House of Lords - The office of Lord Chancellor

The office of Lord Chancellor - Constitution Committee Contents

CHAPTER 3: A CONSTITUTIONAL GUARDIAN IN GOVERNMENT?

89. As the evidence we have quoted demonstrates,[140] the traditional role of the Lord Chancellor included a broader guardianship or stewardship role in relation to the constitution more generally. This role included ensuring that the Government acted with propriety when dealing with constitutional matters. As with the rule of law, we are reluctant to attempt to define precisely what constitutes a constitutional matter, but we draw attention to what we consider to be the five basic tenets of the United Kingdom constitution, as set out in this Committee's first report in 2001:

· "Sovereignty of the Crown in Parliament

· The Rule of Law, encompassing the rights of the individual

· Union State

· Representative Government

· Membership of the Commonwealth, the European Union, and other international organisations."[141]

The role of Lord Chancellors before 2010

90. The involvement of pre-reform Lord Chancellors in wider constitutional matters appears to have varied depending on the officeholder. The Rt Hon. the Lord Irvine of Lairg played a leading role in the constitutional reforms undertaken by the Government in which he was Lord Chancellor from 1997. He chaired Cabinet sub-committees on devolution, freedom of information, the incorporation of the European Convention on Human Rights into UK law, and reform of the House of Lords, and described his role as "pivotal" to the reform programme.[142]

91. Sir Alex Allen told the Committee that Lord Irvine's position chairing the relevant committees "was partly personal, rather than necessarily attaching to the office of Lord Chancellor".[143] His predecessor as Lord Chancellor, Lord Mackay of Clashfern, was less keen to have a proactive role in constitutional matters in Government,[144] although Sir Thomas Legg told us that "in my day, the Lord Chancellor would have been regarded and was regarded—and regarded himself—whichever party in Government he was serving, as having a special role" in relation to the constitution.[145]

92. After the 2001 election, further constitutional functions were transferred to the Lord Chancellor's Department under Lord Irvine in an attempt to group all constitutional matters into one department. The then permanent secretary Sir Hayden Phillips told us that, although this partly "reflected the role that Lord Irvine had personally played in many of these policy developments I believe it went further than that in reflecting a widely held view at the time that, given the history of the role of the office of Lord Chancellor, his department was the natural home for responsibility for such issues."[146]

93. The grouping together of responsibility for constitutional matters was more overtly recognised when the Department for Constitutional Affairs was created in 2003 with the new Lord Chancellor, Lord Falconer, as its Secretary of State. Its functions were transferred to the Ministry of Justice when that department was created in May 2007. The Lord Chancellor was then described as being responsible for "major constitutional issues".[147] In 2009, the Lord Chancellor was described as responsible for "constitutional renewal",[148] with a Minister of State responsible for "democracy, constitution and law".[149]

Current ministerial responsibility for the constitution

94. In our view, there should be a single individual in Government with a responsibility to oversee the constitution as a whole. When we questioned the current Lord Chancellor, he told us that: "The traditional role of the Lord Chancellor in, for example, shaping constitutional settlements or constitutional reforms in this country has now passed to the Deputy Prime Minister of the current Government … The truth is today the constitutional role that the Lord Chancellor once performed, in a very practical sense, is not currently there."[150]

95. Since 2010, the Deputy Prime Minister and a junior minister in the Cabinet Office have had responsibility for "political and constitutional reform", in relation to which they have appeared regularly before this Committee. At present the junior minister is also a Parliamentary Under-Secretary of State at the Department for Education.[151] The Deputy Prime Minister's Office in the Cabinet Office includes the Constitution Group, the component parts of which were transferred from the Ministry of Justice.[152]

96. In 2010, the Deputy Prime Minister and the junior minister (then the Minister for Political and Constitutional Reform) provided this Committee with a memorandum that included a "rationale" for the division of responsibilities between them and the Ministry of Justice. They stated that:

"[The] Deputy Prime Minister has taken responsibility for all those matters which directly affect Parliament and elections. This includes the business as usual aspects of those policy areas as well as reform proposals.

153

97. This describes the responsibilities of the Deputy Prime Minister for certain ongoing elements of the constitution, as well as for reforms. The reference to the Home Affairs Cabinet Committee suggests that he has a wider perspective on constitutional affairs, among other areas of domestic policy. The division of responsibilities, however, omits elements of the constitution beyond Parliament, elections, the courts and judiciary and human rights. Nor is there any minister charged with ensuring both overall balance in the constitution and that reforms to one aspect of it do not have unintended consequences in other areas. Such a role is important under a delicate uncodified constitution such as that of the United Kingdom.

98. There is an important distinction between ministerial responsibility for particular constitutional reform policies, and a more general constitutional oversight or stewardship role. As Mr Grayling stated, this more general role is clearly not currently assigned to the Lord Chancellor.[154] This is particularly unfortunate given that in 2007 this Committee, in our report on relations between the executive, the judiciary and Parliament, noted that "we sincerely hope that constitutional affairs remain central to the Ministry of Justice's responsibilities and are not downgraded in importance compared to the other duties of the Ministry".[155] This focus was clearly lost when responsibility for constitutional matters was transferred from the Ministry of Justice.

99. Whilst he has been responsible for specific constitutional changes since the transfer of functions to his office from the Ministry of Justice, we have heard no evidence to suggest that the Deputy Prime Minister has this wider constitutional oversight role. For example, neither he nor the Lord Chancellor are members of the Devolution Committee, formed to look at "matters relating to the devolution of powers within the United Kingdom" following the Scottish independence referendum and the creation of the Smith Commission on further devolution to Scotland.[156] Neither is a member of the Parliamentary Business and Legislation Committee, which one might expect a minister with responsibility for the constitution to be.

100. Mr Grayling told us that "the only answer" to the question of who has responsibility for the constitution as a whole was the Prime Minister.[157] This interpretation had not been put forward by previous witnesses; when put to former permanent secretaries, Sir Thomas Legg said that he could understand it in the sense that "the Prime Minister has to set the tone for the whole team".[158] While the Prime Minister may have responsibility for the overall conduct of his or her Government, in this as in all areas, it should be more clearly articulated where responsibility lies in relation to all aspects of the constitution and for oversight of it.

101. There is no clear focus within Government for oversight of the constitution. We invite the Government to agree that a senior Cabinet minister should have responsibility for oversight of the constitution as a whole, even if other ministers have responsibility for specific constitutional reforms. In the light of the Lord Chancellor's existing responsibility for the important constitutional principle of the rule of law, we consider that the Lord Chancellor is best placed to carry out this duty.

140 Written evidence from Sir Hayden Phillips (OLC0029), Q 14 (Professor Andrew Le Sueur) Back

141 Constitution Committee, Reviewing the Constitution: Terms of Reference and Method of Working (1st Report, Session 2001-02, HL Paper 11), para 21 Back

142 Woodhouse, Office of Lord Chancellor, p 80 Back

143 Q 66 Back

144 Q 26 Back

145 Q 64 Back

146 Written evidence from Sir Hayden Phillips (OLC0029) Back

147 Ministry of Justice, About Us, Lord Falconer of Thoroton:
http://webarchive.nationalarchives.gov.uk/20070513230000/http://www.justice.gov.uk/about/falconer.htm Back

148 Ministry of Justice, About Us, Jack Straw:
http://webarchive.nationalarchives.gov.uk/20090215180422/http://www.justice.gov.uk/about/straw.htm; Mr Straw also told the Committee that he chaired the Cabinet committee on constitutional change (Q 99). Back

149 Ministry of Justice, About Us, Michael Wills:
http://webarchive.nationalarchives.gov.uk/20090215180422/http://www.justice.gov.uk/about/wills.htm. The minister also had responsibility for the Lord Chancellor's functions in relation to the Land Registry and the National Archives. Back

150 Q 44 Back

151 Ministerial role: Parliamentary Secretary (Minister for the Constitution) https://www.gov.uk/government/ministers/parliamentary-secretary-minister-for-the-constitution Back