CHAPTER 5: SUMMARY OF CONCLUSIONS AND
RECOMMENDATIONS
Chapter 2: The rule of law and judicial independence
141. We invite the Government to agree that the
rule of law extends beyond judicial independence and compliance
with domestic and international law. It includes the tenet that
the Government should seek to govern in accordance with constitutional
principles, as well as the letter of the law. (Paragraph 25)
142. Judicial independence is a vital element
of the United Kingdom's uncodified constitution. That its defence
is a core part of the Lord Chancellor's role is uncontested.
The Lord Chancellor must ensure that the judiciary are free
to act without undue pressure from the executive, that the executive
respects the outcome of court judgments, and that the legal system
is adequately resourced (Paragraph 32)
143. All ministers have a duty, reflected in
the Ministerial Code, to comply with the law. The Lord Chancellor
continues to have an additional responsibility in this regard.
(Paragraph 42)
144. The Lord Chancellor's duty to respect
of the rule of law extends beyond the policy remit of his or her
department; it requires him or her to seek to ensure that the
rule of law is upheld within Cabinet and across Government. We
recommend that the Ministerial Code and the Cabinet Manual
be revised accordingly. (Paragraph 50)
145. To clarify the scope of the Lord Chancellor's
duty in relation to the rule of law, we recommend that the oath
to "respect the rule of law" be amended to a promise
to "respect and uphold the rule of law". (Paragraph 51)
146. The duty of Lord Chancellors to ensure
that the rule of law is respected across Government has not changed
as a result of the Constitutional Reform Act. Carrying out this
duty has, however, become more difficult for post-reform Lord Chancellors
and more directly dependent on the personal authority and attitude
of the individual holding the office. (Paragraph 78)
147. The Law Officers' role in upholding the
rule of law has always been important. The changes to the office
of Lord Chancellor over the last decade have made it even
more so. As a result, we consider that it is imperative the Attorney
General continues to attend all Cabinet meetings, and that they
are adequately resourced not only in their role as legal advisers
to the Government, but in their capacity as guardians of the rule
of law. (Paragraph 79)
148. We recommend that the Law Officers give
due consideration to the more reactive role of modern Lord Chancellors
and ensure that the holder of that office is kept informed of
potential issues within Government relating to the rule of law.
(Paragraph 80)
149. A commitment to the rule of law is an essential
component of good government. The Government should ensure that
the responsibilities of those charged with upholding the rule
of law are clear and widely understood, and that they receive
the support necessary to fulfil those duties. (Paragraph 81)
150. The Lord Chancellor has never been
the sole guardian of the rule of law, either within Government
or more broadly. The importance of other guardians has, however,
increased in the light of the changes to the role since 2003.
Parliament in particular should be aware of its crucial role as
a body that can hold the Government to account to ensure that
it governs in accordance with the rule of law. (Paragraph 88)
Chapter 3: A constitutional guardian in Government
151. 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. (Paragraph 101)
Chapter 4: The future of the office
152. 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. (Paragraph 109)
153. 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.
(Paragraph 113)
154. 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. (Paragraph 117)
155. 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.
(Paragraph 125)
156. 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. (Paragraph 126)
157. 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. (Paragraph 133)
158. 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. (Paragraph 139)
159. 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. (Paragraph 140)
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