Office of Lord Chancellor (Constitution Committee Report)

Debate between Lord Faulks and Lord Crickhowell

Tuesday 7th July 2015 Lords Chamber

[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.