Select Committee on Constitutional Affairs Third Report

2 Office of the Lord Chancellor

18. We said in our First Report:

"Whoever carries out the functions of the office of Lord Chancellor will be in charge of the Court Service and will play a central role in the administration of justice. Part of that role is the protection of the judiciary from political pressure in Cabinet and, when necessary, in public. There is a radical difference between on the one hand a Lord Chancellor, who as a judge is bound by a judicial oath, who has a special constitutional importance enjoyed by no other member of the Cabinet and who is usually at the end of his career (and thus without temptations associated with possible advancement) and on the other hand a minister who is a full-time politician, who is not bound by any judicial oath and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion".[13]

19. The Select Committee in the House of Lords was evenly divided between those who supported retention of the office of Lord Chancellor in modified form and those who wish to abolish the office entirely. When the Bill was recommitted to a Committee of the whole House, the Government suffered a significant defeat. After a wide-ranging debate on the question of whether the office of Lord Chancellor should be retained or not, the House voted to retain the office by 240 votes to 208. Further consequential amendments to leave out 'Secretary of State for Constitutional Affairs' and insert 'Lord Chancellor' were agreed to. On Report, the Government brought forward amendments to give effect to the decision of the House of Lords that the office of Lord Chancellor should be retained.

20. The mover of the motion upon which the debate was based, Lord Kingsland (Conservative frontbench spokesman on legal affairs), made clear that the amendment was not designed to return to an 'old-style' Lord Chancellorship in terms of the functions performed by the holder of that office. The Conservatives accepted "the new architecture of the Bill". In other words, it has become common ground between the three main political parties that the Lord Chancellor should no longer hold judicial office or be head of the judiciary of England and Wales, that his relationship with the judiciary of England and Wales would be governed by the Concordat, and that the new Judicial Appointments Commission would have responsibilities in relation to the appointment of judges.

21. On 11 October Lord Falconer said:

"… we will ensure that the Bill is amended as follows: the Lord Chancellor will perform those functions that the Bill in its present form currently allocates to the Secretary of State for Constitutional Affairs; the Great Seal will remain with the Lord Chancellor; the Lord Chancellor will retain the current pension and salary arrangements of his office. In bringing forward such amendments our purpose is to ensure that the Bill gives effect to the will of this place. But, of course, that does not preclude the Government from seeking to restore the position of the Secretary of State for Constitutional Affairs in another place".[14]

22. When we asked him to set out Government policy relating to this clause—and in particular, whether the Government would seek to reverse this change—the Lord Chancellor said:

"The comments I made on 11 October were in the context of having been defeated at the committee stage. It is necessary, in parliamentary terms, to respect the effect of what has been decided. The clear intention of the House of Lords in that vote was to say that the office of the Lord Chancellor should not be abolished. We must respect that in an amendment we are bringing forward for the purposes of the House of Lords. Will we seek to reverse it in the Commons? Plainly, that is a matter for the Commons. The aim is to seek to deliver the reforms that were outlined in June 2003. Those reforms are about the Lord Chancellor no longer sitting as a judge, the Lord Chancellor no longer being the head of the judiciary, the concordat with the judges, the Judicial Appointments Commission and the Supreme Court. We believed that the best way to deal with that was by the abolition of the role of Lord Chancellor. That may remain the best way to do it, but if there are alternatives which can deliver the reforms sought, which I have just outlined, obviously we would consider them".[15]

At Second Reading the Government did not signal an intention to reverse the Lords' decision to retain the office of Lord Chancellor, albeit in modified form.

23. In the light of these amendments, the remaining stages of the Bill in the Lords have proceeded on the basis that the minister responsible for judiciary related matters will be the Lord Chancellor rather than a Secretary of State.

The new role of the Lord Chancellor

24. Whether the minister responsible for judiciary related matters is to be called the Lord Chancellor or a Secretary of State, it is clear that his functions will in several important respects be different from those formerly carried out by Lord Chancellors. He will no longer be a judge or be Head of the Judiciary in England and Wales. In relation to appointments, his powers will be far more circumscribed than before as the Judicial Appointments Commission will have the principal responsibility for selecting candidates for the bench (though the minister will retain a power to reject a selection, or to ask the Commission to reconsider their choice, in some circumstances). In other important respects, however, there will be a continuity of functions. The minister will remain the ministerial head of a major Department and a member of the Cabinet. He will retain a role (shared with the Lord Chief Justice of England and Wales) in relation to judicial discipline. He will continue to be the "constitutional conscience" of Government: the Bill imposes an express duty to have regard to the need to defend the independence of the judiciary (and not just to uphold it, as other ministers are bound to do); and it recognises "the Lord Chancellor's existing constitutional role" in relation to the rule of law (a matter discussed below). And although the minister will no longer be a judge at the Cabinet table, representing the views of the judiciary to his fellow ministers, nevertheless the Bill places upon the minister an express duty to have regard to "the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters".

The name of the office

25. There was strong support in the House of Lords for retention of the name of Lord Chancellor. Such an approach has the advantage of familiarity in underlining the role of the holder of the office and serves to differentiate the Lord Chancellor from other Cabinet members.[16]

Qualifications for the office

26. Two qualifications for holding the office of Lord Chancellor have been included in the Bill: that the Lord Chancellor should have been the holder of high judicial office or have been a practising lawyer for at least 15 years[17]; and that "No person is qualified to be Lord Chancellor unless he is a member of the House of Lords".[18]

A MEMBER OF THE LORDS

27. The Select Committee of the House of Lords reported a division of opinion on the question of whether the Minister responsible for judiciary-related matters should be a member of the House of Lords or, at the discretion of the Prime Minister, of either the Commons or the Lords.[19] This question is essentially about two different types of vision for what the office will entail. Is there to be a politician who is a Minister like any other and who will have responsibility for administration of the court system? The size and budget of the DCA (now over £3 billion) has grown considerably in recent years and it might be thought desirable that its Minister be answerable to the House which controls supply. Or is there to be a figure who is at one remove from mainstream political life, who can act as a liaison between the judiciary and the Government and seek to uphold certain key constitutional principles at the core of Government (including judicial independence and the rule of law)? This goes to the heart of what the duties of the office holder will be.

28. Assuming that the House retains the Bill to an extent in the format in which it arrived from the House of Lords, on balance we prefer to keep the office of Lord Chancellor and its distinctive status, different from that of all other members of the Cabinet, because as we said in our earlier report when contrasting the role of the Lord Chancellor with other ministers, the Lord Chancellor "has a special constitutional importance enjoyed by no other member of the cabinet and … is usually at the end of his career (and thus without the temptations associated with possible advancement)".[20] Although it may be more likely that someone in the House of Lords as at present constituted has the seniority and lack of aspiration towards further office which we considered desirable, it is by no means certain, and there will be suitable candidates for the post in both Houses. There does not, therefore, seem to be a compelling argument for insisting that the Lord Chancellor must be a member of the Upper House.[21]

A LAWYER

29. The Select Committee of the House of Lords also reported a division of opinion on the question of whether the Minister should be a senior lawyer and those who considered that there was no need for the office-holder to hold a legal qualification. Accordingly, it made no recommendation.[22]

30. The Lord Chancellor will have key roles in relation to the judiciary and in judicial independence, the rule of law, judicial appointments and discipline. The principal responsibility for judicial appointments will be with the Judicial Appointments Commission and for judicial discipline with the Lord Chief Justice. It may be an advantage for the holder of the post of Lord Chancellor to be a senior lawyer.

Debate on the rule of law

31. One consequence of the decision that the Lord Chancellor will no longer sit as a judge or be head of the judiciary is that it ceases to be appropriate for him to take the judicial oath. The House of Lords decided that an alternative form of oath should be taken and accordingly the Promissory Oaths Act 1868 will be amended to insert a new oath to be sworn by Lord Chancellor.[23] Although this provides some guarantee that the Lord Chancellor will act as keeper of the Government's constitutional conscience, the House of Lords was strongly of the opinion that more was needed.

32. The Select Committee of the House of Lords unanimously agreed "without difficulty" that it was desirable for the Bill to make reference to the rule of law. It also agreed that the reference to the rule of law should "replicate, as far as possible, the responsibilities in regard to the rule of law currently discharged by the Lord Chancellor" and that he should continue to have a special role in relation to the rule of law within the Cabinet as a result of his responsibility for the justice system.[24] However, there was some difficulty with finding a suitable form of words on which members of the House of Lords could agree. The essential aim was to give statutory expression to basic constitutional principles of the British constitution. A form of words, agreed following cross-party negotiations, was eventually inserted as Clause 1 of the Bill: "This Act does not adversely affect—(a) the existing constitutional principle of the rule of law, or (b) the Lord Chancellor's existing constitutional role in relation to that principle".

Speakership of the House of Lords

33. One of the main duties of the Lord Chancellor is to provide over sittings of the House of Lords. The House of Lords is discussing the appointment of a new office holder to preside over its proceedings. The Constitutional Reform Bill makes no reference to this aspect of the Lord Chancellor's duties (apart from a tangential reference to allow any changes in the duties of the Lord Chancellor as the person who presides over the House of Lords to take effect easily).[25] The Select Committee of the House of Lords made no comment about this subject on the basis that it was "not a statutory matter".[26] We consider it to be for the House of Lords to decide who should sit in the Woolsack, but that it is reasonable to assume that, if the Bill is passed, the Lord Chancellor, who has responsibility for running a large government department, should not have that role.

Amendments to the Bill

34. The Lord Chancellor may by order make provision for the transfer, modification or abolition of functions of the Lord Chancellor.[27]

35. The Delegated Powers and Regulatory Reform Committee has commented on this amendment:

The Committee observes that the power, though limited as respects the functions which it may affect ("existing functions"), is not limited as to the time of its exercise; it could be used in the future for purposes other than those arising out of the current redistribution of the Lord Chancellor's functions. It appears therefore to go wider than may be necessary to address the difficulties described in the memorandum. The Committee realises that the affirmative procedure will apply to an order abolishing an existing function conferred by an Act, but the negative procedure would apply to the abolition of functions conferred by other instruments (including by statutory instrument subject to affirmative procedure).[28]

36. We agree that the provisions to allow amendment of the primary legislation by statutory instrument are undesirable, and we hope and expect that the Government will bring forward further amendments in the House of Commons to remedy this point.

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13   op cit, para 13 Back

14   HL Deb, 11 October 2004, col 12 Back

15   Q 277 Back

16   Although some Members of the House of Lords Select Committee were also attracted to the title Minister of Justice; op cit, para 46 Back

17   Clause 3; and see HL Deb, 11 October, col 34; HL Deb, 7 December, col 779 Back

18   Clause 2; and see HL Deb, 7 December, col 748 Back

19   op cit, para 428 Back

20   op cit, para 13 Back

21   Nothing in the use of the word "Lord" necessarily indicates membership of the House of Lords: eg. Lord President of the Council and Lord Privy Seal have frequently been members of the House of Commons Back

22   op cit, para 425 Back

23   HL Deb, 7 December, col 802 Back

24   op cit, para 429 Back

25   See Clause 15 and Schedule 5 Back

26   op cit, para 437 Back

27   HL Deb, 20 December, col 1544 and Clause 16 Back

28   House of Lords Fifth Report of the Select Committee on Delegated Powers and Regulatory Reform, Session 2004-05, Constitutional Reform Bill [HL]-Government amendments for Third Reading, HL Paper 20, para 3 Back

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Prepared 28 January 2005