House of Lords - The office of Lord Chancellor

The office of Lord Chancellor - Constitution Committee Contents

The Office of Lord Chancellor

CHAPTER 1: INTRODUCTION

1. The office of Lord Chancellor has existed for over 900 years and evolved substantially throughout the 19th and 20th centuries,[1] but the most radical modern reforms came in 2003-05. Nearly 10 years on from those reforms, controversies surrounding Government policy on judicial review, legal aid and the European Court of Human Rights have focused attention on the role of the post-reform Lord Chancellor, and the combination in 2007 of the office with that of the Secretary of State for Justice with its added responsibilities for politically contentious areas of public policy.[2]

2. In response to these concerns, and in accordance with our role of keeping the operation of the constitution under review, we decided to undertake an inquiry into the office of Lord Chancellor. Our inquiry did not seek to assess the performance of holders of the office—past or present—but rather to understand the constitutional position of modern Lord Chancellors, how they perform their functions, and whether any changes were needed to enable the officeholder to fulfil their duties. This work continues previous scrutiny of the office by this Committee in a 2007 report on relations between the executive, the judiciary and Parliament, and a follow-up report in 2008.[3]

3. We received a wide range of evidence, including from academics, former permanent secretaries, former Lord Chancellors, former senior members of the judiciary, former Attorneys General, and the current Lord Chancellor. We are grateful to all those who gave evidence.

The Lord Chancellor in the twenty-first century

THE PRE-REFORM OFFICE OF LORD CHANCELLOR

4. The office of Lord Chancellor (more formally the Lord High Chancellor of Great Britain) is an ancient one. It developed from a role as secretary to the King of England to one that spanned Parliament, government and the judiciary. It is a sign of the age and prestige of the office that the Lord Chancellor ranks higher than the Prime Minister as an officer of state in the order of precedence.[4]

5. During the 20th century, the Lord Chancellor's role expanded significantly. By 2003 the Lord Chancellor was an important parliamentarian, Cabinet minister, and judge. He was entitled to preside as Chairman of the Appellate Committee of the House of Lords (the Law Lords)[5] and of the Judicial Committee of the Privy Council. As head of the judiciary,[6] he was responsible, directly or by making recommendations, for a large number of judicial appointments, and for judicial discipline.

6. In Government, the Lord Chancellor was a member of the Cabinet and the head of a department with a wide range of responsibilities, including for criminal legal aid and the administration of certain tribunals, over constitutional affairs and for the Crown Dependencies. In addition, the Lord Chancellor was Speaker of the House of Lords, as well as speaking and voting in the House as a member of the Government. As a figure spanning Parliament, the executive and the judiciary, the Lord Chancellor had a vital role in upholding the rule of law and the independence of the judiciary.

7. The Lord Chancellor was also responsible for the Great Seal of the Realm,[7] as well as for the Land Registry, the Official Receiver and Public Records. The office also included considerable ecclesiastical patronage.[8]

8. Post-reform Lord Chancellor the Rt Hon. Kenneth Clarke QC MP described the pre-2003 office as a "bizarre combination of roles" that "worked well … because of the personal qualities of the people who had held the post" but "it was something you could not defend to the outside world."[9]

CHANGES TO THE OFFICE SINCE 2003

9. In June 2003, the Government announced its intention to abolish the office of Lord Chancellor. The then Permanent Secretary of the Lord Chancellor's Department Sir Hayden Phillips told us that "little detailed work had been done on what would be the consequences for the observance of the rule of law and for a good focus in Government on constitutional issues" of abolishing the post.[10] The eventual reforms, which required legislation in the form of the Constitutional Reform Act 2005, did not abolish the post, but did change it considerably. A new Supreme Court replaced the Law Lords (without the Lord Chancellor as a member) and an independent commission now makes recommendations on judicial appointments (with a veto power retained for the Lord Chancellor over certain appointments[11]). The Lord Chief Justice replaced the Lord Chancellor as the head of the judiciary in England and Wales and an elected Lord Speaker now sits on the Woolsack in the House of Lords.

10. A further significant change occurred in 2007, when the Ministry of Justice was created, combining the Department of Constitutional Affairs (which had replaced the Lord Chancellor's Department in 2003) with functions transferred from the Home Office—primarily responsibility for prisons and the probation service.

11. Shortly after the creation of the Ministry of Justice and the combination of the Lord Chancellor's role with that of Secretary of State for Justice, the Rt Hon. Jack Straw MP (a former criminal law barrister) became the first Lord Chancellor in modern times to sit in the House of Commons. In 2010 the new Deputy Prime Minister took over responsibility for political and constitutional reform from the Ministry of Justice, which had inherited it from the Department for Constitutional Affairs. A reshuffle in 2012 saw the appointment of the first non-lawyer Lord Chancellor in modern times, the Rt Hon. Chris Grayling MP.

The role of the post-reform Lord Chancellor

12. Although the posts of Lord Chancellor and Secretary of State for Justice have been combined, they each have distinct areas of responsibility. The functions and duties of the post-reform Lord Chancellor are:

(a) Respecting the rule of law and defending judicial independence in accordance with the oath of office (see Box 1): these are the core duties that this report addresses, and are the focus of Chapter 2.

(b) Oversight of the judiciary: although no longer the head of the judiciary, the Lord Chancellor remains the minister responsible for pay and conditions for judges. He or she has a role in judicial appointments and disciplinary proceedings, including having a veto over senior appointments and acting as co-signatory (with the Lord Chief Justice) of disciplinary decisions. Mr Grayling told us that "it is a stewardship role to make sure that the ship is sailing smoothly rather than a management role."[12]

(c) Responsibility for the courts and tribunal service: the Lord Chancellor has a duty under the Courts Act 2003 to ensure an efficient and effective courts system.

(d) Responsibility for the provision of legal aid and for the regulation of the legal profession through appointments and resourcing for the Legal Services Board.[13]

(e) Responsibility for the process of civil, family and administrative law.

(f) Other miscellaneous functions: these include the core historic role of the Lord Chancellor as Keeper of the Great Seal of the Realm, and the ceremonial roles of presenting The Queen with Her speech at the state opening of Parliament and taking part in the formal opening of the legal year. There are also other roles and responsibilities remaining from the old office, including over official records,[14] a position as a Church Commissioner, and other ecclesiastical functions.

13. Separately, as Secretary of State for Justice, the officeholder has responsibility for prisons and the probation service, criminal law, sentencing policy, human rights, data protection and freedom of information.[15]

14. The Rt Hon. the Lord Falconer of Thoroton QC, who as Lord Chancellor steered the Constitutional Reform Act 2005 through Parliament, told us that the reforms "were intended to make the Lord Chancellor both a Cabinet Minister responsible for [the] courts and the departmental responsibilities that the Lord Chancellor had, but also to retain and entrench his or her role as being a defender of the rule of law and the justice system."[16] During the course of this inquiry, this key duty as a defender of the rule of law emerged as central to our investigation. It is to this that we first turn.

1 The first Lord Chancellor is said to have held the office in the eleventh century, although some date the role as far back as the seventh century. Diana Woodhouse, The Office of Lord Chancellor (Oxford, 2001), pp 1-2. Back

2 Written evidence from Bindmans LLP (OLC0023); Written evidence from Colin Murray (OLC0021); see Joint Committee on Draft Voting Eligibility (Prisoners) Bill, Draft Voting Eligibility (Prisoners) Bill (Report of Session 2012-13, HL Paper 103, HC 924), paras 233-234; Joint Committee on Human Rights, The implications for access to justice of the Government's proposals to reform judicial review (13th Report, Session 2013-14, HL Paper 174, HC 868), paras 22-23 Back

3 Constitution Committee, Relations between the executive, the judiciary and Parliament (6th Report of Session 2006-07, HL Paper 151); Constitution Committee, Relations between the executive, the judiciary and Parliament: Follow-up report (11th Report, Session 2007-08, HL Paper 177) Back

4 Only the Archbishop of Canterbury comes above the Lord Chancellor, after the Royal Family. Back

5 Lord Irvine of Lairg was the last Lord Chancellor to sit as a judge, although he did so rarely. Back

6 A de facto role, rather than one assigned in statute (Explanatory Notes to the Constitutional Reform Act: Background) Back

7 The Great Seal is used to signify the sovereign's assent on important documents, the Lord Chancellor has been its custodian (with the brief exception of a period after the 1688 Glorious Revolution) since the early thirteenth century (Woodhouse, Office of Lord Chancellor, pp 2-3. 5). Back

8 Woodhouse, Office of Lord Chancellor, p 8; see also Department for Constitutional Affairs, Constitutional reform: reforming the office of the Lord Chancellor, September 2003, CP/03. Back

9 Q 76 Back

10 Written evidence from Sir Hayden Phillips (OLC0029) Back

11 The Lord Chancellor's veto has been recently restricted to appointments at High Court level and above, under the Crime and Courts Act 2013, Schedule 13 Back

12 See written evidence from the Judicial Appointments Committee (OLC0020) and Q 43 (Chris Grayling MP). On judicial appointments see also Constitution Committee, Judicial Appointments (25th Report, Session 2010-12, HL Paper 272) Back