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Legislation and Public Policy

My Lords, by way of introduction, I should like to refer back to every thought and word in the speech of the noble Lord, Lord Grenfell, because my speech is focused on pre-legislative scrutiny, as spoken to by my noble friend Lord Norton of Louth on 28 January and again today. My speech is concerned with the pre-legislative scrutiny of draft constitutional Bills—that is, the Bills that reflect government policy at the inception of the conversion of policy into law. As an available means of enhancement, perhaps consideration could be given to the retrieval of the constitutional entitlement of the Lord Chancellor, which has being slighted into imposed abeyance, having been exercised since the reign of George I until about three years ago. It has evolved over and over again but the substance has never changed, and the proposal is that it should work in harness with the new regime. This is the first step towards establishing a new regime, and I congratulate my noble friend Lord Norton of Louth. However, having taken this first step, one has to think a little about implementation, and that would be of great help to the committee of the new regime considering this question. The difficulty—although it is not really a difficulty—is that the entitlement of the Lord Chancellor to tender disinterested, independent advice to the Cabinet and the Secretary of State as to the withdrawal or abandonment of a Bill because it fails to conform with constitutional principle or the rule of law could now be extended to advising the committee to be set up under the new regime. I cannot go into detail as there is no time but that could be arranged. The late Lord Kingsland, on 18 November 2008, said that among other things it was the responsibility of the Lord Chancellor to ensure that the structures and processes were in place to guarantee such conformity. The entitlement cannot be retrieved in any form until the combined appointment of Lord Chancellor and Secretary of State for Justice has been segregated by decree or, if so ordained, by statute or as ordained by the Supreme Court. It was slighted into imposed abeyance in 2007 by prime ministerial decree without consultation with Parliament or the judiciary, and, by appointment, was set up at the same time as the newly established Ministry of Justice. That was done to cover up the botched attempt to abolish the post of Lord Chancellor in 2005 with the stroke of a pen that ran out of ink. The substance of the case for segregation, as spoken to by Lord Kingsland on 18 November, can be put quite simply. It is a constitutionally untenable and undesirable amalgamation, because the acknowledged role of the Lord Chancellor and the obligations of the Secretary of State for Justice as a policy-maker are in inevitable conflict and simply do not mix. Without disinterested advice, we have had the fiasco of the Constitutional Renewal Bill, although we do not want to go into that again today. By the combined appointment, we have also had the presentation of the Constitutional Reform and Governance Bill with the support of the Prime Minister, his Secretaries of State and Ministers of State, none of whom of course could possibly give disinterested advice. I think that my time is up but, if I may, I shall add that if the constitutional entitlement of the Lord Chancellor were restored, the administration, by virtue of retaining the Great Seal, would be undertaken by the Crown Office, together with many other constitutional duties of the Lord Chancellor which exist today. The precedence of the Lord Chancellor, who is holder of the Great Seal on the command of Her Majesty, would remain and, as such, he could be of considerable practical value to the new regime.