Lord Chancellor and Law Officers (Constitution Committee Report)

Lord Wallace of Saltaire Excerpts

Thursday 20th July 2023 Grand Committee

[Lord Wallace of Saltaire (LD)]

My Lords, I vividly remember the evening in which the news filtered through that the office of Lord Chancellor had been abolished. Lord Onslow dashed into the Lords to demand that we immediately suspend other proceedings until the Government gave us an answer as to what the implications of that were. The Government have not yet given us a full answer as to the implications of that, and here we are, many years later, discussing what sort of role we want the half-Lord Chancellor that we still have to play.

I am not a lawyer, although I spent three years in the United States teaching the American constitution when I was a graduate assistant in an American university. Like others, on the one occasion that my wife and I attended a formal event at one of the Inns of Court, we were certainly treated as outsiders and incomers. Those who recognised us kept asking us, “What are you doing here?” We had to explain that, although we were not in any sense lawyers, we had, as junior lecturers at the University of Manchester, regularly gone to the pub with a junior lecturer in law, who was then called Brenda Hoggett, and had retained that friendship over a long period.

There are three elements in this report and the debate. First, there is the importance of the rule of law as a guiding principle in government; the allocation of responsibility for safeguarding that principle; and, behind that, a wider issue of who is responsible for defending the conventions of our constitution, which have been so easily disregarded in the chaos of the last six or seven years. Secondly, there is the question of the combination of the role of the Lord Chancellor and the Ministry of Justice. The third, which is a little different, is the role of the law officers: the Attorney-General and the Solicitor-General.

Should we regard the experience of the last six or seven years, with its chaotic roundabouts of ministerial reshuffles, the bending of conventions and disregard for the principles of the rule of law, as an exceptional and unlikely event, not to be repeated, or as a shift that now requires us to tighten constraints on executive power? I fear that we need to tighten the constraints on executive power and cannot go back to the “good chaps” period, of which the noble Lord, Lord Hennessy, wrote a wonderful obituary.

There are further questions. I am fascinated by the question of the Lord Chancellor’s oath. I suspect it would be very good for the Government of this country if the Prime Minister, and perhaps a number of other senior Ministers, had to swear an oath on taking office. The Lord Chancellor should not be the only one to have to take an oath, but that is perhaps a subject for another study and another report. There is the related question of the size of the Cabinet. Some of us think that a Cabinet which has more than 30 people sitting around the table is completely ineffective and incapable of taking decisions, and ought to be reduced by at least a third. Effective Cabinet government requires really no more than 20 or 24 people around a table. Then there is the length of time in office. The extent to which ministerial reshuffles have taken place and, if one reads the press, are likely to take place again, just as Ministers are beginning to learn what their jobs are about, is one of the dysfunctional aspects of our current form of government.

The traditional Lord Chancellor’s role was, of course, extremely odd: both a senior Minister and a judge, and, at the same time, the Speaker of the House of Lords. I asked myself, as I read the report, whether we need a designated protector of constitutional behaviour and the rule of the law inside the Cabinet. I am not sure. Should we need such a person, would such a constitutional guardian role be better played now by officeholders in the institutions outside the Cabinet, as part of checks on executive power? We have moved in that direction to some extent, towards institutional checks and balances, over the last 30 years, with a separate Supreme Court, the Committee on Standards in Public Life, the various codes and the Independent Adviser on Ministers’ Interests. We may now need to move further.

I am attracted by the case for recreating a department of constitutional affairs and making that responsible not only for relations with the Crown dependencies but for the delicate task of relations with the devolved national Governments of Scotland, Wales and Northern Ireland. Post devolution, separate departments in Whitehall for each of these three nations are difficult to justify—three seats around the Cabinet table without much of substance to contribute to most discussions on domestic or foreign policy. Three Ministers of State, perhaps, supporting a Cabinet Minister whose focus on judicial and constitutional affairs would naturally include maintaining the delicate balance between devolved autonomy and UK oversight, might well be a great deal better.

I do not buy the “financial clout” argument for combining the judicial oversight and constitutional role with prisons and probation. The Foreign Office—the department of which I have the most experience and expertise—has always had one of the smallest budgets in Whitehall; that has not always led its Secretary of State to be marginalised in Cabinet.

The suggestion in the Government’s response to the Constitution Committee’s report that

“there is greater strength in having a number of senior Ministerial leads on discrete constitutional matters”

sounds like a recipe for confusion and chaos. I note, for example, that the Department for Levelling Up, Housing and Communities is now responsible for electoral law and administration, as if that were purely a matter of local concern rather than part of our constitutional procedures. For that matter, that department seems to muck about with our local and regional level of governance and democracy whenever its Secretary of State feels like it, although that is also part of, or ought to be considered part of, our constitutional structure.

There is a case for a stronger parliamentary counterbalance to the Executive in matters of constitutional importance and propriety. I am attracted by the idea I heard the other day from another noble Lord, a lawyer, for a Joint Committee of the two Houses on constitutional issues—a sort of parallel committee to the Intelligence and Security Committee in structure and status—that would act as Parliament’s cross-party voice and would relate to such other constitutional guardians as the Committee on Standards in Public Life, the Independent Adviser on Ministers’ Interests, the Commissioner for Public Appointments and the House of Lords Appointments Commission. Again, that is a matter for further discussion.

The Government’s requirement for legal advice is separate from the question of the post of Lord Chancellor. The Government clearly need a law officer—the Attorney-General—to advise on the domestic and international legality of proposed actions, among other duties. I am not sufficiently expert to know whether one needs a Solicitor-General as well as an Attorney-General; perhaps that is one question that we ought to throw out. Certainly, we do not need both as legally trained politicians when we are in a situation, as the noble and learned Lord, Lord Garnier, remarked, where it is very difficult for good lawyers to be encouraged to join Parliament.

Perhaps we have to recognise that the definition of what an MP does has changed quite radically. Part-time MPs are no longer regarded as acceptable, either by their constituents or by other MPs—as Geoffrey Cox has discovered on occasion. That may mean that we may need to look elsewhere, either to the Lords or to appointments that may be semi-political, such as lawyers advising the Government, because we will no longer have enough people of the calibre we want in the Commons, although we may well be able to continue to appoint them to whatever we call the second Chamber in 10 to 20 years’ time. Legally-expert figures who are also aware of politics are there to be found at the Bar but they do not necessarily want to commit themselves to becoming full-time, elected politicians.

After the unconstitutional shenanigans of the past six years, whatever Government emerge after the next election must embark on reforms to strengthen constitutional protections and improve the quality of governance. The Institute for Government and the Bennett Institute for Public Policy in Cambridge published just yesterday a new paper proposing a number of practical reforms and longer-term innovations that any Government who take office after the next election should consider. These are questions that I hope the Constitution Committee will continue to follow but which we should all consider in our parties, and across the parties, as we approach the next election.