Lord Chancellor and Law Officers (Constitution Committee Report)

Lord Hennessy of Nympsfield Excerpts

Thursday 20th July 2023 Grand Committee

[Lord Hennessy of Nympsfield (CB)]

My Lords, I thank noble Lords for their welcome back; it is an undiluted pleasure to be with you all again. It is funny what one misses. There is serious business, of course, but being a Member of this House is the most agreeable form of adult education the world has ever seen, and when it comes to providing weapons-grade gossip, it has no equal in any Parliament that I have ever come across.

Any nation that wishes to claim for itself the much-prized title of an open society has to meet, nourish and cherish a hierarchy of needs. Right at the top are the rule of law and regular elections conducted in a free and fair manner. In our country, so seriously do we take the rule of law that we keep a man or woman at every Cabinet table to incarnate it and to defend it through thick and thin in the person of the Lord Chancellor. As my noble friend Lady Drake has emphasised already, no other principle has a shop steward in the room to represent it at Cabinet meetings. If a Lord Chancellor fails in his or her duty of care, especially the defence of the independence of the judiciary, we feel, rightly, seriously let down at best and truly alarmed at worst.

Of all the senior posts in the Administration, the lord chancellorship must at times be a real short-straw draw of a job, for there will be occasions when your colleagues are itching to cut a corner, awash on a dopamine high or flushed with the righteousness that can befall those who think they have a special insight into the minds of the British people, unlike those tenacious human rights lawyers or the bewigged Inns of Court-polished smoothies sitting on the judicial benches nitpicking away at or, even worse, sabotaging the mandates of elected Ministers. I parody of course, but not entirely, for the Lord Chancellor lives by the light of an oath solemnly sworn, an oath for all seasons, with an overriding duty of speaking truth unto power in every circumstance.

The last great service Tom Bingham, the late Lord Bingham of Cornhill, did for us was to author a classic work on the rule of law in 2010. It was as if he stood at our shoulders as your Lordships’ Constitution Committee went about its work on the inquiry we are discussing this afternoon. Witness after witness praised it as the modern template for a rule of law country. For me, Lord Bingham’s thoughts and words help to explain why a society that lives by the rule of law is utterly different from one that does not. Perhaps my favourite passage in his book is the section where he cites the best-known encapsulation of the principle delivered by Thomas Fuller in 1733:

“Be you never so high, the law is above you”.


Lord Bingham wrote,

“If you maltreat a penguin in London Zoo, you do not escape prosecution even if you are the Archbishop of Canterbury”.


In case of any of your Lordships may have misheard what I have just said, I am not suggesting that any Archbishop of Canterbury, living or dead, has ever had such an encounter with a penguin, and nor, I am sure, did Lord Bingham.

The rule of law is a principle for all of us to live by, all of the time. As the noble Lord, Lord Finkelstein, put it on BBC Radio 4 on 11 June this year,

“the rule of law depends on enormous universal acceptance”.

People in political and public life need a string of rule of law alarm bells strung around their cortex. Somewhere in the minds of everyone engaged in the professions of Government, and the law in particular, there needs to be a bell tower ready to peal out a tocsin of warning when the rim of the rule of law is being approached by some new policy, plan of action or draft statute. Such a capacity should become innate, a crucial and permanent part of their political consciousness. For living up to the conventions and probities of the British system of government is very much a state of mind, given the absence of a formal written constitution. That is why we have various codes, ministerial and Civil Service, and the Nolan principles of public life. That is why we have Lord Chancellor’s oath, and that is why we need a Prime Minister’s oath as an aide to keeping all of the decencies and conventions alive and flourishing—but that is a subject for another day.