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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 4:01 pm on 7th July 2015.

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Photo of Lord Phillips of Worth Matravers Lord Phillips of Worth Matravers Judge 4:01 pm, 7th July 2015

My Lords, I gave evidence to the Constitution Committee when it was considering the role of the Lord Chancellor, and I am grateful to the noble Lord, Lord Lang of Monkton, for the opportunity to comment on his committee’s report and on the response of the Government, as set out in the letter of Chris Grayling.

The Government broadly welcomed the report but did not accept that any of its specific recommendations required action or a change of attitude on the part of the Government. I am going to suggest that this response showed an unwarranted complacency, and I propose to do so by reference to the evidence given by the then Lord Chancellor to the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill on which I served.

Section 1 of the Constitutional Reform Act provides that:

“This Act does not adversely affect … the existing constitutional principle of the rule of law, or … the Lord Chancellor’s existing … role in relation to that principle”.

That role is underlined by Section 17, which requires the Lord Chancellor, on taking office, to swear an oath, which begins with this undertaking:

“I will respect the rule of law”.

As we have heard, the Constitution Committee concluded that,

“The Lord Chancellor’s duty to respect of the rule of law extends beyond the policy remit of his or her department; it requires him or her to seek to ensure that the rule of law is upheld within Cabinet and across Government”,

that this oversight role,

“is not adequately reflected in the current oath which requires him or her simply to ‘respect the rule of law’”,

and that the oath should be amended,

“to a promise to ‘respect and uphold the rule of law’”.

The committee also recommended that the Ministerial Code and the Cabinet Manual should be revised to reflect this oversight role. The Government disagreed with the desirability of effecting these changes.

Section 2 of the Constitutional Reform Act sets out the matters that the Prime Minister may take into account when appointing a Lord Chancellor. These include experience as a practising lawyer or as a teacher of law in a university. It is not, however, mandatory that the Lord Chancellor should have any previous legal experience. Some expressed concern about this. Witnesses emphasised the importance of the Lord Chancellor understanding the rule of law. The committee itself commented that,

“the rule of law remains a complex and in some respects uncertain concept”.

The committee stated:

“We recognise the advantages to appointing a Lord Chancellor with a legal or constitutional background. We do not consider that it is essential but, given the importance of the Lord Chancellor’s duties to the rule of law, these benefits should be given due consideration”.

In the Government’s response, Chris Grayling commented dismissively:

“The Government welcomes the Committee’s acknowledgement that it is not essential for the Lord Chancellor to have a legal background”.

In the same vein, the committee drew attention to the fact that,

“neither the Lord Chancellor nor the Permanent Secretary are required to be legally qualified. In a department responsible for the legal system and … the maintenance of the rule of law, this is undesirable. We recommend that the Government 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”.

The Government did not agree, contending that access to legal services provided by the Treasury Solicitor’s Department was sufficient. Happily, that recommendation has now been implemented in practice.

I suggested that these responses show complacency. For a lawyer, respect for the rule of law goes beyond an intellectual appreciation of its importance. It is, or should be, a passionate belief in and understanding of the concept, for it is the critical foundation of a democratic society. If the Lord Chancellor is not a lawyer, it is surely desirable that he should have at his right hand a lawyer steeped in a belief in and understanding of the rule of law.

I now turn to explain why I believe that the Government’s complacency is unjustified. In 2004, in the case of Hirst v United Kingdom, the Grand Chamber of the European Court of Human Rights held that the blanket ban on any convicted prisoner being allowed to vote, imposed by the Representation of the People Act 1983, was incompatible with Article 3 of the first Protocol to the European Convention on Human Rights. In the subsequent appeals to the Supreme Court in the cases of Chester and McGeoch, Lord Sumption gave a lucid judgment that was critical of the reasoning of the Strasbourg court, but he observed:

“It is an international obligation of the United Kingdom under article 46.1 of the Convention to abide by the decisions of the European Court of Human Rights in any case to which it is a party. This obligation is in terms absolute”.

In his wonderful book The Rule of Law, the late Lord Bingham stated that,

“The rule of law requires compliance by the state with its obligations in international law as in national law”.

I suggest that it is beyond doubt that the rule of law requires this country to alter our law so as to afford the vote to at least some category of convicted prisoners so as to comply with the judgment in Hirst.

The response of the Government to this situation was to publish the Voting Eligibility (Prisoners) Draft Bill, which offered Parliament three options. The first was to give prisoners serving less than four years the vote. The second was to give prisoners serving less than six months the vote, and the third was to restate the blanket ban on prisoners voting. The first two options were designed to make our law Strasbourg compliant. The third option would have involved Parliament deliberately flouting the decision of the Strasbourg court. There have been cases of countries failing to amend their laws to comply with Strasbourg judgments but none, of which I am aware, where a country has legislated expressly to defy a judgment of the Strasbourg court.

When the draft Bill was published, the Government announced that a Joint Committee of both Houses would be set up to give it pre-legislative scrutiny. Our remit was to advise which of the three options should be adopted or to propose an alternative option of our own. Had our remit been simply to advise whether or not any prisoners should be permitted to vote, untrammelled by the decision of the Strasbourg court, a majority might well have said no. But we concluded that it would not be right for Parliament to place the United Kingdom in breach of its international obligations. Agreeing with evidence given by the noble and learned Lord, Lord Mackay of Clashfern, we stated that,

“the principle of parliamentary sovereignty is not an argument against giving effect to the judgment of the European Court of Human Rights. … A refusal to implement the Court’s judgment would not only undermine the international standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights”.

We recommended that the right to vote should be conferred on all prisoners serving less than 12 months.

I suggest that respect for the rule of law should have led the Executive, and in particular the Lord Chancellor, to do their best to promote legislation that would bring this country into compliance with the convention. They should have promoted legislation that achieved this and done their best to get it through Parliament. Parliament might well have proved unwilling to follow the Government’s lead, but that is a consequence of the separation of powers. At least the Executive would have done their best to comply with the rule of law. I suggest that a Bill that put before Parliament an option to defy Strasbourg would not be appropriate.

When Chris Grayling came to give evidence to our committee, it became plain that he did not agree. He said,

“my job is to offer Parliament the option. As you know, the job of the Lord Chancellor is to uphold the law. I have sought, in delivering a multiple-choice Bill, to fulfil my obligations to the law and, I believe, to Parliament as well. As to my own position, I intend to take advice at the time of the voting as to what my own particular situation is. I do not think there is any secret about what my opinion is in terms of this … I have an obligation as Lord Chancellor to uphold a decision of the courts. I take that responsibility very seriously. Equally, I have a responsibility to Parliament, which has already expressed a strong view on this matter. Therefore I have to exercise my judgment in thinking how best to address the issue, particularly given the legal advice from the Attorney-General, and indeed the legal view expressed by Lord Hoffmann … about these matters from, I think, 13 years ago … which said clearly that Parliament is sovereign in these matters … I formed the view that it was better to offer Parliament the option … but as to my own position, that is something I will take advice on at the time as to whether my oath of office or my obligations under the

Ministerial Code constrain my actions”.

Could the Lord Chancellor have taken this laissez-faire approach had his oath included a promise to uphold as well as to respect the rule of law? I suggest not. Was it not for him to take advice as to how he should react to the Strasbourg court’s judgment in Hirst from the very outset rather than deferring the step until the time came for him to vote? He referred to the advice from the Attorney-General that Parliament was sovereign but, as the noble and learned Lord, Lord Mackay, stated, that is not the point.

I have explained why I do not find the Government’s response to the Select Committee’s report satisfactory. We now have a new Government and a new Lord Chancellor, and I hope that the Minister will convey to him a request that he give renewed consideration to the views and recommendations of the committee.