- Constitution Committee Contents

Memorandum by Lord Irvine of Lairg

  1.  When I ceased to be Lord Chancellor in June, 2003, I decided to make no complaint, to maintain silence and to do nothing to embarrass the Government. That is the position I have maintained for over six years. I have now decided that it is more important to ensure the accuracy of the public record.

  2.  The reason for that is the evidence given to the Committee on 1 July, 2009, by Lord Turnbull. Lord Turnbull was the Secretary of the Cabinet from 2000 to 2005. He was therefore the Cabinet Secretary at the time of the events in June, 2003, with which this paper is concerned.

  3.  When the Chairman asked at Ql43 what consultation took place and with whom before the decision was taken to abolish the role of Lord Chancellor, he also asked specifically whether the Leader of the House of Lords and the Lord Chancellor were consulted. Lord Turnbull replied:

    "The Lord Chancellor was consulted. The trouble was that he disagreed with it."

  4.  At Ql58, Ql59 and Q160 Lord Turnbull stated that there was no green paper nor "the `conventional route' of consultation because the Lord Chancellor was unwilling to `act as the advocate of change' because he `disagreed with the proposal' and `was not prepared to lead the consultation. That is where the problem originated."

  5. Earlier in his evidence at Q142 Lord Turnbull said:

    "On the day it was a complete mess up. There are various reasons for this. First, it was very difficult to produce the change when the incumbent Lord Chancellor was strongly against what was being done, so you got no co-operation from him."

  6.  The Committee is addressing the role of the Cabinet Office at the centre of the machinery of government and in particular (a) its effectiveness in advising the Prime Minister and (b) the quality of such advice. In that context the evidence of Lord Turnbull set out above should be contrasted with the material contained in this paper.

  7.  In early June 2003 there were press rumours that the office of Lord Chancellor was to be abolished. I had had no intimation of this, but when the Times and the Telegraph carried the rumour I determined to see the Prime Minister. That happened in the afternoon of Thursday, 5 June, 2003 in his office at Number 10. I asked him directly if there was any truth in the press rumours that the office of Lord Chancellor was to be abolished and transferred to a new Secretary of State in the Commons. He hesitated and then said it was being considered, but nothing had as yet been decided. I asked him how a decision of this magnitude could be made without prior consultation with me, with Hayden (i.e. my Permanent Secretary, Sir Hayden Phillips), within government, with the judiciary, with the authorities of the House of Lords which would lose its Speaker and with the Palace. The Prime Minister appeared mystified and said that these machinery of government changes always had to be carried into effect in a way that precluded such discussion because of the risk of leaks. We agreed to meet the next Monday morning, 9 June 2003, to continue our discussions.

  8.  I left our meeting of 5 June 2003 surprised (a) that the Prime Minister thought the abolition of the office of Lord Chancellor was of the same order as any machinery of government changes by which ministerial responsibilities could be transferred from one department to another; and (b) that the Prime Minister had no appreciation that the abolition of this office of State, with a critical role in our unwritten constitution affecting a House of Parliament, the judiciary, of which the Lord Chancellor was by statute Head and by constitutional convention guarantor of its independence, required extensive consultation, most careful preparation and primary legislation. I determined when I next met the Prime Minister on Monday morning, 9 June 2003, to try to do better.

  9.  We started with my complaint that he had not discussed with me in advance such far reaching plans for the abolition of the office. He repeated that it was impossible to do so because if machinery of government changes were discussed in that way they would leak all over the press. It then strongly bore in on me that the Prime Minister had not received any or any proper advice and was completely unaware that complex primary legislation was required.

  10. We then turned to the substance. What follows the Committee may think is highly relevant to any prior advice which the Prime Minister may or may not have had. He told me that the plan was to transfer the responsibilities of the Lord Chancellor's Department immediately to a Secretary of State in the Commons, Peter Hain, and then abolish the office of Lord Chancellor with the least delay. I explained that the office of Lord Chancellor is statutory and could only be removed by statute and until that happened there were functions that could only be carried out by a Lord Chancellor. He replied that in that case there would have to be some interim arrangements in the shape of a transitional or residual Lord Chancellor whom he envisaged would be a junior minister. There was no mention of Lord Falconer. The new Secretary of State, who was to be a Secretary of State for Constitutional Affairs, was to be Peter Hain in the Commons. I said that the opportunity to create a Ministry of Justice was being lost. A Ministry of Justice would at least have delivered some benefit instead of the morass that was apparently about to be created. A Ministry of Justice could not be created by transferring the Department of the Lord Chancellor to a Secretary of State in the Commons, simply by a rebranding exercise, because the Home Office was responsible for the criminal law; and a true Ministry of Justice would have the whole of the law, both civil and criminal, under its roof, together with responsibility for the courts and the judges. I observed that whilst there was a respectable argument for the creation of a true Ministry of Justice which would have in a considered way to be weighed against the value of the office of Lord Chancellor, what was being proposed was a botched job leaving the Home Office and its current responsibilities in place without the benefit of securing a true Justice Department and leaving the Home Office as a true Ministry of the Interior confined to security of borders (immigration, asylum, passports, visas (and internal security), police, security services, prisons, etc. We left off on the basis, as the Prime Minister was always wont to say, that no final decision had been taken, but I felt that in reality the die was cast, although it was beginning to bear in on the Prime Minister that the abolition of the office of Lord Chancellor was not as simple as he had imagined.

  11.  We next met at 5pm on Tuesday, l0 June, 2003. I had decided on that occasion to hand over to the Prime Minister two typewritten pages so that he could be in no doubt as to how I saw the situation. In the note I wrote:

    "At present there are about 5,000 statutory references to the Lord Chancellor in primary and secondary legislation requiring a huge transfer of functions order before the new Secretary of State could exercise the Lord Chancellor's functions—a very large task. In the immediate term administrative chaos is unavoidable because of the need to decide what existing functions are judicial (i.e. for a residual Lord Chancellor) and what existing functions are for the new Secretary of State."

  I also wrote:

    "The whole process has been botched, with poor advice to you and no involvement of me or Hayden."

    (i) "It's been treated as if it was an ordinary transfer of functions whereas it is not because the Lord Chancellor, by statute is President of the Supreme Court, and President of other courts as well as Presiding Chairman of the House of Lords sitting judicially. Constitutionally the Lord Chancellor is regarded as the guarantor of judicial independence. To proceed without any consultation with the judiciary, and without any consultation with the House authorities because of my role as Speaker, is high handed and insensitive."

    (ii) "What is now proposed doesn't achieve a true Ministry of Justice because the Home Office remains responsible for criminal law and procedure. There is therefore no rationalisation of the functions of the departments: all that is happening is that the LCD is being handed over to a Commons Minister with the office of Lord Chancellor abolished."

    (iii) The Lord Chancellor as head of the Judiciary is presently the central organizing principle of the administration of justice in the country, and that is being swept aside without any assessment of its value and without consultation with the judiciary."

    (iv) "I personally am being cast aside whilst about to embark on a further integrated programme of major reform which is fully worked up and ready to go, and requires the most sensitive handling of the Judiciary and the legal profession, where I know an incoming Secretary of State would be at major disadvantage. Consultation papers on the QC system and on a Judicial Appointments Commission are about to be published (with a Consultation Paper on court dress already out) together with an independent review of the entire regulatory framework for legal and related services, under a prominent figure who will be neither a practising lawyer nor a judge, planned to be announced at the end of June—all of this I would have wished to have brought to a conclusion myself. Also, I would like to bring House of Lords reform to a conclusion: Andrew Adonis has had for a week my proposed response to the Joint Committee's Report which is my advice how to close this down for a generation."

    (v) So, I am being ejected while this unfinished business which I should be bringing to a conclusion remains—and all this for no proven benefit arising out of the abolition of the office, leaving aside whatever value you may put on my continued contribution to Government."

    (vi) "If this had been dealt with properly, Hayden and I would have been brought into the loop from the outset and our brief would have been to plan and bring forward a proper Ministry of Justice headed by a Commons Minister in a measured and balanced way, via legislation abolishing the office of Lord Chancellor (i.e. a new Supreme Court Act) setting up a Judicial Appointments Commission and with strong provision for protection of the independence of the judiciary. It is still not too late to proceed in this way."

    (vii) "Although I personally would have regretted the demise of the office of Lord Chancellor I would have been willing to carry forward this programme myself to implement government policy to create a Ministry of Justice; and bow out on its completion."

    (viii) "Since the political decision is to close down a great Office of State with broad constitutional implications, then it should be done in a seemly, measured and balanced way, instead of the incoherent, unworked up and piecemeal approach currently likely to be adopted."

  12.  On 11 June 2003 I submitted to the Prime Minister a formal Minute headed as follows:


    Following our discussion last night I understand via Hayden that you are considering proposals which would enable the transition to a new department to be managed while I remained nominally Lord Chancellor. This would avoid residual Lord Chancellor responsibilities having to he given to a Junior Minister or being put to Commissioners."

  The Minute continued:

    "I understand these proposals to be:

    First, the creation of a Department for Constitutional Affairs with a Secretary of State in the Commons including the responsibilities of the Secretary of State for Wales, the staff of the Scotland Office and ODPM's responsibilities for devolution.

    Second, an early Transfer of Functions Order to give to the Secretary of State the principal responsibilities of the Lord Chancellor, e.g. for running the courts and for legal aid (other transfers could follow as and when necessary).

    Third, an amendment to the House of Commons Disqualification Act to allow a Member of that House to hold the office of Lord Chancellor (requiring a resolution of the House of Commons and an Order in Council). He would then be appointed Lord Chancellor and the effect would be to constitute the Secretary of State as Chairman of the Appellate Committee of the House of Lords, President of the Supreme Court, a Judge of the Court of Appeal, a Judge of the High Court and President of the High Court (Chancery Division), and a Judge of the Crown Court and County Court. He would by virtue of these offices become Head of the Judiciary. This step would therefore have to be accompanied by a statement the Secretary of State would never actually engage any of these judicial functions since he was not qualified to do so, and would only proceed to make or advise on judicial appointments with the agreement of the Lord Chief Justice, until a Judicial Appointments Commission was created. Fourth, in parallel I would continue to hold the office of Speaker of the House of Lords until the House had revised its standing orders. Fifth, the whole process would be completed before the summer recess. I have to tell you that I believe this approach would hold the Government up to ridicule, and make my continuing in office as Lord Chancellor a transparent sham. I could not myself play any part in implementing such a proposal. I have an alternative proposal to put to you.

    As I explained to you yesterday, to implement effectively the integrated programme of major reforms which I have already announced and is ready to go, requires the most sensitive handling of the Judiciary and the legal profession. An incoming Secretary of State who is neither lawyer nor Judge, and who holds an office he cannot exercise, would be at the severest disadvantage in carrying through changes to the QC system, judicial appointments, and the creation of a new Supreme Court which is necessary when the office of Lord Chancellor is abolished. In view of the relationships I have established over the past six years I believe I am best placed to carry these changes into effect in a harmonious way without the creation of a new Secretary of State post until they are completed. If you agree to this I would be able to say that while I personally regret the demise of the office of Lord Chancellor which has had huge value, particularly in helping to maintain good relations between the executive and judiciary, and in upholding the independence of the latter, a decision has been taken within government that the department which now has had added to it major constitutional and devolution responsibilities should necessarily be led by a Secretary of State in the elected House of Commons and not a Lord Chancellor in the House of Lords.

    We would then say that you have invited me as Lord Chancellor to carry through, with the least delay, the processes signalled by the consultations I have already announced.

    [Here I had in mind the consultations to which I referred in sub-paragraph (iv) within paragraph 11 above.]

    "This would include the early establishment, administratively, of a Judicial Appointments Commission and piloting through the legislation necessary to abolish the office of Lord Chancellor, to create a new Supreme Court structure for the United Kingdom headed by a new office of Chief Justice, and including strong statutory guarantees of judicial independence. We would announce that I would leave the Government when Royal Assent was achieved. If all the stops are pulled out, and legislative priority given, this can all be completed before the recess in 2004."

  12.  This passage from the Minute makes it clear that I was willing to carry such legislation forward. My reason was so as to preserve so far as I could in the new legislation the values the office of Lord Chancellor had originally existed to protect.

  13.  This "alternative proposition" was I understand rejected after Cabinet on Thursday, l2 June, 2003. That afternoon I returned the Great Seal to Her Majesty and ceased to be a member of the Government.

26 October 2009

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