The Role Of The Lord Chancellor

House of Commons

Mr. Peter Luff (Mid-Worcestershire) (Con): 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.

1 Mar 2005 : Column 879

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

1 Mar 2005 : Column 880

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 : 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?

Mr. Luff: 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

1 Mar 2005 : Column 881

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 only throw away traditions and customs 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 things and big things, and it should be applied now. I am not persuaded by the case for the clause or schedule 5.

Keith Vaz: 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 possibility be seen to be impartial in his or her work.

Mr. Luff: 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.

4.30 pm

Keith Vaz: Well, 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.

Mr. Beith: 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

1 Mar 2005 : Column 882

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 a much more restricted role. The other place may yet choose a different title and we have our own reasons for hoping that it does so.

Mr. Luff: 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.

Mr. Beith: 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.

Mr. Djanogly: 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.

1 Mar 2005 : Column 883

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 would 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.

Mr. Cash: 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?

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

Mr. Luff: 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

1 Mar 2005 : Column 884

important consequences for this House. Do we have any idea of the nature of the changes that Lord Kingsland envisaged?

Mr. Djanogly: 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 reflect 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, and 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: 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.

Mr. Djanogly: 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.

1 Mar 2005 : Column 885

Mr. Leslie: 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. As a member of the Executive, however, they will understand that it is not for me to dictate to Members of the other House our preference as a Government 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.

Mr. Grieve: 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.

Mr. Leslie: 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

1 Mar 2005 : Column 886

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.

Back to Speeches