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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 3:40 pm on 7th July 2015.

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Photo of Lord Woolf Lord Woolf Crossbench 3:40 pm, 7th July 2015

My Lords, it is very difficult to follow three such distinguished speeches on this subject. I listened to what the noble Lord, Lord Lang, had to say, followed by my fellow Geordie, the noble Lord, Lord Beecham, who showed huge generosity to a rather more junior Geordie in the matters we are talking about in the political area. Finally, we heard from the noble Lord, Lord Lester, who sometimes describes himself as my kinsman. I am very glad that he feels that relationship with me. I am not sure that it is fully justified, but there we go.

I should declare an interest not only in my capacity as a former judge but because for five years before I became a judge I was the holder of the strange office, which I am glad to say still exists, known as the Treasury Devil. The Treasury Devil has the unique responsibility, under the guidance and on the direction of the Attorney-General, of appearing across the board for government departments in the courts and giving advice to the Government on difficult issues—such advice being traditionally regarded as of considerable importance.

I mention that interest because it gave me a unique opportunity to observe how the lawyers in government work to uphold the rule of law. My experience was that they were quite exceptional in their skills and in their knowledge of many of the issues on which I had to depend on them. They had the advantage, particularly if they were in what was the Lord Chancellor’s Department, of normally holding their position for much longer than the majority of civil servants do today. One of the matters I mentioned in my evidence to the committee was my concern, to which reference has already been made, that we have lost something because of the frequency with which officials are moved around within the system so that they do not acquire the benefits of considerable experience in their work. Such experience meant that, perhaps uniquely in the European Community, where I was also required to appear from time to time, our civil servants would take this attitude, “If in doubt, don’t”. Elsewhere, the approach appeared to be, “If in doubt, do, and see if somebody stops you”. This was very significant in relation to questions of the rule of law and in my view reflects the culture that had grown up within government, which was of great benefit to our constitution.

As we heard in the previous speeches, there are differences of emphasis, some of them significant, between the response of the Government and what the committee recommended. I will say two things with regard to that. First, I agree entirely with what was recommended by the committee and with what has been said in prior speeches today. I mention that because in this area it is important to see that we are concerned with a topic that not only is difficult but about which there is really no certainty as to its limits. It is a topic where an understanding of the subject is critical. There is concern about that because, historically, and I would say even today, the Lord Chancellor plays a critical role in maintaining the rule of law—or perhaps I should say, bearing in mind certain criticisms that the House has heard, should play a critical role with regard to the rule of law.

It is an area where appearances are important. We have to remember that it is not only in this country that those appearances are considered but in many other countries—most importantly of all, within the Commonwealth, where this country still has a leadership role. What the committee said, which will strengthen the situation, is something to which the greatest attention should be paid.

In particular, I go to a matter that has already been referred to: the splitting up of responsibilities in respect of the constitution. The differences brought about by the constitutional changes of 2005 contained in the Constitutional Reform Act mean that already the ability of the Lord Chancellor to perform what has historically been his role is made at least more difficult. If that be the situation, why is it important to give two members of the Cabinet the responsibility of dealing with an area? Are we not going to obtain a better, comprehensive approach to the important constitutional issues at stake if it rests clearly in the hands of one member of the Government? I ask the Government to think again about that particular difficulty.

Clearly, the concern has been appreciated about the position of the senior civil servants in what was the Lord Chancellor’s Department and in the Ministry of Justice. I certainly welcome the fact that we now have a Permanent Secretary in that department who has a legal background. If the Lord Chancellor has no practical experience of the working of the courts and the justice system, it is a hugely difficult task for him to adjust to the responsibilities of his office. He really will be dependent, at least initially, on what he is told by his advisers. In that situation, it is most important that the advisers should be aware of the culture that exists.

I know that it can be said that there is a terrible danger of conservatism with a small “c” if you get lawyers to appear in that role. My contention is that if one looks at what happened in the past, Lord Chancellors who were lawyers and who were advised by Permanent Secretaries who were lawyers were not slow in introducing reforms that they were satisfied were necessary. That is one of the most important recommendations of the committee that should be looked at again. There are other matters that I could speak about, but in comparison to the one on which I have focused, they are of lesser importance, so I shall say no more.