Office of Lord Chancellor (Constitution Committee Report)
(9 years, 4 months ago)
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Lord Lang of Monkton
That this House takes note of the Report of the Constitution Committee on The Office of Lord Chancellor (6th Report, Session 2014–15, HL Paper 75).
Lord Lang of Monkton (Con)
My Lords, I welcome the proposed participation in the debate of a number of members, past and present, of the Constitution Committee—and, with some diffidence, I also welcome some very distinguished members of the judiciary and the legal profession who plan to take part.
I should stress at the outset that our inquiry was focused on the office of Lord Chancellor and not on its individual occupants. We were driven by the evidence that emerged to two central conclusions: first, on the importance of the rule of law in government, and, secondly, on the need within government to have clearly defined responsibility for the upholding of the constitution. In this of all years, when we celebrate the 800th anniversary of the sealing of the Great Charter, it seems timely to reassert the primacy of the rule of law in our democratic heritage, which is still central today to the workings of our constitution and our courts.
The office of Lord Chancellor has evolved substantially over nine centuries, but our report focused on the reforms between 2003 and 2005. We sought to understand the constitutional position of modern Lord Chancellors. In 2003, as your Lordships will know, the Lord Chancellor was an important parliamentarian, Cabinet Minister and judge. He was Speaker of this House, he was entitled to preside as chairman of the Law Lords and he was head of the judiciary. In government he was head of a department, with a wide range of responsibilities, including constitutional affairs.
The Lord Chancellor was a figure at the heart of government who brought together the three pillars of the state: the Executive, the legislature and the judiciary. As a system, it worked quite well and fully justified his high status in the order of precedence. However, as a recent Lord Chancellor, my right honourable friend Kenneth Clarke, told us, such a “bizarre combination of roles” is,
“something you could not defend to the outside world”.
The reforms made in the last decade removed the Lord Chancellor’s role in your Lordships’ Chamber; the Lord Chief Justice replaced the Lord Chancellor as head of the judiciary in England and Wales; and the creation of the Supreme Court replaced the Law Lords without the Lord Chancellor as a member. Within government, the now much-reduced office of Lord Chancellor was eventually given additional responsibilities by being merged with those of the Secretary of State for Justice, and in 2010 the post was stripped of its responsibility for constitutional affairs, which was transferred to the new Deputy Prime Minister, Mr Clegg.
Against that background, the modern Lord Chancellor’s relationship with the legislature and the judiciary may now be substantially different and more remote, but some of the role’s essential duties remain. The Constitution Committee noted in a 2007 report that,
“the role of Lord Chancellor is of central importance to the maintenance of judicial independence and the rule of law”.
The rule of law may not be, as a former president of the Supreme Court told us, readily defined or readily understood. It remains, as the committee has previously stated, a complex and in some respects uncertain concept. Yet it is also perhaps the single most important characteristic of a democratic nation.
I suggest that the rule of law requires an independent justice system, free from corruption and outside interference. It requires those in power to comply with the law to ensure a stable and predictable exercise of power, rather than an arbitrary one. But these two elements alone are insufficient. Surely the rule of law goes beyond judicial independence and simple compliance with law, particularly as regards the Government, who can, through Parliament, change the law. We concluded that in the context of government, the rule of law must include the tenet that the Government should seek to govern in accordance with constitutional principles as well as with the letter of the law. We did not attempt to define these principles in their entirety, although we noted, with respect, Lord Bingham’s eight principles of the rule of law as a valuable articulation of such core constitutional principles, including, as they did, access to justice, equality before the law and the protection of fundamental human rights. We were pleased that the Government agreed with this conclusion. Acting in accordance with this wider conception of the rule of law places a constitutional constraint on their power, through Parliament, to change the law in any ways that they see fit.
The Lord Chancellor’s responsibilities in relation to judicial independence, a core aspect of the rule of law, are clear. His unique oath of office, set out in the Constitutional Reform Act 2005, calls on the post-holder to defend the independence of the judiciary, yet his responsibilities in respect of the rule of law beyond judicial independence are ill-defined. The last Lord Chancellor, my right honourable friend Chris Grayling, felt that the duty to uphold the rule of law resided with every Minister and parliamentarian, not simply with the Lord Chancellor. While this is undeniably true, it ignores the special role that most of our witnesses, including other former Lord Chancellors and Attorneys-General, felt that the Lord Chancellor should play.
We concluded that the Lord Chancellor has additional responsibilities to the rule of law beyond those of other Ministers. This duty extends beyond the day-to-day responsibilities of the Lord Chancellor in respect of the judiciary and the Ministry of Justice. It requires the Lord Chancellor to seek to ensure that the rule of law is upheld both within Cabinet and across government. One could describe him or her as playing the role of the Government’s conscience, ensuring that the Government follow not only the letter but the spirit of the law, and indeed of the constitution.
I am grateful to the noble Lord, Lord Pannick, who I think is not in his place today—no, he is in his place, so I am all the more grateful—for drawing attention in a recent article in the Times to an important speech by the new Lord Chancellor, my right honourable friend Michael Gove, who said that his role was,
“different from other Cabinet posts. The most important thing I need to defend in this job—at all costs—is not a specific political position—but the rule of law”.
That is a most encouraging departure from the disappointing response we had on this point from the coalition Government, and I hope that it augurs well for the future.
To reflect this important duty, we recommended that the Lord Chancellor’s oath of office be amended, not just to respect the rule of law but to respect and uphold it. This is not mere semantics. The 2005 Act makes it clear that the Lord Chancellor’s duty towards the rule of law remains unchanged. We believe that that special duty should be reflected in his oath of office. We were disappointed that the coalition Government also rejected this recommendation and that they felt that there was no need for a specific requirement on the Lord Chancellor in this respect. We believe that this stance ignores both the traditional role of the Lord Chancellor as guardian of the constitution and the need for a senior Cabinet member to represent the importance of constitutional principles in those difficult situations when political needs and constitutional principles come into conflict. Perhaps we may yet hope for a change of heart from the new Government.
Our report also considered the value of appointing only Lord Chancellors with a legal or constitutional background. While it is not essential, we drew attention to the benefits of doing so. However, it is more important to ensure that the Lord Chancellor is a senior member of Cabinet, with sufficient authority to speak up for the principle of the rule of law in dealing with ministerial colleagues and the Prime Minister, and with a clear understanding of his or her duties in relation to the rule of law. However, in the event that the Lord Chancellor is not legally qualified, we felt it appropriate that either the Permanent Secretary at the Ministry of Justice be legally qualified or the top legal adviser in that department be appointed at Permanent Secretary level. We welcome the recent announcement that the newly appointed Permanent Secretary at the department is a lawyer.
The Lord Chancellor is not the only individual to have a special responsibility to uphold the rule of law. In this duty he will of course be aided by others, both within and without Government. The role of the Attorney-General in particular has become more important. While the Government’s response recognised that importance with regard to upholding the rule of law, it made no reference to the impact of the changes to the office of Lord Chancellor on the role of the Attorney-General. That ignores the very real impact of those changes since the reforms of the last decade and leaves uncertain the distribution of responsibilities that relate to the rule of law.
In our report we recommended that the Government,
“should ensure that the responsibilities of those charged with upholding the rule of law are clear and widely understood”.
The Government did not respond to that recommendation, and I would be grateful if the Minister could clarify the Government’s view of the respective roles of the Attorney-General and Lord Chancellor in upholding and representing the rule of law, in Cabinet and across the work of government more generally.
The traditional role of the Lord Chancellor included what might be described as a guardianship or stewardship role with regard to the constitution more generally. Once again we found a disturbing lack of clarity as to where responsibility for the constitution lies. Mr Grayling felt that,
“the constitutional role that the Lord Chancellor once performed … is not currently there”.
He stated that the then Deputy Prime Minister had taken over that responsibility. Yet Mr Clegg was responsible for political and constitutional reform only, and we heard no evidence to suggest that he had a wider constitutional oversight role. Indeed, surprisingly, neither Mr Clegg nor the Lord Chancellor was a member of the Devolution Cabinet Committee, which was formed to look into matters relating to devolution. This lack of a focal point for constitutional oversight may explain why there appears to have been no central co-ordination and oversight of the devolution settlements, and minimal consideration given to the effect of devolution in one area of the United Kingdom, on other areas and on the union as a whole.
This is a serious issue. Demand-led devolution can undermine seriously the integrity of the nation state. We recommended that a senior Cabinet Minister, preferably the Lord Chancellor, should have responsibility for oversight of the constitution as a whole, even if other Ministers have responsibility for specific constitutional reforms. I fear that the Government’s response to this recommendation suggests a lack of understanding in government of the reasons for our concern. After noting that the Deputy Prime Minister was Secretary of State for constitutional policy, the response stated:
“Senior ministerial oversight reflects the importance of the constitutional changes outlined in the Programme for Government. This arrangement gives a clear focus for the delivery of reforms”.
That response fails to address the central part of our argument: that there needs to be consistent, high-level oversight of the constitution as a whole, beyond transient proposals for change. The unwritten nature of the United Kingdom’s constitution requires careful oversight if political whims are not to unbalance or damage its fabric. There is no evidence of any such oversight at present.
I urge the Minister to think carefully about this recommendation. As recent reforms to the devolution settlement and, potentially, to our relationship with the European Convention on Human Rights move forward, it is essential that the constitution be protected by the consistent and coherent oversight that has to date been lacking. I hope that the new Government will think again. I beg to move.
Lord Beecham (Lab)
My Lords, Newcastle, in its time, has contributed significantly to our judicial system. Two of its sons have recently held the position of Lord Chief Justice: the late and much lamented Peter Taylor, and the noble and learned Lord, Lord Woolf, whose distinguished career was marked in the recent Birthday Honours by the conferment upon him of the status of a Companion of Honour. I am sure that your Lordships will join me in congratulating him on this significant honour.
Lord Beecham
However, it was Lord Eldon who could perhaps have laid claim to holding the highest position in our jurisprudence, having served as Lord Chancellor for some 27 years in the 19th century. He was an unrelenting reactionary, whose portrait has followed me like a mobile version of Dorian Gray through my school years in Newcastle, my studies at University College, Oxford and now in your Lordships’ House. I thus have a more personal, if historical, interest in the subject of this debate than would otherwise be the case, and I welcome the opportunity that the noble Lord, Lord Lang, and his Committee have created to discuss the Constitution Committee’s report and what passes for the Government’s response to it.
One of the many reasons for welcoming the timing of this debate is that we no longer have as Lord Chancellor Mr Grayling, whose period of office betrayed not only reactionary tendencies of a kind of which Lord Eldon would no doubt have heartily approved, but also exemplified the problems the Committee sought to address. The new Lord Chancellor, Mr Gove, has the opportunity not only to instruct his department in the use of grammar, but to review the approach to the position and duties which he has inherited. As I said last week in the debate on human rights, Mr Gove’s Legatum lecture has raised hopes in that respect, although he did not address the specific issue of the wider aspects of the Lord Chancellor’s role. I understand, however, that he has already proved more willing than his predecessor to engage on a personal level with key players in the legal world. Provided that he does not lapse into the kind of language he deployed while Secretary of State for Education, this certainly augurs well. After all, we would not wish to read of the legal, still less the judicial, “Blob”.
The committee’s report seem to me to be a balanced, not to say judicious, review of and response to the changes wrought between 2003 and 2007. This is of course to be expected of a committee comprising eminent lawyers, former Ministers and distinguished—if I might be forgiven for putting it this way—ordinary Members of your Lordships’ House. I very much look forward to hearing the contributions to come, not least from those who have held high judicial office. Although we do not have with us the noble and learned Lord, Lord Mackay of Clashfern, we do have my noble and learned friend Lord Irvine, himself a distinguished occupier of the post. Of course, we have my noble and learned friend Lord Falconer, whose presence I cannot omit to mention and who will be winding up for the Opposition at the end of the debate. Many Members will have read my noble and learned friend’s lecture to the Bentham Association. His presence in that body no doubt relegates me to the position of only a second, or perhaps superfluous, Jeremy in his life.
I found the Government’s response to the committee report, as expressed in Mr Grayling’s letter of 26 February, disappointing. The broad welcome it purported to accord to the report does not really seem to be reflected in his response to the most significant of the committee’s recommendations. The committee made 19 statements, observations and recommendations, some of which the noble Lord, Lord Lang, has referred to today. The Government responded to 10 of them and some of their replies, frankly, give cause for concern. Thus, importantly, the Government reject the invitation in paragraph 25 of the committee’s report,
“to agree that the rule of law extends beyond judicial independence and compliance with domestic and international law”,
and that it,
“includes the tenet that the Government should seek to govern in accordance with constitutional principles, as well as the letter of the law”.
Moreover, it rebuts the dictum of the noble and learned Lord, Lord Hope of Craighead, that,
“the rule of law requires that judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise”.
Similarly, it rejects the recommendation at paragraph 51 of the report that the Lord Chancellor’s oath should include a promise to respect and uphold the law—a point made by the noble Lord, Lord Lang. At paragraph 79 it asserts in relation to the proposition that the Attorney-General should attend all Cabinet meetings and be adequately resourced that the law officers are so resourced, which in the light of the experience of the Serious Fraud Office, the Director of Public Prosecutions and the courts service would make them almost unique in the judicial system in this context, if it were true.
The fact that there is no longer a Deputy Prime Minister with responsibility for constitutional matters might allow the Government to change their opposition to the committee’s recommendation at paragraph 101, to which, again, the noble Lord referred, that this responsibility should lie with the Lord Chancellor. Perhaps the Minister could indicate whether this is now under consideration and, if it is not yet, perhaps he would be good enough to raise the matter with the current Lord Chancellor.
Given the committee’s acceptance that the Lord Chancellor need not be a lawyer, it is disappointing that the suggestion, at paragraph 113, that in such an event the Permanent Secretary of the Ministry of Justice should be legally qualified is dismissed, although I welcome the news that in fact the appointment has been made of somebody who is legally qualified. The Government’s response simply indicated that the Lord Chancellor could rely on the Treasury Solicitor’s Department for counsel. That might be thought to be somewhat less than desirable.
Strikingly, the noble and learned Lords, Lord Judge and Lord Woolf, and Sir Hayden Phillips raised concerns, reported at paragraph 68 of the committee’s report, about the level and legal expertise of support for the Lord Chancellor, with Sir Hayden Phillips, as a former Permanent Secretary, referring to the loss of staff to other parts of the justice system. At the very least one might have hoped that the department would have a highly qualified lawyer at, or very near, the top of its structure as a matter of course, it not being determined on the occasion of each separate appointment.
Paragraph 110 noted the concern of Sir Hayden Phillips, echoed by the Bar Council, that the expectation of the 2005 Act was that,
“‘the Lord Chancellor would be a lawyer but his principal official adviser would not’”.
He stressed the need for a balance of experience and expertise, which he affirmed, “has now gone”, and “is potentially damaging”. He went on to propose that the position of legal adviser should be at Second Permanent Secretary level. The Government rejected the committee’s proposal that the Permanent Secretary be legally qualified or, in the alternative, that the top legal adviser should be at Permanent Secretary level. I think that the report may have slightly erred there and that that should have been a reference to Second Permanent Secretary level. However, as I said and as the noble Lord pointed out, for the moment that is not a problem.
Worryingly, the Government airily dismiss concerns, reflected in paragraph 125 of the report, that the person appointed to the position of Lord Chancellor should have,
“a clear understanding of his or her duties in relation to the rule of law and a willingness to speak up for that principle in dealings with”,
other colleagues “including the Prime Minister”. Such, as I understand it, was very much the role, for example, played by the noble and learned Lord, Lord Mackay of Clashfern, and no doubt other recent Lord Chancellors under the former regime. What is the evidence that Mr Grayling, as opposed to his predecessor, Mr Clarke, was even remotely interested in so doing? What was the nature of the evidence that Mr Grayling was qualified by experience, as prescribed by the Constitutional Reform Act? The Government responded to that by saying:
“There is a range of evidence that the Prime Minister can take into account when reaching such a conclusion”—
that is to say, that the person is qualified. I remind your Lordships that the letter to the noble Lord, Lord Lang, was signed by Mr Grayling himself—I am tempted to add, QED.
What is striking in reading the committee’s report is the very limited perspective of the former Lord Chancellor in respect of his role—the noble Lord has touched on that, perhaps rather more gently than I am doing. Paragraph 44 of the report states:
“the current Lord Chancellor does not believe that he has a wider guardianship role in Government beyond upholding the independence of the judiciary and the integrity of the justice system”.
Paragraph 49 states:
“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”.
Paragraph 55 reveals that,
“Lord Chancellors since 2010 … have not been members of the Parliamentary Business and Legislation Committee”,
which clears all legislation. The committee noted that this,
“represented an important route through which Lord Chancellors were kept informed about the Government’s legislative and policy agenda”.
To none of these points did the Government condescend to reply, a reprehensible omission, particularly in relation to the reference by the committee to the Lord Chancellor’s role in respect of the rule of law.
Some 60 years ago, Bayard Rustin, one of the leaders of the American civil rights movement, coined the phrase, “speaking truth to power”. It is surely the duty of the Lord Chancellor to speak justice to power, even if—especially if—he is himself an integral component of the system of power. I trust that the new Lord Chancellor will listen further to the representations of the committee, and perhaps what is said in your Lordships’ House today, and seek to emulate the record of some of his most distinguished predecessors in this respect.
Lord Lester of Herne Hill (LD)
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.
Lord Woolf (CB)
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.
Lord Crickhowell (Con)
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.
Lord Phillips of Worth Matravers (CB)
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 that,
“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.
Lord Lexden (Con)
My Lords, this occasion is, for me, tinged with a little sadness. The report before us today was one of the last produced by the Constitution Committee before my three-year term as a member expired with the Dissolution of the last Parliament. Participation in its work brought me immense profit and pleasure. It was very good indeed to be united as a colleague with noble Lords drawn from all parts of the House, and even the occasional tendency of one or two members towards slight prolixity could not diminish the enjoyment. The committee is brilliantly served by its officials, who combine a passion for detailed research with a gift for clear, precise drafting. The discussions in which I took part were chaired very skilfully, first by the noble Baroness, Lady Jay of Paddington, and latterly by my noble friend Lord Lang of Monkton. I am grateful, above all, to them, and follow my noble friend Lord Lester of Herne Hill in emphasising that I make these remarks in no spirit of idle flattery.
Turning to the subject of the report before us, it is surely important to be clear about the reasons why the ancient office of Lord Chancellor, hallowed by time, matters in today’s world. Only tiresome ultra-Tories—the noble Lord, Lord Beecham, made reference to one of them: Lord Eldon—think that institutions are justified simply by longevity. The rest of us believe that a test should be applied for long-standing arrangements, based on whether they discharge functions that continue to be needed.
On that point, we can draw on the testimony of the late Lord Hailsham, who held the office of Lord Chancellor for 12 years. He had no doubt that his office passed the test of practical utility. Exactly 40 years ago, he wrote that,
“where the constitution does not limit the powers of Parliament, and Parliament itself is largely under the influence of the executive, the preservation of the integrity of the rule of law has to be entrusted to a man and not a legal instrument. In Britain that man is the Lord Chancellor”.
With him, Hailsham added, lay the vital duty of ensuring that,
“the independence of the judiciary and the rule of law should be defended within the cabinet as well as parliament”.
There can be little doubt—this debate has reinforced it—that the same views were held by Lord Hailsham’s predecessors in the office of Lord Chancellor and by his successors, including those who held it in the immediate aftermath of the far-reaching changes, not all of them wise, introduced under the Constitutional Reform Act 2005.
This is not to say that all past Lord Chancellors were held in the same high regard by the Prime Ministers under whom they served. In July 1962, Harold Macmillan summarily dismissed his Lord Chancellor, Lord Kilmuir, as part of his extraordinary Cabinet purge known as “the night of the long knives”. Kilmuir protested that even a cook would have been given more notice. Macmillan replied that it was easier to find Lord Chancellors than cooks. Lord Kilmuir perhaps should have learned from the experience of Lord Eldon, to whom the noble Lord, Lord Beecham, referred. Lord Eldon held so tenaciously to his post that he slept with the Great Seal under his pillow.
It rapidly became apparent at the outset of the Constitution Committee’s inquiry that its most important element would be an examination of current attitudes, particularly those within government, to the two crucial responsibilities of the Lord Chancellor: the preservation of the rule of law and the defence of judicial independence. The Lord Chancellor has other significant responsibilities —they are listed in paragraph 12 of the report—but no one, I think, would make the case for retaining this ancient office by reference to them. If the post matters in today’s world, it is because of the two core duties, as the report describes them in paragraph 12, in relation to the rule of law and judicial independence. They naturally became the chief focus of the committee’s work.
The second—the maintenance of the independence of the judiciary—was readily endorsed by all our witnesses, but the first—upholding the rule of law—was the subject of differing views. Some of our witnesses argued that this vital duty was now widely diffused among Ministers as a whole and no longer resided principally and overridingly in the office of Lord Chancellor. This, indeed, was the view of the then Lord Chancellor, Mr Grayling, whose opinion is cited in paragraph 34. Frequent references have been made to it, not altogether in an amiable spirit, by noble Lords who have contributed to this debate. The committee agreed that this crucial legal and constitutional duty did not lie exclusively with the Lord Chancellor, but we saw absolutely no reason to set aside a powerful argument put to us by former Ministers, both Labour and Conservative, with long experience of politics and the law, by distinguished officials who have worked in the Lord Chancellor’s department and by other experts that, as paragraph 42 of the report puts it:
“The Lord Chancellor continues to have an additional responsibility in this regard”.
We put forward recommendations to make that clear, but they were rejected, as we have heard.
It would seem to follow from that rejection that the Government believe, or at that point believed, that the Lord Chancellor should no longer exercise the particular duty to uphold the rule of law on the wide basis on which the holder of the office has until now undertaken it. If so, that is surely a new constitutional tenet which significantly diminishes the Lord Chancellor’s role. If Lord Hailsham’s ghost should walk abroad, Ministers must expect their repose to be disturbed, unless the new position outlined by Mr Gove now holds the field. Like so many other noble Lords, I look forward to my noble friend Lord Faulks’s comments at the end of the debate.
The role of the Lord Chancellor has been attenuated in another especially important respect, about which grave concern has quite rightly been expressed in this debate: he is now excluded from any serious participation in the processes by which constitutional affairs are considered. Mr Grayling told the committee:
“The truth is today the constitutional role that the Lord Chancellor once performed, in a very practical sense, is not currently there”.
Those words appear in paragraph 94 of the report. Is this not, in a very practical sense, unfortunate? Major constitutional reforms proceed in endless succession, unco-ordinated with each other. To give just one example, Scotland is to receive major new powers in relation to income tax while Northern Ireland is to be given significant responsibilities in relation to corporation tax. The Government give the impression that a new coherent constitutional settlement will somehow emerge of its own accord from a series of far-reaching changes, separately conceived and executed.
Do we not need what Enoch Powell once called a constitutional invigilator, someone who can watch over the fundamental changes that are bringing us almost inexorably to a quasi federal-state? His presence could be particularly valuable since the Government have ruled out a constitutional convention, which is the other obvious means by which coherence could be brought to sets of separate initiatives and the framework created for a new constitutional settlement that would stand the test of time. I submit that the recommendation in paragraph 101 of the committee’s report that the Lord Chancellor should exercise oversight of the constitution is the more significant in the circumstances in which we now find ourselves.
A report that runs to over 35 pages, excluding summaries and appendices, secured from the Government a response that comprises just 10 paragraphs, two of which consist of a single sentence. The one disappointing feature of my otherwise deeply rewarding period on the Constitution Committee was the Government’s reluctance to take part in a substantial two-way process for the discussion of the ideas and proposals that emanated from it. I hope that that will change under this new Government at a time when we are at a major constitutional crossroads.
Lord Cullen of Whitekirk (CB)
My Lords, like the noble Lord, Lord Lexden, I was a member of the committee that produced the report. With regard to the duty of the Lord Chancellor in respect of the rule of law, the committee concluded that that duty extends beyond his or her dealings with the justice system and, in its words in paragraph 50,
“requires him or her to seek to ensure that the rule of law is upheld within Cabinet and across Government. We recommend that the Ministerial Code and the Cabinet Manual be revised accordingly”.
That conclusion took account of Section 1 of the Constitutional Reform Act 2005. It states that the Act does not adversely affect the existing constitutional principle of the rule of law, or the Lord Chancellor’s existing constitutional role in relation to that principle. That section may be rather unspecific but the committee’s conclusion was built on evidence given by the majority of its witnesses, including robust contributions from the noble and learned Lord, Lord Falconer of Thoroton, and others. The committee also noted that, in commenting on the Bill that led to the 2005 Act, the Constitutional Affairs Committee in the other place considered that in future the Lord Chancellor would continue to be the “constitutional conscience of Government”.
A number of remarks have been made about the quality of the Government’s response in the letter from the then Lord Chancellor on 26 February, and I must add another. With regard to the conclusion to which I have referred, the letter reads as if all that the committee had done was recommend changes to the code and the Cabinet Manual. It said that these documents, and the Lord Chancellor’s oath of office,
“already accurately reflect ministerial responsibilities in relation to the rule of law”.
Whether by design or by misadventure, the letter failed to address the scope of the duty of the Lord Chancellor, whatever may or may not be stated in such documents. It also failed to take account of the basis on which the committee had reached its conclusion and recommendation. In view of the evasion in the Government’s response, I invite the noble Lord, Lord Faulks, to state whether the Government now accept that the Lord Chancellor has a duty in regard to the rule of law that is more than a mere appendage to his or her responsibilities for the Ministry of Justice and extends to the upholding of the rule of law within Cabinet and across government, and if they do not agree, why not.
I will briefly refer to one other matter. In their response, the Government placed particular reliance on what is said in the Ministerial Code and the Cabinet Manual about the role of the law officers. It does not seem in doubt that they are guardians of the rule of law. However, as the committee observed, their role should not be seen as other than complementing or supporting that of the Lord Chancellor. They cannot simply take the place of the Lord Chancellor. For example, Mr Dominic Grieve, the former Attorney-General, stressed that the limited staff in the Attorney-General’s Office would not enable the law officers to be overseers of the rule of law. Moreover, he pointed out that the Attorney-General may not be privy to policy discussions to which rule of law issues might apply. The noble and learned Lord, Lord Mackay of Clashfern, referred in his evidence to the Lord Chancellor’s role as being,
“to ensure that, if there is a legal and constitutional issue on which it is necessary to take the Attorney General’s advice, that is done”.
Thus, the Government’s reliance on the law officers is superficial and short-sighted.
Lord Norton of Louth (Con)
My Lords, I very much welcome this report from the Constitution Committee. It is a serious report and deserves to be taken seriously. The response before us, produced by the coalition Government, fails to respond adequately to the committee’s recommendations. Even more importantly, it reflects a failure to grasp the fundamentals that underpin our constitutional arrangements.
A constitution requires not only formal rules but a culture that appreciates and upholds the principles that give rise to those rules. Dicey identified the twin pillars of the British constitution as parliamentary sovereignty and the rule of law, pillars that are not necessarily compatible with one another. The stability of our constitutional arrangements derives from an acceptance that Parliament will not act in such a perverse way as to encroach on the fundamentals of the rule of law. As the report of the Constitution Committee notes, the rule of law is not formally defined. The Constitutional Reform Act 2005 refers to,
“the existing constitutional principle of the rule of law”,
but without defining the term.
Prior to the passage of that Act, the role of the Lord Chancellor was recognised as distinctive—indeed unique—the holder being a senior and somewhat detached figure within government. That detachment was enhanced by the fact that some occupants followed a quasi-judicial route of serving as Attorney-General or Solicitor-General before becoming Lord Chancellor, or a wholly judicial route, being appointed straight from the Bench or the Bar. SA de Smith observed:
“The Lord Chancellor’s duties are multifarious, demanding the utmost delicacy and an extensive familiarity with lawyers and the law”.
However, the office was more than the individual holding the post. The status of the office was important. The Lord Chancellor was senior in the order of precedence. For centuries, until the treason laws were reformed, it was high treason to slay the Lord Chancellor. The status of the office provided some reassurance that the holder would serve to uphold the rule of law, including the independence of the judiciary. As Diana Woodhouse noted in her book, The Office of Lord Chancellor:
“In the absence of a written constitution, the responsibility for judicial independence places the Lord Chancellor at the heart of Britain’s constitutional arrangements”.
In effect, this is acknowledged in the 2005 Act, but the failure to define terms, and the freeing of the person appointed from the previous requirements to hold post, creates problems. The Lord Chancellor, by his oath of office, is sworn to defend the independence of the judiciary, but he is no longer a detached or necessarily senior figure within government. He is different but not that much different from other Cabinet Ministers.
The reform of the office of Lord Chancellor was basically botched, the product of a lack of understanding of the Lord Chancellor’s crucial and embedded constitutional role. The 2005 Act, by its own declaration, does not affect that role, but it is clear from the evidence of the noble and learned Lord, Lord Irvine of Lairg, in the Constitution Committee’s fourth report of 2009-10, that Prime Minister Tony Blair did not fully comprehend that role, viewing changes to the office of Lord Chancellor in the same light as any other change in the machinery of government.
The report before us makes recommendations that clarify some of the uncertainties that are consequent to the 2005 Act in terms of upholding the rule of law and, as we have heard, having an oversight role in relation to the constitution as a whole. These encompass changes to the Ministerial Code and the Lord Chancellor’s oath, as well as ensuring adequate support for those charged with upholding the rule of law.
These are important and weighty recommendations made to government. In essence, the Government’s response—the noble and learned Lord, Lord Phillips of Worth Matravers, touched on this—says, “We broadly agree with the report, except where it makes any substantive recommendation, in which case we don’t agree with it, but we can’t be bothered to engage with the report and provide reasoned arguments for our stance”. My noble friend Lord Lexden has touched on the brevity of the Government’s response. It consists of 115 lines, excluding headings, of which 58 comprise direct quotes from the committee’s report. In other words, half the Minister’s letter simply reproduces the committee’s recommendations. The Government’s actual response occupies 57 lines, constituting fewer than 800 words. Not only does it not engage with the committee’s recommendations; it also appears not to grasp the points being made.
Some of the responses are vacuous. Paragraph 126 of the report recommends that the Prime Minister, in appointing the Lord Chancellor, give weight to qualities outlined in the report and, above all, consider the importance of the Lord Chancellor’s duty to uphold the rule of law. This recommendation follows this observation in paragraph 124:
“There is general agreement that the statutory criteria for appointing a Lord Chancellor are ineffective”.
What is the Government’s response? It states:
“The Constitutional Reform Act 2005 provides that the Prime Minister may not recommend an individual for appointment as Lord Chancellor unless he or she is satisfied that the individual is qualified by experience. There is a range of evidence that the Prime Minister can take into account when reaching such a conclusion”.
That merely summarises Section 2 of the Act as reproduced in paragraph 102 of the committee’s report. Section 2 is the starting point of chapter 4 of the report. To merely restate what is in Section 2 is to ignore what is in the chapter. There is no engagement with its content. Nothing in the response addresses the concerns or the recommendations. This is a government response that, as we have heard, took more than two months to produce, but one that says essentially nothing.
I have two questions for my noble friend Lord Faulks. One derives from a particular recommendation made in the report, and the other, more general question derives from the criticisms of the Government’s response. First, as a number of noble Lords have mentioned, paragraph 101 of the report records:
“There is no clear focus within Government for oversight of the constitution”.
It recommends that a senior Cabinet Minister have responsibility for such oversight and, as we have heard, observes that,
“the Lord Chancellor is best placed to carry out this duty”.
In this Parliament, the Prime Minister has appointed Oliver Letwin, the Chancellor of the Duchy of Lancaster, to fulfil this role. It will be helpful to know from my noble friend what protocol, if any, has been established between the Lord Chancellor and the Chancellor of the Duchy of Lancaster to ensure that there is coherence in addressing constitutional issues.
Secondly, given that there is a need to recreate the culture within government of appreciating the significance of our constitutional arrangements and the principles underpinning them, what are the Government doing to inculcate those principles in Ministers and senior officials? From the Government’s response to the Constitution Committee report there is no evidence of such an awareness, and indeed nothing in the response suggests a clear grasp of what the rule of law entails, despite the committee report discussing it in some detail.
In the light of this debate, my noble friend the Minister may wish to consider going back to his department to think about producing a fresh response to the Constitution Committee’s report. What is before us falls well short of the standard we are entitled to expect.
Baroness Kennedy of The Shaws (Lab)
My Lords, I beg the indulgence of the House that I might speak briefly in the gap. I missed the deadline for putting my name on the speakers list.
I, too, want to remind the House why the Lord Chancellor’s role was such a triumph in our constitution. I still believe very strongly in the importance of that role being in the hands of a lawyer of distinction with a lifetime’s experience in the law. Of course, it was sometimes held by someone who had also been a practising elected politician in their past, but the thing that distinguished previous Lord Chancellors was that they had an understanding of the law, the importance of law in constitutional matters coursed through their veins and their commitment to the rule of law was visceral. In the end, at the point when they came to be Lord Chancellor, they would feel that the law was their master and not of any strategic political advantage.
The sadness that I feel about all this is that reform took place in such an abandoned way back in 2005. Until then, we had somebody who sat in this House with no further political ambition, who was at the apex of their career and who no longer harboured any secret passion to become Prime Minister or Chancellor of the Exchequer or to hold any other kind of office. Because of that, they were able to take the long view, they were able to argue in Cabinet against some of their ministerial colleagues who were seeking to respond to populist demands, and they were able to argue for the importance of law as against, sometimes, the appeal of order. In that balancing of law and order, there was this voice speaking for justice. That person, sitting in this House, did not have to look to constituents or face the vicissitudes of regular elections, and so did not fall prey to the populist pressures of, for example, the Daily Mail—they did not fear what the next day’s headlines might be. That was why the role was such a success.
That does not mean that there was not a need for reform, and I was one of the people who argued that the time had come for there to be a judicial appointments commission and that there might be a review of whether any judicial role could be held by the Lord Chancellor. The Lord Chancellor could sometimes sit as a judge but that had more or less been abandoned and could easily have been reformed. The issue of the role of Speaker being part of the Lord Chancellor’s responsibilities could also easily have been reconsidered.
I am afraid that the folly of the reforms undertaken by Labour in government came as a bolt from the blue. They were ill considered and constitutional madness. In my view, it was the act of a capricious Prime Minister abetted by a determined Home Secretary, and this House has often had the opportunity of expressing its regret that that happened.
Of course what Labour at that time was saying was that there should be a Minister of Justice—somebody speaking for justice in the House of Commons. And that may make perfect sense. Labour also argued that it might often be difficult to make sure that that person was a lawyer and therefore it could be somebody who was committed to those issues but was not a lawyer, if no MP who was a lawyer was suitable for the role. But what Labour did at that time was to abolish the Lord Chancellor role—that was the announcement. Then, of course, it had to revisit that, because it is a role that is deeply embedded in so much legislation that it could not possibly be dealt with in that fleeting way. So the idea of the Minister of Justice became coupled with the Lord Chancellor’s role, and into it went the notion that it could be a non-lawyer. That should remain a source of regret and should be looked at, I hope, at some suitable point, because I believe that we should still have a Minister of Justice in the House of Commons but a separate Lord Chancellor’s role. I regret that the committee did not make such a recommendation.
We have seen the consequences of the botched reforms in the performance of Mr Grayling, who seemed to have no appreciation of what the role really entailed and what his constitutional commitments ought to be. In Mr Gove I hope that we have someone who draws on a deeper well of constitutional understanding and wish him well in the role.
The idea that the Government have not listened to the careful report from this committee is a source of disappointment. I hope that the Minister will respond to the concern expressed by everyone.
Lord Falconer of Thoroton (Lab)
I join everybody in congratulating the committee of the noble Lord, Lord Lang of Monkton, on the excellent report that has been produced. I also join those who said that it is a very serious report. I believe it to be a serious report because it expresses incredibly clearly and well what the reforms in 2005 were seeking to achieve in relation to the continuing role of the Lord Chancellor.
I compliment all who have spoken in the debate. I will mention my noble friend Lord Beecham, who emphasised the importance of Newcastle to this and, in addition to his point about the Geordies’ role, the importance of speaking justice to power.
I ask the Minister to answer specifically the three incredibly important questions that the noble Lord, Lord Lester of Herne Hill, enunciated with enormous clarity.
I agree with the noble and learned Lord, Lord Woolf, that the Lord Chancellor now should—he emphasised the word “should”; he was not saying that he necessarily did—play a critical role in the defence of the rule of law.
The noble Lord, Lord Crickhowell, did not appear to me to be Pooh Bear in the questions that he asked. Like many noble Lords, he said that the response of the Government fell well short of what was expected in relation to a report of the significance of this one. He hoped—this view was widely shared around the Chamber—that the new Lord Chancellor would do a lot better than his immediate predecessor in fulfilling his role.
The noble and learned Lord, Lord Phillips of Worth Matravers, said that the Government’s response showed unwarranted complacency—I took that to mean that he thought that the way that Mr Grayling had answered the questions indicated that he thought the rule of law was safe under the current arrangements. If Mr Grayling thought that his attitude as Lord Chancellor indicated that it was safe, I took the noble and learned Lord, Lord Phillips of Worth Matravers, to mean that it most certainly was not.
I share the grief of the noble Lord, Lord Lexden, at being off the committee after three years. I particularly enjoyed his reference to Lord Kilmuir, who, upon being fired, was told that it was easier to find cooks than Lord Chancellors. I can think of no Lord Chancellor who more deserved that remark than Lord Kilmuir. Many of you will recall that Lord Kilmuir was Winston Churchill’s second Lord Chancellor. His first was Viscount Simonds. When Winston Churchill became Prime Minister for the second time, he said that he wanted Asquith’s son to be the Lord Chancellor. He summoned Asquith’s son, as the repayment of a political debt to his father, and asked him if he would like to be Lord Chancellor—to which Asquith replied, “Not on your nelly, it is much too much hard work—why don’t you try my friend Simonds?”. So Winston Churchill did, not knowing the man. He appointed him Lord Chancellor and then came a political difficulty; he wanted Maxwell Fyfe, who was Home Secretary, to become Lord Chancellor. He summoned Maxwell Fyfe and said, “I don’t want you to be Home Secretary any more, I want you to be Lord Chancellor—would you mind telling Simonds that his time has come to an end, I don’t really know the man?”. So for Kilmuir to complain about the comment that it was easier to find cooks and to complain about the way that Macmillan treated him was a little bit rich in light of what happened to Viscount Simonds.
I agree with the noble and learned Lord, Lord Cullen of Whitekirk, that the duty to defend the rule of law imposed on the Lord Chancellor extends well beyond simply defending the justice system. The noble and learned Lord did the House a service in indicating the three parts of the Constitutional Reform Act that imposed the duty on the Lord Chancellor: Section 1, Section 2 and the oath.
The noble Lord, Lord Norton of Louth, is right that the constitution works not just in relation to its specific terms but in relation to its culture. I can indeed confirm to the noble Baroness, Lady Kennedy of The Shaws, that I did not have a secret passion to be the Prime Minister or the Chancellor of the Exchequer—which, as she said, all Lord Chancellors before the change indicated.
The scope of the duty of the Lord Chancellor is the key point in the report, along with the Lord Chancellor’s role in relation to constitutional affairs. The reforms in 2005, which were criticised by the noble Lords, Lord Lexden and Lord Norton, and the noble Baroness, Lady Kennedy, were necessary because it was no longer maintainable for the chief judge in the final court of appeal also to be a Cabinet Minister—because the final court of appeal in our country habitually was dealing by 2005 with issues about the conduct of the Government. You could not have a leading member of the Executive also being chief of the final court of appeal determining whether the Executive had gone beyond the limits of legality. The reforms were necessary. As the noble Baroness, Lady Kennedy, acknowledged, it was right that there should be a Judicial Appointments Commission, that a Supreme Court should be created and that the Lord Chancellor should cease to be the head of the judiciary.
The consequence—which was expressed repeatedly in the course of the Bill through this House—of removing this very big judicial figure from the centre of government would be a potential vacuum where the protector of the rule of the law and the constitution had previously been. The Constitutional Reform Act 2005 faced those fears head on and addressed them—the noble and learned Lord, Lord Cullen of Whitekirk, mentioned the way in which it did. The office of Lord Chancellor remained after the passage of the Act. The Act expressly provides that the office retain its role in relation to the rule of law within the Executive. Noble Lords have identified what that role was, and it was preserved. There was an inevitable uncertainty, because you could never be precise about it, but it was specifically preserved. The Constitutional Reform Act places a solemn burden of respecting the rule of law and ensuring a properly functioning and resourced justice system. Finally, the Act imposes on the Prime Minister a duty to appoint only someone who is up to the job of discharging those functions. That is what Section 2 amounts to.
Section 17, which sets out the Lord Chancellor’s oath, states that the Lord Chancellor has to swear an oath to,
“respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible”.
It was agreed at the time that the Act went through in 2005 that the oath imposes a higher duty than day-to-day political advantage. Parliament envisaged the Lord Chancellor being a departmental Minister, with all the political clout that that brings but with special added responsibilities and special qualities. It also expressly envisaged that, as and when necessary—and it would be exceptional—the Lord Chancellor would not be bound by collective responsibility when upholding his duty to protect the rule of law. The Act specifically envisages that there will be times when he is in effect freed from the obligation of collective responsibility.
What is the content of his protector role? It has three elements. First of all, it means making sure that judges are properly protected in their independence. That means, as the noble Lord, Lord Lester, indicated, that they are not put under any undue pressure and are properly resourced in fulfilling their role. Secondly, it means that the Lord Chancellor has an especial role to ensure that the Government of the day comply with the rule of law and with constitutional principle. That means that where the Lord Chancellor is aware that the Government either are engaged in something that is an habitual breach of the law or are going to fail to comply with the law in the future, he has a role to use his authority to stop that occurring.
One of Lord Bingham’s eight principles of the rule of law is that the law must afford adequate protection of fundamental human rights. The current Lord Chancellor, in a speech he made in the Commons on the proposals that are being made in relation to human rights, in my respectful submission, failed in two respects to comply with his duty in relation to the rule of law. First, he appeared to suggest that it was possible to not give effect to the whole of the European Convention on Human Rights and yet remain within the convention. Secondly, he appeared to be suggesting that it was possible to change some of the elements of the human rights protection currently provided—he did not indicate how—on the basis of what the Government, in effect the Executive, thought it appropriate to call human rights. If you have a situation where the Government themselves define human rights, there is inadequate protection of fundamental human rights.
The third obligation—the first being to protect the independence of the judiciary and the second to procure the protection of the rule of law—is that the Lord Chancellor must ensure that there is a functioning justice system that includes people having the right to have their legal rights vindicated. That means that there must truly be access to justice. Access to justice requires ensuring that all who need it have access to the courts and to legal advice where it is necessary to ensure that there is a level playing field. It also requires a usable means of challenging the actions of the Executive, including in particular proper access to the remedy of judicial review.
Clearly, a delicate balance must be struck for every Lord Chancellor. He or she cannot act merely as a lobbyist for the legal sector. In these straitened times, public policy requires cuts and efficiencies in spending on the courts and on legal aid, and the courts cannot simply stand back and watch the rest of the public service tighten its belt without some sacrifice themselves. But in attempting to strike a balance, it is critical that the Lord Chancellor accepts and understands his especial responsibility in ensuring that there genuinely is access to justice.
In the first speech made a couple of weeks ago by the Lord Chancellor and Justice Secretary in respect of access to justice, he spoke warm words but failed to address the problem that has been repeatedly identified in the justice system now, which is that there is no level playing field when it comes to access to justice.
So I submit that there are three elements to the rule of law which the Lord Chancellor has to protect: defending the independence of the judiciary; ensuring that the rule of law is complied with, and ensuring that there is proper access to justice.
Finally, I turn to the constitution. Under the previous Government, responsibility for the constitution moved from the Lord Chancellor’s Department to the Deputy Prime Minister. When the great constitutional drama of the last Parliament occurred—the defence of the union in the face of what was happening in Scotland—the Government were lamentably unprepared for what happened. Their response was very second rate. I do not know the extent to which that was caused by the fact that there was an attenuated constitutional department in the Cabinet Office that had been wound down quite dramatically after the Deputy Prime Minister’s initial range of constitutional reforms had run into the sand. It is the consequence of there not being a permanent home for the constitution in government.
If in the Lord Chancellor’s Department there had been expertise stretching back over a long period, we would not have had the situation that led to the way in which the Prime Minister responded on the morning after the referendum. We would not have the situation that is going on in the other place now where a fundamental change to the constitution is taking place apparently on the basis of a vote on amendments to Standing Orders in the Commons. I note that this very afternoon the Government have abstained, and so the House of Commons has just voted that the process by which English votes for English laws is being introduced is not acceptable.
I very much hope that the consequence of that will be that the Government will pause and think again rather than having English votes for English laws introduced on the basis of 11 days’ notice with no White Paper, Green Paper or any other prior consultation. The importance of keeping constitutional affairs in one place—under the tutelage of the Lord Chancellor—is that that sort of thing would not have happened in the past. I invite the noble Lord, Lord Faulks, to indicate what the Government’s response will be to a situation where there is no collective memory, no permanence and no accepted home where constitutional affairs are dealt with.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I thank my noble friend Lord Lang for securing this debate and providing the opportunity for the House to consider and discuss the Constitution Committee’s report on the office of the Lord Chancellor. I fear that I may disappoint noble Lords, who have all provided great-quality speeches in the debate, in the sense that my response will contain rather few surprises.
However, what I can say, consistent with what my noble friend would say, is that the new Lord Chancellor is very much in listening mode. There is no question of complacency on the part of the Lord Chancellor or in the Ministry of Justice, as the noble and learned Lord, Lord Phillips, suggested. I know that the Lord Chancellor will read the debate with considerable interest. I cannot guarantee what his response will be but I know that great heed will be taken of what has been said. Indeed, the committee’s report will be considered more carefully than it already has been. It is a comprehensive report and the Government recognise that the committee has assimilated a great deal of material collected from written submissions and oral evidence from a wide range of experts and practitioners, including Lord Chief Justices and Lord Chancellors.
The Government welcome the committee’s report, particularly its reaffirmation of the important constitutional role of the Lord Chancellor. However, we recognise that the committee has expressed disappointment at the brevity of the previous Government’s response to this report, and with two aspects of it in particular. I will endeavour to deal with those points. I fear that I will not be able to answer all the different points raised in the debate, including the EVEL debate, mentioned by the noble and learned Lord, Lord Falconer, or prisoner voting, which deserves a debate of its own. Of course, the comments are very much borne in mind by the Government.
First, I shall reflect on the current Lord Chancellor’s position on the rule of law. Noble Lords will, I am sure, be aware of his recent speech at the Legatum Institute, where he began to outline what he sees as a “one-nation justice policy”. He said:
“The rule of law is the most precious asset of any civilised society. It is the rule of law which protects the weak from the assault of the strong; which safeguards the private property on which all prosperity depends; which makes sure that when those who hold power abuse it, they can be checked; which protects family life and personal relations from coercion and aggression; which underpins the free speech on which all progress—scientific and cultural—depends; and which guarantees the essential liberty that allows us all as individuals to flourish”.
Noble Lords may think that those statements embody the core purpose of the justice system and indicate that he does not regard the law, as the noble and learned Lord, Lord Cullen, said, as “a mere appendage”. They bear careful consideration. No definition of the rule of law is likely to attract complete consensus, although Lord Bingham’s in The Rule of Law has quite rightly attracted widespread approval. Many countries boast of their adherence to the rule of law. In Russia there is a book that extols its virtues. China, which I recently visited, speaks consistently about its adherence to the rule of law.
The committee’s report comes at a time of considerable interest in the office of the Lord Chancellor. Among others, a recent publication by University College, London, on the politics of judicial independence concerned itself with the issue. That study reached a number of conclusions, including the fact that the judiciary and judicial independence emerged stronger from the 2005 changes with the inclusion of tribunals in the courts system, a more independent and visible Supreme Court, and greater autonomy of the Lord Chief Justice as the head of a more professional judiciary. The report recognised the change in the role of the Lord Chancellor and saw it as providing a political guardian of judicial independence with sufficient channels of communication to allow a new relationship to evolve between judges and politicians.
As to the role of the Executive, it is worth noting that the Lord Chancellor has specific duties under the Constitutional Reform Act 2005 to respect the rule of law and to have regard to the need to defend judicial independence. The noble and learned Lord, Lord Falconer, told the House about the nature of the obligations, which were of course considered by Parliament not all that long ago. It is worth mentioning that all Ministers of the Crown with responsibility for matters relating to the judiciary or the administration of justice have a legal obligation to uphold the continued independence of the judiciary.
Upholding the rule of law and defending judicial independence is a shared responsibility. The rule of law plays an integral part in the policy and the operations that we develop, particularly through the administration of the courts and tribunals system. The Government believe in, and will fervently support, the independence of the judiciary. That independence has two facets: the institutional independence of the judiciary as a branch of the state; and the independence of an individual judge, who has the discretion to make the decisions they do in court according to law. We defend their right to take those decisions.
I know that the committee expressed disappointment that the Government do not agree with its suggestion that the Lord Chancellor is required, above all other Ministers, to ensure that the rule of law is upheld within Cabinet and across government, or that the Ministerial Code, Cabinet Manual and oath of office should be amended to reflect that requirement. The Ministerial Code and the Cabinet Manual already set out the way the Government comply with the rule of law. As I have already said, all Ministers have a duty to respect the rule of law, and of course the Prime Minister ultimately has responsibility for overseeing the constitution.
The Cabinet Manual, in particular, notes the role of the law officers in,
“helping ministers to act lawfully and in accordance with the rule of law”.
The Government agree with the committee on the important role played by the law officers in upholding the rule of law. This view has been shared by successive Governments. The law officers play this role in particular by advising on some of the most significant legal issues being dealt with by government through their significant public interest functions, such as bringing contempt proceedings, and through participating in the work of the Government as Ministers of the Crown. This includes the Attorney-General participating in Cabinet meetings. I know that the noble Lord, Lord Lang, and others concluded that the Attorney-General should as a right attend all Cabinet meetings. I understand that the expectation is that he will continue to attend all Cabinet meetings but, ultimately, his attendance is a matter for the Prime Minister. Despite the comments of the noble Lord, Lord Beecham, the Government consider that the law officers are adequately resourced to fulfil their functions as they relate to the rule of law. An important function of those officers is keeping all ministerial colleagues informed of significant legal issues. The relationship between the Lord Chancellor and the Attorney-General is an important one; they meet regularly to discuss matters of common concern, including those that relate to the rule of law, and the expectation is that this will continue.
I know that the committee also expressed disappointment that the Government do not agree with its assertion that the Permanent Secretary at the Ministry of Justice needs to be legally qualified, or that the department’s top legal adviser needs to be appointed at Permanent Secretary level. It is a matter of some serendipity that the recent appointment of Richard Heaton as the Permanent Secretary has arrived in time for this debate. He is also First Parliamentary Counsel and undoubtedly has weighty legal experience. However, both the Lord Chancellor and Permanent Secretary, whether legally qualified or not, have access to high-quality legal services provided by the Government Legal Department, including direct access to the Treasury Solicitor and one of his deputies at director-general level, should it be needed. Advice can be sought from Treasury counsel, external counsel and the law officers, where needed. This provides the right level of legal support. Importantly, in addition to this, the Lord Chancellor is supported by, and has access to, a wealth of experience and expertise from civil servants, many of whom have long experience of courts and the administration of justice. I can give some evidence of this in response to the—
Lord Lester of Herne Hill
It must be my own problem, for which I apologise, but is the Minister speaking for the old Government or the new Government in what he has just said?
Lord Faulks
I am speaking for the present Government.
On the question of whether the Lord Chancellor is adequately advised by lawyers, I say that the quality of the lawyers remains extremely high. I take the point made by the noble and learned Lord, Lord Woolf, with his experience of the old Lord Chancellor’s Department and the quality of the lawyers there, but there is a great deal of continuity within the Ministry of Justice now.
I return to the role of the Lord Chancellor and deal briefly with the point of whether combining the role with another Cabinet position helps strengthen his or her position in government. Experience shows that both can be successfully carried out by the same person. I echo the views of the previous Government: we welcome the committee’s agreement that combining the role of Lord Chancellor with that of Secretary of State for Justice does, indeed, strengthen the office. I also welcome the committee’s view that it is not essential for the Lord Chancellor to have a legal background. The last two Lord Chancellors did not, but I suppose I hope that it does not become a disqualification for office if you happen to be legally qualified. The committee instead focuses on the necessary gravitas and status that the incumbent who undertakes the role must have, which does not require specific legal experience.
It may be useful to the House if I set out the current policy remit of the Lord Chancellor and Secretary of State for Justice, which I think helps illustrate the benefits of combining the two roles. The Lord Chancellor has responsibility for matters relating to the judiciary, courts and tribunals, coroners, civil, family and administrative law, legal aid, legal services and the legal professions, public records and the Crown Dependencies. The Secretary of State for Justice’s policy responsibilities include prisons and probation, criminal law, sentencing policy, human rights, data protection and freedom of information. It is evident that having one person who is responsible for the effective and efficient delivery of that system combining the functions is of great benefit. It helps give him the necessary clout in Cabinet—or, as the noble and learned Lord, Lord Hope, said in evidence before the committee, makes sure that he is not at the,
“far end of the table”.
I touched on the Lord Chancellor’s responsibility for ensuring the proper administration of HM Courts & Tribunals Service. I want to say a little more about this as it is an important example of how upholding judicial independence is critical to the successful delivery of that service. The Lord Chancellor discharges his responsibility for the courts and tribunals in partnership with the Lord Chief Justice and the Senior President of Tribunals. He has a statutory duty to provide the support necessary for the judiciary to perform its functions and to ensure that there is an efficient and effective system to support the business of the courts. This duty is discharged in conjunction with the senior judiciary, as laid out in the HM Courts & Tribunals Service Framework Document of 2014, which reflects the partnership arrangement between the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals in relation to the effective governance, financing and operation of HM Courts & Tribunals Service. It is very much a joint venture.
The final point I want to address—and it is a very important point—is the committee’s concern that:
“There is no clear focus within Government for oversight of the constitution”.
Lord Falconer of Thoroton
Before the Minister moves on to that, can he identify whether he accepts the central recommendation of the Constitution Committee that the Lord Chancellor has an especial role in protecting the rule of law, or does he, like Mr Grayling, think that the Lord Chancellor has no special role that is any way different from that of the Secretary of State for Health or the Secretary of State for Education?
Lord Faulks
The Lord Chancellor’s role and his oath, as the noble and learned Lord said, is defined by the Constitutional Reform Act 2005. Clearly, his role is the same as other Ministers’ but must be larger than theirs. Its precise ambit may be a question of some debate but clearly he would regard, as indeed he said in the Legatum Institute talk, that he has a greater and particularly specific role in relation to the rule of law.
I was dealing with the oversight of the constitution. The committee recommended that, “a senior Cabinet minister”—in its view, most appropriately the Lord Chancellor—should have responsibility,
“for oversight of the constitution as a whole, even if other ministers have responsibility for specific constitutional reforms”.
The Prime Minister, of course, has overall responsibility for the constitution. The Cabinet Office has oversight of constitutional policy and has done since 2010. The Chancellor of the Duchy of Lancaster, Oliver Letwin, oversees co-ordination of the Government’s constitutional reform programme and is supported by two Ministers and officials from the Cabinet Office constitution group. The Chancellor of the Duchy of Lancaster works in close collaboration with the Prime Minister and other relevant Cabinet Ministers, including the Lord Chancellor, the Attorney-General, the Leaders of the House of Commons and the House of Lords, and the Secretaries of State for Scotland, Wales and Northern Ireland. This senior ministerial oversight reflects the importance that the Government attach to their constitutional reform programme.
In answer to the noble and learned Lord, I am not aware of any precise protocol, but it is clear that there is a great concentration within the Cabinet Office, in close collaboration with the other offices.
Lord Crickhowell
My noble friend has again repeated the phrase that was used in the Government’s response with regard to who is responsible for constitutional reform. But the point that was made in the report, and has been made repeatedly this afternoon, is that the constitutional responsibility goes much wider than reform. Our concern, as expressed in the report, that the previous Deputy Prime Minister appeared to think he was responsible only for reform was one of the centrepieces of the criticism that we were making. I therefore hope that my noble friend will at least go back to his colleagues and point out that we are concerned about not just reform but the overall constitutional responsibility.
Lord Faulks
I am grateful to my noble friend. He makes a very fair point, which I entirely take: the constitution needs to be considered at a moment of any prospective reform but, none the less, the Government have a continuing duty to maintain constitutional integrity.
The Chancellor of the Duchy of Lancaster and other Cabinet Office constitution Ministers are currently dealing with some difficult constitutional policies, including English votes for English laws, devolution, English decentralisation, the EU referendum and the British Bill of Rights. There is a significant area of potential reform but I absolutely accept that the role those who are charged with looking after our constitution have goes beyond reform.
We could spend quite a lot of time dealing with the definition of “rule of law”. I am of course aware of the comments made in speeches by the noble and learned Lords, Lord Hope and Lord Steyn, and the discussion in Lord Bingham’s book The Rule of Law of whether parliamentary sovereignty really is the governing principle. At the moment, however, the supremacy of Parliament is generally considered to be the predominant constitutional principle and the capacity of judges in certain circumstances to strike down, as it were, an Act of Parliament is one that has not yet been taken advantage of.
In conclusion, we recognise that the office of the Lord Chancellor is an ancient one. During its time, the role has been occupied by individuals of varying skills and experience, reflecting the contemporary demands of the office and the somewhat quixotic choices made by Prime Ministers, which have sometimes haunted the noble Lord, Lord Beecham, and others. Some have been colourful characters, some have attracted criticism and some have even met an untimely end. The changes introduced in the Constitutional Reform Act 2005 were significant, albeit that they came about in rather an unusual way. They emphasised the independence of the judiciary and defined the new nature of the relationship with the Executive and Parliament.
The Lord Chief Justice said in his speech of the week before last:
“What appears clear is that over the first ten years since the reforms of 2005, the judiciary has evolved a new way of working. It has developed a capacity and a will to lead reform. It has forged a new method of engagement with the Executive and Parliament in this task so that all can work together to bring about an overhaul of the administration of justice”.
The House is very clear that the office of the Lord Chancellor will continue to be a key office of state, with very real and important duties that have a constitutional importance and underpin judicial independence and the rule of law. This Government are very grateful to the Constitution Committee for its clear and thorough report. I am sorry that there has been so much criticism of the inadequate response. I reassure the House that what has been said in that report, and what has been brought to the House’s attention in this debate, will be considered very carefully by the new Lord Chancellor. I thank all noble Lords who have taken part in this excellent debate.
Lord Lang of Monkton
My Lords, such has been the high quality of every speech in this debate, and so close to uniformity has been the range of comment, that my task is mercifully brief. Indeed, the noble and learned Lord, Lord Falconer, and my noble friend Lord Faulks have responded specifically to a large number of points, for which I thank them both. I thank the noble Lord, Lord Lester, somewhat blushingly for his personal compliment, which was reprised by my noble friend Lord Lexden, but I demur. I am happy to regard myself as an ordinary member of the committee, as the noble Lord, Lord Beecham, figured some of us were because we are non-lawyers. In this distinguished company today, it has been a privilege to hear the legal views that have come into the debate, to great advantage.
Kind things have been said about the committee. I welcome that and thank colleagues who have complimented it. However, the fact is that the committee is only as good as the witnesses who appear before it and the evidence submitted to it, and we have had a very high quality of evidence, both verbal and written, in preparing this report. I am very pleased that the report has been recognised as a useful contribution on the subject that it addressed.
Virtually every speaker complained, some robustly, about the Government’s response. A number of new points were made. In particular, the noble and learned Lord, Lord Woolf, made reference to the fact that splitting responsibility for constitutional matters could undermine what we are seeking to achieve, and possibly achieve the exact opposite. That is a point that had not otherwise been made and should be considered further. We also enjoyed a similarly authoritative speech from the noble and learned Lord, Lord Phillips of Worth Matravers. We are not in a happy situation at the moment—the noble and learned Lord drew attention to this—when the Government can welcome a report as they did and then reject almost everything that it recommended. That suggests not careful consideration but rather indifference, which worries me. I believe it takes us into a dangerous place.
The debate’s near unanimity in reaction to the report, together with the criticism of the Government’s response, suggests that they really should take the report away again and have another look at it. After all, the Government of the moment are not the same as the coalition Government to whom we submitted the report and from whom we got the original reply. I thank my noble friend Lord Faulks for his thorough and courteous response and for the way he treated seriously all the points that were made—even though he did live up to his promise at the outset and was largely disappointing on the detail. Nevertheless, he came very close to saying that he would take it away and have another look, and I would urge him to do that. He also quoted with approbation the mellifluous words of my right honourable friend Michael Gove, the new Lord Chancellor, on the merits and importance of the rule of law. However, one swallow does not make a summer—not that a swallow is the first bird I would think of in alluding to my right honourable friend Michael Gove.
The debate has been extremely useful but I still get the feeling that the Government have not understood and have not adequately considered the specific points that we made. They were made after very careful research and, as I said, on the basis of very high-quality evidence. I conclude by returning to the two issues that I raised myself—which go wider than just the role of the Lord Chancellor, although they flow from it—in saying that the rule of law and the protection of our constitution are to democracy, justice and order as the air we breathe is to life. They are indispensable and we neglect and spoil them at our peril.