Office of Lord Chancellor (Constitution Committee Report)

Lord Norton of Louth Excerpts

Tuesday 7th July 2015 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I very much welcome this report from the Constitution Committee. It is a serious report and deserves to be taken seriously. The response before us, produced by the coalition Government, fails to respond adequately to the committee’s recommendations. Even more importantly, it reflects a failure to grasp the fundamentals that underpin our constitutional arrangements.

A constitution requires not only formal rules but a culture that appreciates and upholds the principles that give rise to those rules. Dicey identified the twin pillars of the British constitution as parliamentary sovereignty and the rule of law, pillars that are not necessarily compatible with one another. The stability of our constitutional arrangements derives from an acceptance that Parliament will not act in such a perverse way as to encroach on the fundamentals of the rule of law. As the report of the Constitution Committee notes, the rule of law is not formally defined. The Constitutional Reform Act 2005 refers to,

“the existing constitutional principle of the rule of law”,

but without defining the term.

Prior to the passage of that Act, the role of the Lord Chancellor was recognised as distinctive—indeed unique—the holder being a senior and somewhat detached figure within government. That detachment was enhanced by the fact that some occupants followed a quasi-judicial route of serving as Attorney-General or Solicitor-General before becoming Lord Chancellor, or a wholly judicial route, being appointed straight from the Bench or the Bar. SA de Smith observed:

“The Lord Chancellor’s duties are multifarious, demanding the utmost delicacy and an extensive familiarity with lawyers and the law”.

However, the office was more than the individual holding the post. The status of the office was important. The Lord Chancellor was senior in the order of precedence. For centuries, until the treason laws were reformed, it was high treason to slay the Lord Chancellor. The status of the office provided some reassurance that the holder would serve to uphold the rule of law, including the independence of the judiciary. As Diana Woodhouse noted in her book, The Office of Lord Chancellor:

“In the absence of a written constitution, the responsibility for judicial independence places the Lord Chancellor at the heart of Britain’s constitutional arrangements”.

In effect, this is acknowledged in the 2005 Act, but the failure to define terms, and the freeing of the person appointed from the previous requirements to hold post, creates problems. The Lord Chancellor, by his oath of office, is sworn to defend the independence of the judiciary, but he is no longer a detached or necessarily senior figure within government. He is different but not that much different from other Cabinet Ministers.

The reform of the office of Lord Chancellor was basically botched, the product of a lack of understanding of the Lord Chancellor’s crucial and embedded constitutional role. The 2005 Act, by its own declaration, does not affect that role, but it is clear from the evidence of the noble and learned Lord, Lord Irvine of Lairg, in the Constitution Committee’s fourth report of 2009-10, that Prime Minister Tony Blair did not fully comprehend that role, viewing changes to the office of Lord Chancellor in the same light as any other change in the machinery of government.

The report before us makes recommendations that clarify some of the uncertainties that are consequent to the 2005 Act in terms of upholding the rule of law and, as we have heard, having an oversight role in relation to the constitution as a whole. These encompass changes to the Ministerial Code and the Lord Chancellor’s oath, as well as ensuring adequate support for those charged with upholding the rule of law.

These are important and weighty recommendations made to government. In essence, the Government’s response—the noble and learned Lord, Lord Phillips of Worth Matravers, touched on this—says, “We broadly agree with the report, except where it makes any substantive recommendation, in which case we don’t agree with it, but we can’t be bothered to engage with the report and provide reasoned arguments for our stance”. My noble friend Lord Lexden has touched on the brevity of the Government’s response. It consists of 115 lines, excluding headings, of which 58 comprise direct quotes from the committee’s report. In other words, half the Minister’s letter simply reproduces the committee’s recommendations. The Government’s actual response occupies 57 lines, constituting fewer than 800 words. Not only does it not engage with the committee’s recommendations; it also appears not to grasp the points being made.

Some of the responses are vacuous. Paragraph 126 of the report recommends that the Prime Minister, in appointing the Lord Chancellor, give weight to qualities outlined in the report and, above all, consider the importance of the Lord Chancellor’s duty to uphold the rule of law. This recommendation follows this observation in paragraph 124:

“There is general agreement that the statutory criteria for appointing a Lord Chancellor are ineffective”.

What is the Government’s response? It states:

“The Constitutional Reform Act 2005 provides that the Prime Minister may not recommend an individual for appointment as Lord Chancellor unless he or she is satisfied that the individual is qualified by experience. There is a range of evidence that the Prime Minister can take into account when reaching such a conclusion”.

That merely summarises Section 2 of the Act as reproduced in paragraph 102 of the committee’s report. Section 2 is the starting point of chapter 4 of the report. To merely restate what is in Section 2 is to ignore what is in the chapter. There is no engagement with its content. Nothing in the response addresses the concerns or the recommendations. This is a government response that, as we have heard, took more than two months to produce, but one that says essentially nothing.

I have two questions for my noble friend Lord Faulks. One derives from a particular recommendation made in the report, and the other, more general question derives from the criticisms of the Government’s response. First, as a number of noble Lords have mentioned, paragraph 101 of the report records:

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

It recommends that a senior Cabinet Minister have responsibility for such oversight and, as we have heard, observes that,

“the Lord Chancellor is best placed to carry out this duty”.

In this Parliament, the Prime Minister has appointed Oliver Letwin, the Chancellor of the Duchy of Lancaster, to fulfil this role. It will be helpful to know from my noble friend what protocol, if any, has been established between the Lord Chancellor and the Chancellor of the Duchy of Lancaster to ensure that there is coherence in addressing constitutional issues.

Secondly, given that there is a need to recreate the culture within government of appreciating the significance of our constitutional arrangements and the principles underpinning them, what are the Government doing to inculcate those principles in Ministers and senior officials? From the Government’s response to the Constitution Committee report there is no evidence of such an awareness, and indeed nothing in the response suggests a clear grasp of what the rule of law entails, despite the committee report discussing it in some detail.

In the light of this debate, my noble friend the Minister may wish to consider going back to his department to think about producing a fresh response to the Constitution Committee’s report. What is before us falls well short of the standard we are entitled to expect.