Office of Lord Chancellor (Constitution Committee Report)

Baroness Kennedy of Shaws Excerpts

Tuesday 7th July 2015 Lords Chamber

[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.