House of Lords (Hereditary Peers) Bill - Report (1st Day) (Continued) – in the House of Lords at 11:30 pm on 2 July 2025.
Lord Keen of Elie:
Moved by Lord Keen of Elie
10: After Clause 1, insert the following new Clause—“Lord ChancellorIn the case of any person who holds the office of Lord High Chancellor of Great Britain who is not currently a member of the House of Lords, the Prime Minister must recommend to His Majesty the King that the person be granted a life peerage under section 1 of the Life Peerages Act 1958 (power to confer life peerages).”Member’s explanatory statementThis Amendment would ensure that the Lord Chancellor is a member of the House of Lords, as was the case for over two centuries leading up to the passage of the Constitutional Reform Act 2005.
Lord Keen of Elie
Shadow Minister (Justice), Shadow Advocate-General for Scotland
My Lords, I am grateful that so many of your Lordships have remained in the Chamber for this particular Amendment. I rise to move this amendment with due deference to successive Lord Chancellors, albeit I take no position as to their past suitability. This may appear to be a slight amendment, but it serves a serious purpose. There was a time when Lord Chancellors provided an authoritative senior legally qualified voice in Cabinet, as well as undertaking duties in your Lordships’ House. Today the post has been changed significantly, and of course we have had a number of Lords Chancellor who have not been lawyers.
I tabled this amendment to explore further the possible benefits of returning to the position where the Lord Chancellor sat in your Lordships’ House. My amendment is not, as I say, seeking to look backward. We of course should look forward to the contributions that future Lord Chancellors could make, not only in Cabinet but to your Lordships’ House.
Although we may not be able to return to the position before the role of Lord Chancellor was changed under the last Labour Government, we can place the role of Lord Chancellor on the same level of status as it previously held. If, as was discussed in Committee, the office of Lord Chancellor was to be seen once again as what might be termed a “destination” appointment, rather than one held by a politician on their progress through the Cabinet, we might gain a great deal.
I suggested in Committee that the Lord Chancellor, newly restored to your Lordships’ House, could also serve as a Secretary of State for Constitutional Affairs and thus as a guardian of our constitution. We lack that guardianship today, with responsibility for the constitution being divided between various government departments, without any clear insight as to who is responsible finally for important constitutional decisions.
The Bill is liable to set a dangerous constitutional precedent, and I wonder whether a distinguished Lord Chancellor in your Lordships’ House who was entrusted with the guardianship of our constitution and was sitting at the Cabinet table, might have offered a sage warning to the Government about the potential challenge that Bills such as this can present to our constitutional order. It is in these circumstances that I beg to move.
Lord Wolfson of Tredegar
Shadow Attorney General, Shadow Attorney General
My Lords, I will be brief, because this is the fifth time I have spoken on this topic. The first time I spoke, when I advanced the proposition that the Lord Chancellor should come back to this House, Lord Judge—whom I think we all miss very much—inquired in that very gentle way of his whether I was making a job application on the Floor of the House of Lords. I confirmed that I was not and I declare the same non-interest in this speech today.
As my noble and learned friend Lord Keen of Elie has made clear, the position of Lord Chancellor occupies a distinct role in our constitution. The Lord Chancellor is still the only Cabinet Minister who takes a distinct oath to uphold the rule of law, and while the noble and learned Lord the Attorney-General and I have had some interesting debates about what is and what is not constituted within the term “the rule of law”, it is an important—indeed, a fundamental—part of our constitution, and I think it is undeniable that in moving the Lord Chancellor away from this House and allowing the position of Lord Chancellor to be held by a Member of the House of Commons, for whom, as my noble and learned friend indicated, it might be an intermediate station stop on a ministerial career, rather than a grand terminus, I think we have lost something.
We have also changed the position of Lord Chief Justice, because while formerly the Lord Chancellor was the person who would speak up for judges, that role now falls to the Lord—or now the Lady—Chief Justice. While there have been some excellent holders of that post—the current holder is particularly excellent —it is unfortunate that we have, in part, turned that post into something of a shop steward for the judges, whereas in the past they had a member of the Cabinet around the Cabinet table, speaking up for judges, for justice and for the rule of law.
I also think, finally, that there is considerable merit in what my noble and learned friend said about the Lord Chancellor heading a small but focused department. One could even call it the Department for Constitutional Affairs: I seem to remember that name being used in the past. That department could have responsibility for the rule of law, for devolution, for civil liberties, for treaties and for human rights—the very things that keep our society the sort of society that we want it to be. These things should not change; they should not come and go with Governments. Frankly, under the last Government as well, we had too many Secretaries of State for Justice, because it was treated as a Cabinet position like any other, but the reason it is treated as a Cabinet position like any other is because that is essentially what the 2005 Act did.
I do not want to go back. We cannot go back to the status quo ante, or to a situation where the Lord Chancellor was a Cabinet Minister and a judge and occupied the Woolsack here; but we can identify that there is something about the role of the Lord Chancellor that is different from all other Cabinet Ministers. For those reasons, I have put my name to this Amendment, and I support it.
Baroness Anderson of Stoke-on-Trent
Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Cabinet Office), Lords Spokesperson (Northern Ireland Office), Lords Spokesperson (Wales Office), Lords Spokesperson (Scotland Office)
My Lords, it may be helpful if I inform your Lordships’ House that my noble and learned friend the Attorney-General also took an oath to uphold the rule of law when he took office.
Lord Wolfson of Tredegar
Shadow Attorney General, Shadow Attorney General
The point I was trying to make is that I think—the noble and learned Lord the Attorney-General may correct me—that he took an oath because he wanted to. I think the only one that is based in statute is the Lord Chancellor’s. That is the point I was making.
Baroness Anderson of Stoke-on-Trent
Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Cabinet Office), Lords Spokesperson (Northern Ireland Office), Lords Spokesperson (Wales Office), Lords Spokesperson (Scotland Office)
That is correct, but I think it is important to note that my noble and learned friend the Attorney-General chose to because he views that as part of his role.
Amendment 10, tabled by the noble and learned Lord, Lord Keen, seeks to ensure that the Lord Chancellor is always a Member of the House of Lords rather than of the other place. It is the same amendment tabled previously by the noble Lord, Lord Wolfson, who, as ever, made an effective and articulate argument for the change, but, with the greatest respect, as my noble and learned friend the Attorney-General said in the previous debate on this matter, the amendment is more focused on unpicking the constitutional settlement agreed in the Constitutional Reform Act 2005 and recasting the role of Lord Chancellor as it currently stands than it is on the principle of the Bill before us. The noble and learned Lord made his case with his customary eloquence, but the Government are not persuaded of the constitutional or policy rationale for a return to the 2005 decision.
The 2005 Act rightly ended the mixing of the Executive and the judiciary, and this is not something that this Government wish to reverse. The amendment would, in effect, bind the hands of the Prime Minister over whom he can appoint to be Lord Chancellor, excluding Members of the other place from holding this role. This is unnecessarily restrictive. It would also have the practical effect of forcing the Prime Minister to appoint a new Lord Chancellor, either by appointing a new Peer to this place, choosing an existing Peer or triggering a By-election so as to appoint the present Lord Chancellor to your Lordships’ House.
As my noble and learned friend the Attorney-General said in Committee, the Constitution Committee noted that
“character, intellect and a commitment to the rule of law” are the most important qualities of a Lord Chancellor. My Right Honourable Friend the Lord Chancellor demonstrates these qualities in abundance, and the House she sits in does not hinder her from discharging her duties as Lord Chancellor. This amendment does nothing to safeguard such qualities in the role of the Lord Chancellor.
I am surprised that the Official Opposition have raised the creation of a department for constitutional affairs; they had 14 years in which to create such a department if they had chosen to do so, yet they did not. The noble and learned Lord, Lord Keen, said that the Lord Chancellor should be in charge of a department for constitutional affairs. Such machinery of government changes are of course a matter for the Prime Minister, not for this Bill. Since the creation of the Ministry of Justice in 2007, different Government departments have seen value in a single officeholder having a more holistic oversight of the justice system, by virtue of their responsibility for prisons and probation, as well as for courts and tribunals.
I therefore respectfully request that the noble Lord withdraws his amendment.
Lord Keen of Elie
Shadow Minister (Justice), Shadow Advocate-General for Scotland
11:45,
2 July 2025
I am most obliged for the Minister’s contribution. The Amendment proposed is of course within the scope of the Bill. The concept of the Lord Chancellor being a Member of this House did seem to work for rather more than 200 years without any real difficulty. Indeed, the difficulties that we have faced around constitutional affairs have emerged since 2005, and as a consequence of those changes.
Nevertheless, having regard to the hour, I will not seek to divide the House. I beg leave to withdraw the amendment.
Amendment 10 withdrawn.
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