Lord Chancellor and Law Officers (Constitution Committee Report)

Baroness Drake Excerpts

Thursday 20th July 2023 Grand Committee

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[Baroness Drake]

That the Grand Committee takes note of the Report from the Constitution Committee The roles of the Lord Chancellor and the Law Officers.

[Baroness Drake (Lab)]

My Lords, in January this year, the Constitution Committee report into the roles of the Lord Chancellor and the law officers was published. All inquiries have their context. Since the committee’s last report in 2014 which examined these issues, the Government’s commitment to the rule of law has been called into question; the then Lord Chancellor’s lacklustre defence of the judiciary in the wake of the Daily Mail’s “Enemies of the People” headline has been heavily criticised; and the global rise in authoritarianism and the impact of the digital revolution on democracy have imposed threats to a rules-based global order.

The rule of law is the common thread which links the distinct constitutional positions of the Lord Chancellor and the law officers: the Attorney-General, Solicitor-General and Advocate-General of Scotland. It is the only constitutional concept with a presence in Cabinet consideration supported by statute, courtesy of the Lord Chancellor’s duties under the Constitutional Reform Act 2005.

The Act does not define the principle of the rule of law but its fundamental tenets are set out by Lord Bingham and are well understood. Lord Bingham’s formulation was that

“all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”.

He expanded on this formulation with eight principles which are set out in the report. Those principles point to an important element of the rule of law: that it is not simply rule by law. The law itself must conform with the fundamental concept of justice.

Our constitution requires that the Government act according to the rule of law: that Ministers understand its key principles and consider it to have primacy over political expediency. The Lord Chancellor and the law officers have special responsibilities for its maintenance: they take special oaths; their duties, while also being Ministers, place them in a special constitutional position; and they are among the chief guardians of the rule of law.

The eighth principle in Lord Bingham’s definition states:

“The rule of law requires compliance by the state with its obligations in international law as in national law”.


This conception has been politically resonant in recent years. The committee reported that the Government had, at that point, twice knowingly introduced legislation in Parliament that would breach the UK’s international obligations, contravening Lord Bingham’s eighth principle. In the case of Part 5 of the United Kingdom Internal Market Act, the Government admitted doing so. In the case of the Northern Ireland Protocol Bill, the Government failed to produce a credible legal justification for doing so.

Parliamentary sovereignty means that Parliament is able to legislate in this way. This does not alter the Government’s responsibility to ensure, to the best of their ability, that international obligations are adhered to. They should refrain from knowingly inviting Parliament to legislate contrary to the UK’s obligations. Parliament is ultimately responsible for the form of any legislation passed, but preparation and introduction of government legislation is an executive action.

I turn to the role of the Lord Chancellor. The CRA fundamentally altered the role of the Lord Chancellor and the constitutional framework surrounding it, including replacing the Lord Chancellor as head of the judiciary in England and Wales with the Lord Chief Justice. It put into statute the Lord Chancellor’s existing constitutional role in relation to the rule of law. It created a new oath that the Lord Chancellor would respect the rule of law, defend the independence of the judiciary and discharge their duty to ensure the provision of resources for the efficient and effective support of the courts.

The Lord Chancellor’s responsibility for the rule of law is not limited to the maintenance of the justice system and the independence of the judiciary. They have a role which, as a full member of the Cabinet, goes beyond that of the Attorney-General to ensure that rule of law issues are defended and understood by government. The committee was concerned that their oath does not adequately reflect the Lord Chancellor’s role and recommended that it be amended to explicitly include their duty to uphold the rule of law.

In 2007, the Lord Chancellor’s role was combined with that of Secretary of State for Justice, so acquiring a wide range of policy areas in addition to duties as regards rule of law and judiciary independence. Some commentators suggest that this has undermined the Lord Chancellor’s ability to fulfil their core duties by giving them distracting or conflicting responsibility for prisons. Others argue that the budgetary responsibility for the Ministry of Justice, including the Prison Service, increases their authority in government. The advantage of separating those responsibilities is not clear, particularly in the light of the disruption caused by machinery of government changes. We recommend, however, that a new Prime Minister embarking on a more comprehensive reorganisation of government might consider separation at that point.

The noble and learned Lord, Lord Burnett of Maldon, the Lord Chief Justice, pressed the case for further consideration in comments made at the recent Lord Chancellor’s swearing-in ceremony. At his annual session with the committee, he said:

“It is time to look at it calmly and rationally … and simply to ask the fundamental question of whether the current system is serving the rule of law, the independence of the judiciary and the administration of justice generally as it should be”.


Does the Minister agree with the noble and learned Lord, Lord Burnett?

Judicial independence is a vital element of the United Kingdom’s uncodified constitution and defending the judiciary against abuse is a core part of the Lord Chancellor’s role. The Daily Mail’s “Enemies of the People” headline and the then Lord Chancellor’s response to it at the very least caused alarm within the judiciary and damaged trust. In 2017, the committee asked the right honourable Elizabeth Truss about her response. She argued that senior judges could speak publicly about what they did and appeared to criticise their reticence to do so. She added:

“Where perhaps I might respectfully disagree with some who have asked me to condemn what the press are writing, is that I think it is dangerous for a government Minister to say this is an acceptable headline and this is not. I am a huge believer in the independence of the judiciary; I am also a very strong believer in a free press”.


The noble and learned Lord, Lord Reed of Allermuir, President of the Supreme Court, advised the committee that he had made an effort recently in judgments,

“to spell out what the constitutional relationships are … That has been a response to criticism, because it was evident that people did not understand our role”.

Lord Hodge, Deputy President of the Supreme Court, added that,

“it is very important that we do not enter the fray in the face of political criticism, and we leave it to the Lord Chancellor, if necessary, to defend us in the context of defending the rule of law”.

Criticism of the content of a judgment is acceptable; targeted personal criticism that unfairly impugns a judge’s impartiality or inflames public sentiment against the judiciary is not. In such cases, the committee firmly believes that a Lord Chancellor must intervene promptly and publicly. For the judiciary to feel secure in its duty to decide cases without fear or favour, it needs a Lord Chancellor who is willing to defend it.

The CRA did not require the Lord Chancellor to have a legal background. At the time of the report, only six of the 11 post-2005 officeholders had a legal qualification. The five Lord Chancellors preceding our report spent an average of less than 14 months in office. We would expect a Lord Chancellor normally to be a senior legal figure commanding the respect of the legal community and Parliament. However, in the final analysis, character, intellect and commitment to the rule of law are the most important attributes for a Lord Chancellor to possess.

The responsibilities of the law officers touch on the rule of law in various ways. Our report focused on their role as legal advisers to the Government. On the lawfulness of government action, government lawyers, including the law officers, currently operate on the basis that action may justified if a respectable legal argument can be found that is lawful. The concept of a respectable legal argument is found in the Government Legal Department’s guidance to government lawyers. An updated version was published on 2 August 2022 and the then Attorney-General elaborated on her expectations of government lawyers in a series of tweets.

The existence of a “respectable legal argument” as set out in the guidance and elaborated on by the then Attorney-General could sometimes represent a very low threshold for authorising legally uncertain action. The validity of the respectable legal argument depends on an uncertain threshold in the Attorney-General’s guidance—the level at which an argument becomes respectable. The guidance explains that this is an argument that could be properly put before the court but also refers to an absence of such arguments being “rare” or “exceptional”. It is unclear whether this suggests that the threshold is so low that an argument will almost always be found or that the Government would not expect to be contemplating legally dubious action. Public confidence in the Government’s commitment to the rule of law demands that any threshold is meaningful and aligns with an ethos of genuinely seeking to comply with the law and that a decision by Ministers would not be based solely on a calculation of legal inconvenience.

Decisions to authorise armed conflict require greater certainty, and merely a “respectable” argument in this context is a fig leaf and undermines the trust of the public and particularly the military. It was therefore comforting to hear the current Attorney-General tell the committee in recent evidence that,

“the Government have extra duties as a litigant before the courts”,

including the “duty of candour”, and

“a duty to advance proper arguments”.

However, we shall have to see how this develops in practice, and the concept may yet require further elucidation.

The law officers are senior legal advisers to the Government. They are Ministers and Members of Parliament. Depending on the function, varying degrees of independence are required. Their main duty as senior legal adviser requires a high degree of independence from the Executive. Their responsibilities for legal advice and individual prosecutions are non-ministerial and not subject to collective responsibility. There is great value in the law officers being politicians. It provides them with an understanding of the political context and bolsters the authority of their advice; as MPs, they are accountable. However, it is necessary to balance political status with rule of law functions. Former Attorney-General Suella Braverman KC confirmed this view when she told the House of Commons Justice Committee in 2020 that the officeholders’ primary duty lay with the rule of law above party interest. In the same session she went on to say that,

“I am a member of the Cabinet and I subscribe to collective responsibility. I am an elected politician. For me, the political thread that runs through this role is vitally important”.

In evidence to the committee, the current Attorney-General said,

“although I have other, sometimes competing, considerations—I have, for example, duties to my constituents … duties to my party, and duties to the Government, of which I am a member—I definitely feel, particularly in this role, that there is no question, but that my duty to the court comes first”.

It is vital that law officers recognise that they are different from other Ministers. Key aspects of their role require independence from party politics and government priorities. Public confidence in their impartiality must be retained and they should refrain from making public statements that damage that confidence.

In recent years, Attorneys-General have been appointed with less legal experience than was previously the case. We recommended that codification of law officers’ duties would improve confidence in their role, and that the Ministerial Code and the Cabinet Manual be amended to clearly define those duties, including identifying which are subject to collective responsibility and which should be conducted independently of government. Given the differing conceptions of the rule of law and the duties of the Lord Chancellor and the law officers that have politically resonated in recent years, can the Minister say whether, in the updating of the Cabinet Manual currently being undertaken, it will be amended to define clearly the duties of the law officers? I beg to move.

--- Later in debate ---

[Baroness Drake (Lab)]

I thank the Minister for his comprehensive reply. It definitely warrants detailed reading, which I shall do. I share his aspiration to achieve wider understanding of the rule of law and our constitution—people often do not value what they have, and it is important that we bring it to their attention. As the Minister articulated, because we have so much to be proud of, it is even more important to defend it.

In recent times, we have experienced constitutional and associated governance processes being under pressure, and it would be easy to say that the problem was a one-off. But, for the Constitution Committee, we have to ask whether there is need to check whether the democratic protections and the important checks and balances lacked or had resilience under stress, as opposed to just taking at face value that it was a one-off and that everything is fine in the garden otherwise. We are resistant to just accept this as a premise for some of the things we have looked at and continue to look at.

If one takes the committee’s report as a whole, it is clear that it recognised that the realities of a functioning Government need flexibility. At various points in our report, we accepted that. I was pleased to hear the Minister say that he would take back his reflections from this debate and the points that were made, particularly about clearly defining the duties of the law officers in the Cabinet Manual. There have been significant differing conceptions of the rule of law and the duties of the law officers that have politically resonated in recent years, and there is the public trust issue. So, if the Minister is able to take that back, that would be helpful. I understand that the Cabinet Manual redraft will be available in weeks—that was the phrase put to us by the Cabinet Secretary.

I thank all noble Lords who participated today. It has been an excellent debate, but, as I look across the cast before us, that is not surprising. I thank John Turner, the committee clerk, and Rachel Borrell, the policy adviser, for their excellent work in helping the committee to prepare this report; it took a year and lot of work to get that definitive position in it. I also thank the press team, which managed to get what looks like a dry document out into the public space for reflection and debate. I thank all the committee members who worked hard on this for their deliberations, and I thank all those who submitted evidence. People were generous with their time and in interrogating issues with us.

I too am delighted to see the noble Lord, Lord Hennessy, in his place. He is so fondly regarded, and his reputation goes before him. I remember that he was poorly when we were preparing the evidence for this report, but he always joined remotely and would ring me to tell me the issues that he was concerned about and that he felt must be interrogated by the committee. He never lost that thread of what we had to focus on, so I thank him for that.

It has been a great debate; I have learned a lot and will reflect on what was said. I hope that between us and with the constitution, we can collectively defend what the Minister said we should be proud of.

Motion agreed.