Criminal Defence Service Bill [HL]

moved Amendment No. 1:"Page 2, line 15, leave out ““Secretary of State”” and insert ““Lord Chancellor””" The noble Lord said: The amendment concerns the replacement of the expression ““Secretary of State”” by the   expression ““Lord Chancellor””. At Second Reading, the Minister very kindly said that she would go away and reflect on this issue and write to me. She was, as she always is, as good as her word, and I have received a letter from her. The letter has no specific date—it is just dated the month of June—and I cannot recall therefore exactly when I received it. However, I received it well in time for today’s debate. I hope that the noble Baroness will forgive me if I read out to the Grand Committee the relevant part of   her words to which I wish to address myself. Originally, of course, the Access to Justice Act 1999 contained references to the ““Lord Chancellor””; but, so far as matters relating to legal services are concerned, these were amended so as to refer to the ““Secretary of State”” by the Secretary of State for Constitutional Affairs Order 2003. I have managed to acquire a copy of the relevant order and, in my submission, the scope of the order is much narrower than the scope accredited to it by the words of the noble Baroness. I apologise to the Grand Committee in advance for reading out sections of the order but I believe that they are pertinent to the matter in issue. I turn first to paragraph 2(3) of the Secretary of State for Constitutional Affairs Order 2003 No. 1887, made on 17 July 2003 and coming into force on 19 August 2003. It reads as follows:"““Any provision of this Order for the transfer of functions of the Lord Chancellor to the Secretary of State is to be read . . .  as providing that the functions are to cease to be exercisable by the Lord Chancellor; and references in this Order to the transfer of function are to be read accordingly””." I turn now to paragraphs 6(2) and (3), which read:"““(2) Anything (including legal proceedings) which, at the coming into force of this Order, is in the process of being done by or in relation to the Lord Chancellor may, so far as it relates to anything transferred by article 4 or 5, be continued by or in relation to the Secretary of State for Constitutional Affairs. ""(3) Anything done (or having effect as if done) by or in relation to the Lord Chancellor in connection with anything transferred by article 4 or 5 has effect, so far as necessary for continuing its effect after the coming into force of this Order, as if done by or in relation to the Secretary of State for Constitutional Affairs””." So the operative paragraphs in this order are paragraphs 4 and 5. The relevant part of paragraphs 4 and 5 is paragraph 4(1), which states:"““The functions of the Lord Chancellor under the enactments listed in Schedule 1 are transferred to the Secretary of State””." I may, of course, have missed something—I frequently do—but my understanding is that the Criminal Defence Service Bill does not refer to Schedule 1 of the Access to Justice Act 1999 but to Schedule 3. That is contained in Clause 1(1) of this Bill. I turn to the broader issue; that is, what the role of the Lord Chancellor should be following the Constitutional Reform Act 2005. I draw the Committee’s attention to a statement made by the noble and learned Lord the Lord Chancellor on 7 December 2004 in the course of one of   the many debates we had on what was then the Constitutional Reform Bill. The noble and learned Lord the Lord Chancellor said:"““In July 2004 there is no doubt that this House voted not only to preserve the title of Lord Chancellor, but also to preserve the office, and. I accept that . . .  I anticipate that there is also agreement around this House on what the new role of the Lord Chancellor should be. He should be a Minister at the ministerial end of the concordat—to use a form of shorthand—and he should be responsible for protecting the independence of the judiciary and preserving the rule of law within government. We have also heard during the course of this debate that, as a Minister, the Lord Chancellor will be responsible for a budget of around £3 billion, the administration of the courts, legal aid and various other issues. Those matters could be dealt with by a Minister either in the Lords or in the Commons””.—[Official Report, 7/12/04; col. 774.]" That was part of the debate about whether the Lord Chancellor should always be in the Lords or the Commons. Plainly, the order refers to Section 1 and not Section 3, so the order does not in any way bind the House or, indeed, anyone with respect to what the Government should do in the context of Schedule 3. But, more broadly, it is quite clear that the noble and learned the Lord Chancellor gave an undertaking to the House, in defining what the preservation of the office of Lord Chancellor meant, the noble and learned Lord meant the management of all matters connected with legal aid. The noble and learned Lord has said nothing to resile from that position since then. We accept that, at the end of the day, the House voted that in future a Lord Chancellor might sit in another place—we trust that future will be far away—but that does not in any way undermine the range of functions that the noble and learned Lord foresaw the Lord Chancellor as discharging in whichever House. Why is this issue so sticky for the Government? If you   look at the order of 2003—passed, incidentally, very   quickly after the Prime Minister sought, inconsequentially, to eradicate the position of the Lord Chancellor from the constitution—and put it in the context both of the Bill, which refers only to Schedule 3 of the Access to Justice Act, and the broader approach of the Government to the Lord Chancellor, why do the Government have a problem about acceding to this amendment? I beg to move.