Office of Lord Chancellor (Constitution Committee Report)

Lord Falconer of Thoroton Excerpts

Tuesday 7th July 2015 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I join everybody in congratulating the committee of the noble Lord, Lord Lang of Monkton, on the excellent report that has been produced. I also join those who said that it is a very serious report. I believe it to be a serious report because it expresses incredibly clearly and well what the reforms in 2005 were seeking to achieve in relation to the continuing role of the Lord Chancellor.

I compliment all who have spoken in the debate. I will mention my noble friend Lord Beecham, who emphasised the importance of Newcastle to this and, in addition to his point about the Geordies’ role, the importance of speaking justice to power.

I ask the Minister to answer specifically the three incredibly important questions that the noble Lord, Lord Lester of Herne Hill, enunciated with enormous clarity.

I agree with the noble and learned Lord, Lord Woolf, that the Lord Chancellor now should—he emphasised the word “should”; he was not saying that he necessarily did—play a critical role in the defence of the rule of law.

The noble Lord, Lord Crickhowell, did not appear to me to be Pooh Bear in the questions that he asked. Like many noble Lords, he said that the response of the Government fell well short of what was expected in relation to a report of the significance of this one. He hoped—this view was widely shared around the Chamber—that the new Lord Chancellor would do a lot better than his immediate predecessor in fulfilling his role.

The noble and learned Lord, Lord Phillips of Worth Matravers, said that the Government’s response showed unwarranted complacency—I took that to mean that he thought that the way that Mr Grayling had answered the questions indicated that he thought the rule of law was safe under the current arrangements. If Mr Grayling thought that his attitude as Lord Chancellor indicated that it was safe, I took the noble and learned Lord, Lord Phillips of Worth Matravers, to mean that it most certainly was not.

I share the grief of the noble Lord, Lord Lexden, at being off the committee after three years. I particularly enjoyed his reference to Lord Kilmuir, who, upon being fired, was told that it was easier to find cooks than Lord Chancellors. I can think of no Lord Chancellor who more deserved that remark than Lord Kilmuir. Many of you will recall that Lord Kilmuir was Winston Churchill’s second Lord Chancellor. His first was Viscount Simonds. When Winston Churchill became Prime Minister for the second time, he said that he wanted Asquith’s son to be the Lord Chancellor. He summoned Asquith’s son, as the repayment of a political debt to his father, and asked him if he would like to be Lord Chancellor—to which Asquith replied, “Not on your nelly, it is much too much hard work—why don’t you try my friend Simonds?”. So Winston Churchill did, not knowing the man. He appointed him Lord Chancellor and then came a political difficulty; he wanted Maxwell Fyfe, who was Home Secretary, to become Lord Chancellor. He summoned Maxwell Fyfe and said, “I don’t want you to be Home Secretary any more, I want you to be Lord Chancellor—would you mind telling Simonds that his time has come to an end, I don’t really know the man?”. So for Kilmuir to complain about the comment that it was easier to find cooks and to complain about the way that Macmillan treated him was a little bit rich in light of what happened to Viscount Simonds.

I agree with the noble and learned Lord, Lord Cullen of Whitekirk, that the duty to defend the rule of law imposed on the Lord Chancellor extends well beyond simply defending the justice system. The noble and learned Lord did the House a service in indicating the three parts of the Constitutional Reform Act that imposed the duty on the Lord Chancellor: Section 1, Section 2 and the oath.

The noble Lord, Lord Norton of Louth, is right that the constitution works not just in relation to its specific terms but in relation to its culture. I can indeed confirm to the noble Baroness, Lady Kennedy of The Shaws, that I did not have a secret passion to be the Prime Minister or the Chancellor of the Exchequer—which, as she said, all Lord Chancellors before the change indicated.

The scope of the duty of the Lord Chancellor is the key point in the report, along with the Lord Chancellor’s role in relation to constitutional affairs. The reforms in 2005, which were criticised by the noble Lords, Lord Lexden and Lord Norton, and the noble Baroness, Lady Kennedy, were necessary because it was no longer maintainable for the chief judge in the final court of appeal also to be a Cabinet Minister—because the final court of appeal in our country habitually was dealing by 2005 with issues about the conduct of the Government. You could not have a leading member of the Executive also being chief of the final court of appeal determining whether the Executive had gone beyond the limits of legality. The reforms were necessary. As the noble Baroness, Lady Kennedy, acknowledged, it was right that there should be a Judicial Appointments Commission, that a Supreme Court should be created and that the Lord Chancellor should cease to be the head of the judiciary.

The consequence—which was expressed repeatedly in the course of the Bill through this House—of removing this very big judicial figure from the centre of government would be a potential vacuum where the protector of the rule of the law and the constitution had previously been. The Constitutional Reform Act 2005 faced those fears head on and addressed them—the noble and learned Lord, Lord Cullen of Whitekirk, mentioned the way in which it did. The office of Lord Chancellor remained after the passage of the Act. The Act expressly provides that the office retain its role in relation to the rule of law within the Executive. Noble Lords have identified what that role was, and it was preserved. There was an inevitable uncertainty, because you could never be precise about it, but it was specifically preserved. The Constitutional Reform Act places a solemn burden of respecting the rule of law and ensuring a properly functioning and resourced justice system. Finally, the Act imposes on the Prime Minister a duty to appoint only someone who is up to the job of discharging those functions. That is what Section 2 amounts to.

Section 17, which sets out the Lord Chancellor’s oath, states that the Lord Chancellor has to swear an oath to,

“respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible”.

It was agreed at the time that the Act went through in 2005 that the oath imposes a higher duty than day-to-day political advantage. Parliament envisaged the Lord Chancellor being a departmental Minister, with all the political clout that that brings but with special added responsibilities and special qualities. It also expressly envisaged that, as and when necessary—and it would be exceptional—the Lord Chancellor would not be bound by collective responsibility when upholding his duty to protect the rule of law. The Act specifically envisages that there will be times when he is in effect freed from the obligation of collective responsibility.

What is the content of his protector role? It has three elements. First of all, it means making sure that judges are properly protected in their independence. That means, as the noble Lord, Lord Lester, indicated, that they are not put under any undue pressure and are properly resourced in fulfilling their role. Secondly, it means that the Lord Chancellor has an especial role to ensure that the Government of the day comply with the rule of law and with constitutional principle. That means that where the Lord Chancellor is aware that the Government either are engaged in something that is an habitual breach of the law or are going to fail to comply with the law in the future, he has a role to use his authority to stop that occurring.

One of Lord Bingham’s eight principles of the rule of law is that the law must afford adequate protection of fundamental human rights. The current Lord Chancellor, in a speech he made in the Commons on the proposals that are being made in relation to human rights, in my respectful submission, failed in two respects to comply with his duty in relation to the rule of law. First, he appeared to suggest that it was possible to not give effect to the whole of the European Convention on Human Rights and yet remain within the convention. Secondly, he appeared to be suggesting that it was possible to change some of the elements of the human rights protection currently provided—he did not indicate how—on the basis of what the Government, in effect the Executive, thought it appropriate to call human rights. If you have a situation where the Government themselves define human rights, there is inadequate protection of fundamental human rights.

The third obligation—the first being to protect the independence of the judiciary and the second to procure the protection of the rule of law—is that the Lord Chancellor must ensure that there is a functioning justice system that includes people having the right to have their legal rights vindicated. That means that there must truly be access to justice. Access to justice requires ensuring that all who need it have access to the courts and to legal advice where it is necessary to ensure that there is a level playing field. It also requires a usable means of challenging the actions of the Executive, including in particular proper access to the remedy of judicial review.

Clearly, a delicate balance must be struck for every Lord Chancellor. He or she cannot act merely as a lobbyist for the legal sector. In these straitened times, public policy requires cuts and efficiencies in spending on the courts and on legal aid, and the courts cannot simply stand back and watch the rest of the public service tighten its belt without some sacrifice themselves. But in attempting to strike a balance, it is critical that the Lord Chancellor accepts and understands his especial responsibility in ensuring that there genuinely is access to justice.

In the first speech made a couple of weeks ago by the Lord Chancellor and Justice Secretary in respect of access to justice, he spoke warm words but failed to address the problem that has been repeatedly identified in the justice system now, which is that there is no level playing field when it comes to access to justice.

So I submit that there are three elements to the rule of law which the Lord Chancellor has to protect: defending the independence of the judiciary; ensuring that the rule of law is complied with, and ensuring that there is proper access to justice.

Finally, I turn to the constitution. Under the previous Government, responsibility for the constitution moved from the Lord Chancellor’s Department to the Deputy Prime Minister. When the great constitutional drama of the last Parliament occurred—the defence of the union in the face of what was happening in Scotland—the Government were lamentably unprepared for what happened. Their response was very second rate. I do not know the extent to which that was caused by the fact that there was an attenuated constitutional department in the Cabinet Office that had been wound down quite dramatically after the Deputy Prime Minister’s initial range of constitutional reforms had run into the sand. It is the consequence of there not being a permanent home for the constitution in government.

If in the Lord Chancellor’s Department there had been expertise stretching back over a long period, we would not have had the situation that led to the way in which the Prime Minister responded on the morning after the referendum. We would not have the situation that is going on in the other place now where a fundamental change to the constitution is taking place apparently on the basis of a vote on amendments to Standing Orders in the Commons. I note that this very afternoon the Government have abstained, and so the House of Commons has just voted that the process by which English votes for English laws is being introduced is not acceptable.

I very much hope that the consequence of that will be that the Government will pause and think again rather than having English votes for English laws introduced on the basis of 11 days’ notice with no White Paper, Green Paper or any other prior consultation. The importance of keeping constitutional affairs in one place—under the tutelage of the Lord Chancellor—is that that sort of thing would not have happened in the past. I invite the noble Lord, Lord Faulks, to indicate what the Government’s response will be to a situation where there is no collective memory, no permanence and no accepted home where constitutional affairs are dealt with.

--- Later in debate ---

[Lord Faulks]

I am speaking for the present Government.

On the question of whether the Lord Chancellor is adequately advised by lawyers, I say that the quality of the lawyers remains extremely high. I take the point made by the noble and learned Lord, Lord Woolf, with his experience of the old Lord Chancellor’s Department and the quality of the lawyers there, but there is a great deal of continuity within the Ministry of Justice now.

I return to the role of the Lord Chancellor and deal briefly with the point of whether combining the role with another Cabinet position helps strengthen his or her position in government. Experience shows that both can be successfully carried out by the same person. I echo the views of the previous Government: we welcome the committee’s agreement that combining the role of Lord Chancellor with that of Secretary of State for Justice does, indeed, strengthen the office. I also welcome the committee’s view that it is not essential for the Lord Chancellor to have a legal background. The last two Lord Chancellors did not, but I suppose I hope that it does not become a disqualification for office if you happen to be legally qualified. The committee instead focuses on the necessary gravitas and status that the incumbent who undertakes the role must have, which does not require specific legal experience.

It may be useful to the House if I set out the current policy remit of the Lord Chancellor and Secretary of State for Justice, which I think helps illustrate the benefits of combining the two roles. The Lord Chancellor has responsibility for matters relating to the judiciary, courts and tribunals, coroners, civil, family and administrative law, legal aid, legal services and the legal professions, public records and the Crown Dependencies. The Secretary of State for Justice’s policy responsibilities include prisons and probation, criminal law, sentencing policy, human rights, data protection and freedom of information. It is evident that having one person who is responsible for the effective and efficient delivery of that system combining the functions is of great benefit. It helps give him the necessary clout in Cabinet—or, as the noble and learned Lord, Lord Hope, said in evidence before the committee, makes sure that he is not at the,

“far end of the table”.

I touched on the Lord Chancellor’s responsibility for ensuring the proper administration of HM Courts & Tribunals Service. I want to say a little more about this as it is an important example of how upholding judicial independence is critical to the successful delivery of that service. The Lord Chancellor discharges his responsibility for the courts and tribunals in partnership with the Lord Chief Justice and the Senior President of Tribunals. He has a statutory duty to provide the support necessary for the judiciary to perform its functions and to ensure that there is an efficient and effective system to support the business of the courts. This duty is discharged in conjunction with the senior judiciary, as laid out in the HM Courts & Tribunals Service Framework Document of 2014, which reflects the partnership arrangement between the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals in relation to the effective governance, financing and operation of HM Courts & Tribunals Service. It is very much a joint venture.

The final point I want to address—and it is a very important point—is the committee’s concern that:

“There is no clear focus within Government for oversight of the constitution”.

[Lord Falconer of Thoroton]

Before the Minister moves on to that, can he identify whether he accepts the central recommendation of the Constitution Committee that the Lord Chancellor has an especial role in protecting the rule of law, or does he, like Mr Grayling, think that the Lord Chancellor has no special role that is any way different from that of the Secretary of State for Health or the Secretary of State for Education?

[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.