Office of Lord Chancellor (Constitution Committee Report)

Lord Lexden Excerpts

Tuesday 7th July 2015 Lords Chamber

[Lord Lexden (Con)]

My Lords, this occasion is, for me, tinged with a little sadness. The report before us today was one of the last produced by the Constitution Committee before my three-year term as a member expired with the Dissolution of the last Parliament. Participation in its work brought me immense profit and pleasure. It was very good indeed to be united as a colleague with noble Lords drawn from all parts of the House, and even the occasional tendency of one or two members towards slight prolixity could not diminish the enjoyment. The committee is brilliantly served by its officials, who combine a passion for detailed research with a gift for clear, precise drafting. The discussions in which I took part were chaired very skilfully, first by the noble Baroness, Lady Jay of Paddington, and latterly by my noble friend Lord Lang of Monkton. I am grateful, above all, to them, and follow my noble friend Lord Lester of Herne Hill in emphasising that I make these remarks in no spirit of idle flattery.

Turning to the subject of the report before us, it is surely important to be clear about the reasons why the ancient office of Lord Chancellor, hallowed by time, matters in today’s world. Only tiresome ultra-Tories—the noble Lord, Lord Beecham, made reference to one of them: Lord Eldon—think that institutions are justified simply by longevity. The rest of us believe that a test should be applied for long-standing arrangements, based on whether they discharge functions that continue to be needed.

On that point, we can draw on the testimony of the late Lord Hailsham, who held the office of Lord Chancellor for 12 years. He had no doubt that his office passed the test of practical utility. Exactly 40 years ago, he wrote that,

“where the constitution does not limit the powers of Parliament, and Parliament itself is largely under the influence of the executive, the preservation of the integrity of the rule of law has to be entrusted to a man and not a legal instrument. In Britain that man is the Lord Chancellor”.

With him, Hailsham added, lay the vital duty of ensuring that,

“the independence of the judiciary and the rule of law should be defended within the cabinet as well as parliament”.

There can be little doubt—this debate has reinforced it—that the same views were held by Lord Hailsham’s predecessors in the office of Lord Chancellor and by his successors, including those who held it in the immediate aftermath of the far-reaching changes, not all of them wise, introduced under the Constitutional Reform Act 2005.

This is not to say that all past Lord Chancellors were held in the same high regard by the Prime Ministers under whom they served. In July 1962, Harold Macmillan summarily dismissed his Lord Chancellor, Lord Kilmuir, as part of his extraordinary Cabinet purge known as “the night of the long knives”. Kilmuir protested that even a cook would have been given more notice. Macmillan replied that it was easier to find Lord Chancellors than cooks. Lord Kilmuir perhaps should have learned from the experience of Lord Eldon, to whom the noble Lord, Lord Beecham, referred. Lord Eldon held so tenaciously to his post that he slept with the Great Seal under his pillow.

It rapidly became apparent at the outset of the Constitution Committee’s inquiry that its most important element would be an examination of current attitudes, particularly those within government, to the two crucial responsibilities of the Lord Chancellor: the preservation of the rule of law and the defence of judicial independence. The Lord Chancellor has other significant responsibilities —they are listed in paragraph 12 of the report—but no one, I think, would make the case for retaining this ancient office by reference to them. If the post matters in today’s world, it is because of the two core duties, as the report describes them in paragraph 12, in relation to the rule of law and judicial independence. They naturally became the chief focus of the committee’s work.

The second—the maintenance of the independence of the judiciary—was readily endorsed by all our witnesses, but the first—upholding the rule of law—was the subject of differing views. Some of our witnesses argued that this vital duty was now widely diffused among Ministers as a whole and no longer resided principally and overridingly in the office of Lord Chancellor. This, indeed, was the view of the then Lord Chancellor, Mr Grayling, whose opinion is cited in paragraph 34. Frequent references have been made to it, not altogether in an amiable spirit, by noble Lords who have contributed to this debate. The committee agreed that this crucial legal and constitutional duty did not lie exclusively with the Lord Chancellor, but we saw absolutely no reason to set aside a powerful argument put to us by former Ministers, both Labour and Conservative, with long experience of politics and the law, by distinguished officials who have worked in the Lord Chancellor’s department and by other experts that, as paragraph 42 of the report puts it:

“The Lord Chancellor continues to have an additional responsibility in this regard”.

We put forward recommendations to make that clear, but they were rejected, as we have heard.

It would seem to follow from that rejection that the Government believe, or at that point believed, that the Lord Chancellor should no longer exercise the particular duty to uphold the rule of law on the wide basis on which the holder of the office has until now undertaken it. If so, that is surely a new constitutional tenet which significantly diminishes the Lord Chancellor’s role. If Lord Hailsham’s ghost should walk abroad, Ministers must expect their repose to be disturbed, unless the new position outlined by Mr Gove now holds the field. Like so many other noble Lords, I look forward to my noble friend Lord Faulks’s comments at the end of the debate.

The role of the Lord Chancellor has been attenuated in another especially important respect, about which grave concern has quite rightly been expressed in this debate: he is now excluded from any serious participation in the processes by which constitutional affairs are considered. Mr Grayling told the committee:

“The truth is today the constitutional role that the Lord Chancellor once performed, in a very practical sense, is not currently there”.

Those words appear in paragraph 94 of the report. Is this not, in a very practical sense, unfortunate? Major constitutional reforms proceed in endless succession, unco-ordinated with each other. To give just one example, Scotland is to receive major new powers in relation to income tax while Northern Ireland is to be given significant responsibilities in relation to corporation tax. The Government give the impression that a new coherent constitutional settlement will somehow emerge of its own accord from a series of far-reaching changes, separately conceived and executed.

Do we not need what Enoch Powell once called a constitutional invigilator, someone who can watch over the fundamental changes that are bringing us almost inexorably to a quasi federal-state? His presence could be particularly valuable since the Government have ruled out a constitutional convention, which is the other obvious means by which coherence could be brought to sets of separate initiatives and the framework created for a new constitutional settlement that would stand the test of time. I submit that the recommendation in paragraph 101 of the committee’s report that the Lord Chancellor should exercise oversight of the constitution is the more significant in the circumstances in which we now find ourselves.

A report that runs to over 35 pages, excluding summaries and appendices, secured from the Government a response that comprises just 10 paragraphs, two of which consist of a single sentence. The one disappointing feature of my otherwise deeply rewarding period on the Constitution Committee was the Government’s reluctance to take part in a substantial two-way process for the discussion of the ideas and proposals that emanated from it. I hope that that will change under this new Government at a time when we are at a major constitutional crossroads.