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The rule of law is a fundamental tenet of the United Kingdom constitution. In the context of the Government, it means more than simple compliance with the letter of the law: it means governing in accordance with constitutional principles. The Lord Chancellor has traditionally had a key role to play, both by defending the independence of the judiciary and by ensuring that the rule of law is respected within Government.
The Constitutional Reform Act 2005 substantially changed the office of Lord Chancellor. The Lord Chancellor is no longer the head of the judiciary or speaker of the House of Lords, and since 2007 the office has been combined with that of the Secretary of State for Justice. Yet the duty of the Lord Chancellor in relation to the rule of law remains unchanged. This duty extends beyond the work of the Ministry of Justice and requires the Lord Chancellor to ensure that the rule of law is upheld within Cabinet and across Government.
It has become more difficult for post-reform Lord Chancellors with their wider policy responsibilities, more overtly political positions as Secretaries of State for Justice and their reduced role in relation to the judiciary to carry out this duty in relation to the rule of law. The effectiveness of Lord Chancellors in this regard is more directly dependent on the personal authority and effectiveness of the individual holding the office.
Other guardians of the rule of law have become more significant as a result. In particular, the importance of the Law Officers has increased. As such, we recommend that they should receive the resources necessary to carry out this duty and that the Attorney General should continue to attend all Cabinet meetings. The Government should make clear the respective responsibilities of those charged with upholding the rule of law within Government and ensure that they receive the support necessary to fulfil those duties. In addition, Parliament must be aware of its importance as a guardian of the rule of law and scrutinise the actions and policies of Government to ensure it governs in accordance with the rule of law.
We recognise concerns raised about the combination of the office of Lord Chancellor with that of the Secretary of State for Justice. However, the combination of the office of Lord Chancellor with a major department of state confers additional authority which assists the Lord Chancellor in his or her vital duties in relation to the rule of law.
The Lord Chancellor has traditionally performed an important oversight role in relation to the United Kingdom constitution as a whole. Whilst responsibility for constitutional change passed to the Deputy Prime Minister in 2010, we have heard no evidence that he, or any other minister, currently takes responsibility for the state of the constitution as a whole. A senior Cabinet minister should be tasked with this responsibility; in our view most appropriately the Lord Chancellor.
We conclude that, despite significant changes to the office of Lord Chancellor, it still retains important constitutional duties and responsibilities that go beyond those of other ministers. We recommend that the office and its associated responsibilities be retained and strengthened with an amended oath. The Lord Chancellor should be a politician with significant ministerial or other experience to ensure that they have sufficient authority and seniority to uphold the rule of law in Cabinet, and in dealings with ministerial colleagues.
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