Office of Lord Chancellor (Constitution Committee Report)

Lord Cullen of Whitekirk Excerpts

Tuesday 7th July 2015 Lords Chamber

[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.