Lord Chancellor and Law Officers (Constitution Committee Report)

Lord Sandhurst Excerpts

Thursday 20th July 2023 Grand Committee

[Lord Sandhurst (Con)]

My Lords, it is a true pleasure to follow my friend the noble Lord, Lord Hennessy, who, like me, is a Bencher of Middle Temple. I declare my interest in the register, as chair of research for the Society of Conservative Lawyers, and I welcome this committee’s thoughtful report.

Historically, as we have heard, the Lord Chancellor and law officers have had special responsibilities. Lord Chancellors have had a special role in ensuring that their Cabinet colleagues adhere to the role of law. They sit in Cabinet; the Attorney-General, on the other hand, is not a member but attends Cabinet. The Government website describes the Attorney-General as the “chief legal adviser to the Crown”. That carries a heavy responsibility.

We are fortunate that the current Lord Chancellor has been a serious practitioner. He will properly understand the judges’ role in our unwritten constitution and the need to defend them against ill-considered abuse and commentary. As we know, sadly that entirely passed the notice of one of his non-legal predecessors. But we cannot undo the past. Today, there are many fewer serious lawyer politicians in either House, so there is a practical reason why it may be hard to appoint a lawyer as Lord Chancellor and Secretary of State for Justice. The committee and the outgoing Lord Chief Justice have suggested that prisons might be removed from the portfolio. I do not suggest that is a bad idea, but I am not convinced it will necessarily help with the problems with which we are truly concerned. It is not only because what would be left would be a small department. Put simply, it will not restore the authority of old. We need to look elsewhere for a parliamentarian to protect the rule of law, and we must do so.

We do not have a written constitution. We rely on the Crown in Parliament as the Executive, together with Parliament itself and the judiciary, each knowing where each stands and its respective role and, importantly, that each must not overstep the lines. Each of these three actors must observe their invisible boundaries. Recent events have stretched that understanding to their limit. I need only refer to the decision to advise the late Queen to prorogue Parliament. It is not the point whether the Supreme Court was right in strict constitutional theory to hold the prorogation unlawful. What is plain is that the Executive, the Crown, sought by fiat to render Parliament impotent. I ask noble Lords to think of this: if throughout the Supreme Court judgment, one substituted for the words “Prime Minister” the words “King James I” or “King Charles I”, would the court’s critics still find the decision questionable? This constitutional gambling was followed by the internal markets Bill. That led to the resignation of a distinguished Lord Advocate, my noble and learned friend Lord Keen, who was here a moment ago.

It is clear that the Executive must be constrained from overstepping important boundaries. These things matter; politicians must understand that. Our constitution and Parliament are not playthings for Prime Ministers. I do not have a complete answer, but it will not lie just in future Lord Chancellors, notwithstanding their statutory duty. If they do not properly understand our constitution, in the way that decent lawyers do, as some have not in the past, how can they attempt effectively to uphold the relevant law? So, it is with the law officers that our protections must rest. Here, I interject a personal note. James Mansfield, my four-times-great-grandfather, was like my noble and learned friend Lord Garnier, Solicitor General and later Chief Justice of the Common Pleas. He was also one of those who represented Somerset, the slave, and achieved his freedom—so he knew something about the rule of law and proper principles.

First, I agree with the committee that the concept of a “respectable legal argument” needs firming up. It is one thing for the Government to litigate a case in the English courts, having been advised that the prospects are weak—that is not improper—but how low should Government be free to go? They are not an amoral, commercial client. Nor are they necessarily wrong to act when the advice given by an Attorney General is that a proposed step might breach a treaty—and I emphasise “might”. While legal advice should ordinarily remain confidential and privileged, in matters of international law the Attorney General’s determination on the lawfulness of government action in relation to a treaty can provide an important legal constraint—or not, as the case may be.

Importantly, because advice on such an issue will not be tested in the courts—at least not till long after the event; it is not like advice which leads to one going into litigation. So the Attorney-General must be particularly mindful of the solemn and constitutional duty to advise on such questions objectively and impartially and, in my view, free to explain that decision to Parliament, which has a legitimate interest if a treaty is, or may have been, broken. Indeed, I suggest that the Attorney-General should be obliged to confirm to Parliament that the advice was given that this was not a deliberate knowing breach of treaty. Furthermore, and perhaps even more seriously, when it comes to going to war, government should act only if it is confident that this is the right course. Our Armed Forces, and in particular their commanders, must be confident that, in case of armed conflict, they are not in the wrong.

To conclude, I will make some points in summary form. As my noble and learned friend Lord Garnier just explained, law officers must be Members of one or other House of Parliament and answerable to it. They should be well-established practitioners. We can look at provisions such as seven years’ or 10 years’ practice; I will not go into the detail now.

To strengthen their role, the statutory duty currently imposed on the Lord Chancellor to defend the rule of law should be extended to the law officers, and the oath taken on appointment updated to reflect this situation. The law officers should also have to appear once a year before the Justice Committee of the House of Commons. The current powers given to a departmental Select Committee to send for persons should in this respect be put on a statutory footing of compulsion.

Next, an Attorney-General, while of course continuing to attend Cabinet, should not be a member of the Cabinet—there must be that element of detachment—nor should they be a member of a Cabinet committee that is not clearly related to legal or criminal justice issues. They should not be a pure politician.

Finally, law officers should not engage in media briefings on a range of government issues. Given the short time available, I leave things there.