Lord Chancellor’s Oath and the Rule of Law

Rob Butler Excerpts

Wednesday 14th October 2020 Westminster Hall

[Rob Butler (Aylesbury) (Con)]

It is a pleasure to serve under your chairmanship, Mr Twigg.

I am not a lawyer, let alone one with the esteemed reputation of other hon. or right hon. Members, nor am I an academic steeped in the study of centuries of history or intricate international treaties. But for 12 years before I was elected, I served as a magistrate and for about 18 months was the magistrate member of the Sentencing Council; consequently, I set great store by the need to obey and respect the law.

I approach today’s debate as a layman, albeit one with a firm idea of justice and a clear sense of right and wrong, and I also do so with great respect for the seriousness of the matters being considered. The rule of law is a central tenet of the UK’s constitution. The office of Lord Chancellor carries such prestige as an officer of state that it comes higher than the Prime Minister in the order of precedence.

The twin subjects of today’s debate are the oath of the Lord Chancellor and the rule of law, and I will consider those in a fairly narrow sense, which perhaps reflects the naivety of a new Member of Parliament. The first element of the Lord Chancellor’s oath is to respect the rule of law. Despite that being a term with which we are all familiar, its meaning is, as we have already heard, subject to considerable debate.

A typical dictionary definition will elucidate straightforward principles, such as that all people in institutions are subject to and accountable to law that is fairly applied and enforced. Eminent jurists have emphasised the principles of accessibility of power exercised in good faith and of equality before the law, whether prince or pauper. Indeed, I well recall the emphasis on the last from taking my own oath as a magistrate, when I promised to

“do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”

However, probing a little further reveals that the concept of the rule of law, and specifically in the context of the Lord Chancellor, is not as simple as it might at first appear. As we have heard, the Constitutional Reform Act 2005, which fundamentally changed the role of the Lord Chancellor, does not define the existing constitutional principle of the rule of law, nor the Lord Chancellor’s existing constitutional role in relation to that principle.

Like the hon. and learned Member for Edinburgh South West (Joanna Cherry), I have read the 2014 report from the House of Lords Select Committee on the Constitution on the office of the Lord Chancellor. In addition to what she said, it also noted that

“the rule of law ‘is not readily defined or readily understood.’ Not all lawyers will agree on what the rule of law entails; differences of opinion will undoubtedly also occur between different Lord Chancellors… ‘the rule of law remains a complex and in some respects uncertain concept’.”

Those words are significant in the context of the matters we are debating, indicating that we should not try to oversimplify and must accept that there is room for nuance of opinion.

Another aspect of the Lord Chancellor’s oath is to defend the independence of the judiciary. Rare indeed is the suggestion that the British judiciary is anything but independent. Indeed, sometimes the press, the public or, dare I say, politicians feel the judiciary is a little too independent. Many have been the tabloid headlines that criticise judges for imposing a supposedly light sentence on an offender whose crime has outraged public opinion, but that judge has invariably used their experience and knowledge to pass a sentence according to the law and sentencing guidelines, which can be appealed through higher courts but not influenced by any political opinion.

Even if there are protestations by hon. Members at the level of a sentence, there is never seriously a proposal to have a form of political accountability for the judge or magistrate. This remains the case, even in judgments that go against the Government, of which we have seen more than a few in recent times. I submit that the independence of the judiciary is further reinforced by the role of the Judicial Appointments Commission, the independent body that selects candidates for judicial office in courts and tribunals in England and Wales on merit, through fair and open competition.

The final element of the Lord Chancellor’s oath is to discharge his duty to

“ensure the provision of resources for the efficient and effective support of the courts”.

Now, all of us who have served in the courts in recent years know that they have experienced considerable reduction in resource, as a result of necessary spending restraint by the Government of the time, but there is now an ambitious programme of court reform, which aims to bring new technology and modern ways of working to the way that justice is administered that involves the investment of £1 billion in the courts and tribunals system.

I take this opportunity to highlight the fact that, during the current coronavirus pandemic, the courts have risen to the challenge from the Lord Chancellor to ensure that justice could continue to operate. In particular, magistrates courts are responding magnificently. Consequently, disposals have outstripped receipts since the end of July. I also, unashamedly, highlight the initiative and imagination of staff at Aylesbury Crown court in my constituency, who have adapted their layout and ways of working, so that they can return to working at 100%.

Behind today’s debate seems to be a question whether the Lord Chancellor is in compliance with his oath. I have not been an MP long, but in my short time here I have met the Lord Chancellor on several occasions, questioned him in the Justice Committee and on the Floor of the House, and heard him speak from the Dispatch Box on all manner of topics. One thing is abundantly clear to me: the Lord Chancellor is a man of the highest integrity. He has spent his entire career in the law and respects the law to the core of his being. Indeed, at the ceremony to mark his swearing in, he said that he had sworn an oath to defend the independence of the judiciary and respect for the law that had far more than formal relevance. It is my firm conviction that he demonstrates his absolute and unwavering commitment to that oath day in, day out.

I said a few moments ago that I wanted to address the specific nature of today’s motion. In the few seconds that remain, I must recognise that it would seem odd were I not to say a few words about the Internal Market Bill, which, in many respects, prompted this debate. Clearly, that was a matter of profound importance for me, given the concerns that were raised about international law being broken.

Probably the first thing that I learned in my time on the Bench was that it is important to listen to both sides of the argument before reaching a decision, not jump to a verdict immediately after the prosecution has presented its case without hearing from the defence. I am grateful for the time that the Attorney General, in particular, spent talking to me about what was going on. I must say that the parliamentary lock that was achieved largely through the efforts of the Chairman of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), combined with the knowledge that such a course of action would only ever be a last resort, provided me with necessary and sufficient resource.

The law is precious. It is both fragile and robust. Overseeing the rule of law is a profound responsibility marked by the weighty oath of the office of Lord Chancellor—an oath, I submit, that is fulfilled with distinction by the current holder of that great office of state.