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Office of Lord Chancellor (Constitution Committee Report) — Motion to Take Note

Part of the debate – in the House of Lords at 3:08 pm on 7th July 2015.

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Photo of Lord Lang of Monkton Lord Lang of Monkton Chair, Constitution Committee 3:08 pm, 7th July 2015

My Lords, I welcome the proposed participation in the debate of a number of members, past and present, of the Constitution Committee—and, with some diffidence, I also welcome some very distinguished members of the judiciary and the legal profession who plan to take part.

I should stress at the outset that our inquiry was focused on the office of Lord Chancellor and not on its individual occupants. We were driven by the evidence that emerged to two central conclusions: first, on the importance of the rule of law in government, and, secondly, on the need within government to have clearly defined responsibility for the upholding of the constitution. In this of all years, when we celebrate the 800th anniversary of the sealing of the Great Charter, it seems timely to reassert the primacy of the rule of law in our democratic heritage, which is still central today to the workings of our constitution and our courts.

The office of Lord Chancellor has evolved substantially over nine centuries, but our report focused on the reforms between 2003 and 2005. We sought to understand the constitutional position of modern Lord Chancellors. In 2003, as your Lordships will know, the Lord Chancellor was an important parliamentarian, Cabinet Minister and judge. He was Speaker of this House, he was entitled to preside as chairman of the Law Lords and he was head of the judiciary. In government he was head of a department, with a wide range of responsibilities, including constitutional affairs.

The Lord Chancellor was a figure at the heart of government who brought together the three pillars of the state: the Executive, the legislature and the judiciary. As a system, it worked quite well and fully justified his high status in the order of precedence. However, as a recent Lord Chancellor, my right honourable friend Kenneth Clarke, told us, such a “bizarre combination of roles” is,

“something you could not defend to the outside world”.

The reforms made in the last decade removed the Lord Chancellor’s role in your Lordships’ Chamber; the Lord Chief Justice replaced the Lord Chancellor as head of the judiciary in England and Wales; and the creation of the Supreme Court replaced the Law Lords without the Lord Chancellor as a member. Within government, the now much-reduced office of Lord Chancellor was eventually given additional responsibilities by being merged with those of the Secretary of State for Justice, and in 2010 the post was stripped of its responsibility for constitutional affairs, which was transferred to the new Deputy Prime Minister, Mr Clegg.

Against that background, the modern Lord Chancellor’s relationship with the legislature and the judiciary may now be substantially different and more remote, but some of the role’s essential duties remain. The Constitution Committee noted in a 2007 report that,

“the role of Lord Chancellor is of central importance to the maintenance of judicial independence and the rule of law”.

The rule of law may not be, as a former president of the Supreme Court told us, readily defined or readily understood. It remains, as the committee has previously stated, a complex and in some respects uncertain concept. Yet it is also perhaps the single most important characteristic of a democratic nation.

I suggest that the rule of law requires an independent justice system, free from corruption and outside interference. It requires those in power to comply with the law to ensure a stable and predictable exercise of power, rather than an arbitrary one. But these two elements alone are insufficient. Surely the rule of law goes beyond judicial independence and simple compliance with law, particularly as regards the Government, who can, through Parliament, change the law. We concluded that in the context of government, the rule of law must include the tenet that the Government should seek to govern in accordance with constitutional principles as well as with the letter of the law. We did not attempt to define these principles in their entirety, although we noted, with respect, Lord Bingham’s eight principles of the rule of law as a valuable articulation of such core constitutional principles, including, as they did, access to justice, equality before the law and the protection of fundamental human rights. We were pleased that the Government agreed with this conclusion. Acting in accordance with this wider conception of the rule of law places a constitutional constraint on their power, through Parliament, to change the law in any ways that they see fit.

The Lord Chancellor’s responsibilities in relation to judicial independence, a core aspect of the rule of law, are clear. His unique oath of office, set out in the Constitutional Reform Act 2005, calls on the post-holder to defend the independence of the judiciary, yet his responsibilities in respect of the rule of law beyond judicial independence are ill-defined. The last Lord Chancellor, my right honourable friend Chris Grayling, felt that the duty to uphold the rule of law resided with every Minister and parliamentarian, not simply with the Lord Chancellor. While this is undeniably true, it ignores the special role that most of our witnesses, including other former Lord Chancellors and Attorneys-General, felt that the Lord Chancellor should play.

We concluded that the Lord Chancellor has additional responsibilities to the rule of law beyond those of other Ministers. This duty extends beyond the day-to-day responsibilities of the Lord Chancellor in respect of the judiciary and the Ministry of Justice. It requires the Lord Chancellor to seek to ensure that the rule of law is upheld both within Cabinet and across government. One could describe him or her as playing the role of the Government’s conscience, ensuring that the Government follow not only the letter but the spirit of the law, and indeed of the constitution.

I am grateful to the noble Lord, Lord Pannick, who I think is not in his place today—no, he is in his place, so I am all the more grateful—for drawing attention in a recent article in the Times to an important speech by the new Lord Chancellor, my right honourable friend Michael Gove, who said that his role was,

“different from other Cabinet posts. The most important thing I need to defend in this job—at all costs—is not a specific political position—but the rule of law”.

That is a most encouraging departure from the disappointing response we had on this point from the coalition Government, and I hope that it augurs well for the future.

To reflect this important duty, we recommended that the Lord Chancellor’s oath of office be amended, not just to respect the rule of law but to respect and uphold it. This is not mere semantics. The 2005 Act makes it clear that the Lord Chancellor’s duty towards the rule of law remains unchanged. We believe that that special duty should be reflected in his oath of office. We were disappointed that the coalition Government also rejected this recommendation and that they felt that there was no need for a specific requirement on the Lord Chancellor in this respect. We believe that this stance ignores both the traditional role of the Lord Chancellor as guardian of the constitution and the need for a senior Cabinet member to represent the importance of constitutional principles in those difficult situations when political needs and constitutional principles come into conflict. Perhaps we may yet hope for a change of heart from the new Government.

Our report also considered the value of appointing only Lord Chancellors with a legal or constitutional background. While it is not essential, we drew attention to the benefits of doing so. However, it is more important to ensure that the Lord Chancellor is a senior member of Cabinet, with sufficient authority to speak up for the principle of the rule of law in dealing with ministerial colleagues and the Prime Minister, and with a clear understanding of his or her duties in relation to the rule of law. However, in the event that the Lord Chancellor is not legally qualified, we felt it appropriate that either the Permanent Secretary at the Ministry of Justice be legally qualified or the top legal adviser in that department be appointed at Permanent Secretary level. We welcome the recent announcement that the newly appointed Permanent Secretary at the department is a lawyer.

The Lord Chancellor is not the only individual to have a special responsibility to uphold the rule of law. In this duty he will of course be aided by others, both within and without Government. The role of the Attorney-General in particular has become more important. While the Government’s response recognised that importance with regard to upholding the rule of law, it made no reference to the impact of the changes to the office of Lord Chancellor on the role of the Attorney-General. That ignores the very real impact of those changes since the reforms of the last decade and leaves uncertain the distribution of responsibilities that relate to the rule of law.

In our report we recommended that the Government,

“should ensure that the responsibilities of those charged with upholding the rule of law are clear and widely understood”.

The Government did not respond to that recommendation, and I would be grateful if the Minister could clarify the Government’s view of the respective roles of the Attorney-General and Lord Chancellor in upholding and representing the rule of law, in Cabinet and across the work of government more generally.

The traditional role of the Lord Chancellor included what might be described as a guardianship or stewardship role with regard to the constitution more generally. Once again we found a disturbing lack of clarity as to where responsibility for the constitution lies. Mr Grayling felt that,

“the constitutional role that the Lord Chancellor once performed … is not currently there”.

He stated that the then Deputy Prime Minister had taken over that responsibility. Yet Mr Clegg was responsible for political and constitutional reform only, and we heard no evidence to suggest that he had a wider constitutional oversight role. Indeed, surprisingly, neither Mr Clegg nor the Lord Chancellor was a member of the Devolution Cabinet Committee, which was formed to look into matters relating to devolution. This lack of a focal point for constitutional oversight may explain why there appears to have been no central co-ordination and oversight of the devolution settlements, and minimal consideration given to the effect of devolution in one area of the United Kingdom, on other areas and on the union as a whole.

This is a serious issue. Demand-led devolution can undermine seriously the integrity of the nation state. We recommended that a senior Cabinet Minister, preferably the Lord Chancellor, should have responsibility for oversight of the constitution as a whole, even if other Ministers have responsibility for specific constitutional reforms. I fear that the Government’s response to this recommendation suggests a lack of understanding in government of the reasons for our concern. After noting that the Deputy Prime Minister was Secretary of State for constitutional policy, the response stated:

“Senior ministerial oversight reflects the importance of the constitutional changes outlined in the Programme for Government. This arrangement gives a clear focus for the delivery of reforms”.

That response fails to address the central part of our argument: that there needs to be consistent, high-level oversight of the constitution as a whole, beyond transient proposals for change. The unwritten nature of the United Kingdom’s constitution requires careful oversight if political whims are not to unbalance or damage its fabric. There is no evidence of any such oversight at present.

I urge the Minister to think carefully about this recommendation. As recent reforms to the devolution settlement and, potentially, to our relationship with the European Convention on Human Rights move forward, it is essential that the constitution be protected by the consistent and coherent oversight that has to date been lacking. I hope that the new Government will think again. I beg to move.