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The roles of the Lord Chancellor and the Law Officers Contents

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Chapter 1: Introduction

This inquiry

1.This report covers the evolution of the role of the Lord Chancellor following changes to the role in the mid-2000s, how those changes might have affected the complementary role of the Law Officers and ideas for reform of both. It does not consider, except incidentally, two other major changes brought about by the 2005 Act and related reforms: the speakership of the House of Lords and the creation of the Supreme Court.

2.This Committee has considered the roles of the Law Officers and the Lord Chancellor before. In 2007 the Committee set out the arguments for and against the proposed reforms to the role of Attorney General in the report Reform of the Office of Attorney General.1 In 2014 the Committee published The Office of Lord Chancellor.2

3.It is now eight years since the Committee last examined these issues. We were interested in how the roles had developed since and how they now interact, especially in light of a changing political culture. Since 2014 the world has gone through enormous changes, with a digital revolution facilitating populism and authoritarianism, and the rule of law appearing increasingly fragile. Controversies, including the compliance with international law of Part 5 of the United Kingdom Internal Market Bill in 2020 and the Northern Ireland Protocol Bill in 2022, and the Government response to the Daily Mail’s ‘Enemies of the People’ headline, have brought the responsibilities of the Law Officers and Lord Chancellor into focus. Questions have been raised about the support provided to the judiciary, the interaction of the constitution and politics and adherence to international law—we examine the roles of the Lord Chancellor and the Law Officers in this context.

Background

4.The Lord Chancellor and the Law Officers—the Attorney General, Solicitor General and Advocate General for Scotland—are, in different ways, the minsters of the UK Government with particular responsibility for the law.3 As the Lord Chief Justice recently said, the offices are “central to the administration of justice in England and Wales and of great antiquity.”4 The office of Lord Chancellor dates to at least the 11th century5 and that of Attorney General to the 13th century.6 The office of Solicitor General, only slightly less ancient, can be traced to the 15th century.7

5.Early Lord Chancellors had considerable administrative responsibility and influence, deriving in part from their position as Keeper of the Great Seal, and became the chief ministers of the Crown. Over time, the office gained judicial responsibility, the balance between administrative and judicial work varying through the centuries. Until the beginning of the 21st century the Lord Chancellor was a government minister and member of the Cabinet, a senior judge and head of the judiciary, and the presiding officer of the House of Lords. They had special responsibility in the Government for the maintenance of the rule of law and the independence of the judiciary, and latterly for constitutional affairs.

6.The office of Attorney General, having begun as a representative of the Crown in litigation, became, by the 17th century, the chief legal adviser to the Crown. By the early 20th century the Law Officers’ Department had been established, the Attorney’s rights to undertake private practice had been restricted and Attorneys General were often members of the Cabinet. No Attorney General has been a member of the Cabinet since 1928, though they were often—now routinely—invited to attend. The Law Officers Act 1997 enabled the Solicitor General to undertake all the functions of the Attorney.

7.The offices are different from other ministerial posts and their holders take special oaths.8 Their responsibilities for the law—and particularly the upholding of the rule of law—while also being ministers, place them in a special constitutional position.

Constitutional Reform Act 2005 and creation of the Ministry of Justice

8.In 2003 the then prime minister announced that the office of Lord Chancellor was to be abolished. The proposal was subject to significant political opposition, and significant practical problems. Although provision to abolish the office was included in the Constitutional Reform Bill in 2004, the bill was amended to preserve it. The resulting Constitutional Reform Act 2005 (“the CRA”) altered the office, alongside other reforms trailed in 2003. A Department for Constitutional Affairs was also established, replacing the Lord Chancellor’s Department.

9.The CRA fundamentally altered the role of Lord Chancellor, and the constitutional framework surrounding it, by:

• Replacing the Lord Chancellor as head of the judiciary in England and Wales with the Lord Chief Justice
• Enabling the Lord Chancellor to be replaced as Speaker of the House of Lords by a new office of Lord Speaker
• Creating a new Supreme Court, replacing the Appellate Committee of the House of Lords and removing the Lord Chancellor’s right to sit as its presiding judge
• Establishing the Judicial Appointments Commission and thereby restricting the Lord Chancellor’s role in the appointment of judges.

10.The CRA also put into statute the Lord Chancellor’s “existing constitutional role in relation to” the rule of law9 and their responsibility to uphold the independence of the judiciary.10 It created a new oath, that the Lord Chancellor would “respect the rule of law, defend the independence of the judiciary and discharge [their] duty to ensure the provision of resources for the efficient and effective support of the courts for which [they are] responsible.”11

11.Section 2 of the CRA sets out the qualifications for the office. Previously, Lord Chancellors were, by convention and through the nature of the role, qualified lawyers.12 The new Act restricted the appointment to a person who “appears to the Prime Minister to be qualified by experience,” setting out examples of relevant experience including legal experience, but also listing as a criterion “other experience that the Prime Minister considers relevant.”13 In removing the judicial aspects of the Lord Chancellor’s role the Act diminished the requirement for the office to be held by a lawyer, while section 2 did not restrict the appointment to lawyers. The first non-lawyer Lord Chancellor since 1672 was appointed in 2012: four of the 12 post-2005 Lord Chancellors were not legally qualified.14

12.A further major change took place in 2007, with the replacement of the Department for Constitutional Affairs with the Ministry of Justice. The new Ministry of Justice retained most of the responsibilities of the Department for Constitutional Affairs, while taking on the National Offender Management Service (i.e. prisons and probation) and lead responsibility for criminal law and sentencing policy from the Home Office.15 The offices of Lord Chancellor and Secretary of State for Justice have been combined ever since.

Office of Attorney General

13.The reforms of the mid-2000s did not formally alter the role of Attorney General.16 The Attorney General’s main functions were, and remain, as follows.

Legal advice and representation

14.The Attorney General is the chief legal adviser to the Crown, alongside the Advocate General for Scotland in relation to Scots law. This involves providing advice to the Government and on occasion to the monarch and Parliament. The Attorney sits at the apex of a large team of government legal advisers, including the Government Legal Department headed by the Treasury Solicitor, departmental lawyers and independent members of the Bar.

15.The Law Officers provide advice in the formation of policy and when specific issues arise. They are members of, or attend, Cabinet committees or sub-committees,17 including the Parliamentary Business and Legislation Committee, which considers legislation before its introduction in Parliament.18 Dr Conor Casey, Lecturer in Law, School of Social Justice, University of Liverpool, described the role of Government lawyers, including the Law Officers, as upholding the rule of law within Government by scrutinising policy decisions and draft legislation to ensure compliance with statutory vires, the Human Rights Act 1998 and international law, and also the avoidance of retrospective legislation.19

16.Routine legal advice is provided to the Government by in-house lawyers from the relevant department or the Government Legal Department, or commissioned elsewhere. The Attorney General’s Office referred to the criteria on when a Law Officer’s advice is sought put forward in 1953 by Sir Hartley Shawcross, Attorney General from 1945 to 1951: “legal difficulty, considerations of policy or public relations, or there being a large amount at stake.”20 The Ministerial Code says that “The Law Officers must be consulted in good time before the Government is committed to critical decisions involving legal considerations.”21 The original version of the Code from 1997 gave more elaboration, adding:

“It will normally be appropriate to consult the Law Officers in cases where:

(a)The legal consequences of action by the Government might have important repercussions in the foreign, European Union or domestic field;

(b)A Departmental Legal Adviser is in doubt concerning

(i)the legality or constitutional propriety of legislation which Government proposes to introduce; or

(ii)the vires of proposed subordinate legislation; or

(iii)the legality of proposed administrative action, particularly where that action might be subject to challenge in the courts by means of application for judicial review;

(c)Ministers, or their officials, wish to have the advice of the Law Officer on questions involving legal considerations, which are likely to come before the Cabinet or Cabinet Committee;

(d)There is a particular legal difficulty which may raise political aspects of policy;

(e)Two or more Departments disagree on legal questions and wish to seek the view of the Law Officers.”22

17.In 2007, under Prime Minister Gordon Brown, the Code was “tightened” and this extra detail was removed.23

18.The Law Officers occasionally represent the Government in litigation. For example, Rt Hon Jeremy Wright KC MP (then Attorney General) and Rt Hon Lord Keen of Elie KC (then Advocate General) appeared for the Government in the first Miller case.24 The Attorney and Solicitor have also continued to appear in unduly lenient sentence appeals.

Superintendence

19.The Attorney General “superintends” the Crown Prosecution Service, Serious Fraud Office and His Majesty’s Crown Prosecution Service Inspectorate.25 The Attorney appoints the heads of those bodies and has ministerial accountability to Parliament for them, but they operate largely independently, in accordance with framework agreements between the Law Officers and the respective heads.26

20.As expressed in written evidence from the Attorney General’s Office, the relationship between the Attorney and the Government Legal Department is different from that with the prosecution services. The evidence submitted in March 2022 when Rt Hon Suella Braverman KC MP was Attorney General, argued that the difference was that the “GLD’s functions do not necessarily require independence from departmental or ministerial control” and though there was a need for “legal advice to be objective and impartial in the sense of meeting both lawyers’ professional obligations and their obligations under the Civil Service Code” independence was not necessary as the function ultimately “exists solely to support the responsibilities of [instructing] ministers.”27

Other functions

21.The Attorney General has duties under the devolution legislation, primarily to consider whether bills passed by devolved legislatures are within devolved competence and to refer those they consider outside competence to the Supreme Court.

22.The Attorney also has several public interest functions, which the Attorney General’s Office described as:

“too numerous to list in full; the most significant are: considering whether to refer sentences to the Court of Appeal as unduly lenient; giving consent to prosecute certain offences; giving consent for an application to the High Court for a fresh inquest; and deciding whether to institute contempt proceedings.”28

23.The Attorney is, as a minister, accountable to Parliament for the work of the agencies under their superintendence. The ministerial function also encompasses shared responsibility for justice policy alongside the Lord Chancellor and the Home Secretary and sets general prosecutorial policy. These ministerial functions are distinct from the Attorney’s role in respect of legal advice and individual prosecutions.

Attempts at reform

24.Reform of the Attorney’s role was proposed as part of the 2007 Governance of Britain consultation.29 That consultation invited responses on whether the Attorney General should remain both a minister and the Government’s chief legal adviser; whether they should remain superintending minister for the prosecution authorities; whether their legal advice should be published; whether they should attend Cabinet; and whether their oath should be updated. These are all areas we explore in this report.

25.The consultation was followed by the Draft Constitutional Renewal Bill,30 which included provision restricting the Attorney General’s role in prosecutions and requiring them to produce an annual report. In an accompanying White Paper,31 the Government proposed that the oath of office should be reformed “to require the Attorney to respect the rule of law”, but not by statute.32

26.In the event, the resulting Constitutional Reform and Governance Act 201033 did not include any provision about the Attorney General. In a Written Ministerial Statement accompanying the Bill’s introduction, Rt Hon Jack Straw MP, then Lord Chancellor, stated:

“In the event, the significant, necessary reforms to the role of the Attorney-General are being achieved without the need for legislation. For example, the Attorney has reached a new settlement with the Directors of Public Prosecutions, the Serious Fraud Office and Revenue and Customs Prosecutions to improve relationships, guarantee prosecutorial independence while ensuring an appropriate degree of accountability and to improve transparency about the relationship, as reflected in the new protocol setting out the respective responsibilities of the Attorney and the Directors”.34

27.The protocol restricted the Attorney’s role in decisions whether to prosecute to those instances required by law and set out certain cases (involving parliamentarians, political parties and where the Law Officers had a conflict of interest) in which the Attorney would not be consulted. It also restricted the Attorney’s power to issue directions in respect of individual cases to those where there was a national security consideration.35 The protocol has since been superseded by the framework agreements mentioned above, which retain the key elements of the protocol and expand on them.

28.The then Lord Chancellor’s statement said that “the Attorney-General now only attends Cabinet when matters affecting her responsibilities are on the agenda.”36 This arrangement does not appear to have persisted: subsequent Attorneys General have said that they attended every Cabinet meeting.37

Evidence

29.We would like to thank all those who assisted our work by providing oral or written evidence. We heard from many witnesses, including several former Lord Chancellors and Law Officers. We would have liked to have heard in person from the incumbent Lord Chancellor and Attorney General but it proved impossible to arrange those sessions. In the case of the Lord Chancellor, sessions were scheduled on three occasions but, for understandable reasons each time, cancelled. It has not been possible to hear from the Lord Chancellor in time for the publication of this report, but we are grateful for his supplementary written evidence and look forward to hearing from him in person soon.

30.We also understand why it has not been possible for the current Attorney General, Rt Hon Victoria Prentis KC MP, to speak to the Committee in time for this report. Nonetheless there was ample time for her predecessor, Rt Hon Suella Braverman KC MP, to appear before us. We regret that the difficulty in securing the then Attorney General’s appearance led to its being scheduled so late in our inquiry that it was overtaken by events and cancelled following her appointment as Home Secretary. We remind the Government of the importance for accountability and scrutiny of ministers appearing before select committees in a reasonable timeframe.

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