We need your support to keep TheyWorkForYou running and make sure people across the UK can continue to hold their elected representatives to account.

Donate to our crowdfunder

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

Part of the debate – in the House of Lords at 3:32 pm on 7th July 2015.

Alert me about debates like this

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 3:32 pm, 7th July 2015

My Lords, like others who will speak after me, I have the privilege of being a member of the Constitution Committee that produced this report. The House of Lords frequently hears a great deal of flattery across the House and mutual admiration, but what I am about to say is not flattery: I have never served on any committee, of this House or otherwise, under a better chair than the noble Lord, Lord Lang. I am very grateful to him for the service that he gives that committee. He summarised the report so fully that it is unnecessary for me to repeat what he has said.

The report was published on 11 December. The then Lord Chancellor, Chris Grayling, gave the Government’s response in a letter of 26 February 2015. As the noble Lord, Lord Beecham, has just observed, he rejected most of the committee’s key recommendations. This debate gives the House the opportunity to review that response. I hope that the luckless Minister, who has to do many difficult things, will be able in his reply to give the new Government’s response to the committee’s key conclusions and recommendations, which are summarised in chapter 5.

If I may, I will ask a few questions that have not necessarily been covered by the speech of the noble Lord, Lord Beecham. Do the Government agree that, as paragraph 32 states, the Lord Chancellor must ensure that the judiciary must be,

“free to act without undue pressure from the executive, that the executive respects the outcome of court judgments, and that the legal system is adequately resourced”?

Chris Grayling’s letter did not refer to that at all.

The committee found it regrettable, in paragraph 49, that,

“the Ministerial Code and the Cabinet Manual do not address the Lord Chancellor’s role in respect of the rule of law, beyond judicial independence. The

Cabinet Manual refers to the Law Officers’ role in ‘helping ministers to act lawfully and in accordance with the rule of law’, … but makes no mention of the Lord Chancellor’s duty in this respect. The only mention of the Lord Chancellor in the Ministerial Code relates to the appointment of judges and legal officers to Royal Commissions and inquiries”.

We referred to Jack Straw’s evidence that the two documents,

“‘have not caught up with’ the changed role of the Lord Chancellor”.

Chris Grayling’s letter did not refer to this. Why do the Government disagree with the committee’s recommendation in paragraph 50 that there should be a specific requirement on the Lord Chancellor to respect and uphold the rule of law, and that the Ministerial Code, Cabinet Manual and oath of office should be amended accordingly?

The committee recommended, in paragraph 101, that the Lord Chancellor is best placed to have responsibility for oversight of the constitution as a whole, in light of his responsibility for the rule of law. As your Lordships have heard, Chris Grayling responded that the then Deputy Prime Minister, Nick Clegg, had that responsibility. The Chancellor of the Duchy of Lancaster, Oliver Letwin, is now responsible for advising the Prime Minister on how to implement government policy co-ordinating constitutional reform. Why has Mr Letwin, rather than the Lord Chancellor, been given this responsibility?

Mr Grayling rejected the committee’s recommendation, in paragraph 113, that the Government should,

“either ensure that the Permanent Secretary supporting the Lord Chancellor at the Ministry of Justice is legally qualified, or appoint the top legal adviser in that department at permanent secretary level”.

Chris Grayling disagreed because he said that the Lord Chancellor and the Permanent Secretary have access to high-quality legal services. We received evidence, referred to in paragraph 68, from former Lord Chief Justices and the noble and learned Lords, Lord Judge and Lord Woolf, both of whom I am delighted are in their place for this debate, about the level and expertise of legal support for the Lord Chancellor inside the Ministry of Justice.

Mr Grayling’s response failed to deal with the concern, expressed by the noble and learned Lord, Lord Woolf, to us that,

“whereas a [pre-reform] Lord Chancellor could position himself outside the normal ministerial role in relation to political issues that are deeply contested, it is much more difficult for someone who is both Lord Chancellor and Minister of Justice”.

Mr Grayling was the first Lord Chancellor in modern times not to have a legal qualification. He introduced deep cuts to the provision of legal aid and made inroads on judicial review. I much regret that I had to support a coalition Government in those measures. Mr Gove is in charge of government policy now to tear up the Human Rights Act and decouple our system from the European Convention on Human Rights. They are not constrained by any other Cabinet Minister or by Dominic Grieve, who was sacked as Attorney-General for disagreeing with government policy on human rights. The challenges to access to justice and the rule of law are clear and dangerous, and will have to be dealt with politically.

It would, I think, be possible to be a fine Lord Chancellor without being a lawyer. My old boss, Roy Jenkins, would have been, because the rule of law was part of his DNA—indeed, he would have been a better Lord Chancellor than some who have been lawyers. Although the noble Lord, Lord Pannick, has rightly welcomed the recent speech made by Mr Gove, Mr Grayling does not have the rule of law in his DNA nor, I regret to say, do the rest of the Cabinet. It will be for the judiciary and Parliament to call them to account.