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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 3:49 pm on 7th July 2015.

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Photo of Lord Crickhowell Lord Crickhowell Conservative 3:49 pm, 7th July 2015

My Lords, it is an honour for a non-lawyer to follow a most distinguished lawyer. It is a situation that I frequently found myself in during my time as a member of the Constitution Committee, where I used to play what I called the “Pooh Bear role” of admitting that I was, perhaps, not very well informed so could an explanation be given clearly? That often produced a degree of clarity that had not previously existed.

A great deal has happened in the nearly seven months since this Constitution Committee report was published. The membership of the committee has substantially changed; I am one of those who is no longer a member. There is a new Government and a new Lord Chancellor. I intend to concentrate on reinforcing what my noble friend Lord Lang and the noble Lord, Lord Beecham, said about the response that the then Lord Chancellor, my right honourable friend Chris Grayling, finally gave the committee on behalf of the Government. I emphasise “finally”, because it was not until the end of February that a response was received to a report published well over two months earlier. When it was received, and then only after a good deal of pressure from our admirable clerks, it fell lamentably short of the standards that I believe Parliament is entitled to expect of ministerial responses to important Select Committees.

I say to the noble Lord, Lord Lester, many of whose remarks I agreed with, that I thought he was a little unwise to refer to the lack of the appropriate DNA in the Cabinet for these matters. We are talking about a previous Cabinet of an Administration of which a good many of his noble friends and others were Ministers and members. We are not talking now, in this report and the criticisms that we make, of the present Government. I hope that the new Lord Chancellor and the new Government will do better than was done previously. I am delighted that the new Lord Chancellor has started by emphasising the importance that he attaches to the rule of law and his determination to improve the all too obvious shortcomings and inefficiencies of the present court system.

My complaint is that too many of the individual responses were superficial and failed adequately to deal with the points that we made, all of which were based on the evidence that we received. My first example is the response to paragraph 25 of the report. The Government—I emphasise again that I speak of the former Government—responded to our recommendation that they should,

“agree that the rule of law extends beyond judicial independence and compliance with domestic and international law”,

and that they,

“should seek to govern in accordance with constitutional principles, as well as the letter of the law”,

by agreeing that they,

“should govern in accordance with constitutional principles”,

while dismissing the argument that we advanced about what that might imply. Without giving reasons, they simply rejected the view put forward in paragraphs 23 and 25,

“in so far as it suggests that judges have power to insist that primary legislation passed by the UK Parliament ‘is not law which the courts will recognise’”.

We had advanced the case that there must be some constraint on a Government’s power, through Parliament, to change laws in any way that they see fit. We had cited evidence given by the noble and learned Lord, Lord Falconer, who I am glad to see in his place today and who will take part in the debate, during an earlier inquiry, when he said:

“To take an extreme example simply to demonstrate the point, if Parliament sought to abolish all elections that would be so contrary to our constitutional principles that that would seem … to be contrary to the rule of law”.

We referred also to the judgment of the noble and learned Lord, Lord Hope of Craighead, in the case of Axa General Insurance Ltd and Others v The Lord Advocate—a case involving the Scottish Government—when he declared:

“The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise”.

These are serious issues. I believe, as did the committee, that there must be a constitutional constraint on a Government’s power, through Parliament, to change laws in any way they see fit. What those constraints should be is arguable, but it is much too important a matter to be dismissed in a single sentence. An acknowledgement that the question is important, and perhaps a statement that the Government would always seek to act in a manner that was compatible with the wider definitions of the rule of law, might have gone some way to meeting the point we were making.

The noble Lord, Lord Lester of Herne Hill, referred to paragraphs 49 and 50. In paragraph 49, the committee said:

“It is regrettable 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”.

In paragraph 50, the report argued:

“The Lord Chancellor’s duty to respect of the rule of law extends beyond the policy remit of his or her department”,

to which the last Lord Chancellor seemed to think it was confined. We had concluded that,

“it requires him or her to seek to ensure that the rule of law is upheld within Cabinet and across Government”.

The recommendation was that,

“the Ministerial Code and the

Cabinet Manual be revised accordingly”.

This important recommendation is casually dismissed, without an attempt to rebut the reasons given, but simply on the basis that the Government do not agree.

Perhaps it is because duties of this kind are not referred to in the

Ministerial Code and

Cabinet Manual that the Constitution Committee so frequently has to draw to the attention of the House breaches of constitutional good practice in government Bills. I would add at this point that, as it is clearly the Government’s intention that the legislative programme in the early part of this Parliament is to be tightly confined to manifesto commitments, with departments refused permission to clutter up Bills with other bits and pieces, there is a real opportunity for the Business and Legislation Committee, I hope prompted and encouraged by the Lord Chancellor, to reject as well all those breaches of good constitutional practice that the Constitution Committee has repeatedly criticised.

Turning again to the response, in paragraph 101 we said that,

“there was no clear focus within Government for oversight of the constitution”.

We suggested that the Lord Chancellor was best placed to carry out this duty, as has already been pointed out. We were told that the Deputy Prime Minister was the relevant Secretary of State for constitutional policy, despite the fact that he did not appear to have been carrying out the wider responsibilities we had in mind. It is extraordinary that he was not a member of the devolution committee or of the Business and Legislation Committee. Today there is no Deputy Prime Minister; I hope my noble friend the Minister will be able to clarify who now holds those wider responsibilities.

In Paragraph 117, we suggested:

“Given the importance of the Lord Chancellor’s duty to uphold the rule of law, the Lord Chancellor should have a high rank in Cabinet and sufficient authority and seniority … to carry out this duty effectively and impartially”.

The response was that it is for the Prime Minister to determine the order of precedence of Cabinet Ministers. It was acknowledged that the Lord Chancellor is currently and traditionally one of the highest offices of state. Having served for eight years in Cabinet with Margaret Thatcher, I am fairly confident that that was a response that she would not have authorised. She understood the importance of the Lord Chancellor’s role very well and showed great respect for the office and its holders. It is really not an adequate response to say that it is all up to the Prime Minister. The Prime Minister, like other Ministers, is answerable to Parliament and Parliament is entitled to know where he stands on a matter recommended by one of its committees.

A similar point arises from the response to the recommendation in paragraph 79 that,

“the Attorney General continues to attend all Cabinet meetings”.

Here the response is:

“Though the expectation is that the Attorney General will continue to attend all Cabinet meetings, this is ultimately a matter for the Prime Minister”.

I am tempted to inquire: whose expectation? Surely we could have been told what the view of the Prime Minister was about this recommendation.

In the previous Parliament, the too-frequent delays in providing responses to Select Committee reports may have been due in part to the difficulty of reconciling the views of Conservative and Liberal Democrat Ministers, and it may be that that problem lies behind the shortcomings of the response. Be that as it may, I hope that with that difficulty removed, the responses will be delivered promptly. I also hope that the business managers will make a big effort to allocate time for debates to take place very soon after the responses have been published—something that does not happen very often.