Lord Chancellor and Law Officers (Constitution Committee Report)

Lord Davies of Gower Excerpts

Thursday 20th July 2023 Grand Committee

[Lord Garnier (Con)]

My Lords, I am delighted to follow the noble Baroness, Lady Drake, and thank her not only for her comprehensive opening remarks and for the committee’s report but for inviting me to give evidence to the committee last year. It is a very balanced report which, if I am right, underlines the importance within our constitution of the roles of both the Lord Chancellor and the law officers in protecting the rule of law. The noble Baroness was entirely right to remind us of the recent occasions when that has broken down. I am also delighted to see the noble Lord, Lord Hennessey, in his place, because it means we can benefit from his wisdom this afternoon, and also because, I hope, it suggests that his health has been restored to him. I look forward to hearing from my noble friend the Minister and from other noble Lords speaking this afternoon.

At the risk of doing something unusual, I will talk about myself. I am by no means the only lawyer here, but I believe I am the only person here who can claim membership of the former Solicitors-General club. Long ago, an Attorney-General said that being Attorney-General was the worst job in government and being Solicitor-General was the best. Both have their upsides and downsides, but I have a certain pride that I held an office in the 21st century that was held in the 18th century by my direct ancestor William de Grey. I have inherited his gout but not his intellect: he had what we nowadays call a stellar chancery commercial practice at the Bar and, although in his final years his hands were riddled with gout, preventing him from holding a quill, he was able to give extempore judgments as Lord Chief Justice after long and complex trials that stand the test of time to this day.

Shortly after my appointment in 2010, I was showing off to the then Lord Chief Justice, the noble and learned Lord, Lord Judge, that de Grey had been successively Solicitor-General and Attorney-General from 1763 to 1771, under five Prime Ministers. After that, I told him, de Grey became Lord Chief Justice of the Common Pleas. The noble and learned Lord smiled engagingly and gently reminded me that some apparent precedents are easily distinguished upon their facts.

Before I return to the subject of law officers, I agree with the current Lord Chief Justice, the noble and learned Lord, Lord Burnett of Maldon, who said earlier this week at Mansion House—reflecting some of the remarks made by the noble Baroness, Lady Drake, a moment ago—that:

“It is my belief that a Lord Chancellor’s primary interest should lie in nurturing the long-term health of the Courts and Tribunals, the legal system and the independence of the judiciary”.


If I had my way, I would return to the Lord Chancellor’s duties doing the things that the noble and learned Lord mentioned. Some would say that the ship carrying that sort of Lord Chancellor has sailed, never to return. I disagree. If it can be changed in one way, it can be changed in another way.

Government departments are frequently repurposed. It simply requires the political will to do it. I would release the Lord Chancellor from the prisons portfolio and the expenditure responsibilities that go with being Secretary of State for Justice, save those connected with the administration of justice. The Lord Chancellor does not need to be an elderly lawyer devoid of ambition; our current Lord Chancellor is, after all, young—at least from where I am looking—but by no means the youngest there has been. He is a very able lawyer, bright and enterprising, and a member of the former Solicitors-General club. Whoever it is, they should be someone with sufficient calibre and character to hold their own in and be listened to with respect by the Cabinet—and someone who does not feel the need to ring up Downing Street for permission to support the judiciary. Elizabeth Truss’s response to the committee, as cited by the noble Baroness a moment ago, was inadequate. I agree with the assessment of the noble Baroness of what one needs in a Lord Chancellor.

In my evidence to the Constitution Committee last year, I said that one of the things I have worried about over the last several years is that the fellowship of lawyers and Members of Parliament, between the judiciary and the Government and the judiciary and Parliament, has gone. We no longer speak the same language. When I took one of the many recent Lord Chancellors to dinner in my inn, they felt like they were going into a foreign country. Not so very long ago, the Lord Chancellor not only would have known most of the people there but would have appointed many of the judges in the room. There was a shared constitutional understanding about their separate roles: the role of Parliament, the role of the Executive and the role of lawyers and the judiciary. That has gone.

It is a great pity, and it discourages members of the Bar and solicitors from entering public life. By that I mean not just those who have law degrees or those who are called to the Bar or admitted as solicitors or advocates in Scotland; I mean those with High Court and appellate practices, men and women of standing within the legal professions who command the respect, if not always the agreement, of the judges they appear before. These people are discouraged from coming into the House of Commons. Why give up a good practice? Why swap all that for the likely inability to continue your practice and, associated with that, the public obloquy that goes with being a Member of Parliament in an era of social media? I know plenty of people much younger than me who would make excellent Members of Parliament, excellent Ministers and excellent law officers, but they will not come anywhere near Parliament because they see it as poison. The consequence is that, although we may from time to time find lawyers of sufficient experience fit to be law officers, it is becoming increasingly difficult.

I was lucky enough to have a London-based practice, which required me to travel no further than the Royal Courts of Justice on the Strand, so I could maintain it to a reasonable level while a Member of Parliament. However, for a criminal barrister with a circuit practice, nowadays it is either Parliament or practice but not both. In 1992, when I first got in, the Whips kindly told me that I could not have two passports: I was either at the Bar or I was a Member of Parliament. I ignored them. But when, for example, my noble friend Lord Clarke of Nottingham was first in the House of Commons, he was in court in Birmingham during the day and in the Commons in the evenings. My late noble and learned friend Lord Rawlinson of Ewell told me that, when he entered the House of Commons in 1955, he was told by the Whips that he was not expected to be present until late afternoon and that, if he did come in, it would be assumed that he had no practice.

More than 40 years ago, Lord Rawlinson, a former Solicitor-General and Attorney-General, led me in a very long libel action that gave us plenty of time to get to know each other. He told me that, when he was appointed Solicitor-General in 1962, the then Prime Minister, Harold Macmillan, said, “Remember, you are the last of the Crown officers who remains a Member of the House of Commons”. He then gave him a learned seminar on the history and constitutional role of the law officers. It was made clear that, as Solicitor-General, his first duty was to the Crown, his second was to Parliament and his third—and it was only third—was to the Government of which he was a member. He was told that the Attorney-General is the principal agent for enforcing legal rights and is required to intervene when the public interest, not the Government’s interest, is affected. Sir Hartley Shawcross, one of the great Attorney-Generals, said that

“although the Attorney-General is a member of the government he has certain duties which he cannot abdicate in connection with the administration of the law, especially the criminal law”.

Of course, along with the DPP, the Crown Prosecution Service and other prosecution agencies such as the Serious Fraud Office, the Attorney-General and the Solicitor-General are responsible for criminal prosecutions as part of their quasi-judicial, independent role. Although Dominic Grieve and I made a point of going to court, for example to prosecute in contempt cases and to appear in criminal appeals that had nothing whatever to do with the Government or in the European Court of Human Rights and the European Court of Justice to represent the United Kingdom, we wished that we could have done so more often. I think that we appeared in court a good deal more than both our immediate predecessors and those who came after us.

More recently, the law officers have appeared in court only rarely and most often in unduly lenient appeals, but this was an important part of our duties that had nothing whatever to do with our political existence. Neither of us found it difficult to separate ourselves into our respective functions as politically aware but apolitical law officers on the one hand and party-political Members of Parliament on the other. Having a foot in both camps made us more useful advocates and advisers in a way that a Civil Service lawyer could not be.

Mr Cameron appointed me Solicitor-General in 2010 during a three-minute telephone call. Had he had the time to think about it, I am sure that he would have agreed with Macmillan. I certainly tried to keep Harold Macmillan’s advice to Peter Rawlinson in the forefront of my mind when I was Solicitor-General.

To many Ministers and Members of Parliament, the law officers are either mysterious, barely known creatures or an inconvenient reminder that the law of the land applies to them. Like lawyers in private practice, law officers cannot talk in detail about their work, which is confidential to their client—the Government. However, nor should they just say “no”; they should try to be imaginative and help the Government navigate through their difficulties. Their power, if they have any at all, lies in speaking truth unto power and in resignation. The law officers are more like submarines than the ships of the line in the Cabinet: you know that they are down there somewhere, unseen and unheard, quietly going about their business patrolling the murky waters of Whitehall, but, if they surface and their concerns or disagreements with the Government become known to the wider world, either the Government are in trouble or they are.

It is the fate of the law officers, if they behave as law officers and restrain themselves from making excessively political speeches, to be seen by their parliamentary colleagues as part of some mysterious priesthood, out of touch with the cut and thrust of political controversy. Their offices are off Central Lobby, well away from those of the departmental Ministers behind the Speaker’s Chair, and they cannot show off about their work because it is largely confidential. However, they are not vestal virgins or Trappist monks. They are active constituency MPs or legislators in one House or the other.

[Lord Davies of Gower (Con)]

Can I ask the noble and learned Lord to bring his speech to a close?

[Lord Garnier (Con)]

I am just doing precisely that. The law officers have party-political allegiances and accept collective government responsibility. Their offices and that of the Lord Chancellor are not bad because they are old; they are old because they are good. So long as we can encourage good lawyers from all parties and all three jurisdictions to come into Parliament—as we actively should—these offices should remain to serve our constitution. Let us therefore work tirelessly to restore that fellowship between the law and Parliament, which has been lost, and do both institutions a favour.

--- Later in debate ---

[Lord Norton of Louth (Con)]

My Lords, I very much welcome this considered report, building as it does on earlier reports of the committee, not just on the role of the Lord Chancellor and the office of Attorney-General but on other constitutional issues, to which I shall refer. The report is thorough and balanced.

None of these commendations applies to the Government’s response, which no speaker so far has mentioned; there may be a reason for that. It is, regrettably, not untypical of some of the government responses we have had to committee reports. Where the report entails no action on the part of government, the Government agree with it; where there is a recommendation for change, the Government either disagree or deflect responsibility elsewhere. Indeed, the Government’s response reminds me of an episode of “Father Ted” in which Father Jack is coached to respond to difficult questions by saying, “That would be an ecumenical matter”. In the Government’s response, the equivalent is, “That would be a matter for the Prime Minister”. The response says:

“Ministerial appointments are a matter for the Prime Minister”,


and

“These, along with tenure … are all matters for the Prime Minister”,


at paragraph 9. Paragraph 13 says:

“It is ultimately the Prime Minister who has overall responsibility for the constitution”.


Paragraph 14 says that

“it is entirely for the Prime Minister to determine where constitutional responsibilities should sit”.

Paragraph 16 says:

“Decisions around Law Officer appointments are for the Prime Minister”,


and paragraph 22 says:

“Amendment of the Ministerial Code … is a matter for the Prime Minister”.


The Prime Minister, then, has ultimate responsibility. The Government say, at paragraph 12, that they see greater strength

“in having a number of senior Ministerial leads on discrete constitutional matters, all answerable to the Prime Minister”.

That position is stated but no justification is offered for it. Indeed, the Government now appear to have departed from it. Last month, I tabled a Question asking

“which member of the Cabinet has overall responsibility for constitutional affairs and upholding the constitution”.

My noble friend Lady Neville-Rolfe replied on 26 June:

“The Deputy Prime Minister holds ministerial responsibility for constitutional policy, with support on matters relating to the constitution from a wider ministerial team within the Cabinet Office and across Government”.


So there is now a senior Minister, other than the Prime Minister, with responsibility, which is to be welcomed. The Government have departed from the position they took in March.

The only problem is that I cannot find anywhere on the public record, other than in my noble friend’s Answer, the fact that the Deputy Prime Minister has responsibility for the constitution. It is not in his list of responsibilities on the Government’s website. It is obviously not in the List of Ministerial Responsibilities, which has not been updated since December. Last week, in answer to another Question of mine, my noble friend Lady Neville-Rolfe said that the updated list

“will be published before the summer recess”.

Perhaps my noble and learned friend Lord Bellamy can confirm that it will appear in the updated list.

It would also be valuable to hear from my noble and learned friend which Ministers comprise the wider ministerial team within the Cabinet Office and across government that supports the Deputy Prime Minister. In the December List of Ministerial Responsibilities, only three Ministers—all of them junior, including my noble and learned friend Lord Bellamy—have the constitution listed among their responsibilities.

Attempting to locate responsibility within government for dealing with constitutional issues is a task that has variously been undertaken by the Constitution Committee. I very much endorse its recommendations in this report, which are designed to enhance the position of the Lord Chancellor as the upholder of constitutional propriety within government. I also therefore endorse much of what other speakers, not least the noble Lord, Lord Hennessy, have said.

As the report recognises, the shift is as much to do with culture as with law and regulation. This entails, as we have heard, ensuring that we have a senior figure who has the qualities detailed by the committee and—this is equally important and has been stressed—is widely recognised within Parliament and the legal profession and beyond as having those qualities. It is imperative that there is a dedicated Minister with the responsibility not only for upholding constitutional propriety but for actively promoting the values of the constitution.

The Prime Minister is now the Minister for the Union; that establishes the importance of the union, but a Prime Minister does not have time to focus consistently on it. As I and the Constitution Committee have argued before, the Government need to be on the front foot in making the case for the union. We have to stress the benefits of coming together as one United Kingdom and not simply be on the back foot, responding to demands from different devolved bodies for more powers. We need to stop treating devolved parts of the union on a grace and favour basis.

John Major was the last Conservative Prime Minister to put the integrity of the constitution at the forefront of government thinking. His successors have been tied up with dealing with specific constitutional as well as economic and other issues. There has been no serious thinking about the constitution as a constitution.

I see merit not only in having a senior Cabinet Minister with responsibility for the constitution but in the Lord Chancellor being that Minister. Giving the task to the Deputy Prime Minister is a step forward—it means that a senior Minister has that dedicated responsibility—but not all Prime Ministers accord the title of Deputy Prime Minister to one of their colleagues, and it is a title and not a post. Oliver Dowden’s posts are Secretary of State for the Cabinet Office and Chancellor of the Duchy of Lancaster.

Giving responsibility to a different chancellor—the Lord Chancellor—not only ensures consistency but places it with a Minister who has or should have standing appropriate to the task and who will ideally be in post for some time. It provides a dedicated voice in a way that the Prime Minister cannot usually provide. The Lord Chancellor can ensure that other Ministers respect and are alert to the values of our constitution and the need to uphold them. Otherwise, there is the danger of those values being overlooked by Ministers as they address their departmental responsibilities and the Prime Minister addresses other crucial issues facing government.

I will not go through all the recommendations in the report. However, the report is like other reports from the committee: an extremely valuable and important study, which highlights the need for a body to address constitutional issues. The report merited a more substantive response, both in length and substance, from government. I look forward to my noble and learned friend the Minister providing such a response.

[Lord Davies of Gower (Con)]

The next speaker will be my noble friend Lord Cormack.