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:
"REMOVING THE OFFICE OF LORD CHANCELLOR
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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