and generally running their local land charges departments. However, that must be seen in the context of some local authorities' very poor track records in providing at-cost services and transparent accounting.

Will local authorities be able to set their fees to subsidise the cost of collecting and storing property information, providing personal search requests or carrying out other council services? Again, how will the Minister encourage poor-service councils to pull up their socks and start delivering value for money?

It is essential that the Government make it clear that the intention behind devolving this power is to reduce costs and increase transparency for the benefit of local land charges customers, not to create a new source of local government revenue on the back of the service that local councils are required to provide by law. Will the Minister please guarantee that there will be a significant reduction in the costs of gaining access to local land charges information as a result of Government amendment No. 390?

I make none those points in relation to local authorities out of a desire to attack local government. On the contrary, I have a great deal of sympathy for the difficulties faced by local authorities under the Government. Let us take local planning departments. Only before Christmas, the Government slipped out their latest stealth tax plans: a huge increase in planning fees charged to the public—up by an average of 39 per cent. from April—while cutting planning delivery grants to local planning departments, so that they see no real increase in their resources.

Perhaps our biggest criticism relates to the timing of Government amendment No. 390. The Office of Fair Trading is presently conducting a market study of the property search industry that is due to report this summer. It is considering how consumers' needs are met and the structure of the property search market, as well as investigating complaints from property search companies about difficulties in gaining access to property information held by local authorities.

The Government have already accepted the need to wait for the study's findings in relation to personal searches. Yet they are still forcing through Government amendment No. 390 today in relation to official searches, tacked on to a barely related Bill. Bearing it in mind that those proposals have been in circulation for a number of years, my hon. Friends and I suggest that it would be much more sensible to wait the relatively short time until the OFT report is published. That would allow for a single comprehensive review of local property search markets and the role of local authorities.

John Bercow (Conservative, Buckingham)

Could my hon. Friend help the Committee by giving some sort of broad-brush illustration of the extent of the disparity between the highest charges that are imposed and the lowest? While he is about it, given that he has rightly focused on service delivery, will he offer us an insight into which are the best performing local authorities in terms of cost-effectiveness and speed of response?

Roger Gale (Conservative, North Thanet)

Order. Before the hon. Gentleman goes too far down that road, it would be a very good idea if the Committee were to stay in order and relevant to the amendments under discussion.

Jonathan Djanogly (Conservative, Huntingdon)

Thank you, Mr. Gale. Let me just respond to my hon. Friend by saying that he makes an important point. At the moment, of course, the charges are the same everywhere, but he refers to what we will have to consider in years to come if we do not get it right now.

To sum up, I have pointed out that many outstanding issues remain, and I look forward to hearing the Government's response to those that I have raised.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall be brief. I raised this issue in my last intervention on the Minister. First, I start from the presumption that it is reasonable to include such proposals in the Bill because it relates to the devolution of powers that were the Lord Chancellor's, although perhaps it could be argued that they could be included elsewhere. Legislation is often a vehicle to which appropriate things can be attached, as the vehicle goes past, but I understand that the Bill is not entirely inappropriate for such proposals.

Secondly, I start with the presumption that local government should have much more power to raise its income, to spend it and to be much more free from Government interference, direction and control. People would be encouraged to vote if they thought that voting for local councils could make a big difference—and the bigger the difference, the better.

The questions asked by the hon. Member for Huntingdon (Mr. Djanogly) have been raised with us generally, and I am sure that they have been raised with the Government. The Minister needs to assure us that the best value for money and the most efficient service to the consumer can be achieved. I appreciate that we will never get different local councils to carry out searches in the same number of days. There should be a maximum number of days, but the council's efficiency will determine how quickly it is done.

If a council is not allowed to charge more than its costs, however, the only variable is the efficiency of that local authority in delivering that service at the cost that is worked out for the service as a whole. The variation cannot be great. We are talking about small sums. The land search charges cost pounds, not tens, twenties, fifties or hundreds of pounds, so we are talking about one of the smaller costs in the search for houses that for so many people goes on for so long. There are none the less real concerns. The more helpful the Minister can be, the better. If he could also refer the debate on this matter to his colleagues in the Office of the Deputy Prime Minister who deal with local government so that we can be sure that, from the date of handover, there is some immediate scrutiny to ensure that an overview is taken of how local councils perform in the first few years of their new power, that would be encouraging.

John Redwood (Conservative, Wokingham)

It would be useful, if the Minister catches your eye again, Mr. Gale—if he could give us some idea of what range of charges we might be in for if the proposal is adopted. Like my hon. Friend the Member for Huntingdon (Mr. Djanogly), I have some doubts about the Government doing this now. The Conservative party favours more local autonomy, but it would be useful to know why now. It would certainly be useful to know what the consequences might be.

I presume that the Minister has looked at the figures for the costs around the country, and it would be helpful to the Committee to know what the range is and what the biggest increase might be. We consider this important matter in the context of mortgages just having been regulated very expensively and clumsily; the threat or promise of sellers packs coming in, which may also be expensive and cumbersome for people who are selling their houses; and a big escalation in stamp duty.

The costs of buying a house and moving have got a lot dearer. We a considering a very small element of the cost, but we should worry about any element of it, given the history under the Government of big increases in the costs of buying a home, particularly for those who are trying to buy their first home, against the background of a rising market and increasing tax and regulatory costs. It would be helpful to the Committee if the Minister gave us some guidance on average costs and the range of costs around the country, so that we know what we might be in for.

John Bercow (Conservative, Buckingham)

I share my right hon. Friend's scepticism and uncertainty about the proposal. Does he agree that alarms bell ring when Ministers talk about the importance of allowing charges that would reflect local authorities' costs, given that they include labour costs? That is partly because some local authorities are manifestly more inefficient than others and devote a much larger slice of labour time to the fulfilment of prosaic tasks.

John Redwood (Conservative, Wokingham)

My hon. Friend has made an important and original point about labour costs. Some councils are not efficient at delivering such services, which is why the Committee needs some guidance on current experience, the range of costs and what they may mean in the worst and best locations. It would be helpful to know that before coming to a decision on this proposal and the others in the rag-bag of amendments, changes and clarifications before us.

Chris Leslie (Labour, Shipley)

I am slightly surprised that the hon. Member for Huntingdon (Mr. Djanogly) queried why we are discussing this matter on the schedule. As the hon. Member for Southwark, North and Bermondsey (Simon Hughes) said, we are talking in broad terms about the Lord Chancellor's functions, the shift from his old guise to the new guise, and where the different functions should be vested and transferred to. Local land charge fees may be a small area, but for some time now we have had a desire to move decisions to local level rather than having a central diktat. I thought that the Opposition also wanted to move away from that, but perhaps I am wrong.

John Bercow (Conservative, Buckingham)

I am surprised that the Minister is surprised at the way in which my hon. Friend the Member for Huntingdon (Mr. Djanogly) properly performed his Front-Bench duty. The Minister should not take offence. The policy may be right or it may be wrong, but it is, at least, a source of surprise to some of us that such matters have been included in the Constitutional Reform Bill. We had thought that the Bill covered a variety of matters of slightly greater long-term constitutional significance to the fabric of the United Kingdom than is epitomised by a debate on land charges.

Chris Leslie (Labour, Shipley)

The hon. Gentleman may be right, and perhaps I should not have used the word "surprised", because I am not shocked and aghast that the Opposition should have raised the matter. Given that we are discussing the functions of the Lord Chancellor and that one of them is to set local land charge fees, I am not astonished that we are discussing the matter today.

The fact that the fees are crudely set centrally means that the Department for Constitutional Affairs can do nothing but approximate what those fees should be. Widely varying methods are used to produce the information requested in exchange for those fees. Localised setting of fees will help, even in a small way, to improve transparency for local government, and it could be a spur to greater efficiency. The hon. Gentleman referred to the labour costs that go into the process of searches and so on and if there is better local accountability, in theory some local residents may query why charges are set at a higher level than in other areas that are more efficient and have lower charges.

There is also scope for local authorities to be innovative in the way in which they deliver information about land. The right hon. Member for Wokingham (Mr. Redwood) asked what is involved. We are talking about searches relating to restrictions and obligations on particular pieces of land or, more generally, inquiries about the status of land and whether it is a conservation area, is subject to enforcement notices, and so on.

Local authorities may want to consider providing information through the internet and other electronic means instead of having a paper-based system. That might be a preferable route, and we should consider transferring the centralised fee-setting arrangements to local authorities without allowing them to make a profit from the arrangements. The Lord Chancellor will be able to issue guidance to local authorities to ensure that they are aware of their obligations under other legislation. The idea is not new. Its genesis dates from as long ago as 1997 and might not have been under the present Administration. I caution hon. Members about that in case they favoured the suggestion at that time.

I hope that I have been able to answer some of the points raised by the hon. Member for Huntingdon. There will be no opportunity for cross-subsidisation because there will not be a profit element. The time has come to give that small amount of extra freedom and flexibility to local government. We are discussing the functions of the Lord Chancellor, and now is the time to make the amendment.

Amendment agreed to.

Government amendment made: No. 492.

Clause 13, as amended, ordered to stand part of the Bill.

Schedule 4

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The schedule is important in at least one respect; I want to raise a matter relating to habeas corpus. The first amendment in part 1 of the schedule refers to the Habeas Corpus Act 1679 and, understandably, removes the reference to

"the lord chauncellour or lord keeper"

During my 22 years in this place—it is 22 years today—I had never had occasion to go into the No Lobby and pull out the volume of statutes that includes habeas corpus. It is exciting to do so. I remember looking at it when I was at school, at university and at other times. It is a wonderful volume, containing the earliest statutes that we have. It goes back to the very first statutes in 1235–36 during the reign of Henry III. The page is well thumbed and almost falling out, so I shall talk to the Library staff to ask if it can be put into good order.

John Bercow (Conservative, Buckingham)

I congratulate the hon. Member for Southwark, North and Bermondsey (Simon Hughes) on his 22nd anniversary in this place. I hope that I will be in order, Mr. Gale, if I gently suggest to the hon. Gentleman that it would be entirely fitting for him to have a photographic representation of the way he is so painstakingly perusing the book in front of him. It is emblematic of the way in which he goes about his business in this place.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. Gentleman is very kind. There are little excitements in life. A commendation the other day said how much better people do if they are brought up to read and explore books and to understand them. This is one example, which I share, of the excitement of finding an item of constitutional importance in a book. I commend it to the Committee.

The schedule would amend clauses 1 and 2 of the Habeas Corpus Act 1679 by removing the references to the "lord chauncellour". Those clauses are very long. I hope that the Minister will be able to tell me what is left to us by way of protection. That was a huge issue yesterday, and it will properly be a huge issue for the Lord Chancellor and the judges of the supreme court and others in the future. It is very important to ensure that at any stage a judge can order that someone who has been detained is brought to court to give them a chance to have their say. I ask out of ignorance, because I have not investigated what amendments have been made to the Habeas Corpus Act 1679 before. I guess that we do not amend it often and that this is a rare moment in history, hidden away in schedule 4.

The 1679 Act is

"for the better securing the liberty of the subject and for prevention of imprisonments beyond the seas."

In essence, clauses 1 and 2 provide for the body—the person—to be brought before a judge to ensure that they are detained lawfully. After the amendment of the Act by schedule 4, which will remove the most senior judge, the Lord Chancellor, what will we be left with in terms of the judges in front of whom a person detained can be brought? Which judges will have power to call for someone to be brought before them?

The phrase that will be left in the Act appears to include judges generally. Does that mean, in the phraseology that the Minister used earlier, junior judges, such as a magistrate, a district judge or a local county court or Crown court judge? Would it include High Court judges? I hope so. Would it include Appeal Court judges? I suppose that it might. Would it include the Lord Chief Justice? I hope that it would, because we need to know that the most senior judge in the land has the power, if necessary, to use habeas corpus to ensure that citizens of this country retain their liberty.

Bill Cash (Conservative, Stone)

I am impressed by the hon. Gentleman's erudition. The issue he raises has significance for the Bill that we discussed yesterday, in confused and farcical circumstances. I was glad that the Home Secretary, in answer to my intervention, confirmed that habeas corpus would be retained under that Bill.

I draw the hon. Gentleman's attention to the fact that habeas corpus has often been described as

"the most important writ known to the constitutional law of England".

In the case of Cheblak, in 1991—fairly recently—it was said:

"Authorising its issue in appropriate cases is regarded by all judges as their first duty, because we have all been brought up to believe, and do believe, that the liberty of the citizen under the law is the most fundamental of all freedoms."

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am sure that we are united in wishing to ensure that we do nothing to reduce the protection of the citizen's liberty by the courts.

I have three further questions. First, I seek the Minister's confirmation, possibly on advice, that the provision remains a United Kingdom provision. I ask that conscious of the presence of Scottish Members. Whatever the mechanisms involved, the same right should apply in each of the four countries of the UK. Secondly, is it still the case that the law provides that people may also be brought before "barons of the said court", as well as before a judge? If so, who are those barons? Some judges are barons, in that High Court judges are knighted, but there are also barons by inheritance. I may be getting beyond my depth in matters of the honours system, but I ask out of ignorance.

Thirdly and very importantly, there are provisions in the Act that relate to the nearness of the judge to the person detained. One of the big issues in criminal justice recently has been the concern to ensure that magistrates courts are near the communities that they serve. That applies as much in the Minister's home area as it does in mine. Do the habeas corpus rules apply in the same way as was originally drafted back in 1679? In the proposals to change the distribution of courts, have the Government taken into account the consideration of distance, as provided in the 1679 Act? The Act states that

"upon security given by his owne bond to pay the charges of carrying backe the prisoner if he shall bee remanded by the court or judge to which he shall be brought according to the true intent of this present Act and that he will not make any escape by the way make returne of such writt or bring or cause to be brought the body of the partie soe committed or restrained unto or before currently the lord chauncelior or lord keeper of the great seale"—

those are the words that will be deleted—

"of England for the time being or the judges or barons of the said court from whence the said writt shall issue or unto and before such other person and persons before whome the said writt is made returnable according to the command thereof".

Then comes the distance provision:

"and shall likewise then certifie the true causes of his detainer or imprisonment unlesse the committment of the said partie be in any place beyond the distance of twenty miles from the place or places where such court or person is or shall be resideing and if beyond the distance of twenty miles and not above one hundred miles then within the space of ten dayes, and if beyond the distance of one hundred miles then within the space of twenty days after such delivery aforesaid and not longer."

It would be no consolation to me if I were being held unlawfully in 2005 to be told that the reason I did not have to be brought before a court for 10 or 21 days was that the court was more than a certain distance from where I was being detained. That provision may have been practical 500, 600 or 700 years ago, but it should no longer apply. I would be interested to know whether the provisions have been changed to allow people the speediest possible justice. Will there always be a court near enough so that someone can be brought before a judge at the first available opportunity?

Chris Leslie (Labour, Shipley)

Schedule 4, though dense, is vital to the Bill. It establishes the appropriate responsibilities of the Executive and the judiciary. It ends the judicial role of the Lord Chancellor and gives effect to the principles set out in the concordat. It sets out the bulk of the amendments to existing legislation, including the example cited by the hon. Member for Southwark, North and Bermondsey (Simon Hughes), dealing with the current functions of the Lord Chancellor that relate to the judiciary, his role as judge and the organisation of the courts. It also transfers functions to the Lord Chief Justice, requiring the concurrence of, or consultation with, the Lord Chancellor as appropriate. Some functions remain with the Lord Chancellor, requiring the concurrence of, or consultation with, the Lord Chief Justice as appropriate.

The schedule also enables the Lord Chief Justice to delegate functions conferred on him by the Bill to other judicial office holders, and that is essential to ensure sufficient flexibility and to ensure that the Lord Chief Justice can continue to fulfil his primary role as a judge. It is important to mention that by virtue of schedule 6, the functions conferred on the Lord Chancellor cannot be transferred to another Minister by an order of the Ministers of the Crown Act 1975. That is essential, given clause 4 and the Lord Chancellor's particular duties in relation to judicial independence.

I am not a lawyer, nor do I have the well thumbed textbook of statutes before me that the hon. Gentleman has.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Minister can have it.

Chris Leslie (Labour, Shipley)

I would rather the hon. Gentleman did not pass it across to me. I will try my best to answer some of his questions about the Habeas Corpus Act 1679. We do not propose to make any substantive changes to that Act. However, it will no longer need to refer to the Lord Chancellor because he will no longer be a judge or have a judicial role. That is the only change that we are making, so all the other references to judges in the Act will remain. The hon. Gentleman asked about different kinds of judges, and my understanding—with the caveat of my lack of legal qualifications—is that the provisions apply to High Court judges and above. No jurisdictional changes are proposed to the Act as it applies throughout the country. I think that the reference to barons of the High Court is another way of describing judges of the High Court.

The hon. Gentleman asked about access to justice and the 20 and 100 miles provisions. We do not propose to change those provisions in this Bill. However, other Acts might well have repealed or amended them, although I cannot say that for certain.

I hope that I have answered the hon. Gentleman's questions. Nothing in the schedule will undermine the principles of habeas corpus, which will remain strong. However, as the Lord Chancellor will no longer be a judge, we need to change references to him in myriad Acts of Parliament, just one of which is the Habeas Corpus Act 1679. I hope that my explanation has been helpful and has elucidated a little more why schedule 4 should stand part of the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I thank the Minister for his reply. If he comes across other useful information, I am sure that he will be able to share it with Opposition Front Benchers and other hon. Members. I am reassured that the Government stand by habeas corpus. If the access to justice provisions regarding distance have not already been amended, I suspect that a habeas corpus amendment Bill will come down the tracks from somewhere in the House before too long.

Question put and agreed to.

Schedule 4, as amended, agreed to.

Clause 14 — Lord Chancellor's Oath

Jonathan Djanogly (Conservative, Huntingdon)

I beg to move amendment No. 355, in page 6, line 9, leave out from 'that' to end of line 14 and insert

'I will well and truly serve our Sovereign . . . . . . . . . .in the office of Lord High Chancellor of Great Britain and that I will faithfully and at all times uphold the continued independence of the judiciary and the rule of law, in accordance with the laws and usages of this Realm.".'.

Clause 14 sets out a new oath to be sworn by incoming Lord Chancellors. Perhaps I should apologise at this point to you, Mr. Gale, because I am about to start a lot of swearing. The proposed oath reads:

"I . . . do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible . . . So help me God."

The new oath will be brought into force by inserting proposed new section 6A into the Promissory Oaths Act 1868.

The current oath taken by the Lord Chancellor is governed by the existing provisions of the 1868 Act. Section 5 of the Act, in conjunction with the first part of its schedule, requires the Lord Chancellor to take both the oath of allegiance and the official oath. The oath of allegiance reads:

"I . . . do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors, according to law",

and the official oath reads:

"I . . . do swear that I will well and truly serve Her Majesty Queen Elizabeth II in the office of"—

Lord Chancellor, for example—"So help me God."

Those oaths are the same as those taken by other Ministers of State.

Clause 14(1) makes it clear that that position will not change under the Bill, because it says that the new Lord Chancellor's oath will be taken

"in the same manner as the official oath".

However, up to now, section 6 and the second part of the schedule to the Promissory Oaths Act provided that the Lord Chancellor had to swear the same judicial oath as judges in England and Wales, namely:

"I . . . do swear that I will well and truly serve our Sovereign Lady Queen Elizabeth II in the office of"—

Lord Chancellor, for example—

"and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will. So help me God."

The swearing of that judicial oath is one of the key things that marks the Lord Chancellor as different from other Ministers. It reflects his occasional judicial function in the Appellate Committee of the House of Lords.

In line with general consensus, the Lord Chancellor's judicial function will not exist in the future. As a consequence, the view seems to be, as Lord Woolf said in Committee in another place, that it would be inappropriate for the Lord Chancellor to take the judicial oath. Paragraph 2 of schedule 14 will thus amend the schedule to the Promissory Oaths Act 1868 so that future Lord Chancellors will not have to swear the judicial oath.

The Lord Chancellor's judicial function was not the only reason why it was right for him to swear the judicial oath. By swearing that oath, he became inextricably linked to the judiciary, the independence of which he was charged with upholding in Cabinet. His requirement to

"do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will"

reflects the unique constitutional position of the Lord Chancellor in upholding the rule of law in our country.

Bill Cash (Conservative, Stone)

My hon. Friend understandably referred to the rule of law in our country. However, we discussed clause 4 of the Bill some weeks ago, and he might recall that I drew attention to subsections (7) and (8) of it. Those provisions make it clear that the definition of "the judiciary" will extend far beyond this country into a realm of other judiciaries, such as those of the International Court of Justice, the European Court of Justice—by implication and necessity—the European Court of Human Rights, the International Criminal Court and even the General Assembly of the United Nations. Thus the oath will apparently relate to an extraordinary range of matters. The situation is bizarre and we need to get to the bottom of it. The definition of "judiciary" needs to be clarified.

Jonathan Djanogly (Conservative, Huntingdon)

My hon. Friend makes a good point. I could add the Privy Council to his list because other Commonwealth countries could be included.

As Lady Justice Arden told the House of Lords Select Committee that considered the Bill, a possibility has arisen of replacing the judicial oath with a new oath, although the Committee was divided on the merits of that proposal. In any case, the Government have pursued that option by drafting clause 14. With amendment No. 355, my hon. Friends and I are attempting to suggest a more appropriate replacement for the judicial oath than that proposed by the Government. We suggest that the oath should read:

"I . . . do swear that I will well and truly serve our Sovereign . . . in the office of Lord High Chancellor of Great Britain and that I will faithfully and at all times uphold the continued independence of the judiciary and the rule of law, in accordance with the laws and usages of this Realm."

The first purpose of our amendment would be to bring strength and focus to the new oath. Both versions of the oath rightly refer to the Lord Chancellor's duty to uphold the independence of the judiciary and the rule of law. However, our version would remove an unusual requirement for which the Government have provided. Their version means that the person taking the oath would effectively, and somewhat bizarrely, swear to uphold administrative efficiency. However, pursuing such an aim could prove to be at odds with protecting the overriding principles of judicial independence and the maintenance of the rule of law.

Our version of the oath focuses on the key constitutional issues that should, above all else, remain the driving force behind the Lord Chancellor's actions. Our oath sets out clearly that whatever the pressures faced by a Lord Chancellor—be they political or otherwise—it is at all times his or her duty to uphold such vital constitutional principles. Underlining that duty becomes even more important in the wake of the Government's decision to override the clear view of the other place that the Lord Chancellor should remain a Member of that House and a person who has held judicial office or has senior legal experience.

We have added the words

"in accordance with the laws and usages of this Realm"

to the oath. They mirror the wording of the judicial oath and highlight the need for the Lord Chancellor to respect both the laws of the country and, perhaps even more significantly in practice, all the traditional conventions that have been so important in shaping our constitution.

The Committee is well aware of the cavalier manner with which the Government treat those important protections offered by custom and convention. It was very nearly the case that we were not able to have this debate on the Floor of the Chamber, as a result of the Government's disregard for convention.

Keith Vaz (Labour, Leicester East)

Why does the hon. Gentleman persist in saying that nonsense? Does he not realise that the Government have given many days on the Floor of the Chamber? Judging from the number of Opposition right hon. and hon. Members present, it seems that they do not want to participate. The only thing on which we have voted so far is the name of a court.

Jonathan Djanogly (Conservative, Huntingdon)

The hon. Gentleman was here when we debated these matters before. He knows full well the official Opposition's position and that we stated that not enough time was given to discuss this important constitutional Bill. I maintain that that is our position.

John Bercow (Conservative, Buckingham)

I know that my hon. Friend does not need my protection, but he must not be deflected from his legitimate purpose by the synthetic indignation of the hon. Member for Leicester, East (Keith Vaz). I encourage my hon. Friend to focus on the weaker part of the Government's proposed oath. Personally, I do not object to the removal of the reference to the sovereign and the way in which they have phrased the first part of the oath, although it is a legitimate point to debate. Does he accept that it is ridiculous for the Government to include the reference to

"efficient and effective support of the courts",

resources for which will be provided, unless they choose to include the word "adequate"? The oath says nothing about the adequacy of resources, over which the Lord High Chancellor will have no influence in any case, so this is just pompous windbaggery. It adds nothing.

Jonathan Djanogly (Conservative, Huntingdon)

I thank my hon. Friend for his input and agree with him. It is highly debatable as to whether administrative efficiency should be included in the oath. I do not think that it should be.

In this context, it should be clear why it is necessary to point out specifically the importance of abiding by the law and usages of this realm. As the noble and learned Lord Howe of Aberavon put it in the other place, our suggested wording would also provide a "desirable sense of continuity". We do not believe that a difficulty arises if the Lord Chancellor's oath in some way mirrors the judicial oath.

The noble Baroness Ashton of Upholland raised that point for the Government on Report when faced with similar amendments tabled by Lord Howe. We do not accept that the wording of our amendment would result in ambiguity in relation to the reformed status of the office of Lord Chancellor, simply because the Lord Chancellor's oath bears some similarity to the existing judicial oath. On the contrary, we would welcome it if the Lord Chancellor were still to be reminded of his continuing duty with respect to the rule of law.

Our amendment contains a specific reference to well and truly serving our sovereign. That again reflects words previously sworn by Lord Chancellors as part of the judicial oath. It would serve as an important reminder of the principle that justice in the United Kingdom flows directly from the Crown. I dare say that it would provide a much more fitting and British tone to the oath, by contrast with the Euro-friendly Government version. Perhaps the Government are ensuring that the oath is European constitution-compliant, although I am sure that they need not worry themselves about that becoming necessary.

Ross Cranston (Labour, Dudley North)

I am not persuaded by the hon. Gentleman. Let me make three brief points. The rule of law subsumes the notion of the laws and usages of the realm. The elimination of those words does not subtract from the importance of the principle of the rule of law. In retrospect, I realise that I went on at inordinate length on Second Reading about what the rule of law entails. I went back to Dicey—

Keith Vaz (Labour, Leicester East)

Save us.

Ross Cranston (Labour, Dudley North)

I will on this occasion.

I also talked about modern definitions, but there is no suggestion that we are excluding the notion of the laws and usages of the realm. Both oaths take into account defending the independence of the judiciary, which is fundamental. The objection seems to be to the words in relation to ensuring the provision of adequate resources. If there is one thing that we have learned from history, and by examining the judicial systems of other countries, it is that courts cannot function effectively without adequate resources.

John Bercow (Conservative, Buckingham)

I am appreciative of the fact that the hon. and learned Gentleman has purloined—I emphasise "purloined"—my word "adequate" without permission. I do not begrudge him the use of that word, but the trouble is that the Government, in their proposed formulation for the oath, say nothing about the adequacy of resources. That adjective is not used at all. The oath simply says:

"provision of resources for the efficient and effective support of the courts".

Unless they are adequate, what is the point of including that subordinate clause? If the Government want to include the word "adequate", we should hear that from the Minister pretty quickly.

Ross Cranston (Labour, Dudley North)

I did borrow the word, but I did not purloin it. The words

"the duty to ensure the provision of resources for the efficient and effective support of the courts"

require the provision of adequate resources. There is no difference between us on the need for there to be adequate resources.

Bill Cash (Conservative, Stone)

The hon. and learned Gentleman might reflect on the earlier part of the Bill, which prescribes the functions of the Lord Chancellor. It says that he

"must have regard to the need for the judiciary to have the support necessary to enable them to exercise their functions",

which imposes a statutory duty. It is extraordinary that that phrase should be used, because it requires him to swear an oath to provide for something that is within not his competence, but the competence of Parliament to provide, which itself is constrained by the golden rule and various other things. Without making too much of this, the Lord Chancellor might even get into a situation in which he seriously perjures himself.

Ross Cranston (Labour, Dudley North)

I do not accept that analysis. Obviously, resources ultimately have to be voted for by Parliament, but the function of the Lord Chancellor, or the Secretary of State for Constitutional Affairs, will be to press the Government for adequate resources. The Department has a range of responsibilities. There are many functions for it to perform. In terms of the allocation of resources within those functions, the Lord Chancellor is simply acknowledging—this reflects the earlier stipulation, as the hon. Gentleman rightly said—the obligation to ensure that the courts are adequately funded. I have no difficulty with the oath as it stands. In fact, it is a helpful reminder that we cannot simply wish that the courts are working properly. We have instead to provide sufficient resources so that they work effectively in practice.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This is an important matter, on which other hon. Members have done more research than I have. However, I want to deal with two issues, one of which has not been touched on.

First, when we take our seats in this place, we are given the option of swearing or affirming, as people are in courts up and down the land. In this modern age, in which people may not wish to swear, either from reasons of belief or faith or from conviction, they should have the option of affirming, no matter whether it is the Lord Chancellor or someone becoming a Member of the House of Commons. Personally, although I have a faith, I have never taken an oath by swearing, because I think that it is wrong. I have always affirmed here and in other places such as courts where I have given evidence, and I do not see why the Lord Chancellor of the future should not have the same option.

Dominic Grieve (Conservative, Beaconsfield)

I think that I can assure the hon. Gentleman that there is nothing to prevent the Lord Chancellor from doing just that. As I understand it, any oath can be turned into an affirmation.

Chris Leslie (Labour, Shipley)

rose—

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

If the Minister can assure me of that, I shall be encouraged.

Chris Leslie (Labour, Shipley)

When we discussed this in another era, we mentioned that the Promissory Oaths Act 1868 allows for affirmation to apply to such oaths.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am reassured and need not pursue that. I am satisfied with the consensual view that there is an option available.

John Bercow (Conservative, Buckingham)

I do not want to break the consensus, but I want it to be worthy of support, and I am not absolutely sure that it is. It is all very well to be told that that is what the 1868 Act says, but it seems to me—the hon. Member for Southwark, North and Bermondsey (Simon Hughes) may think that I am being pedantic, but so be it—that if the alternative of an affirmation is to exist, it would be sensible to say so in the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That would certainly be my preference. As I read it, other parts of the Bill expressly give the option of oath or affirmation, but not this one. That led me to believe that affirmation might not be possible, despite the Minister's assurance, which I accept. I am conscious that we are at a late-ish stage of the Bill, but it would be better if it were included for the avoidance of doubt.

Secondly, of the two options before us, I prefer the amendment tabled by the hon. Member for Huntingdon (Mr. Djanogly) and his hon. Friends to what the Government set out in the Bill, not least because it keeps the two fundamental jobs in question—upholding the independence of the judiciary and the rule of law, and the historical rights and duties that go with that—and does not add the novel obligation to do with being a good housekeeper. I can see potential merit in Ministers swearing, by oath or affirmation, to be good housekeepers. I assume that if we pass the Bill unamended, all future Lord Chancellors will have to swear to

"discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible."

I agree that it would be better still if it said, "adequate resources", because that would add an extra protection that "efficient and effective support" does not have.

It strikes me that this will be a unique, governmental, ministerial obligation. Is it the start of a trend? Will the Minister and all his colleagues, when they take office, have to make some affirmation or public declaration that they will be responsible for the efficient and effective support for, in the case of the Home Secretary, the prisons or the police service, or, in the case of the Deputy Prime Minister, local government? In that sense, I would much enjoy going back to my old job of administrative lawyer, because many challenges could be made in court that Ministers were not doing their jobs properly. This will be the first time that we have this modernist oath saying, in effect, "I am going to look after the buildings as well". If that is really what it means, it makes one's great moment a bit banal. One arrives at the end of one's career, with the Lord Chancellor of Great Britain—[Interruption.] Well, under this new system someone might then be transferred to be something like the Under-Secretary of State for Northern Ireland as the next job. I would hope that we could have a slightly less banal oath than "Here I am, I will look after the rule of law, defend the independence of the judiciary, and make sure all the courts have enough curtains, cleaners and cleaning materials to do the job." If it really means that, there is a huge amount more work to do.

Ross Cranston (Labour, Dudley North)

Does the hon. Gentleman concede that if the Government do not appoint enough judges, build courts and provide staff for judges, the rule of law and the independence of the judiciary will not be protected?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. and learned Gentleman, in his previous role as Solicitor-General, would have dealt with such matters much more regularly than most of us. If this is just words—dressing—it should not be in the Bill. If it gives me—the citizen—or my constituents in Southwark and Bermondsey a remedy allowing them to say, "Look, I do not want to wait six months for my court hearing, or to go across the country to a court because the court that used to be here has been closed", it will be worth something. If it is all about saying, "I'm going to do my best to make sure there are enough resources", that is great, but we could have a lot of argument about the amount of resources and why all Ministers should not be subject to the same oath of affirmation.

Bill Cash (Conservative, Stone)

Would the hon. Gentleman like to extend that thought to the question of why the Prime Minister, for example, should not swear such an oath to provide all the public resources that people want and apparently need? Why not the Chancellor of the Exchequer? Why does the poor Lord Chancellor have to be required to carry out these duties, when the real responsibility lies even further up the chain than him?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is a proper question, and I would be grateful for an answer from the Minister as to whether it is intended to oblige the officeholder to carry something out, and whether there is a remedy if they do not.

All I would say to the hon. Member for Stone (Mr. Cash) is that if this does get written into the Bill, and if the Tories were ever to return to government, although some of us hope that that will not happen, it may act as a Tory Government's brake on starting a tax-cutting, public-expenditure-reducing agenda that some of his hon. Friends might be keen on. For my part, I am keen to ensure that we hold Ministers to account, but if it is just to be the poor Lord Chancellor who is to be in the firing line, I did not know that he had access to resources other than by going to ask the Chancellor of the Exchequer, who is not governed by the same proposals.

Peter Atkinson (Conservative, Hexham)

I am delighted to support amendment No. 355, which gives a few traditionalists on this side of the Committee the opportunity to form a square against the horde of modernisers led by the Minister and ably supported by the hon. and learned Member for Dudley, North (Ross Cranston) and the hon. Member for Leicester, East (Keith Vaz), who want to destroy the last vestiges of tradition that surround the law. I am not a lawyer—[Interruption.] I apologise to my north-east neighbour, the hon. and learned Member for Redcar (Vera Baird). She has not spoken, so I was not about to blame her for this.

It is important for people of this country who believe in the importance of the law that there should be some dignity and respect attached to it, because that gives it something additional to the normal run of life. It makes judges stand out; people talk about the majesty of the law. That is very important if one is to engender the respect of the population for the legal system and the judiciary. They need some traditions, and over the years we have been wiping those out. We wiped out the assizes, quarter sessions and all sorts of aspects of the tradition of the law and replaced it with things such as this rather dull and banal version of the oath that we see today.

I remember the introduction of new rules and regulations about juvenile courts. The idea was to make them far more user-friendly for those who were brought before them. Judges and magistrates were made to sit informally in small rooms, and that was meant to help young offenders. Of course, it did not. The respect of young offenders for the system of the courts and justice declined, as we have seen. It is ironic that the Government are now so fond of reversing that process by introducing naming-and-shaming antisocial behaviour orders.

I agree with the hon. Member for Southwark, North and Bermondsey (Simon Hughes) that the oath is banal and nonsensical. It is interesting to look at a copy of the Promissory Oaths Act 1868—one can get it online, believe it or not—and the original words. It says that the Lord Chancellor will swear that he or she

"will do right to all Manner of People after the Laws and Usages of this Realm without Fear or Favour, Affection or ill will. So help me GOD."

Those are ringing words—words of tradition—to be replaced by this banal oath whereby he promises to ensure the adequacy of curtains, drains or other things, as the hon. Member for Southwark, North and Bermondsey said. I believe that we should resist this change, and I hope that my hon. Friends will push the amendment to a Division.

Bill Cash (Conservative, Stone)

Buried in this debate are some pretty important questions, as my hon. Friend the Member for Hexham (Mr. Atkinson) has just pointed out. It is about the abolition of the traditional quality of the office of Lord Chancellor. In deliberations in Cabinet, certainly until the present Cabinet, the Lord Chancellor by any standards carried weight and authority second only to and possibly exceeding that of the Prime Minister when it came to matters of constitution including constitutional reform, which is the subject of this Bill. After all, the role of the Lord Chancellor, excluding his judicial functions, is to maintain the security of the constitution of this country, which is what this Bill is meant to be all about.

So, having regard to the exchanges that we have just had on the Lord Chancellor's oath, it is something of a surprise that the proposed oath does not emphasise the responsibility to maintain the constitution of this land, including the supremacy of Parliament, and to protect it against invasions from international treaties—European treaties and the like. Article 1.6 of the European constitutional treaty—I do not know whether the Lord Chancellor had anything to say on the subject—makes it clear that the constitution has primacy over the laws of the member states in relation to the competences conferred upon it. That brings us straight to the function of the Lord Chancellor in relation to the European Court of Justice. The Court has increased competences. Article 1.20 makes that clear. The role of the Lord Chancellor in Cabinet ought to be to give advice to the Prime Minister on the impact of the European constitutional treaty on the constitution of this country, including the impact on the making of laws in this country. I do not know whether the present Lord Chancellor has done so; I know that Lord Kilmuir did.

If there is inconsistency between the laws prescribed by this Parliament and the laws that emanate from the European Union, the rule of primacy under section 2 of the European Communities Act means that our laws would be overridden. In the context of the constitution, which ought to be a central question for this Constitutional Reform Bill, I would have expected the Lord Chancellor to point out that the European constitution in relation to the declaration made in respect of article 1.6 on the role of the European Court of Justice says that the case law relating to primacy shall be in accordance with the decisions of the Court of Justice. The European Court asserted in the Costa v. Enel case and the Simmenthal case and others that the constitution and the laws of the European Union override our constitution and all treaties and obligations.

So we have a serious problem on our hands. I do not know why the oath does not include a reference to maintenance of the constitution as a prime function of the Lord Chancellor. It could be said that all this is wrapped up in the expression "the rule of law". We debated that earlier. I am glad to say that the Opposition and the Conservative party as a whole supported my Back-Bench amendment on what the rule of law meant. The amendment to clause 1 sought to include our Parliament and asserted that the rule of law included ensuring that the supremacy of Parliament was maintained. I wonder whether that is understood by the Minister, and whether he is prepared to concede that point in respect of the words "the rule of law".

The Minister wrote to me the other day on the subject and said that he did not think that in the context of the Bill it was necessary to go into all these questions. Well, I am going into them now, and I would like an answer from the Minister. He does not think that it matters. Other people in the Committee and in the country at large are extremely concerned to know whether the rule of law includes maintaining the supremacy of Parliament.

If the Minister considers the body of law that relates to the legislative supremacy of Parliament, which I do not need to go into in detail, thank heavens, today, it is abundantly clear that this Parliament has to be maintained as the legislative body for the nation, over and above prerogative and international treaties. That is what the rule of law means. That is what the Lord Chancellor is being required to swear he will maintain. I want to hear the Minister, in the light of his letter to me, assert that, and confirm that when the Lord Chancellor swears that oath regarding the rule of law, he is also swearing to maintain the supremacy of Parliament. It is an extremely simple point and I want to hear it from the Minister's lips. If he is not prepared to put it in writing, perhaps he will be a little more forthcoming on the Floor of the Committee. It is a central issue. It came up today in Foreign Office questions. It is a new primacy, a new treaty and a new doctrine that is being applied under the aegis of the European Communities Act 1972. I want a simple answer. Will the Lord Chancellor, when swearing the oath, be swearing as a matter of duty and perjury that he will uphold the supremacy of Parliament?

Some people may say that this is just meandering round words, words, words. In the exchange with Alice in "Through the Looking Glass", we read that a word

"means just what I choose it to mean . . . The question is . . . which is to be master—that's all."

This is not just a jokey matter to be discussed flippantly in Committee. Over and over again we have tried to get a clear statement from the Government with respect to where we are going under the European Union Bill. We know that they are not disposed to tell us when the next stage will take place, but it is incumbent—

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I am beginning to think that I have heard this before in another context. I am therefore bound, after 10 minutes, to remind the hon. Gentleman that we are choosing between the words proposed in the amendment and those that are in the Bill. His remarks should be confined to that, and not cover the wider issue, about which I know he feels the most enormous concern. We must concentrate on the words before us.

Bill Cash (Conservative, Stone)

Indeed, I entirely agree, Sir Alan, that we should concentrate on the words contained in the oath. With respect to the rule of law, I have made my point on that and I do not need to repeat it. But I want an answer. That is why I insist relentlessly on pressing the matter on the Minister.

I move on to the next question—the wording that the Government have chosen to defend the independence of the judiciary. Before you came into the Chamber, Sir Alan, you may have observed that I raised the question in the context of clause 4, because the oath cannot be separated from the functions that are being conferred on the Lord Chancellor in part 1. The expression "the judiciary" is defined. We all thought we knew what the judiciary was, but now we find that it relates to a range of jurisdictional functions set out in clause 4(7). That cannot be separated from the oath because the Bill defines what the judiciary is.

Subsection (7) states that

"'the judiciary' includes the judiciary of any of the following—

(a)

the Supreme Court;"

Of course it should—

"(b) any other court established under the law of any part of the United Kingdom;—

I agree entirely—

"(c) any international court."

That includes the International Criminal Court and the International Court of Justice, which is specifically mentioned in subsection (8), which states that

"'international court' means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of—

(a) an agreement"—

Bill Cash (Conservative, Stone)

I understand, Sir Alan, although we have a fair amount of time to consider these matters, which we were denied yesterday. The definition of "international court" also includes functions in pursuance of

"a resolution of the Security Council or General Assembly of the United Nations",

which anyone would regard as rather curious in the context of a judiciary whose independence, as a matter of duty and of oath, must be sustained by the Lord Chancellor.

Let us put that in the context of what judicial independence means. I have set the framework and I am now leading up to that crucial question. In 1950 Lord Denning, no less, stated in a seminal lecture:

"No member of the Government, no member of Parliament, and no official of any Government department has any right whatever to direct or influence or to interfere with the decisions of any of the judges."

That is what is meant by the definition in the Bill. The oath refers to the upholding of the independence of the judiciary.

3.45 pm

This is not a light matter. Apparently, in 1994, a serious problem is supposed to have arisen when the president of the Employment Appeal Tribunal and the then Lord Chancellor fell out over the question of judicial independence.

Bill Cash (Conservative, Stone)

I just say that the issue that arose in that instance involved a dispute between Lord Mackay of Clashfern and others. A debate took place on the relationship between the Executive and judges in the House of Lords. As Lord Lester of Herne Hill pointed out, the Lord Chancellor will command the confidence of his judicial colleagues only if he "will protect the judges" and that included independence from any improper interference. I do not need to go into the details of that case but its significance is that, in relation to the swearing of an oath to maintain judicial independence—as you have indicated, Sir Alan, we do not need to go into what that would involve because we have already discussed it on clause 4—the question of what the consequences would be if the Lord Chancellor were to behave in a manner that involved improper interference with the judiciary remains important. That would also apply to the category of activity in relation to the judiciary within the general remit of the definition of international court, which again I do not need to go into because we have covered that already.

Bill Cash (Conservative, Stone)

That is very interesting. I can only say that I am now at liberty, therefore, to move on to the next question, which relates to the provision of resources.

Greg Knight (Conservative, East Yorkshire)

Before my hon. Friend moves on, can he assist me with regard to the wording in the oath? Reference is made to the independence of the judiciary. Does he take that to mean the judiciary in Britain, or would it mean the judiciary worldwide? Would it encompass judges of the European Court, whom some of us do not think are judges in the proper sense at all?

Bill Cash (Conservative, Stone)

I thought that the cavalry would come to my aid in an intervention at some point. Sir Alan has made it abundantly clear that he does not care for me to go down the route of discussing those international courts. We have had over the past 15 years or so a considerable amount of discussion on the subject and there are differences of opinion, but, in a nutshell, the fact is that the provision goes far too far. That is where the problems lies. I have no idea how it would be possible to discharge an oath to defend the independence of the judiciary which is not confined to the United Kingdom. That is relevant to the definition that we have here. How on earth could the Lord Chancellor be put in a position in which he is under an obligation to give effect to an oath relating to the activities of judiciaries elsewhere in the world? That is impossible and absurd.

I move to the next question, which concerns the discharge of

"my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible."

Geoffrey Clifton-Brown (Conservative, Cotswold)

My hon. Friend has not covered the important point of how the wording of the oath relates to the duties of the Privy Council in relation to our colonies. Could he say something about that?

Bill Cash (Conservative, Stone)

I sense that you are not concerned to hear more on that subject, Sir Alan—you have made it clear that you do not particularly like my hon. Friends' line of inquiry. I happen to find it interesting and others may do so as well. At the risk of continuing to move down that path, I shall eschew the opportunity of considering the Commonwealth, about which I could expound at length.

Greg Knight (Conservative, East Yorkshire)

Reading the wording of the oath, I am at a loss to understand what the position would be if the Lord Chancellor was an atheist. Does the Lord Chancellor have the option of affirming rather than swearing an oath if he happens not to believe in God?

Bill Cash (Conservative, Stone)

That important point is not covered as far I can judge, other than to say that that requirement— indeed, duty—is in place and that, irrespective of our interesting discussion on the Promissory Oaths Act 1868, the option would be available to the Lord Chancellor to affirm. I suppose that if he had a problem of conscience with regard to the swearing of the oath, he could experience the same problem as Bradlaugh, in 1868 I think, when he was required to swear an oath, but, being a Quaker—I look to the hon. Member for Southwark, North and Bermondsey (Simon Hughes) for guidance on this—and a contemporary of John Bright, was allowed to affirm. Hence, I think, the hon. Gentleman's remarks. If the Lord Chancellor was an atheist, he could be in difficulties if he was required to swear the oath in question.

Leaving aside that important point—for which I am grateful to my right hon. Friend the Member for East Yorkshire (Mr. Knight) and which goes to show how many unpleasant man traps there are in the oath—I turn to the

"duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible."

I may add that the following sentence is:

"So help me God."

The Lord Chancellor will certainly need divine assistance if he is to fulfil that obligation. I made the point in an intervention that it would be extraordinary to single out the Lord Chancellor to swear an oath to maintain public expenditure, whereas the Chancellor of the Exchequer and the Prime Minister, who ultimately decide whether the Lord Chancellor gets his money, are not placed under the same requirement.

That seems a little odd, but I could also mention the issue of court closures, for example. It is not impossible that somebody might not only pursue the Lord Chancellor for failure to carry out the administrative functions regarding the provision of resources that are laid down in clause 4, but tackle him on whether he is in breach of his oath. That would be an extraordinary state of affairs.

Bill Cash (Conservative, Stone)

I have to say, Sir Alan, that if the words are to be

"discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible",

I cannot see why it should be out of order for me to talk about what those words mean.

In that context, I conclude with the words "So help me God".

Chris Leslie (Labour, Shipley)

That applies to us all following the hon. Gentleman's speech, thorough and comprehensive though it was.

Amendment No. 355 suggests an alternative to the oath proposed in the Bill. While I understand some of the sentiments expressed by Members, I hope to explain briefly why I do not think it is the right alternative and why I think it would be best to retain the version in the Bill.

The oath set out in clause 14 covers the three principal areas of the Lord Chancellor's role. It covers the rule of law and judicial independence, but it also covers the running of the courts. There has been some pooh-poohing of the notion of the efficacy and efficiency of resourcing of the courts—I shall explain why it is important in a moment—but those duties are key to the Lord Chancellor's Office in its reformed state, and also distinct from those of any other Minister.

The Lord Chancellor's oath as contained in the Bill outlines the fundamental responsibilities of the office holder in a form that avoids the problem of overlap with the judicial oath. That, too, is key. My hon. and learned Friend the Member for Dudley, North (Ross Cranston) had his own rationale for why the phrase

"in accordance with the laws and usages of this Realm"

in the existing oath need not remain—he felt that it was already encompassed in the concept of the rule of law—but it is also crucial to note that that is currently integral to the judicial oath.

An oath whose purpose is to declare the Lord Chancellor's essential functions should clearly now reflect the fact that that Lord Chancellor will no longer sit as a judge. We will no longer have a judicial Lord Chancellor, which is why we need a new oath distinct from the judicial oath. By rejecting that phrase we are not, of course, implying that the Lord Chancellor should not be bound by the law when exercising his functions—he or she will be bound by it—but there is no need to specify that in the oath, especially if terms are borrowed from the judicial oath.

Let me now deal with the crux of the matter. I think that most of the objections are a result of a feeling that the new oath is not phrased in as romantic and flowing a way as the existing one. It is important for us to mention the Lord Chancellor's responsibilities in relation to the provision of effective support for the court system. Some Members may consider that very concrete and pedestrian, but it is important none the less.

I do not know whether those who are present were involved in scrutiny of the Courts Act 2003, but part 1 imposes a new statutory duty on the Lord Chancellor to ensure the provision of resources for the "efficient and effective" support of the courts. The Act was debated and approved in a specific context of concern from Members in all parts of the House who felt that we needed to be more certain that resources would be provided for the efficient and effective administration of the courts. It is because that duty was imposed then that we need it to be mentioned in the new oath. If the purpose of the Lord Chancellor's oath is to set out the essential responsibilities of the office, this vital area of duty ought not to be overlooked.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

First, will the Minister tell us what power the Lord Chancellor has, other than influence, to ensure that he or she has the money with which to do the job? I presume that it will have to be obtained from the Chancellor of the Exchequer: there are no own revenues, or very few. Secondly, what does this mean in practice? What can anyone do if the Lord Chancellor of the day does not fulfil his or her obligation? What right have I to take the Lord Chancellor to court in those circumstances?

Chris Leslie (Labour, Shipley)

As I was implying, we debated this during the passage of the Courts Act 2003. The reason that we explicitly put this duty into that Act was to provide a justiciable provision on the duty to provide resources for the efficient and effective running of the courts that was more firmly enshrined in our constitutional framework. Not many people, including those in the media, commented on that at the time, but the measure represented an important step forward.

Angus Robertson (Scottish National Party, Moray)

If the measure is already enshrined in law, why is it necessary for it to form part of the oath?

Chris Leslie (Labour, Shipley)

The oath does not stand on its own as a piece of legislation. It is a formal expression by which the prospective post holder reaffirms their commitment to the important principles set out in our constitution and in statute. It supplements what is already in statute. Some might say that it is not a necessity, but we feel that the oath adds the extra virtue of underlining to every new post holder the responsibilities and duties that they will have. That is why we want to continue to have an oath, albeit in a different form.

Greg Knight (Conservative, East Yorkshire)

Will the Minister answer the question that I asked earlier? Will it be possible for a Lord Chancellor to affirm instead of taking the oath, if that is what he or she wishes to do?

Chris Leslie (Labour, Shipley)

Yes. I addressed that point before the right hon. Gentleman came into the Chamber, in response to a question from the hon. Member for Southwark, North and Bermondsey (Simon Hughes). The hon. Member for Stone (Mr. Cash) asked about the rule of law and whether the measure encompassed the supremacy of Parliament in the oath. We have already debated that matter in other parts of the Bill and I do not want to go into it again. We have now agreed a definition of the rule of law. Some people certainly feel that the supremacy of Parliament should be included in it, but we have deliberately not included a formal definition of the rule of law in the Bill. We feel that the oath is better and more comprehensive in the proposed new form and I hope that the House will reject amendment No. 355.

Jonathan Djanogly (Conservative, Huntingdon)

We have had a full and interesting debate on the Lord Chancellor's oath. We heard persuasive arguments from my hon. Friend the Member for Stone (Mr. Cash) on the implications of oaths in the context of the rule of law, the supremacy of Parliament and the independence of the judiciary. The Minister said that there could possibly be an overlap with the judicial oath. Indeed, he stated that that was the key problem. We disagree with him, not least because of the Lord Chancellor's interest in protecting the interests of the judiciary. There is therefore no need to break the historic link with the judicial oath.

We find the Minister's remarks unpersuasive and wish to stand by amendment No. 355 to show that justice in the UK flows from the Crown, to remind the Lord Chancellor of his continuing duty with respect to the rule of law, to oppose the idea that an oath should be tied into adequate resources and to some kind of judicial efficiency, to remind the Lord Chancellor of his unique role as a Minister in protecting judicial independence, and to preserve the sense of continuity that exists with this historic role.

Clause 15 — Speakership of the House Of Lords

Chris Leslie (Labour, Shipley)

Clause 15 introduces schedule 5, which vests the functions currently vested in the Lord Chancellor as Speaker of the other place in the generic office of Speaker of the House of Lords. The provisions remove the automatic link in primary legislation between the Lord Chancellorship and the speakership of the other place, ensuring that the other place can, under its own Standing Orders, appoint any person to be its own Speaker rather than, as is currently the case, having the Speaker selected by the Executive. The person then appointed will be empowered to carry out all the functions currently attached to the speakership of the House of Lords. It is for the other place to settle its own arrangements for presiding over its own proceedings.

The Government acknowledge that discussions in the other place, following the report of its Select Committee established to examine the speakership, have taken place and we have encouraged the other place to consider appointing as its Speaker a Member other than the Lord Chancellor. The report of the House of Commons Constitutional Affairs Committee notes that it is reasonable to assume that the Lord Chancellor who, after all, has the responsibility for running a large Government Department should not also be Speaker of the House of Lords. That is also the Government's view, so I support clause 15 and schedule 5.

Peter Luff (Conservative, Mid Worcestershire)

Until recently, I had not appreciated that the proposals in clause 15 and schedule 5 were part of the provisions of the Bill. A Member of this House gets into a debate about the conduct of affairs in the other place only with some trepidation, but I have a sort of interest that I should declare, in that I was the first Parliamentary Private Secretary to a Lord Chancellor.

In the previous Conservative Government, I had the privilege to serve Lord Mackay of Clashfern—for my money, one of the finest Lord Chancellors that this country has produced. As his PPS, I saw for myself something of the Lord Chancellor's different roles and the value of having the person in that post as Speaker of the House of Lords.

There is a difficulty that this House needs to consider and it relates to the use of the word "Speaker" in both Houses. I do not feel entirely comfortable with that, as the word has a particular resonance in the British Parliament. I feel strongly that that resonance is best protected if the word "Speaker" is used solely in connection with the House of Commons. I regret that the House of Lords is considering using the word for the person who chairs its proceedings, and I also regret that the Lord Chancellor will no longer be the automatic choice as Speaker in the other place.

On a point of procedure, I am slightly surprised—as an amateur in these matters—that clause 15 should have such lax wording. It states:

"Schedule 5 contains amendments relating to the Speakership of the House of Lords."

I hope that the Minister, when he winds up this short debate, will confirm that the wording is sufficient to give effect to the amendments contained in schedule 5.

Those amendments are surprisingly wide ranging. One might have imagined that the simple change proposed in the clause would have required relatively few consequential changes, but no fewer than eight Acts of Parliament will have to be altered as a result. I suppose that the changes to the Ministerial and Other Salaries Act 1975 could have been predicted, but I hope that the Minister will confirm that the clause does not have wider implications. For example, the Lord Chancellor at present has power in relation to ecclesiastical patronage. Schedule 5 deals with the Church of England Assembly (Powers) Act 1919, and I should be interested to know where in the Bill that ecclesiastical patronage power is covered.

The problem is that the significant constitutional changes proposed in the Bill were rushed in the first place. The consequences for the organisation of business in the House of Lords were not properly considered when the Department for Constitutional Affairs was created. The matter at issue in clause 15 and schedule 5 is not of a piece with the rest of the Bill. Essentially, the Bill describes how this country's legal processes will work in the future. It sets out important questions of a strategic nature that have to do with our systems of criminal and civil justice, but we must also consider the importance of symbols of power and authority.

That is why I was so disappointed by the earlier debate about the proposed titles for the courts. I do not think that the word "senior" is appropriate, given that the word "supreme" has served us so well for so long. That usage is infinitely preferable, as such symbols matter. For that reason, we should also be concerned about the changes proposed in clause 15 and schedule 5.

The authority of the other place derives in part from the mystique attached to the title of Lord Chancellor, who chairs its proceedings. That is another reason for concern. The British constitution is not unwritten as it has been set out in scores of Acts of Parliament, conventions and documents, but it is precious and delicately balanced. Often, apparently insignificant changes can have quite big consequences, and it is a matter of great regret that one consequence of the over-hasty creation of the Department for Constitutional Affairs in 2003 is that we are now having a rushed debate about how the other place should organise its proceedings, and about the role of the Lord Chancellor in those proceedings.

I do not suggest for a minute that the status quo is necessarily the right position to occupy, but the post of Lord Chancellor has evolved over the centuries to meet the needs of changing judicial and political structures. I think that I am correct in saying that it is the oldest post left in the British constitution—except, of course, for the monarch. The Lord Chancellor's Department—to which I feel such personal attachment, having served as a Parliamentary Private Secretary there—was created in 1885. The Lord Chancellor only gained power over the courts under the Courts Act 1971. Of course, the Government created the Department for Constitutional Affairs only about two years ago, so I accept that there should be change.

I am not saying that the Lord Chancellor should necessarily always be the Speaker of the House of Lords, but I am attracted to that solution. I am concerned that the Minister, in his opening remarks, did not give a sufficient explanation of why we need to rush this change. The argument about separation of powers of the Government or Executive, Parliament and the judiciary—the different elements of the constitution—lies at the heart of much of our debate, but I have always seen the attraction of the Lord Chancellor occupying different roles. Certainly, the last Labour Lord Chancellor found no difficulty with those roles, and Conservative holders of the office have had no problem with that either.

Keith Vaz (Labour, Leicester East)

The hon. Gentleman said that he did not mind the Lord Chancellor occupying different roles. Is he saying that he supports the view that the Lord Chancellor should continue to sit as a judge?

Peter Luff (Conservative, Mid Worcestershire)

That probably takes us rather wide of the clause. I would not have changed the status quo at all; I was entirely content with the status quo. I belong to the school of thought that says, "If it ain't broke, don't fix it." The speakership of the House of Lords was not broken and it did not need fixing. The Government have not really adduced an argument about why that should be changed.

If we are to separate out the judicial role, I might understand that—I might regret it, but it is happening—but it does not necessary follow that that great historic symbol, the Lord Chancellorship and his role as the Chairman of proceedings in the House of Lords also needs to change. Frankly, as someone who saw Lord Mackay of Clashfern perform that role with great distinction, I am totally unpersuaded by the case for change, so perhaps the Government are throwing the baby out with the bathwater.

The clause and schedule 5, to which it gives effect—at least, I think that it gives effect, depending on the reassurance that I get from the Minister—are a bridge too far. We need much more justification for a change that may appear trivial, but could lead to confusion between the two Houses and removes an ornament to the British constitution that does no harm and brings great pleasure, distinction and a sense of historic continuity.

My final thought is that Parliament should treasure historic continuity whenever it possibly can; it should throw away traditions and customs only when it is forced to do so by changing circumstances. When it is not necessary to change, it is necessary not to change. That is an important principle with small and big things, and it should be applied now. I am not persuaded by the case for the clause or schedule 5.

Keith Vaz (Labour, Leicester East)

It is a pleasure to follow the hon. Member for Mid-Worcestershire (Mr. Luff), but he is wrong on this issue. The Minister was spot on in the way in which he introduced this new proposal. It cannot be right, surely, that a senior member of the Government should, in conducting his or her duties as a Cabinet Minister, come before the House of Lords and act as a Speaker for that House. That is what the hon. Gentleman proposes.

It should be a matter for the House of Lords to decide how it elects the person who will chair its proceedings. It is right that we should modernise the role of Lord Chancellor. Of course we are keeping the title, so the hon. Gentleman need not worry about that. We have still got that title—the campaign has been won—but the role has been modernised. As a part of that process, it is essential that the other place should be able to find and elect its own Chairperson, so that it is not chaired by a member of the Government who sits in the Cabinet and therefore cannot possibly be seen to be impartial in his or her work.

Peter Luff (Conservative, Mid Worcestershire)

Irrespective whether or not I accept that argument, is the hon. Gentleman entirely happy with the use of the word "Speaker" to describe the role in the other place as the alternative to the title "Lord Chancellor"? I would certainly prefer it to "Chairperson"—the phrase that he just used.

Keith Vaz (Labour, Leicester East)

The hon. Gentleman was not in his place earlier when we had a debate about names, and whether we should have an attachment to a name or to the functions of the office. It must be left to the other place to decide. I believe that the words "Mr. Speaker" mean the Speaker of the House of Commons, and I am sure that many other titles could be found, in ancient Acts of Parliament or elsewhere, to describe somebody who chairs the proceedings in the other place.

In any case, the Chair in the other place should not be the Lord Chancellor. We have won the battle to retain the title of Lord Chancellor and we should let him get on with being the Secretary of State of a major Department. The other place should choose whom it wants to chair it. I hope that it does not use the same title as we have because it is special to the House of Commons, but it can use any other title it wants.

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

I agree with the hon. Member for Leicester, East (Keith Vaz), as I so often agree with him on the Constitutional Affairs Committee. The hon. Member for Mid-Worcestershire (Mr. Luff) is, uncharacteristically, behind the flow of events, not least in that we had a brief but enlightening debate on ecclesiastical patronage at the relevant point earlier this afternoon. I am entirely satisfied with the way in which the matter has been handled, as it was much in line with the evidence heard by the Committee.

I should declare an interest on the matter of a Speaker for the House of Lords, as my wife is a member of the other place. The clause is necessary to allow the House of Lords to make its own choice of Speaker. If we do not accept the clause, certain functions will have to be exercised by the Lord Chancellor that the House of Lords might consider should be exercised by the person who is its Speaker—or whatever title is used. That is the main reason for this provision: it is not that the House of Commons is deciding who should chair proceedings at the other end of the building. However, I agree with the hon. Member for Mid-Worcestershire that significant disadvantages would arise should the Lords decide to call that person the Speaker. There are also some reasons in the history of that Chamber that make that title inappropriate. The role played by the Lord Chancellor in the House of Lords is very different from that played by any occupant of the Chair in this House. The role in the Lords is much more restricted. The other place may yet choose a different title and we have our own reasons for hoping that it does so.

Peter Luff (Conservative, Mid Worcestershire)

In that context, does the right hon. Gentleman share my regret that the clause we are debating is entitled "Speakership of the House of Lords"? That appears to carry the presumption that the other place should choose to use the word "Speaker" and I hope for some reassurance on that point from the Minister.

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

I am sure that we will, because it is a generic title. The clause had to be called something in order to detach the positions referred to in statute from the Lord Chancellor. We are cutting the cord between those functions and the Lord Chancellor so that they can be available to the person who presides over and acts as the formal representative of the House of Lords in the future. I am sure that the Minister will reassure us that we are not seeking to determine what title the House of Lords uses or, indeed, whether the role of the person who chairs remains much as it is now. My judgment, from talking to my friends in the other place, is that on the whole the Lords like the slightly Quaker meeting style of proceeding that they have. It suits them, and what we are doing today in no way interferes with their right to decide, other than sending a signal that we do not think it appropriate that the Executive should make available one of their senior Ministers for that purpose.

Jonathan Djanogly (Conservative, Huntingdon)

Clause 15 deals with the future of the speakership of the House of Lords. It introduces schedule 5, which provides for the replacement of references in primary legislation to the Lord Chancellor in his capacity as Speaker, with references to the title of "Speaker of the House of Lords". On Third Reading in the other place, Lord Falconer conceded that the choice of Speaker of the House of Lords was a matter for the other place alone. The Government's intention of course is that the provisions in the Bill—now clause 15 and schedule 5—would allow the House of Lords to choose whomsoever it wished to fill that role without a future need to amend primary legislation.

It is worth briefly setting out the background to these provisions. The other place established a Select Committee in July 2003 for the purpose of considering future arrangements regarding the speakership. That followed in the wake of the Government's announcement of their intention to abolish the office of Lord Chancellor. The Committee's report in November 2003 made a series of recommendations, including that a single secret ballot should be used to elect the Speaker, the Speaker's term should last for five years with the possibility of renewal and the Speaker's title should be "Lord Speaker".

The report also recommended that the Speaker's ceremonial role should be retained as that which currently exists for the Lord Chancellor, and that the Speaker should welcome new Members and help them to learn the customs and traditions of the House. It said that the Speaker would play an important role in receiving and entertaining overseas Speakers and other parliamentarians visiting Westminster.

A debate on the speakership was held in the other place during the Bill's Report stage. During that debate, Lord Campbell of Alloway moved an amendment on behalf of the Opposition to retain the Lord Chancellor as Speaker. Lord Kingsland eloquently set out the case for retaining the present position. He said:

"I cannot allow the moment to pass without expressing a view about the Speakership of your Lordships' House. This is a very important issue which requires careful thought and upon which taking the wrong decision could change the whole character of the House. That is why I submit that the clause on the Speakership and the accompanying schedule should not remain part of the Bill."

The Bill and the review of the speakership of the House conducted by Lord Lloyd of Berwick and his Committee were predicated on the assumption that the office of Lord Chancellor would no longer exist. However, their lordships' House has now determined not only that the office should continue to exist, but that the Lord Chancellor should remain in their lordships' House. Of course, owing to Government amendments that were agreed to in Committee in the Commons, we are now in the rather unhappy position that the Lord Chancellor will not necessarily have to be a Member of the other place. However, we are yet to hear their lordships' views on that.

Bill Cash (Conservative, Stone)

Did my hon. Friend notice whether any reference was made to the fact that the Attorney-General was a Member of the House of Lords, although he should be in the House of Commons?

Jonathan Djanogly (Conservative, Huntingdon)

I do not think that exact historical comparisons between the two offices can be made, but I hear what my hon. Friend says.

Peter Luff (Conservative, Mid Worcestershire)

My hon. Friend quoted our noble friend Lord Kingsland, who indicated that the change could have a significant impact on the character of debates in the House of Lords and the nature of that House. If that were the case, surely the change would also have important consequences for this House. Do we have any idea of the nature of the changes that Lord Kingsland envisaged?

Jonathan Djanogly (Conservative, Huntingdon)

I think that Lord Kingsland was talking from a historical perspective. He was thinking about the sort of House that people had known and enjoyed and the unnecessary nature of the changes.

The role of the Lord Chancellor remains and the official Opposition believe that it should include the speakership of the other place. Lord Kingsland said:

"For my part, I wish to see the Lord Chancellor continuing in his historic role as Speaker of the House. The ancient office and high degree of that office reflect and embody the authority and precedence of this House."

Removing the Lord Chancellor from his role as Speaker goes far beyond the sensible, incremental changes that have occurred in the other place, such as no longer requiring the Lord Chancellor to robe or preside at Divisions. As Lord Kingsland put it, the measure would be

"a wholesale change that would dispense with the traditions of your Lordships' House and could see us moving towards a full-time Speaker with authority over the House." —[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 885–6.]

The Conservative party, like the Government, agrees that the decision about the speakership is ultimately one for the other place itself. The view that my hon. Friends and I are presenting in this debate reflects the views of Opposition peers during the Bill's passage through the other place, namely that the Lord Chancellor should remain Speaker in that House. Although the Government insist that the Bill does not compel the other place to remove the Lord Chancellor from the speakership, that important decision will effectively be taken before the other place can properly debate the proposals.

While the other place has had to consider the question of who should be its Speaker, it is unfortunate to see a structure that has been little used in the Lords being put into play. It would be unwise to give the holder of the speakership of the Lords the title of "Speaker", because constitutionally speaking, he would not speak for peers. All peers constitutionally have a right of access to the sovereign, so the role of Speaker in the Lords is entirely different from that of Speaker in the Commons. To have competing claims on the role of Speaker can only lead to confusion. The term is confusing not just constitutionally—hon. Members in the Committee understand full well what is going on in that regard—but for normal people as well. As my hon. Friend the Member for Mid-Worcestershire (Mr. Luff) said in his eloquent speech, symbols matter. The confusion cannot be good for understanding how Parliament is run, which is surely an important part of our democracy.

Keith Vaz (Labour, Leicester East)

The hon. Gentleman is making heavy weather of this. Whatever the personal view of Members of the House of Commons, surely it is up to the other place to decide what it wants to call the person who will chair its proceedings.

Jonathan Djanogly (Conservative, Huntingdon)

That is the single point on which we agree, but it is a matter of context, history and how the change is made. We think that it is being done in the wrong way.

Chris Leslie (Labour, Shipley)

I heard the points raised by the hon. Members for Mid-Worcestershire (Mr. Luff) and for Huntingdon (Mr. Djanogly), although I tend to agree more with the Chairman of the Select Committee on Constitutional Affairs, the right hon. Member for Berwick-upon-Tweed (Mr. Beith), and my hon. Friend the Member for Leicester, East (Keith Vaz) in their interpretation of clause 15 and schedule 5. I assure the hon. Member for Mid-Worcestershire that they are adequately drafted. I was interested to learn that he was the first Parliamentary Private Secretary to a Lord Chancellor. I do not know whether a plaque has been put up in any corner of the building, or even in Selborne house on Victoria street, as a commemoration of that.

Obviously, use of the word "Speaker" is of concern. Although the clause and schedule are entitled "Speakership of the House of Lords", it was, as the right hon. Member for Berwick-upon-Tweed set out, for the purpose of finding a generic way of describing the aspects under consideration that we used the reference, first made in legislation in the Clerk of the Parliaments Act 1824, to the Speaker of the House of Lords. That is not necessarily of our choosing, and nor should it be taken that it is our preference for what the actual title should be in the other place. Their lordships have yet to give their view on their future arrangements, both for the practice of chairing and presiding over their proceedings and for the title.

I am aware of legitimate concerns expressed by hon. Members on both sides of the Committee about duplicating a title from one House to another. However, they will understand that it is not for me, as a member of the Executive, to dictate to Members of the other House the Government's preference for what that title should be. I am quite sure that their noble lordships, in their usual manner, will listen carefully to the views expressed here.

Dominic Grieve (Conservative, Beaconsfield)

I agree with every word of that. Clearly, it is not for the Executive to dictate that decision. However, seeing as this is our one opportunity to express a viewpoint in Committee, it is sensible to do so.

Chris Leslie (Labour, Shipley)

I cannot deny that, and all hon. Members have made their points loud and clear.

Although we hope that the amendments made in clause 15 and schedule 5 will allow the Lord Chancellor no longer to be the presiding officer of the other place, they do not prevent that particular peer from continuing in that post. It is a choice for the other place, but it allows that flexibility so that any other peer can take the presiding officer role. That is a fundamental aspect of what we propose. We hope for a greater separation between the legislative and Executive functions in the other place. One aspect of that is removing the presiding officer function of the Lord Chancellor, but ultimately that has to be a decision for the other place.

It is a little perverse that a Prime Minister should be able to dictate to a House of Parliament who its presiding officer will be. Hon. Members would not necessarily tolerate that in respect of the House of Commons, but for some reason we have that arrangement in the other place. This is a healthy change, and if hon. Members were to reflect on it outside the partisan realm, they would probably come to the same conclusion. I hope that helps to answer some of the points raised by hon. Members and that clause 15 and schedule 5 can be accepted.

Question put and agreed to.

Clause 15 ordered to stand part of the Bill.

Schedule 5 agreed to.

Government amendments Nos. 30 to 47 made

Clause 16 — Transfer, modification or abolition of functions by order

Chris Leslie (Labour, Shipley)

Clauses 16, 17, 18 and 19 and schedule 6 operate together. They provide a framework within which the Lord Chancellor can give effect to the spirit of the Bill and the principles of the concordat. They provide the necessary powers to complete the application of the concordat to functions not included in the Bill and for their entrenchment in the office of Lord Chancellor, where they are to be exercised wholly or in part by that Minister. The purpose of this, as agreed with the senior judiciary, is to guarantee further the independence of the judiciary and the new partnership between the judiciary and the Executive that the concordat achieves.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Clause 16 has a cross-reference to schedule 6 in terms of the protected functions, three of them specifically and the fourth relating to a great long list that goes on for six pages—in the schedule, not the body of the clause. Given that that is the sacrosanct stuff, why is it not in the substance of the clause? I always try to look at a Bill from the point of view of somebody reading it having never done so before and trying to find out what the law is, and it would be easier if all the functions were in the same place. Future generations who read the Bill after it becomes law would then know what are this great list of functions that cannot be transferred—the six pages of other Acts under which the Lord Chancellor has responsibilities, including all sorts of things such as patronage, vice-chancellorships and nominations. It would be helpful to provide a simple linked document listing all those things so that people are always able to lay their hands on the information and do not have to spend a week, a month or a year doing all the cross-referencing. It is nonsense that they should have to check 100-odd Acts of Parliament in order to know what the Bill is talking about, although I am sure that it is administratively possible. I would be grateful for the Minister's reassurance that he will look into it and try to ensure that this bit of our system is modernised.

Chris Leslie (Labour, Shipley)

I understand the hon. Gentleman's desire in general for statute law clarification and codification to make for easy reading, and I apologise for the fact that that is not always the case. However, I am absolutely assured that the provisions set out in clauses 16, 17, 18 and 19 and schedule 6 achieve what we want them to achieve, and that they are clear to those who are versed in reading these matters.

To elaborate somewhat, clause 16 provides for the transfer, modification or abolition of existing functions of the Lord Chancellor or for the exercise of those functions concurrently by another person—the concordat aspect. They are principally aimed at functions in primary legislation enacted since the introduction of this Bill or in secondary legislation or in prerogative instruments elsewhere.

Clause 16 introduces schedule 6, about which the hon. Member for Southwark, North and Bermondsey (Simon Hughes) is concerned, and which lists functions of the Lord Chancellor that cannot be transferred to anyone else. Those functions relate to the Great Seal, the judiciary, judicial appointments and the organisation of the courts. The clause allows the addition of functions to schedule 6 where those functions that have been transferred are modified by an order under clause 16, but the order-making power cannot be used to transfer, modify or abolish functions listed in that schedule. In other words, they give that protection to those particular aspects of the role of Lord Chancellor, and they are there to add that greater protection. That was the purpose of the amendments. They are a consequence of the concordat. I hope that that gives a little succinct clarity as to the nature of schedule 6.

Dominic Grieve (Conservative, Beaconsfield)

I am pleased that schedule 6 is present. As I understand the reasoning behind it, it is that the Government and the other place considered that there were functions discharged by the Lord Chancellor which were such that they should not be done by any other Minister. Some of those relate to administration, but have judicial aspects to them. The vast bulk of the list illustrates that.

The Minister may agree with me that the schedule highlights the extent to which the Lord Chancellor, despite the changes that have been brought into being, continues to have important semi-judicial or at least administratively judicial functions that will not go away. In those circumstances, does the Minister agree that that highlights the need to ensure—something we shall come on to in a moment—that his position is made separate and distinct from that of other Ministers?

Chris Leslie (Labour, Shipley)

In many ways, schedule 6 comes at the apex between judiciary and Executive. It is there in quite a formal sense to provide assurances and protections about those particular functions that relate to the Great Seal, judicial appointments, the judiciary in general and the organisation of the courts, which many would prefer not to be undertaken by other Ministers. Schedule 6 is amendable only by primary legislation, although it can be added to, but not taken away from. That is a good principle on which clarity can be gained with regard to the respective functions of the Lord Chancellor versus the judiciary.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I apologise if I did not hear the Minister do so, but will he address the question about the six pages of specific functions? Is he able to find a way of putting what they mean in a somewhat more accessible place?

Chris Leslie (Labour, Shipley)

I am reluctant to give an absolute commitment that my officials will spend too long redrafting, even if it is only in the simple form of a helpful ABC guide to the role of the Lord Chancellor. However, I suspect that we will need to have something of that ilk to aid officials' understanding of where the Lord Chancellor's functions do and do not start. I will certainly look into it, but I imagine that there is an expense in the drafting arrangements.

I hope that I have detailed sufficiently the nature of clause 16 and some of the clauses associated with it and that the Committee will agree to let it stand part of the Bill.

Question put and agreed to.

Clause 16, as amended, ordered to stand part of the Bill.

Schedule 6 — Protected functions of the minister

Chris Leslie (Labour, Shipley)

I beg to move amendment No. 559, in page 150, line 6, at end insert 'and (c)'.

Chris Leslie (Labour, Shipley)

As I have already said, schedule 6 protects certain judiciary, court and Great Seal-related functions of the Lord Chancellor. These functions cannot be transferred by order under clause 16 or by order under section 1 of the Ministers of the Crown Act 1975. That is essential, given clause 4 and the Lord Chancellor's particular duties in relation to judicial independence. Amendments Nos. 463 to 465 provide for the addition to and deletion from schedule 6 of certain functions that the Lord Chancellor exercises in England and Wales. Amendments Nos. 559 to 561 amend schedule 6 to provide for the protection of certain judiciary or court-related functions that the Lord Chancellor exercises in Northern Ireland so that they cannot be transferred by an order under clause 16 or to another Minister by an order under the Ministers of the Crown Acts. They ensure that protection is afforded to those functions that the Lord Chancellor exercises in respect of Northern Ireland.

Amendment agreed to.

Government amendments made: Nos. 463, 560, 464, 465 and 561.

Schedule 6, as amended, agreed to.

Clause 17 ordered to stand part of the Bill.

Government amendments made: Nos. 52 to 54.

Clause 18, as amended, ordered to stand part of the Bill.

Government amendments made: Nos. 55 and 56.

Clause 19, as amended, ordered to stand part of the Bill.

New Clause 10 — Functions of the Lord Chief Justice during vacancy or incapacity

Chris Leslie (Labour, Shipley)

I beg to move, That the clause be read a Second time.

The purpose of the new clause is to ensure that there is continuity in the event that the office of Lord Chief Justice is vacant or if the office holder is unable to exercise his or her functions. We hope, of course, that the provisions will never be necessary, dealing as they do with such circumstances as unexpected resignation or death. They also deal with situations relating to ill health or other possible scenarios where the Lord Chief Justice is incapacitated. In such circumstances it is essential that procedures are in place to ensure that the functions that fall to the Lord Chief Justice can be exercised on his behalf so as to allow the smooth running of the judicial system. The new clause provides that the function would fall to the next most senior head of division. In such a case, the full powers of Lord Chief Justice would transfer temporarily to the next most senior member of the judiciary. That is an important safeguard.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has not quite explained why, at a late stage of the Bill, it was felt necessary to introduce the new clause. It would be useful to understand the reasoning behind the Government's decision. The current position, as I understand it, is that if the Lord Chief Justice is incapacitated, there are all sorts of conventions in operation about other people discharging his responsibilities. I appreciate that as we move to a more statutorily based system, it is desirable to spell the procedure out in the Bill. Nevertheless, the Government did not originally choose to do that.

The Bill was scrutinised at length in the other place, where the new clause was not inserted. I hope the Minister does not feel that I am pressing him needlessly. I am trying to understand why, instead of the informal system that existed, the system is to be set out in statute. Perhaps he could also clarify why that was not done earlier in the passage of the Bill.

Chris Leslie (Labour, Shipley)

The reason is quite simple. The Bill had a long gestation and long scrutiny. The new clause deals with a situation that came to our attention when we considered what would happen when the Lord Chief Justice, as opposed to the Lord Chancellor, is the head of the judiciary in England and Wales. Various issues arise, one of which is what happens in the event of a vacancy and how we could quickly fill it. That would not necessarily be a difficulty, should a Cabinet Minister—in other words, the Lord Chancellor—have a vacancy at that level. It was the realisation that we needed to make provision for those circumstances, which we all hope will never arise. They are well provided for, and new clause 10 deals with the matter adequately.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for that answer. I do not disagree with the reasoning. He may have to forgive me, but I was entertained to see that the Bill, which has received the closest possible scrutiny in the other place, should come to the Committee with what he has explained is a glaring lacuna. That is the benefit of having a system of scrutiny by both Houses of Parliament. What we had yesterday, for example, which was wholly inadequate scrutiny of legislation, is a classic example, leaving aside the principles behind legislation, of why we should be allowed to do our jobs properly.

Bill Cash (Conservative, Stone)

This is an important issue relating to the functions of the Lord Chancellor. The issue of disqualification with respect to his having any future role raises questions that apply to the existing incumbent of that role and to those who may find themselves in a similar position on any future occasion.

Given the significance of the Lord Chancellor's role as described in the Bill, the early clauses, plus the other provisions that we have discussed today, make it clear that the Lord Chancellor has functions that, irrespective of the divorce of his role from the specifically judicial function, continue to have regard to the judicial question—

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Order. I think that the hon. Gentleman is probably referring to a new clause that we have not yet come to. Perhaps he would like to keep his powder dry for the time being.

Question put and agreed to.

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

New Clause 20 — The Lord Chancellor and Northern Ireland Courts

Chris Leslie (Labour, Shipley)

I beg to move, That the clause be read a Second time.

The new clause provides for a new section to be inserted in the Judicature (Northern Ireland) Act 1978, corresponding to section 1 of the Courts Act 2003, which the hon. Member for Southwark, North and Bermondsey (Simon Hughes) will remember we referred to in earlier discussions about the oath. The new clause will place a statutory duty on the Lord Chancellor to ensure that there is an efficient and effective system to support the court of judicature, county courts, magistrates courts and coroners courts in Northern Ireland, and that appropriate services are provided for those courts. It also requires that the Lord Chancellor lay before Parliament a report as to the way in which he has discharged his duty.

Dominic Grieve (Conservative, Beaconsfield)

May we take this opportunity to understand more fully what it is intended should happen if devolution of powers arrives in Northern Ireland? In those circumstances, would this responsibility transfer to a Northern Ireland justice Minister, or would it remain with the Lord Chancellor? I assume that the new clause has been introduced because such devolution has not occurred, but I should be grateful if the Minister would clarify the Government's intentions on this particular responsibility.

Chris Leslie (Labour, Shipley)

I understand that these responsibilities would be transferred, but if I am wrong I will write to the hon. Gentleman. We debated the matter during one of the earlier days of the Committee stage. We referred to different aspects and whether they were excepted, transferred or devolved within the Northern Ireland framework. I refer him to some of my comments at that stage. I hope that that at least helps him in this respect.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. I welcome this provision. Perhaps we rather lost sight of the issue, but the original intention of devolution was to transfer powers to a justice Minister, although that does not mean that the Westminster Parliament abdicates all responsibility. What I am slightly less clear about, and the Minister may be able to clear up the matter in the letter, is whether, when that process is complete, as and when it happens—at the moment, it looks a very remote possibility unfortunately—the Lord Chancellor retains any residual responsibilities in respect of the good operation of the Northern Ireland judiciary such that he could intervene if for some reason or other there were a problem. That was the point on which I sought clarification from the Minister. I think that it is of some importance.

Chris Leslie (Labour, Shipley)

There will be an ongoing role for the Lord Chancellor, but it would be useful if I wrote to the hon. Gentleman on his point about Northern Ireland.

Question put and agreed to.

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

New Clause 9 — Disqualification from holding further ministerial office

Dominic Grieve (Conservative, Beaconsfield)

I beg to move, That the clause be read a Second time.

It is necessary to return to some of the basic issues surrounding the Bill to understand why we tabled the new clause. The old structure of the Lord Chancellor provided, as we have debated peripherally this afternoon, that he was a judge first and foremost. He was a judge with a hybrid role, because as well as sitting as the head of the judiciary and a Law Lord, and being Speaker of the House of Lords, he was a Minister.

As a Minister, one of the Lord Chancellor's duties was to ensure that the administration of justice and the court system operated correctly, so he was a departmental Minister. In addition to that he was—I believe that this expression has been used—the judge at the heart of Government, providing a moderating influence on colleagues in respect of the operation of the judicial system, if necessary, and sometimes legal advice. However, he did so not in a formal sense, as the Attorney-General does, but informally, expressing an opinion if the rule of law was in danger of being undermined.

The Lord Chancellor also had a role in protecting the judiciary when Ministers such as Home Secretaries got irritated that their Executive purposes were being thwarted by judicial decisions. As we know from the recent past with the previous Home Secretary—I have a funny feeling that we are beginning to see this with the current Home Secretary—the phenomenon is not unusual. I might add on a bipartisan basis that there have no doubt been previous Conservative Home Secretaries and others who at times felt equally frustrated by the judiciary's taking views of their decisions that they found unfortunate.

Nevertheless, in a country where the rule of law prevails, it is of great importance that Ministers should accept judicial decisions, and more importantly, as the Minister will have no difficulty accepting, that they should not use their political status to try to undermine the judiciary. It is easy for those who are subject to political pressures—sometimes from an electorate who are irritated by judicial decisions—to move to a position where they covertly or overtly criticise judges and their decisions. If that happens in this country, we shall face a serious situation that we have so far succeeded in consistently avoiding.

To illustrate the point, we could contrast that with the situation in France, a country that featured in yesterday's debate in relation to the merits of its judicial system. I remind the Minister that in a recent trial of a French Minister on serious charges of tax evasion and, I seem to remember, fraud, the situation became so bad that the judges trying the case said that they no longer felt safe to use the computers provided to them by the state to record their daily rendering of the case and their notes, because they were convinced that they were being hacked into. They started using their own laptops. There was a long litany of complaints about political interference in the judicial process. There were protectors of this Minister, or ex-Minister as he was by then. Indeed, he was the leader or chairman of a political party.

I am sorry to say that that is not the only such problem that has arisen in France over the past 30 or 40 years. Mercifully, we have succeeded in avoiding such problems in this country. It may sometimes be said that our system of law is slower than those of other countries, and it can make mistakes; but the reputation for integrity of English and, for that matter, Scottish and Northern Irish judges is remarkably consistent, and has not been called into question. Judges' sagacity may occasionally be called into question, but not their integrity. That is largely owing to the absolutely accepted convention in the Government that judges cannot be criticised, even if Ministers are hopping mad about what they have done.

One of the problems of the changes envisaged in the Bill is the alteration of the Lord Chancellor's status from that of a judge in the Government to that of any other Minister. He loses his judicial status—which we accept, because we recognise that he can no longer sit as a judge—but continues to have a unique role, which we highlighted when we discussed schedule 6: the role of carrying out functions that require him to behave as if he were a judge, and certainly to apply standards of independence and integrity. We also know that one of the reasons for the Government's accepting that the Lord Chancellor should take a particular oath when taking office, albeit not the original oath, is the fact that his role is different from that of every other Minister. We have debated what the terms of the oath should be, but I think there is a community of view throughout the Chamber that the Lord Chancellor has, or should have, a different status and oath.

One question that has been discussed both in the other place and here is whether the Lord Chancellor should be a Minister who can sit in either House of Parliament, or whether he should sit only in the other place. The Government have strongly expressed the view that he should be capable of being a Minister in the House of Commons, whereas we—as I have said, and as the Minister knows—have argued long and hard that he should be a lawyer sitting in the House of Lords. It will be interesting to see, when the Bill returns to the House of Lords, what it will make of the amendments that we have made to the relevant part.

We want the Lord Chancellor to be a lawyer in the House of Lords not because we think it is quite nice for him to be the Speaker in full fig on the Woolsack—although if the Lords wish him to be Speaker that will be possible—but because we think that it will provide at least a measure of further protection from the political interference that is, I fear, inevitable in a democratic Chamber where Members are likely to express, both privately and publicly, a range of sentiments on behalf of their constituents, including criticism of the judiciary. It is vital for the judiciary to be protected.

Chris Leslie (Labour, Shipley)

Is it still Conservative party policy to support an elected, or largely elected, second Chamber?

Dominic Grieve (Conservative, Beaconsfield)

Yes, indeed. Clearly, if there were an elected or largely elected second Chamber, which we are not currently in a position to implement, the question of who apart from elected Members should be in the Lords would require careful consideration. If that were to happen, perhaps that would be the time when the Lord Chancellor would no longer have a role in the Lords. Equally, given that it is perfectly possible to preserve some non-elected functions in the Lords, it would be possible to keep him there.

I am sure that the Minister has had an opportunity to look at the paper on the subject produced by a cross-party group that included Labour Members, which I found fascinating reading. It makes an important contribution to the debate. It is apparent from the paper that the group saw scope for continuing to have non-elected Members in the other place, and for retaining a role for the bishops. I do not see the Lord Chancellor's being part of that arrangement as incompatible with those proposals. Those are all subjects for discussion, but I do not want to stray from the main issue.

Bill Cash (Conservative, Stone)

The role of the Lord Chancellor in regard to the rule of law is clearly set out in clause 1, which states:

"This Act does not adversely affect—

(a) the existing constitutional principle of the rule of law, or

(b) the Lord Chancellor's existing constitutional role in relation to that principle."

Does my hon. Friend agree that, having hived off the judicial functions of the Lord Chancellor from that existing role by statute, a vast amount of extremely important functions would still be retained? In the light of that, the Lord Chancellor should not be reduced to the role of Secretary of State, which is an indivisible function. If I have an opportunity to speak later, I shall go into that matter further.

Dominic Grieve (Conservative, Beaconsfield)

I agree with my hon. Friend. He heard me refer earlier to the powers in schedule 6, and other provisions in the Bill also make it clear that the Lord Chancellor remains a linchpin in terms of ensuring the independence of the judiciary, and the integrity of the judicial system and the dispensation of justice in this country. It is important that we get the right structures in place to ensure that that tradition, which the Lord Chancellor has honoured so well in the past, can continue.

That brings me to the issue surrounding the new clause. Currently, by virtue of taking the judge's oath in the Lords, the Lord Chancellor is effectively disqualified from taking any other ministerial office thereafter. He is a judge, and like any judge, he cannot go back to his professional career at the Bar—if he is a lawyer—when he ceases to be Lord Chancellor. He cannot become any other kind of Government Minister, and he has hitherto been required to remain in the House of Lords. He can continue to sit as a Law Lord, if he so wishes, until he reaches retirement age, and that is it. The great merit of that arrangement is that he has no desire for further preferment, and therefore has some immunity from the political pressures that can easily build up on a politician who feels that he still has a career in front of him.

The problem with the Government's proposals is that, having insisted that the Lord Chancellor need not be in the Lords and could be a Minister in this House—I suspect that if the Government get their way, that will inevitably happen—they will end up appointing quite a junior Minister in the pecking order of the Cabinet hierarchy in this House who is seeking to further his career. It is at that point that a Lord Chancellor could become particularly susceptible to pressure from colleagues trying to influence the system of judicial appointments, for example—an area in which the Lord Chancellor will still have important functions to perform, either with the judicial appointments commission or through his extensive powers under schedule 6—to do what the Prime Minister or other Cabinet colleagues want done.

Given that the Government are insisting on going down that road, and that they have rejected our view that the Lord Chancellor should be in the Lords—an arrangement that already provides that extra protection—the only solution is to have a clause in the Bill to ensure that the Lord Chancellor is disqualified from holding any other ministerial office when his period as Lord Chancellor comes to an end. In my view, that will ensure that he is somebody who is at the end or peak of his career when he is appointed, who has no further desire for preferment—

Steve Pound (Labour, Ealing North)

I wonder whether the rest of the House noticed that the hon. Gentleman used the words "at the end of his career". As he is entirely legally qualified to denigrate the independence of the judiciary, being professionally qualified himself, is he aware that he proposes that we elect as Lord Chancellor a man or woman who is, in effect, Eastbourne in ermine—someone at the end of their career? Is that really what we want? Do we want someone at the tail end of their career holding this supremely important position?

Dominic Grieve (Conservative, Beaconsfield)

That is not what I said at all. When I referred to the appointee being at the end of his career, I meant someone who sees holding the office of Lord Chancellor as effectively the last thing he wishes to do before retiring from public life. That is a sensible measure. He must be in a position to resist political pressures from those around him. While it is true that the Prime Minister can dismiss a Lord Chancellor at will, it is also the case that if the replacement Lord Chancellor is similarly isolated from desires of political preferment, the position will be reinforced that he will not be able to succeed in getting much better from another Lord Chancellor.

There are compelling reasons for including the new clause. The appointee could be someone in their 30s or 40s who does not wish to continue with a career in politics thereafter—they need not be, as the hon. Gentleman suggested pejoratively, Eastbourne in ermine.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I was fearful that the hon. Gentleman was under some misunderstanding. My understanding of the new clause is that all that it would preclude is further ministerial office. One could remain in Parliament as a Back Bencher and take other public office. My hon. Friends and I will support the new clause, but it is clear that that is the specific reason, and it seems to me to be a very good one.

Dominic Grieve (Conservative, Beaconsfield)

I am most grateful to the hon. Gentleman for his expression of support, because that is the intention. Given the way that public life works, in reality, the appointee might be someone of maturity, but that is not a bad thing. It is a question not of Eastbourne in ermine but of having a bit of experience of life and of politics and of having a good track record. That is exactly the benefit that past Lord Chancellors have given us, irrespective of which party they have come from. It is precisely to preserve that that we have tabled the new clause. Were the Government to accept it, it would go a long way towards meeting the criticisms that we have otherwise made about the danger of the Lord Chancellor being politicised, which, I think, would provide substantial reassurance. I hope that the Minister will respond positively.

I do not want to see in 10 years' time—if the Government get their way on this Bill—someone who is effectively a junior ministerial appointment in the House suddenly realising that they are in fact at the mercy of the political pressures with which they will inevitably be surrounded. We should be sensible. One of the reasons why our political system has worked well to prevent impropriety is that it is robust. What the Minister is doing, with the changes that he is introducing, is making it much less robust in terms of the Lord Chancellor's independence. I realise that that is theoretical, but theory will usually turn into practice if the safeguards are not there. The new clause provides those safeguards, and I commend it to the House.

Chris Leslie (Labour, Shipley)

The reformed office of the Lord Chancellor, as we envisage it, would take away the requirements to be a judge, lawyer or peer, because it is fundamentally a ministerial post that requires political accountability, not least for the £3 billion of public expenditure carried out by the Department for Constitutional Affairs and Lord Chancellor. The Government believe in the simple principle that the person appointed must be the best person for the job, on merit, and that there should not be false constraints that could jeopardise that choice. The assertion that all Lord Chancellors might somehow be corruptible because they could be induced by the prospect of another ministerial job not only is an insult to past Lord Chancellors—incidentally, they have had no such statutory restriction, including during the 18 years of the previous Administration—but provides an intriguing insight into how the Conservatives view ministerial life.

Dominic Grieve (Conservative, Beaconsfield)

It is absolutely right that Lord Chancellors have no such statutory restriction, but equally, because they are judges they are in fact constrained in what they can do when they cease to hold that office.

Chris Leslie (Labour, Shipley)

But not in a ministerial context, and I am surprised that—[Interruption.] Statutorily, there is no such bar on former Lord Chancellors holding other ministerial posts. I shall elaborate on some other perverse consequences of the hon. Gentleman's new clause.

Dominic Grieve (Conservative, Beaconsfield)

Once again, we confront the question of convention. I should be interested to hear from the Minister whether, during the period to which he referred, a Lord Chancellor held other ministerial office after ceasing to hold that one. The answer, I suspect, is that no one did, because the existing convention makes it completely impossible to do so. Throughout the Bill's passage, it has become clear that the Government loathe convention. They put it in the bin, yet convention has served this country very well. The Government then argue that because a certain practice was only convention, they need do nothing else, but that is precisely how the safeguards in our constitution are eroded.

Chris Leslie (Labour, Shipley)

The hon. Gentleman says with complete confidence that no Lord Chancellor has ever held any other ministerial post; my officials and I will look back through the history books to double-check that assertion. [Interruption.] He says that it is impossible for a Lord Chancellor ever to hold another ministerial post, but he is wrong. He talks about convention, but it is he who proposes to put a statutory bar on former Lord Chancellors holding another ministerial post. I am simply discussing the proposal before the House.

There would be other very significant disadvantages to such a statutory bar. For example, it might put the best person for the job off accepting it, if they felt that such a bar would be an artificial constraint on their future ministerial career. It would prevent that person from taking on any ministerial role—in which their skills and expertise might be of great value to the running of the country—even if it were blatantly obvious that they were the right choice for the post in, for example, a time of national emergency or crisis.

There could be other perverse consequences for public affairs. For example, because a post-holder could not hold any other ministerial post or perform any other role in public affairs, they would have a perverse incentive to hang on to their office. They might not resign at the time most others would consider appropriate, or when circumstances would normally suggest that they should. New clause 9 gives rise to all manner of oddities.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This point may have been dealt with, but my assumption is that, under the new dispensation, a Lord Chancellor could be sacked by the Prime Minister of the day—just as a recent Lord Chancellor allegedly was—or a retirement age could be established. Neither of those ideas is unmanageable: the first happens anyway; and even if the Bill does not provide for a retirement age, it could, and there is no reason why it should not.

The rest of the debate is in Hansard.