House of Lords - The office of Lord Chancellor

The office of Lord Chancellor - Constitution Committee Contents

CHAPTER 4: THE FUTURE OF THE OFFICE

102. As set out in chapter 1, the duties of the Lord Chancellor are separate and distinct from those of the Secretary of State for Justice. The appointment of the Lord Chancellor is also unlike any other ministerial position. First, under Section 2 of the Constitutional Reform Act 2005, there are specific criteria to which the Prime Minister must have regard when appointing the Lord Chancellor (see Box 3). Secondly, the Lord Chancellor must take an oath upon assuming the office (see Box 1).

Box 3: Criteria for appointment of the Lord Chancellor

Constitutional Reform Act 2005, section 2: 'Lord Chancellor to be qualified by experience'.

1. "A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.

2. The Prime Minister may take into account any of these—

(a) experience as a Minister of the Crown;

(b) experience as a member of either House of Parliament;

(d) experience as a teacher of law in a university;

(e) other experience that the Prime Minister considers relevant.

3. In this section "qualifying practitioner" means any of these—

(a) a person who has a Senior Courts qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(b) an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary;

103. Lord Falconer explained that these criteria were added because "Parliament envisaged the role of the Lord Chancellor as being a departmental Minister but with these special added responsibilities and, therefore, these special qualities".[159] He set out what he thought those qualities were:

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ARE SPECIAL QUALITIES REQUIRED OF A LORD CHANCELLOR?

104. In Chapter 2, we discussed the critical role the Lord Chancellor plays in upholding the rule of law and judicial independence. Does the person exercising this duty need to have special qualities beyond those of other ministers? Some of our witnesses thought not. Mr Gee, for example, told us that all "Ministers should be intelligent and industrious, they should have the ability to master a brief, and they should have the ability to command the confidence of their ministerial and parliamentary colleagues and stakeholders in whatever systems and networks with which they have to engage. Ought there to be specific criteria for the Lord Chancellor? I do not think so."[161] Mr Clarke also considered that those criteria should be applied in the appointment of all members of the Cabinet, noting that "you are not assuming that in every other post you are appointing people who do not understand the application of the rule of law".[162] In general, however, it was felt that the Lord Chancellor's role in relation to the judiciary and rule of law put the officeholder in a unique position.

LEGAL QUALIFICATION

105. Witnesses agreed that it was essential that the Lord Chancellor understood the rule of law, with many stating that it would be an advantage to have a lawyer or constitutional expert in the post.[163] Bindmans LLP echoed others when they stated that "we consider there to be clear and significant benefits in the office holder being a lawyer (or legal academic)." The legal system, they told us, "is best defended by someone with a developed knowledge of that system. Although we acknowledge that such knowledge is not the sole preserve of lawyers, it is much more likely to be found in lawyers than elsewhere."[164] While some submissions went so far as to say that it should be mandatory for the Lord Chancellor to have a legal background,[165] the majority view was put succinctly by Mr Grieve who noted that "there are advantages of having a Lord Chancellor who is a lawyer … but it is not essential".[166] Sir Hayden Phillips, the first Permanent Secretary of the Lord Chancellor's Department not to be a lawyer, stated "I can say with confidence … that you do not have to be a lawyer to understand the importance of the rule of law, of the independence of the judiciary, or of constitutional matters, or to have a strong motivation to seek to protect them."[167]

106. The current Lord Chancellor went further: "My view is that it is a positive benefit for the Lord Chancellor not to be a lawyer. … I think that not being a lawyer gives you the ability to take a dispassionate view: not from one side of the legal profession or the other".[168] He was not alone in this view. Mr Gee told us that "post-2003 Lord Chancellors might be better placed than their predecessors to disentangle legitimate concerns about judicial independence from more spurious claims driven by judicial self-interest."[169]

107. Dr O'Brien told us pragmatically that "the fact [is] that the Justice Secretary and the Lord Chancellor have to be the same person for political reasons … To say that the Lord Chancellor has to be a lawyer is to say that the Justice Secretary has to be a lawyer, which would limit application to a major government department for quite a lot of entrants".[170] This is closely connected to the question of the combination of roles, which we address below.

108. Professor Le Sueur also noted a consequence of reducing the pool of potential Lord Chancellors: the relative paucity of lawyers in the House of Commons would mean curtailing "the Prime Minister's scope for choosing a person with all the characteristics that are needed".[171]

109. WE RECOGNISE THE ADVANTAGES TO APPOINTING A LORD CHANCELLOR WITH A LEGAL OR CONSTITUTIONAL BACKGROUND. WE DO NOT CONSIDER THAT IT IS ESSENTIAL BUT, GIVEN THE IMPORTANCE OF THE LORD CHANCELLOR'S DUTIES TO THE RULE OF LAW, THESE BENEFITS SHOULD BE GIVEN DUE CONSIDERATION.

110. We note, however, the concerns raised by Sir Hayden Phillips, who told us that when legislation was passed to allow a non-lawyer to be appointed as Permanent Secretary of the Lord Chancellor's Office, "it was assumed that the Lord Chancellor would be a lawyer but his principal official adviser would not. It is, in my view, this balance of experience and expertise which mattered to all those involved, and particularly to the Judiciary. That balance has now gone. In my view that is potentially damaging."[172] He proposed the following solution:

"I would suggest that the post of Legal Adviser in the Ministry should be held at Second Permanent Secretary level, thus giving much greater weight to his/her position in the Whitehall legal hierarchy and ensuring that at the very top of the Department there was a senior figure who also had responsibility for advising any Secretary of State for Justice on his/her responsibilities as Lord Chancellor and also take the lead, at official level, in relations between the Ministry and the Judiciary."

111. His concerns were echoed by the Bar Council who told us there was a "weakness" in the current position when the "Lord Chancellor has no legal experience … and the Lord Chancellor's Permanent Secretary is no longer required to be legally qualified".[173]

112. Another former permanent secretary was not persuaded: Sir Alex Allen told us that "in my time … the legal advisers to the Lord Chancellor were extremely able … I think it is important that there is a strong legal team in the Ministry of Justice but whether you need somebody right at the top who is legally qualified I am not convinced about."[174]

113. At present, neither the Lord Chancellor nor the Permanent Secretary are required to be legally qualified. In a department responsible for the legal system and responsibility of the maintenance of the rule of law, this is undesirable. WE RECOMMEND THAT THE GOVERNMENT EITHER ENSURE THAT THE PERMANENT SECRETARY SUPPORTING THE LORD CHANCELLOR AT THE MINISTRY OF JUSTICE IS LEGALLY QUALIFIED, OR APPOINT THE TOP LEGAL ADVISER IN THAT DEPARTMENT AT PERMANENT SECRETARY LEVEL.

AUTHORITY AND SENIORITY

114. Beyond an understanding of the rule of law, most of our witnesses argued that the Lord Chancellor had to be both influential within cabinet, and willing to stand up to Cabinet colleagues and the Prime Minister on matters involving the rule of law and judicial independence. In our 2007 and 2008 reports on relations between the executive, judiciary and Parliament, this Committee stressed the need for the office to be held by individuals with "sufficient status and seniority",[175] and "the authority necessary to fulfil their duties."[176]

115. Lady Scotland told us that "there should be a clear responsibility on any Government in choosing the person to discharge that onerous, senior duty to ensure that the Minister chosen holds the confidence of the other ministerial colleagues and the ability and strength to be listened to in Government to uphold the rule of law".[177] Lord Falconer echoed this view: "because the role involves standing out against your colleagues and separating yourself from collective responsibility, it will from time to time involve damaging your relations, maybe with the Prime Minister and maybe with other people in the Cabinet, which may have adverse consequences for your career. That is why Section 2 is so important: the Prime Minister has to appoint somebody who is willing to do that".[178] Mr Straw called it an "issue of seniority",[179] while Lord Phillips of Worth Matravers spoke for many of our witnesses when he told us: "What matters is that you should understand it [the rule of law], you should respect it and that you should have the clout in Cabinet to carry weight when you raise a rule of law issue".[180]

116. Lord Phillips also noted that, as it was the Prime Minister's choice, "If you have a Prime Minister who believes in the importance of the rule of law, when he appoints someone to the position of Lord Chancellor, one would hope that he would appoint someone who already has standing and is likely to perform the role of guardian of the rule of law and judicial independence."[181]

117. GIVEN THE IMPORTANCE OF THE LORD CHANCELLOR'S DUTY TO UPHOLD THE RULE OF LAW, THE LORD CHANCELLOR SHOULD HAVE A HIGH RANK IN CABINET AND SUFFICIENT AUTHORITY AND SENIORITY AMONGST HIS OR HER MINISTERIAL COLLEAGUES TO CARRY OUT THIS DUTY EFFECTIVELY AND IMPARTIALLY.

118. Some witnesses suggested that it might help ensure the independence of the Lord Chancellor if the position were filled by someone towards the end of his or her political career. The Chartered Institute of Legal Executives, among others,[182] noted that "conflict will arise if a middle ranking Cabinet member is Lord Chancellor with further career aspirations, who may feel that standing up to proposed policy changes may block career advancement."[183] Dr O'Brien argued that the influence of the Lord Chancellor was now dependent on the personality of the person holding the office, rather than being inherent in the post and that "it will depend on who is occupying the office … a mid-ranking politician will perhaps have less authority over other ministries than a senior politician at the end of his or her career."[184].

119. Mr Grieve, however, thought that if the holder of the office understood their role and duties, "it does not matter whether they may have other ambitions".[185] Mr Straw agreed, noting that "I think it is better if it is held by a senior figure although I can certainly think of people who could do it as their first appointment to a Cabinet and do it perfectly well."[186] He added that it was a matter of age and experience rather than ambition. He told us that "as I walked into the Ministry of Justice I did not abandon all ambition, but if you are at the top end of the age range of the Cabinet and you have been in the Cabinet … you are less likely to be gagging for further high office than if you have only just arrived."[187]

120. Another suggestion put to us was that the Lord Chancellor should once again be a member of the House of Lords,[188] or a figure entirely independent of government. This would not be practicable while the post is combined with Secretary of State for Justice (an issue which is dealt with in more depth later in this chapter). As Mr Clarke noted "It would be very difficult for a Commons Minister to act as the spokesman for a Lords Minister on some of the very hot-potato, tabloid-newspaper issues that day to day the Secretary of State for Justice is handling." He concluded "that it is more likely, I think, that in future it [the post of Lord Chancellor and Secretary of State for Justice] is going to be in the Commons than the Lords".[189]

121. We have discussed the qualities necessary for the Lord Chancellor. The criteria in Section 2 of the Constitutional Reform Act 2005, designed to ensure that a person with these qualities will be appointed by the Prime Minister, were widely regarded as ineffective.[190] As the Bar Council stated "Section 2 is so widely drawn as to be virtually meaningless".[191]

122. Lord Hope of Craighead said that, although the senior judiciary were concerned by the inclusion of 'any other experience', "the presence of the criteria is valuable. Presumably someone reads down the list, and you come to the let-out paragraph at the end—paragraph (e). I do not think politically that it is possible to change that now, but at least the list is there."[192] Lord Falconer told us that the criteria were inserted "in order that a signal should be given to the Prime Minister that you need somebody of special quality".[193]

123. Lord Woolf suggested that the Prime Minister should be required to state the basis on which the appointee satisfies the criteria under section 2.[194] Lord Judge disagreed: "I think that the Prime Minister giving reasons sounds effective, but what if they are daft reasons? What if they do not stand up to analysis? Is there going to be a judicial review of the Prime Minister's reasons for appointing the Lord Chancellor?"[195] We do not consider that such a statement by the Prime Minister would address the perceived weaknesses of the appointment criteria.

124. There is general agreement that the statutory criteria for appointing a Lord Chancellor are ineffective. However, any criteria set out in statute will either be so widely drawn as to be ineffective, or so tightly drafted as to restrict the Prime Minister's discretion to an unreasonable degree.

125. THE LORD CHANCELLOR SHOULD BE A POLITICIAN WITH SIGNIFICANT MINISTERIAL OR OTHER RELEVANT EXPERIENCE TO ENSURE THAT THE RULE OF LAW IS DEFENDED IN CABINET BY SOMEONE WITH SUFFICIENT AUTHORITY AND SENIORITY. IT IS NOT NECESSARY TO BE PRESCRIPTIVE: MORE IMPORTANT THAN AGE OR LACK OF AMBITION IS THAT THE PERSON APPOINTED HAS A CLEAR UNDERSTANDING OF HIS OR HER DUTIES IN RELATION TO THE RULE OF LAW AND A WILLINGNESS TO SPEAK UP FOR THAT PRINCIPLE IN DEALINGS WITH MINISTERIAL COLLEAGUES, INCLUDING THE PRIME MINISTER.

126. WE URGE PRIME MINISTERS, WHEN APPOINTING LORD CHANCELLORS, TO GIVE WEIGHT TO THE NEED FOR THE QUALITIES WE HAVE OUTLINED IN THIS REPORT, AND ABOVE ALL TO CONSIDER THE IMPORTANCE OF THE LORD CHANCELLOR'S DUTY TO UPHOLD THE RULE OF LAW ACROSS GOVERNMENT.

THE COMBINATION OF THE OFFICES OF LORD CHANCELLOR AND SECRETARY OF STATE FOR JUSTICE

127. The post of Lord Chancellor has, since 2007, been combined with that of Secretary of State for Justice. Shortly after this combination, we concluded that "the posts of Lord Chancellor and Secretary of State for Justice should continue to be combined in future."[196] Since then, concerns have been raised about the combination of these two roles, perhaps most notably by the Joint Committee on Human Rights which noted that "the Secretary of State for Justice is a political minister in a Government which has collective responsibility for its political views, while the Lord Chancellor, historically, had the different role of standing up within Government for the interests of the justice system." It concluded: "in our view, the Government's proposals on judicial review expose the conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice."[197]

128. This view—that there was an inherent conflict of interest between the duties of the Lord Chancellor and the responsibilities of the Secretary of State for Justice—was a common theme in our evidence.[198] Lord Woolf noted that "it is a problem, because whereas a [pre-reform] Lord Chancellor could position himself outside the normal ministerial role in relation to political issues that are deeply contested, it is much more difficult for someone who is both Lord Chancellor and Minister of Justice."[199] Of particular concern to critics of the combination of roles is the responsibility for prisons.[200]

129. The Howard League for Penal Reform stated bluntly that "it is plain to us that decisions concerning policy and budget cuts which will affect access to justice, be it through the provision of legal aid or changes to court fees, will inevitably present a very real problem for any Secretary of State for Justice who also holds the office of Lord Chancellor,"[201] while Bindmans LLP noted that "at the very least, there is a risk of a perception that the Lord Chancellor's responsibilities cannot be properly fulfilled, where they come into conflict with the political responsibilities of the Secretary of State for Justice."

130. These fears were dismissed by the current Lord Chancellor as "misplaced concern"[202]. He noted that "there is perhaps a belief out there that, if we still had a separate Lord Chancellor's Department looking after legal aid and the courts, the difficult financial decisions would not have had to be taken … That is simply not the case".[203] Mr Straw noted that conflicting priorities could arise "within a particular portfolio"[204], and that some of the areas about which concern had been raised, such as legal aid, had always been the responsibility of the Lord Chancellor, rather than the Secretary of State for Justice.

131. Indeed, several of our witnesses pointed to the advantages of combining the two posts. The Law Society felt there was a "clear synergy" between the two roles.[205] They noted that the responsibilities of the Secretary of State for Justice were likely to be held by "heavy-weight, high calibre, career politicians"; it would be beneficial for the duties of the Lord Chancellor in relation to the rule of law to be held by someone of that seniority, while those same duties would also assist the Secretary of State for Justice in administering the justice system.[206] Lord Phillips of Worth Matravers agreed: "if any minister is going to have the overriding obligation to uphold the rule of law and the independence of the judiciary, I think it should be the Secretary of State for Justice. If you divorced all his administrative functions so his only job was to uphold the rule of law, his word would not carry much weight."[207]

132. The important advantage that combining the two roles will have in ensuring a Cabinet minister of sufficient seniority holds the post of Lord Chancellor also illustrates the danger of separating the posts. Mr Grayling told us that "you might find that splitting the roles relegated the Lord Chancellor to a junior ministerial post in the House of Lords."[208] Dr O'Brien was blunt: he doubted whether a Lord Chancellor who was not also Secretary of State for Justice, "whether resident in the Commons or the Lords, would have sufficient political power to perform that role. He or she would simply be the annoying fly buzzing in other ministers' ears telling them things they do not want to hear and will end up doing anyway."[209] This disadvantage of splitting the roles would also apply to the creation of a Lord Chancellorship independent of Government, as suggested in some of our written evidence.[210]

133. WE RECOGNISE CONCERNS THAT THE COMBINATION OF THE OFFICE OF LORD CHANCELLOR WITH THAT OF THE SECRETARY OF STATE FOR JUSTICE COULD CREATE A CONFLICT OF INTERESTS AT THE HEART OF THE MINISTRY OF JUSTICE. HOWEVER, UPHOLDING THE RULE OF LAW REMAINS CENTRAL TO THE LORD CHANCELLOR'S ROLE AND IN PRACTICE THE OFFICE IS GIVEN ADDITIONAL AUTHORITY BY BEING COMBINED WITH A SIGNIFICANT DEPARTMENT OF STATE.

CONTINUATION OF THE OFFICE

134. As we noted in Chapter 1, the office of Lord Chancellor has been in existence for centuries. Some of our witnesses questioned whether, now that the office has been combined with that of the Secretary of State for Justice, a separate office of Lord Chancellor is still needed. It seems clear that the ceremonial functions of the post could be performed by another minister.[211] Some witnesses told us that it was already simply a Secretary of State role like any other: Dr O'Brien told us that, "Since 2003 the office has gradually come to mean little more than the name that is given to the Secretary of State for Justice when he exercises his functions in relation to courts and the judiciary. The Justice Secretary/Lord Chancellor does not behave substantially differently to conventional Justice Ministers that exist in other countries."[212]

135. There is a practical reason why the office should be retained. Unlike most other secretaries of state, who occupy a single post in statute (so that their functions may be transferred without primary legislation), the Lord Chancellor's role is specifically assigned to the Lord Chancellor in statute.[213] This is not confined to the Constitutional Reform Act; as Mr Murray told us:

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136. Our witnesses were clear that, beyond the practical difficulties of abolishing the position, the value of the office of Lord Chancellor lay in those aspects of the role that set it aside from other ministerial positions: the oath of office and related duties regarding the rule of law and judicial independence. Lord Phillips of Worth Matravers told us that, in considering whether the term Lord Chancellor was needed in the title, alongside that of Secretary of State for Justice, "I would say that it is not necessary any more. But that does not mean that that particular minister should not have precisely the same responsibility and duty to take the particular oath to uphold the rule of law and the independence of the judiciary. The Lord Chancellor's office is important at the moment because that is an oath that the Lord Chancellor takes in that capacity."[215]

137. The Judicial Appointments Commission gave us a similar reason for retaining the post: "the ministerial functions which relate to the appointment of judges should continue to be exercised by the Lord Chancellor rather than the Secretary of State for Justice. In large part this is because the Lord Chancellor (unlike any other Minister of the Crown) is required by legislation to swear an oath of office in which he undertakes to respect the rule of law, defend the independence of the judiciary and ensure the provision of resources for the efficient and effective support of the courts."[216]

138. Mr Straw argued that, if the post was entirely subsumed into the role of Secretary of State for Justice, then "it is just another Secretary of State job, you could not then have these oaths and so on. I know people can be cynical about tradition and so on, but there is a reason why this post has survived for such a long time, albeit through various transformations, which is to have a bulwark within the Executive against interference in the judiciary. I think that is a very important feature of a democracy to defend."[217]

139. THE OFFICE OF LORD CHANCELLOR STILL INCLUDES IMPORTANT CONSTITUTIONAL DUTIES AND RESPONSIBILITIES THAT GO BEYOND THOSE OF OTHER MINISTERS, AS REFLECTED IN THE CONSTITUTIONAL REFORM ACT 2005. WE RECOMMEND THAT THE OFFICE AND RESPONSIBILITIES OF LORD CHANCELLOR BE RETAINED.

140. THE MAINTENANCE OF THE RULE OF LAW IS AS VITAL NOW AS IT HAS EVER BEEN. WITHIN GOVERNMENT, THE LORD CHANCELLOR RETAINS A CENTRAL ROLE IN ENSURING THAT GOVERNMENT ACTS IN ACCORDANCE WITH THE RULE OF LAW. YET THOSE GUARDIANS OF THE RULE OF LAW OUTSIDE GOVERNMENT, AND PARLIAMENT IN PARTICULAR, MUST REMEMBER THEIR OWN DUTY IN THIS REGARD—TO SCRUTINISE THE ACTIONS AND POLICIES OF GOVERNMENT TO ENSURE IT GOVERNS IN ACCORDANCE WITH THE RULE OF LAW.