Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
My Lords, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Emergency Healthcare (Public Services Committee Report)
(9 months, 3 weeks ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Armstrong of Hill Top
That the Grand Committee takes note of the Report from the Public Services Committee Emergency healthcare: a national emergency (2nd Report, HL Paper 130).
Baroness Armstrong of Hill Top (Lab)
I thank the noble Baroness for being here to chair this debate; I know that this is an area in which she, too, has a strong interest. I apologise to her and to other members of the Committee, in that more people who were members of the Public Services Committee at the time of the report are not here. There is a rail strike today, which indicates that the House needs to look again at hybrid proceedings when there are events such as this at the end of the week that make it really difficult for Members from outside London to be here. If we want free speech and free expression, we should do whatever we can to enable as many people as possible to participate.
It seems a long time ago since we did this report. It is not that long, but I am now involved with others who are here in another Select Committee, which is looking at integration of primary and community services in the health service. All of that is relevant to today’s debate, but I will not go down that route today.
The Public Services Committee began this inquiry last September. It was the end of the summer, when things are supposed to be easy in the NHS, and everything was going wrong. The reports of what was happening were just horrendous, and the committee wanted to look in a more holistic way at might happen. Inevitably, NHS organisation, reorganisation and turmoil took precedence, but we did look at some of the work of services such as the fire service and police service. Both said that how they could help effectively needed to be clarified, and that they should not be expected to do mainstream health jobs. We had some fascinating discussions with fire service operatives, and some good examples were given from around the country—for example, the Hull district fire service providing a full service—but they need their terms of reference, which the Government are considering, to clarify what they can and cannot do. I hope the Government will take account of that. Of course, the police have now largely said that they will not do mental health crises emergency call-outs, which is raising all sorts of questions among community health services about what will replace that intervention.
As I say, we wanted to look at things holistically, but that ended up being quite challenging, and I know that the Government find that difficult, so I will concentrate mainly on the NHS. We looked at all the obvious things and the barriers people face when they seek to access A&E. One is ambulance response times, which I will say a little bit about later. Ambulance response times were longer than we had known before. The average in June 2023 was just under 37 minutes; this is a significant improvement on last year, but it is still twice what the standard should be. There has clearly been progress, but it is not good enough. Worryingly, this year, the figure in June was higher than in April and May. I am sure that the Government are thinking about that—they need to.
In June 2023, 108,000 people waited 12 hours or more in A&E; that is 8% of people going to A&E. That is better than last year, when it was more than 120,000, but it is substantially worse than the years leading up to that. In 2021, the number was just over 60,000; in July 2020, it was less than 10,000. I will say something more about the 12-hour wait later.
We became convinced as we did the report that patient flow was in fact the key issue. If you look at the demand side in GP services, in May, just under 18% waited for two weeks for their GP appointments. In mental health services, there is still a real problem, with too many people ending up in A&E needing constant attention, with no beds available. Users of community mental health services felt that they had not been able to see community services sufficiently in the last 12 months, and almost one third said that they had not seen mental health services often enough.
I will now turn to public health funding. We all know the problem: in too many areas of the country—including the north-east, the area I used to represent down the corridor—funding of public health services has been so significantly reduced that many local authorities feel that they are not fulfilling their potential. It has been cut by 26% in real terms since 2015-16.
There are real challenges in elective treatment. I could give many examples of people who are looking to be in hospital but, because their case is not an emergency, their treatment has been delayed or cancelled. I suspect that members of the committee have very real, live examples of that, as have I in my own family. It means that people turn up in emergency services because they cannot access other services.
We also outlined lots of supply challenges. The biggest, I suspect, are the discharge challenges. Far too many patients remain stuck in hospital longer than necessary, not getting discharged even if they are ready to be. The Government have announced a range of things, including a recovery plan for A&E generally in January this year. The NAO tells us that it is still too early to know whether that discharge plan is effective; it will be towards the end of year before we know that.
Social care is in the midst of this but, tragically, the long-awaited workforce plan—I have given the Minister a hard time before about how long we have waited for it—does not mention or deal with social care. A social care organisation, which I accept is a lobbying organisation, reported last week that there were fewer employees in social care last year than before. We should be increasing their numbers and the work they can do alongside the NHS in improving discharge and stopping people ending up in hospital.
We highlighted that the number of acute beds in hospitals has more than halved over the last 30 years. The Government now recognise that they need to increase bed numbers by 5,000, but this is still a huge challenge. We do not yet know how it will happen and, therefore, whether it will.
There are real accountability and governance challenges. There is also a lack of central vision. This is crucial. The Government do not seem to have a plan, other than to say, “We’ve now got the new ICBs and they will sort it for us”. None of the evidence we heard convinced us of that. ICBs must do their job, but they need to know what the expectations are and what they will be held to account for nationally. Our committee argued that this lack of vision meant that what a good emergency service looks like and what its major components would be was unclear.
We heard different stories about and from ICBs. The interim deputy chief executive of NHS Providers said that many people saw the solutions lying with ambulance care, but that sits outside ICBs at the moment. You need to be able to pull all the levers to have an effective outcome. We got a real feeling of risk aversion—A&E services refusing to accept patients from ambulances due to the number of patients in A&E, and care homes and schools calling for ambulances when they were not needed. There was a real mishmash of people’s expectations and how they were being responded to. There was very much a risk-aversion approach, such as 111 services escalating calls to ambulances when alternative care would have been more appropriate. Risk aversion is also an issue for NHS hospitals putting people back into the community, for obvious reasons.
So there is an opportunity to take that more systemic view through ICBs. However, this lack of clarity about the power of ICBs to make services take action means that it is still unclear who the person responsible for identifying an issue will be; also, ambulance services will work with and report to multiple ICBs, which therefore presents them with another huge challenge. The NHS gave us a fairly confused picture, but again, I do not really have time to go into that, because I want now to turn to the workforce.
There are serious shortages in emergency healthcare and ambulance care, and in other sections of the infrastructure which supports and enables good emergency access. I welcome the fact that the Government have now published the workforce plan, which addresses some of the issues we raised in our report. However, there is further still to go, and the Government need to focus on implementing the plan alongside social care.
Turing to the positives, on transparency, I would like the Minister to tell us how far the Government have got on the 12-hour wait. As he knows, we picked up that there was no real honesty with the public about the 12-hour wait, and the Government promised to rectify that and make clear exactly how long people were waiting. I wonder where that has got to now. There are important opportunities for collaboration and there is some really good practice, but how will the Government make sure that that is extended?
I thank everybody who worked on the report. The committee staff—Tom Burke, Claire Coast-Smith, Aimal Fatima Nadeem, Sam Kenny and Suzanne Mason—all made very important contributions and supported us enormously.
This is a life-threatening issue. We heard some terrible stories, and we need to know that we are going into this winter with more hope and preparedness, so that the public do not have to go through what they went through last year and we can assure them of a better service from the National Health Service and the Government.
The Lord Bishop of St Albans
My Lords, I thank the noble Baroness, Lady Armstrong of Hill Top, not only for chairing this committee and producing an excellent report but on now bringing it to your Lordships’ committee for us to debate. I declare my interest as president of the Rural Coalition and a vice-president of the LGA.
I associate myself with the noble Baroness’s concerns that a subject of such huge importance has so few people speaking on it. I understand the problems, but I encourage His Majesty’s Government, the Whips and so on to look at how we can give such topics the time they deserve.
I have long expressed my concern about healthcare in England, particularly in rural areas, so I read this report with great interest. I have seen the strain on emergency care in my own diocese of St Albans, which covers Hertfordshire and Bedfordshire. In Hertfordshire, category 1 ambulance calls—those reserved for the most life-threatening injuries—were responded to in just under 12 minutes, on average, well above the national average of seven minutes.
Rural areas have always faced unique challenges in providing care and recruiting and retaining healthcare professionals to care for a predominantly older population. Of course, people who live in rural areas accept that geographical factors mean that it will be more difficult. However, a number of issues particularly associated with rurality make the problem more complex, not least connectivity. In many areas where people rely on mobile phones and there is no coverage, delivering emergency healthcare is even more challenging. I hope the Minister appreciates the profound emergency healthcare challenges faced by rural areas such as those in my diocese.
As the report highlights, it is important for us to recognise that pressures on emergency healthcare are both a cause and effect of the strain on health services across the board. They are a cause because we know that the longer people remain on waiting lists, the more likely they are to acquire co-morbidities that compound the original underlying health issue, often making treatment more complex; and they are an effect because patients often access emergency healthcare because they feel they now have no other avenues to treatment. The squeeze on healthcare services across the board, including preventive and community healthcare, manifests itself in the kind of pressures on emergency services outlined so accurately and precisely in this report.
The Government have rightly recognised the severity of the problem in the NHS Long Term Workforce Plan, which refers to the need to increase training and retention of staff rather than relying on international temporary recruitment. Statistics from the British Medical Association show that 40% of junior doctors are actively planning to leave the NHS as soon as they can find another job, and many are planning to work abroad within the next 12 months. We see a similar story for nurses: more than 40,000 left the NHS last year. With an ever-increasing workload and stagnating salaries, there is no doubting the reason why so many professionals are leaving our health service. We hear regular reports that British junior doctors are being offered packages in places such as Australia that pay more than double what they can achieve if they stay in this country.
Given the profoundly challenging circumstances in rural areas—an ageing population and problems such as connectivity for emergency workers—it is essential that the Government’s response helps to tackle them. Will the Minister assure us that the Government’s response will be properly and fully rural-proofed as we look at how we respond to it? The Government need to increase investment in people. The report rightly notes the immense difficulty and stress faced by those in the emergency care profession, compounded by shortages across the entire health service. If we cannot encourage our healthcare professionals to stay, then it seems that, unfortunately, they will vote with their feet, as so many are doing. How do the Government plan to compete with the generous packages being offered from overseas?
Then, there is the question of how we can do more joined-up thinking. I was particularly interested to hear what the noble Baroness, Lady Armstrong, said about seeing through the whole process from start to finish and trying to work out how people move through the system, so that it can be done efficiently and effectively. Allied to that is the question of how the NHS and others are going to work with the third sector, with so many churches, community groups and medical charities being capable of offering non-urgent care support. We need to think about how we can relieve the pressure on emergency care described in the report, in order to ensure that patients get not just focused medical treatment but all the social support, friendship, follow-up and other things that add to the holistic approach to health. What discussions are His Majesty’s Government having with the third sector in this important area?
To conclude, I thank the noble Baroness and all those who worked on this committee and this report for this excellent and timely debate on emergency healthcare.
Baroness Morris of Yardley (Lab)
My Lords, I am also pleased to be able to contribute to this debate as a member of the committee. I pay tribute to my noble friend Lady Armstrong, who was the inaugural chair of the Public Services Committee and has led it through its first years. Indeed, this report was the last from the committee under her chairmanship. I overlapped with her only on this one report, but I could tell from the time I spent on the committee how much she had done to establish it as a very important committee in our House. I know that there have been a whole series of reports which will add to our debate and our consideration of some crucial issues facing society at the moment. On behalf of all committee members, I place on record our appreciation for the contribution she has made.
I am sorry that this debate is taking place seven months after the report was published. There was never going to be a queue at the door waiting to get in as the debate started, but I hope the appropriate authorities can take note of this.
Governments are always reluctant to use the word “crisis”, as lots of things flow from that. Our committee found that there was a crisis in emergency care, and we used that word. I think we produced sufficient evidence to say that there was a crisis.
Even if you do not take that point, it is interesting to look at the document published by the Government since then, the Delivery plan for recovering urgent and emergency care services, in which they describe what happened last winter and the state we are in. They said it was
“the most testing time in NHS history”,
that there were
“problems discharging patients to the most appropriate care settings”,
and that hospitals reached record occupancy levels. The document also says that patients were spending longer in accident and emergency departments and waited longer for ambulances, and that that has taken its
“toll on staff, who … work in an increasingly tough environment”.
The committee could not match the description the Government themselves gave of the state of the ambulance service and emergency services at key points during last winter. So, whether you want to use the term “crisis” or not, our joint starting point is that things were intolerable last winter and have been intolerable for quite a while. We are not confident that they are going to be any better this winter. To some extent, the challenge for this debate and for the Government now is whether they can use those experiences and the evidence we gave in the report to make sure that things are not as bad next winter and that we can move on.
Lots of things have happened since our report was published, and I want to refer to some of them. It is very difficult, given the time of year and the way the public debate moves on, to know exactly what progress has been made since our report was published in January. I know that some of the figures on waiting times for ambulances have got better. I do not know if that is because of the time of year or because of action the Government have taken. However, I noted with some concern the National Audit Office’s report from June this year. When it looked at recent performance, it concluded that patient access to services for unplanned or urgent care has worsened; that there is too great a variation in service throughout the country; that the NHS has not met operational standards; and that performance has worsened in terms of delays in transferring patients from one service to another.
That is where I think we are. There is joint knowledge and a shared platform of debate that there was a crisis last time, and some of the statistics were very worrying. The one bit of evidence we have from a third party—the NAO report—does not indicate that things are getting any better. The effect this has had on the public, communities and their confidence is well known. It is no exaggeration to say that people lost their lives because this service was not performing at a higher level.
I want to take six points from our committee which struck me, on reflection, go through them and invite a response from the Minister. These are the six areas that stuck most in my mind, and I would like some reassurance that progress is being made on them. First is the immense complexity and connectedness of all the different parts of the system. We talk a lot about the health service and social care and how they do not work together. However, when you look at the emergency services, it is not just those two that have to work together: it is the police and the fire service, and the attitude of the public.
That leads to the second point: it is very difficult to work out who has the ability to effect change. People want to change things. They want to change their bit of the service, but they cannot change other bits. What became evident during the committee’s deliberations is that there is no one leader who can solve the difficulty. That is a problem, but the system itself does not allow people to make changes that have to be made if they are to improve their bit of the service. There has been a really good example of that since our committee’s report was published: the decision of the Metropolitan Police not to attend mental health cases.
I know why the police have done that, because in the committee you would hear somebody tell you that some police officers are spending the whole of their shift sitting in A&E with a person who has mental health problems, whom they have been called to assist. I can absolutely understand why they have said that that cannot happen any longer. I do not believe for one minute that the head of the Metropolitan Police has not tried to solve the problem as well, but I suspect that he has concluded that he cannot get other bits of the system to shift or make the changes in social care, the local authority or the health service—he has to act unilaterally to protect the service that he is absolutely accountable for and responsible for delivering. That is just one example, but that has happened in the last few months. We find so many cases of that, where people knew what they wanted to do to make their bit of the service better but were powerless, because changes needed to be made elsewhere, and the structure that could have brought everyone together to make the changes just does not seem to be there.
My third point, and the point that the noble Baroness, Lady Armstrong, made, was that people are risk averse, and there is very little approach to shared risk. I was pretty appalled to find that some schools, as a matter of policy, called an ambulance every time a child had a head knock, even if the parents were there and were prepared to take their child to accident and emergency. I do not want to belittle the difficulty of taking decisions like that if you are a headteacher or a teacher, but something is wrong there, if mum and dad say that they will take their child to accident and emergency, and the school says that no, the policy is that they have to call an ambulance for every child who bangs their head. We heard similar stories in care homes with patients who had fallen. The public are risk averse to making decisions which on reflection, might perhaps be more sensible.
We see that with 111 services as well. The statistics show that the 111 person is more likely to say to go to the accident and emergency than they are anything else, because there is a risk-averse attitude there. With some of the targets, the attitude to risk is problematic. For those responsible for making sure that ambulances do not wait in the car park at the entrance to the hospital, the best thing to do is to get the patient into the A&E waiting room, because they have then met the target—but it has not solved the problem for the patient, who is now in the waiting room. Others want to get them out the other end, because their target is to get the accident and emergency casualty waiting room down to as few people in it as possible. So they push the patients out to somewhere else, where they wait to go into care or back into the community, and they have met their target.
There are so many instances where people behave in a way that shows that they are not connected to other bits of the service, and they are risk averse. They want to solve their bit of the problem and make sure they can show that their service is performing better with regard to targets. No one actually says, “Let’s put our risks together—let’s put it all together and let’s have some sort of target, which means that I in my bit of the system act in a way that helps you as well as me”.
The fourth point is that one thing that frustrated me, time after time, was that I sat and listened in the committee to the most wonderful pilots going on in different parts of the country. I thought, “Why have we got a problem? Why is anything wrong, because I have just heard the most wonderful example of what is happening?” Nobody knew why it did not happen elsewhere as well. Nobody knew who was evaluating it or who had the power to say that it should happen elsewhere, and that is a problem. So I say to the Government that, while I welcome some of the initiatives that they have announced in recent months—full service virtual wards, transfer of care hubs, and greater flexibility for clinicians—the key thing remains that they are all relatively confined things that are likely to bring about some success.
The key problem for me—and this is where I finish—is that, with the integrated care boards, who is going to make sure that someone can implement the plan that they have been charged with writing up? Could we do more so that the regulators actually make a judgment as to whether services are working together, as well as whether they are working for their own interests? Can the Minister perhaps reflect about whether he is absolutely confident that the people who need to make changes have the power to do so?
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Baroness, Lady Morris of Yardley, and to join others in thanking the noble Baroness, Lady Armstrong of Hill Top, for this report. I share the reflection that it is a great pity that there is no capacity for people to participate remotely, particularly given that there is a speakers’ list here, so it would be very easy, logistically, to facilitate. This debate does not have the potential difficulties of when there is no speakers’ list. I also join in with the comments about how long it has taken us to get a debate on this.
As others have said, the report came at a point of absolute crisis in emergency services, but there is no real evidence that the crisis has in any way abated. I did not originally plan to, but I will speak from a different perspective that might at first be surprising: the environmental impact of emergency care. The context is that yesterday, my office launched a policy briefing entitled, Eco-directed and Sustainable Prescribing of Pharmaceuticals in the United Kingdom. It was written by my interns, Julze Alejandre and Emily Stevenson, working with Paul-Enguerrand Fady. I acknowledge the financial support of the British Society for Antimicrobial Chemotherapy for that work.
I must admit that, in thinking about the report and the environmental impact of pharmaceuticals and medical devices, I have mostly thought about chronic conditions and treatment in the community and the great deal of discussion about the alternatives of using social and green prescribing—issues that do not apply to emergency care. However, I was absolutely inspired at the launch event yesterday by one of the attendees, a critical care consultant from a foundation trust in the north of England. They said, “Each day, I consider the environmental impact of the treatments that I give my patients in the ICU”. The doctor set out that that meant three steps, or principles: first, choosing the most environmentally friendly route for medical care, which means acknowledging that intravenously administering drugs requires more plastic packaging; secondly, minimising the amount of PPE used by opening only the PPE that is needed; and thirdly, demedicalising by trying to shorten the length of hospital stays where possible, which means less PPE and generally lower consumption of resources in hospital. The consultant told us that these environmental considerations are included in the doctors’ notes and discussed by the healthcare team during the patient handover.
That approach addresses something that we are starting to get some attention and focus on: the fact that, in England, 4% of our total greenhouse gas emissions come from the healthcare sector. There is the impact of plastics, which is increasingly acknowledged, and the pharmaceuticals going into the water supply.
Another of yesterday’s inspiring speakers was Sharon Pfleger from the One Health Breakthrough Partnership in Scotland, a partnership of the NHS Highland, the University of Highlands and Islands, the Environmental Research Institute and the University of Nottingham, which has a £100,000 UKRI Medical Research Council grant. This picks up the point that the noble Baroness, Lady Morris, made about joining up all the issues and all the healthcare bodies, as well as those not immediately related to healthcare, that collectively make up part of our healthcare system. We cannot afford to think, “Here’s the NHS that does healthcare, and everybody else does other things”. This applies in the case of the environment as well as in other things. Looking at the overall aims of the One Health Breakthrough Partnership, I see that it
“seeks to facilitate new knowledge sharing across organisational boundaries, raise awareness of the environmental impact of medicines, and develop novel and robust solutions to complex sustainability issues”.
That joined-up, complexity-systems thinking is an example of what we need to do.
I was reminded of an interview I did recently on LBC. We had been talking for some time about what might be described as the social determinants of health, and how environment helps determine people’s health and whether they will need the emergency care that is now so stretched—meaning everything from mouldy, cold homes to air pollution and all those other issues—when the presenter said to me, “I realised that I invited you on to talk about environmental problems, but you are talking about social problems too. They are all interrelated”. I thought, “Bingo! We have just had a moment of understanding”.
The point I really wanted to make is that, when we talk about healthcare and environment, emergency medicine probably looks like the most distant part—the part where it is hardest to think about the environmental impact. You have an emergency situation in front of you and you have to care for this patient. I think, however, that I have just shared with the Committee a really inspiring example of where individual leadership is really showing a way of operating differently. This is what we need to encourage and evolve. Consultants are, perhaps, seen to have the power to do something like that on their own ward; we need to empower people right across the healthcare system and more broadly to take the steps needed.
To pick up the point made by the noble Baroness, Lady Morris, there are so many good pilots. One of the great institutional problems in the UK is that we have funding for pilots, systems for funding new ideas and people who really clearly see the problem, and who can maybe make a difference in their local trust in their local area, but it does not get rolled out further.
We are the most centralised polity in Europe. Power and resources are concentrated in Westminster and Whitehall. We need to move to a system where the power and resources are held vastly more locally to create circumstances that work for local conditions.
Lord Allan of Hallam (LD)
My Lords, we are all grateful to the members and staff of the Public Services Committee for producing this excellent report and to the noble Baroness, Lady Armstrong, for introducing it. I want to explore five issues that arise from it.
First, I was very much struck by the comments in the report that the waiting times that we get for accident and emergency are calculated using a “dishonest” method. I recognise that the committee was quoting one of the people who had spoken to it. It seems to me that these statistics are so fundamental to our understanding of what is happening with emergency care that I hope the Minister can respond more fully on what is collected and how the data should and should not be used. I note that the noble Lord, Lord Harlech, is here; we have been together sitting through many days’ consideration of the Online Safety Bill and discussing the kind of transparency that we want from online companies. There, the maxim is “more is more”. The more data that we get about their performance, the better. The same should apply here. Certainly, we should be given as much data as possible about all the different aspects of waiting times as one goes through the health emergency care treatment path—the ambulance times, the wait times before you see a doctor in A&E, the wait times from seeing a doctor to being admitted and so on. Then we can make our minds up about whether it is effective. Today, I think we often get statistics that could accurately be described as misleading in the impression that they give.
The second issue that I picked up, which was absolutely fascinating, was a reference to the Frequent Caller National Network, which looks at people who make five or more emergency calls in a month or 12 or more over three months. I also remember an article from the Times Health Commission on 10 June. The journalist Rachel Sylvester had been out with the London Ambulance Service and reported that, in London, 4% of patients account for 22% of demand. The Frequent Caller National Network pointed to a number of reasons why we seem to be getting these frequent callers regularly and the numbers are not coming down. It talked about the lack of mental health support—something that has already come up in the debate and seems fundamental—the lack of primary care support and the lack of NHS system integration. The people manning 999 and emergency care professionals do not necessarily have access to the NHS systems—never mind any other systems—that they would need to direct someone to something more appropriate for them.
I am interested in the Minister’s response to the issues that were identified. Again, we have waited a while to debate the report—the committee produced its evidence last year—but it is very compelling, and I hope the Minister will be able to talk about some actions that have been taken.
Of course, for frequent callers, the real answer is that they can be helped to navigate to the most appropriate care for them. The right reverend Prelate the Bishop of St Albans made an important point about rural services, where, again, we must ensure that services of all kinds, whether mental health support, social care support or primary healthcare support, are available everywhere, otherwise people will default to calling 999 if the service is not there for them.
The noble Baroness, Lady Morris of Yardley, made a critical point about risk aversion. It has been pointed out to me that even if you, as the 999 caller, know— because you have the record—that you are 99% sure that an individual does not need an ambulance, the 1% stops you from directing that person to the service that is the most appropriate. We must have a grown-up discussion about this, otherwise everyone will call 999 and always get an ambulance and always go to A&E, and the service will break down. There must be a better way of thinking about risk than this.
Thirdly, it would be extremely helpful to have a progress report on the emergency care plan announced with great fanfare back in January. I note that Health Service Journal this week carried a quote from someone who said that the approach of NHS England in trying to deliver this care plan by reaching out to integrated care boards and others was like
“whipping the dead horse harder”,
which does not suggest that all is going well in the relationship between NHS England and those who have to deliver the plan. How would the Minister characterise progress on the plan and how confident is he that the capacity will be there for the winter of 2023-24 so that we do not see a repeat of last year’s meltdown?
Again, the noble Baroness, Lady Morris of Yardley, helpfully used the word “intolerable”, which is good because it reflects the public mood. The public in the United Kingdom are generally extraordinarily patient and respectful of the NHS because they believe that it is trying to do its best, but sometimes their experiences mean that even the most tolerant person feels that there is failure. That is certainly the situation we have got to with a number of areas of NHS care, but particularly around emergency care. Even the person most tolerant and respectful of the NHS feels at times that the service offered is intolerable and unacceptable.
Fourthly, we know that a key plank of the recovery plan is to deliver 5,000 more beds. There remain concerns that when the Government said that they would deliver more beds, that was all about surge beds in corridors and other spaces that are in fact unsuitable. I hope that the Minister can update us on the plan for beds so that when we reach the next winter surge they are there. Of course, the long-term solution is for there to be brand new and replacement hospitals but, yet again, we saw from the National Audit Office that the hospital-building programme is falling behind and will not deliver what was promised. I am interested in the Minister’s response to that report, which I think came out since we last debated the hospital programme. It says in terms that only 32 of the 40 hospitals will be delivered by 2030, and even getting to that 32 depends on everything going right in the programme. Sadly, as experience tells us, there is many a slip ’twixt cup and lip, and it will be extraordinary if this hospital programme does not also encounter issues along the way.
Finally, I wanted to raise again the issue of management capacity, which I flagged when responding to the workforce plan. It is an area that we do not talk about as often as we talk about doctors and nurses. I was going to suggest that I had an interest in this area as I once worked as a health service manager, but rather than using “interest” for these things that we once did years ago, the word “affinity” might be better. I have an affinity for people who work in health service data and health service management, who are trying to make the resources that we already have stretch further. This is one area where there seems to be significant scope for that.
However, this depends both on data being turned into information and on information being turned into action. It is very interesting to have a dashboard that shows you how bad things are, but the real value comes in taking that information and feeding it into process improvement. The noble Baroness, Lady Morris of Yardley, reminded us how difficult that can be when you have disjointed services. Somebody sitting there with a police, social services or health dashboard is fine, but the improvement process requires police, local authorities and health all to work together. I would be really interested to hear from the Minister where that capacity is coming from. It is hard work convening people and making cross-service improvements. I would like to hear from the Minister how capacity is being built into data analytics and change management to improve emergency and urgent care.
Finally, I will reflect on a point made by the noble Baronesses, Lady Morris and Lady Bennett, about “pilotitis”; we are good at creating examples of best practice but the real challenge is how to scale it once you have created it. I repeat a call we have made previously to the Minister that he should visit the laggards as well as the leaders and reflect on how we get those bits of the health service that are not so good up to the standards of the really good bits, which I suspect are where his officials mainly take him.
Baroness Merron (Lab)
My Lords, I join other noble Lords in paying tribute to my noble friend Lady Armstrong for her leadership on this very important report. I also thank members and staff of the House of Lords Public Services Committee for taking the initiative to launch this inquiry to investigate the barriers to accessing emergency services, which we have discussed numerous times in the Chamber and will I suspect, sadly, continue to debate. I am glad finally to have the opportunity to debate this important report. As my noble friend Lady Morris justified and reminded us—although she should not have needed to justify it—the committee used the word “crisis”.
Worryingly, the committee argued that there was no sign of an adequate plan or the necessary leadership to address the problems it had unearthed. I am sure that is a concern to the Minister. This is against a backdrop of dangerous waiting times which have meant some 5,500 more deaths in 2022 than we had in 2019. This debate is an opportunity to unpick the Government’s recovery plan, which I will come back to later. It is a step in the right direction, but it is not sufficiently ambitious to ensure that patients are not waiting longer than is safe and the ambition it does have is not sufficiently underpinned by substance.
Several noble Lords have referred to the workforce plan. It was indeed long overdue and still needs substance behind it to make the difference it promises. I highlight that it is not matched by a social care workforce plan, which will always cause a problem for the NHS workforce plan. The key findings of the committee’s report on social care referred to the finding that:
“Unmet need in primary and community care and low capacity in hospitals and social care has left the emergency health services gridlocked and overwhelmed”.
The committee also discovered that when patients are ready for discharge, as my noble friend Lady Armstrong highlighted, there are often waits for community or social care to become available, meaning that beds cannot be accessed by other patients. Demographic change means that this problem in social care is not going away and will get only worse.
We therefore have a problem of a lack of a joined-up approach. I particularly want to highlight that, because my noble friend Lady Morris rightly illustrated that the whole system, which needs to work together, does not work together to allow for positive change. She used a very good example of the Metropolitan Police not responding to mental health call-outs. She was extremely reasonable in how she described it and used one of the many connections that there are: the interface between the police and the NHS. There are so many more, such as the interfaces I have just referred to between social care and the NHS, and between rural and urban, as the right reverend Prelate referred to. I am sure we in this Room could come up with a whole list of interconnecting situations not being addressed in an interconnected fashion. Perhaps the Minister could tell the Committee what work is going on to address this. It seems to me that this is absolutely at the heart of it.
I am also struck that problems faced by the NHS are not exclusive to the NHS. The noble Lord, Lord Allan, referred to frequent callers. Frequent callers are an issue that many other parts of our services are trying to deal with—for example, social services and the DWP. My question to the Minister is: what work is going on across government to focus on dealing with this challenge, which does not recognise boundaries? Of course, people do not recognise boundaries when they make a call for help.
I am sure that the Minister will refer to a delivery plan for recovering urgent and emergency care services, so I have a few questions on that in anticipation of his reference to that point. The plan set out a number of ambitions and one was about patients being seen more quickly in the emergency departments. It gives a new target, which says that there will be further improvement in 2024-25, from the original target of 76% of patients being admitted, transferred or discharged within four hours by March 2024. Can the Minister give us something of a flavour of what further improvement we might expect?
Similarly, the same question applies to the ambition of ambulances getting to patients quicker. The Government have stated that their ambition is:
“Ambulance response times for category 2 incidents will decrease to 30 minutes on average over 2023-24, with further improvements in 2024-25”.
Again, what further improvements might we see?
Certain areas were focused on in the recovery plan. I have a few questions on that. First, in respect of improving discharge, what does the recovery plan’s reference to “strengthening discharge processes” mean in practice? Is this new metric in place currently? What is that new metric and what is its predicted impact?
On funding commitments, there is a commitment of £150 million to build 150 new facilities to support mental health urgent and emergency care services, which, with my simple mathematical approach, means £1 million per facility on average. Are these really new facilities—a question raised similarly in respect of so-called new hospitals? If they are being built anew, how much is the expected cost of running them and is there a commitment to that funding to do so?
NHS Providers made some interesting comments, including that funding needs to be available to deliver change. It also talked about rising demand and persistent workforce shortages, because they challenge targets. I absolutely agree with my noble friend Lady Armstrong that the key enabler for achieving targets is improved patient flow. That runs throughout the whole of this report.
On ambulance trusts, there is a reference to a number of ambulance services—this might fall into the category of good practice to be rolled out elsewhere—seeking to increase the proportion of calls that are closed as “hear and treat”, where there is an appropriately trained member of staff at the call centre to deal with things over the phone. What progress can we expect to see in order for this to increase, and does the Minister consider this a way of dealing with the many challenges?
Finally, my noble friend Lady Morris mentioned the NAO report, which was extremely timely. She referred to a number of concerns raised by the NAO. I will not repeat them, but they bore out the point about the need to improve patient flow. The NAO talked about considerable variation in service performance and access between regions and across different providers, thereby highlighting inequality. As the right reverend Prelate reminded us, a part of that is the challenges faced by rural areas. The NAO also made the point that these various challenges pre-date the pandemic. Will the Government look at the NAO report alongside the committee’s report?
We will see, of course, whether winter pressures are going to be dealt with adequately. This will be an indication of whether the Government’s current plan is going to be helpful. However, my final question to the Minister is, what is his assessment of how the winter will look? I do not want us to get to the stage the committee alerted us to: that when we get to winter, we will have the same problems, only worse. The committee has done an excellent job in giving advance warning, and I hope the Minister and his department will take heed.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
First, I add my thanks to the noble Baroness, Lady Armstrong, and all the contributors to the report. It was a thoughtful and constructive report, just as today’s debate has been. I thank noble Lords for that.
Probably one of the benefits of debating the report now, a few months later, is that we have had an opportunity to learn some of the lessons from last winter. I will try to reflect those in my reply. We have also had the opportunity to take on board the evidence from the committee’s report and, as the noble Baroness, Lady Merron, mentioned, the NAO—and, I hope, to reflect quite a few examples of best practice, which I will try to take your Lordships through.
As has featured so much in this debate, I completely agree that this is all about flow. I will try to respond by talking through the flow, because we all agree that that is the vital component.
Of course, the first step of the journey in terms of the flow, as a few noble Lords have said, is demand. We know that as many as 50% of the people going into A&E do not need to be seen there. To me, the first step is how we manage demand and make sure that we treat people in the right place. Of course, that comes in two parts, the first of which is making sure we have sufficient primary care in place, because we know people that often turn up in A&E because they feel that they cannot get the necessary GP appointment. The emphasis we are putting on our primary care recovery plan is very much part of that, as is the direction of travel for the long-term workforce plan—investing much more in primary care and prevention, and having that emphasis versus treatment in hospitals, which is the wrong end of the telescope to be always looking through.
Also we want people to use 111. There will be a complete reset of 111, seeing it as a real navigation tool. Again, as noble Lords have heard me mention a number of times, when we relaunch the app in September, that will be a very important feature, so that people can use the 111 app to establish whether they really need to go to A&E, or whether there is a better place for them to be treated. The other side of this is to establish whether it is appropriate for someone to call 999 and whether they need to be conveyed to A&E. It is about having the right treatment in the right places, and it is all about the “falls” ambulance service, which it is now the responsibility of every ICB to supply. We know that sometimes, you can rectify the situation there and then, set someone right and make sure they are okay, and they do not need to be conveyed to hospital.
It is also about making sure that we have experienced mental health handlers in ambulance services and somebody in the control centre trained in mental health who can help. As for steps in the right direction, we are starting to see the numbers being conveyed go down, which is of course what we want. Whereas 58% of people were being conveyed to A&E a couple of years ago, the current figure is 52%. Clearly, there is more that can be done.
The point that the noble Baroness, Lady Morris, and the noble Lord, Lord Allan, made about the risk-averse nature was absolutely spot on. I shall not pretend that we have proper answers to that, but we need to have a grown-up conversation about it, because we all have very good examples to give. The hope is that the 111 navigation I referred to can help to address that issue, but the human attitude to risk is also a factor.
I turn now to the supply side, response and the ambulances themselves. We are putting more resources into 999, and we are investing in 800 new ambulances. A vital part of that is the discharge hubs for ambulances, so that they are not waiting in the car park with their patients and can instead get back out on the road as quickly as possible. As we know, that is all part of the UEC plan.
Crucial in all this and in managing flows—this links to the point made by the noble Lord, Lord Allan, about data and process improvement—are the flight control systems. As I think I have mentioned before, one of the first hospital visits I ever did was to Maidstone, where they had a fantastic flight control system, managing everything in real time. You knew whether the ambulance was there and whether a person was likely to need a bed; the system looked straightaway at finding that bed and managing the person through the system. What impressed me was that it addressed head-on the often risk-averse nature of clinicians. Amanda Pritchard herself explained the situation to me. She said, “If I were a doctor talking to you, Nick, I’d be saying, ‘I’m pretty happy with how you’re doing, but I’m just going to keep you in one more night to be sure.’” However, when that clinician is armed with real-time data and knows that ambulances are coming and there are people with much greater need of a bed than me, they can make the clinical decision that I am 99% probably going to be fine, and another patient needs that ambulance much more. That is an example of real-time data being used by clinicians, and we are rolling that out as we speak to make sure that it is in place for the winter in 16 trusts. I know that 16 is not 120, but it is a good first step towards that, and I hope we will see improvement.
Carrying on in the flow journey and coming to the beds themselves, we are on target to have a real increase of 5,000 beds in place for the key winter period, as per the question from the noble Lord, Lord Allan. In addition, 10,000 virtual ward beds will be available, with the intention of treating about 50,000 patients per month. That will strengthen everything we are trying to do in terms of the back door, the flow and, as mentioned by many noble Lords, the social care element.
We have started to see the impact of all the things we are talking about. The investment that we are putting into social care is starting to have an impact. As for discharge, right now, we are seeing 2,300 fewer beds blocked, for want of a better word. There is still some way to go; as noble Lords will remember, the target is 13,000, but there has been progress towards that. Our action in terms of the extra money is about learning the lesson around getting the discharge fund out early, instead of suddenly getting to January and thinking, “Oh, we’ve got a problem”. A lot of the social care providers have talked about getting it out early so that they can then plan in advance. Those are all things that we are doing towards that aim. Of course, as many noble Lords have mentioned, underpinning all this is the long-term workforce plan, to make sure that we have cover in the appropriate areas.
Best practice more generally was mentioned in the report and by many noble Lords, and I agree that it is often an issue. We do not have a problem with pilots—I am sure that many noble Lords have heard the quip that the NHS has more pilots than British Airways—but the issue is adoption. I have mentioned a couple of examples of that. We now have tiering in place. The performance of hospitals in each area of UEC is looked at and specific plans are put in place with the leadership to address the tiering. There has been some good progress there, but I agree that, of all the things we need to do, that is definitely a work in progress. On that note, the noble Lord, Lord Allan, will be pleased to know that I am spending the summer visiting hospitals. After the last couple of weeks and those coming up, I will have notched up another 15 or 20 on my visit list. I am definitely trying to get out there.
I really appreciated the thoughtful contribution of the noble Baroness, Lady Bennett. She talked about the environmental impact, and I must admit that it made me think about it in a different way. The NHS recognises that it has a role to play in this. I want to give her a proper response because I was struck by what she said and appreciated her sharing that.
The noble Baroness, Lady Armstrong, mentioned the publication of figures on 12-hour waits. We have been publishing them since February 2023, but there is an understanding of the need for complete transparency in this, as mentioned by the noble Lord, Lord Allan. I know that this is something we are trying to achieve.
The right reverend Prelate the Bishop of St Albans mentioned the rural response. We are looking at each ICB to make sure that they are responding with plans that look after all the needs of their area and where they need more help. We know that it is often hard to recruit people to some of those areas, so there is the possibility of these special incentive payments in order to recruit people to them. As ever, if I run out of time and do not manage to answer everything, I will follow up with a detailed letter.
“Frequent flyers” have been mentioned a couple of times. I saw a very good example the other day of one of the best practices we want to roll out. Redhill is taking its top 1% of “frequent flyers” and getting upstream with them by proactively going out to visit, screen and check them. That has resulted in them needing 30% less treatment. What struck me, and as noble Lords have mentioned, is that one of the first experiences I had as NED in DLUHC’s forerunner was the troubled families programme, which I thought was an excellent example of trying to look holistically at the problem. I wonder—I am wondering out loud with your Lordships—whether we need to look at that more holistic approach for some of these cases; that is one of my takeaways.
As for the NAO report on the NHP, I am still very confident about the 40 new hospitals. The NAO report talked about the original list of 40 but ignored the fact that we have brought in the RAC hospitals. It says that of the original list of 40, we are committing to only 32 by 2030. That is absolutely correct, because we have brought in the RAC hospitals on top of that which were not previously on the list. It is 40—but it is not the same 40 hospitals. That is what the NHP was pointing out, but I think all of us here today would agree that the RAC hospitals were clearly the priority which should have been brought into the list.
The £150 million is new and is a separate part of the budget which I look after as part of the whole capital programme. It will be subject to bids from the hospitals, which need to make sure that they have the revenue to do it.
To conclude on the question on the assessment: yes, I do think there will be improvements next year. Is it going to be challenging? In all honesty, I think it will. I am not going to pretend that there will be one leap and we will be there, but we have a number of measures in place through which we will see step-by-step improvement next year, and, I hope, reflect a lot of the points made in today’s debate on the report.
Baroness Armstrong of Hill Top (Lab)
My Lords, I thank everyone who has been involved today. There are lots of issues that have come up, but I hope that the Minister understands that we saw this as a national emergency. I do not meet anyone now, who, if they begin to talk to you about the health service, does not talk about this as a crisis—being able to see their GP, or getting access to any professional care and reassurance. I could now go into a whole raft of things which he has not mentioned about what we did on “frequent flyers” 15 years ago, and with the group that is the most prevalent: homeless people. We had very clear ways forward, which have all gone.
So, there are issues and lessons in the past. However, the thing the Minister did not address, which I hope he will think about, is whether the Government and Ministers are thinking about what we mean by good emergency care. What should it look like? What should the public therefore expect, and what should the health service—the ICBs, or whatever the structure—be responding to in terms of what good emergency care should look like?
There are huge issues here. This is essentially about the ability of the public sector in its largest window to respond to people’s concerns about whether they will get care when they need it, at the time they need it, and where they need it.
On that basis, I am grateful to everyone for their contribution and I beg to move.
Lord Chancellor and Law Officers (Constitution Committee Report)
(9 months, 3 weeks ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Drake
That the Grand Committee takes note of the Report from the Constitution Committee The roles of the Lord Chancellor and the Law Officers.
Baroness Drake (Lab)
My Lords, in January this year, the Constitution Committee report into the roles of the Lord Chancellor and the law officers was published. All inquiries have their context. Since the committee’s last report in 2014 which examined these issues, the Government’s commitment to the rule of law has been called into question; the then Lord Chancellor’s lacklustre defence of the judiciary in the wake of the Daily Mail’s “Enemies of the People” headline has been heavily criticised; and the global rise in authoritarianism and the impact of the digital revolution on democracy have imposed threats to a rules-based global order.
The rule of law is the common thread which links the distinct constitutional positions of the Lord Chancellor and the law officers: the Attorney-General, Solicitor-General and Advocate-General of Scotland. It is the only constitutional concept with a presence in Cabinet consideration supported by statute, courtesy of the Lord Chancellor’s duties under the Constitutional Reform Act 2005.
The Act does not define the principle of the rule of law but its fundamental tenets are set out by Lord Bingham and are well understood. Lord Bingham’s formulation was that
“all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”.
He expanded on this formulation with eight principles which are set out in the report. Those principles point to an important element of the rule of law: that it is not simply rule by law. The law itself must conform with the fundamental concept of justice.
Our constitution requires that the Government act according to the rule of law: that Ministers understand its key principles and consider it to have primacy over political expediency. The Lord Chancellor and the law officers have special responsibilities for its maintenance: they take special oaths; their duties, while also being Ministers, place them in a special constitutional position; and they are among the chief guardians of the rule of law.
The eighth principle in Lord Bingham’s definition states:
“The rule of law requires compliance by the state with its obligations in international law as in national law”.
This conception has been politically resonant in recent years. The committee reported that the Government had, at that point, twice knowingly introduced legislation in Parliament that would breach the UK’s international obligations, contravening Lord Bingham’s eighth principle. In the case of Part 5 of the United Kingdom Internal Market Act, the Government admitted doing so. In the case of the Northern Ireland Protocol Bill, the Government failed to produce a credible legal justification for doing so.
Parliamentary sovereignty means that Parliament is able to legislate in this way. This does not alter the Government’s responsibility to ensure, to the best of their ability, that international obligations are adhered to. They should refrain from knowingly inviting Parliament to legislate contrary to the UK’s obligations. Parliament is ultimately responsible for the form of any legislation passed, but preparation and introduction of government legislation is an executive action.
I turn to the role of the Lord Chancellor. The CRA fundamentally altered the role of the Lord Chancellor and the constitutional framework surrounding it, including replacing the Lord Chancellor as head of the judiciary in England and Wales with the Lord Chief Justice. It put into statute the Lord Chancellor’s existing constitutional role in relation to the rule of law. 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.
The Lord Chancellor’s responsibility for the rule of law is not limited to the maintenance of the justice system and the independence of the judiciary. They have a role which, as a full member of the Cabinet, goes beyond that of the Attorney-General to ensure that rule of law issues are defended and understood by government. The committee was concerned that their oath does not adequately reflect the Lord Chancellor’s role and recommended that it be amended to explicitly include their duty to uphold the rule of law.
In 2007, the Lord Chancellor’s role was combined with that of Secretary of State for Justice, so acquiring a wide range of policy areas in addition to duties as regards rule of law and judiciary independence. Some commentators suggest that this has undermined the Lord Chancellor’s ability to fulfil their core duties by giving them distracting or conflicting responsibility for prisons. Others argue that the budgetary responsibility for the Ministry of Justice, including the Prison Service, increases their authority in government. The advantage of separating those responsibilities is not clear, particularly in the light of the disruption caused by machinery of government changes. We recommend, however, that a new Prime Minister embarking on a more comprehensive reorganisation of government might consider separation at that point.
The noble and learned Lord, Lord Burnett of Maldon, the Lord Chief Justice, pressed the case for further consideration in comments made at the recent Lord Chancellor’s swearing-in ceremony. At his annual session with the committee, he said:
“It is time to look at it calmly and rationally … and simply to ask the fundamental question of whether the current system is serving the rule of law, the independence of the judiciary and the administration of justice generally as it should be”.
Does the Minister agree with the noble and learned Lord, Lord Burnett?
Judicial independence is a vital element of the United Kingdom’s uncodified constitution and defending the judiciary against abuse is a core part of the Lord Chancellor’s role. The Daily Mail’s “Enemies of the People” headline and the then Lord Chancellor’s response to it at the very least caused alarm within the judiciary and damaged trust. In 2017, the committee asked the right honourable Elizabeth Truss about her response. She argued that senior judges could speak publicly about what they did and appeared to criticise their reticence to do so. She added:
“Where perhaps I might respectfully disagree with some who have asked me to condemn what the press are writing, is that I think it is dangerous for a government Minister to say this is an acceptable headline and this is not. I am a huge believer in the independence of the judiciary; I am also a very strong believer in a free press”.
The noble and learned Lord, Lord Reed of Allermuir, President of the Supreme Court, advised the committee that he had made an effort recently in judgments,
“to spell out what the constitutional relationships are … That has been a response to criticism, because it was evident that people did not understand our role”.
Lord Hodge, Deputy President of the Supreme Court, added that,
“it is very important that we do not enter the fray in the face of political criticism, and we leave it to the Lord Chancellor, if necessary, to defend us in the context of defending the rule of law”.
Criticism of the content of a judgment is acceptable; targeted personal criticism that unfairly impugns a judge’s impartiality or inflames public sentiment against the judiciary is not. In such cases, the committee firmly believes that a Lord Chancellor must intervene promptly and publicly. For the judiciary to feel secure in its duty to decide cases without fear or favour, it needs a Lord Chancellor who is willing to defend it.
The CRA did not require the Lord Chancellor to have a legal background. At the time of the report, only six of the 11 post-2005 officeholders had a legal qualification. The five Lord Chancellors preceding our report spent an average of less than 14 months in office. We would expect a Lord Chancellor normally to be a senior legal figure commanding the respect of the legal community and Parliament. However, in the final analysis, character, intellect and commitment to the rule of law are the most important attributes for a Lord Chancellor to possess.
The responsibilities of the law officers touch on the rule of law in various ways. Our report focused on their role as legal advisers to the Government. On the lawfulness of government action, government lawyers, including the law officers, currently operate on the basis that action may justified if a respectable legal argument can be found that is lawful. The concept of a respectable legal argument is found in the Government Legal Department’s guidance to government lawyers. An updated version was published on 2 August 2022 and the then Attorney-General elaborated on her expectations of government lawyers in a series of tweets.
The existence of a “respectable legal argument” as set out in the guidance and elaborated on by the then Attorney-General could sometimes represent a very low threshold for authorising legally uncertain action. The validity of the respectable legal argument depends on an uncertain threshold in the Attorney-General’s guidance—the level at which an argument becomes respectable. The guidance explains that this is an argument that could be properly put before the court but also refers to an absence of such arguments being “rare” or “exceptional”. It is unclear whether this suggests that the threshold is so low that an argument will almost always be found or that the Government would not expect to be contemplating legally dubious action. Public confidence in the Government’s commitment to the rule of law demands that any threshold is meaningful and aligns with an ethos of genuinely seeking to comply with the law and that a decision by Ministers would not be based solely on a calculation of legal inconvenience.
Decisions to authorise armed conflict require greater certainty, and merely a “respectable” argument in this context is a fig leaf and undermines the trust of the public and particularly the military. It was therefore comforting to hear the current Attorney-General tell the committee in recent evidence that,
“the Government have extra duties as a litigant before the courts”,
including the “duty of candour”, and
“a duty to advance proper arguments”.
However, we shall have to see how this develops in practice, and the concept may yet require further elucidation.
The law officers are senior legal advisers to the Government. They are Ministers and Members of Parliament. Depending on the function, varying degrees of independence are required. Their main duty as senior legal adviser requires a high degree of independence from the Executive. Their responsibilities for legal advice and individual prosecutions are non-ministerial and not subject to collective responsibility. There is great value in the law officers being politicians. It provides them with an understanding of the political context and bolsters the authority of their advice; as MPs, they are accountable. However, it is necessary to balance political status with rule of law functions. Former Attorney-General Suella Braverman KC confirmed this view when she told the House of Commons Justice Committee in 2020 that the officeholders’ primary duty lay with the rule of law above party interest. In the same session she went on to say that,
“I am a member of the Cabinet and I subscribe to collective responsibility. I am an elected politician. For me, the political thread that runs through this role is vitally important”.
In evidence to the committee, the current Attorney-General said,
“although I have other, sometimes competing, considerations—I have, for example, duties to my constituents … duties to my party, and duties to the Government, of which I am a member—I definitely feel, particularly in this role, that there is no question, but that my duty to the court comes first”.
It is vital that law officers recognise that they are different from other Ministers. Key aspects of their role require independence from party politics and government priorities. Public confidence in their impartiality must be retained and they should refrain from making public statements that damage that confidence.
In recent years, Attorneys-General have been appointed with less legal experience than was previously the case. We recommended that codification of law officers’ duties would improve confidence in their role, and that the Ministerial Code and the Cabinet Manual be amended to clearly define those duties, including identifying which are subject to collective responsibility and which should be conducted independently of government. Given the differing conceptions of the rule of law and the duties of the Lord Chancellor and the law officers that have politically resonated in recent years, can the Minister say whether, in the updating of the Cabinet Manual currently being undertaken, it will be amended to define clearly the duties of the law officers? I beg to move.
Lord Garnier (Con)
My Lords, I am delighted to follow the noble Baroness, Lady Drake, and thank her not only for her comprehensive opening remarks and for the committee’s report but for inviting me to give evidence to the committee last year. It is a very balanced report which, if I am right, underlines the importance within our constitution of the roles of both the Lord Chancellor and the law officers in protecting the rule of law. The noble Baroness was entirely right to remind us of the recent occasions when that has broken down. I am also delighted to see the noble Lord, Lord Hennessey, in his place, because it means we can benefit from his wisdom this afternoon, and also because, I hope, it suggests that his health has been restored to him. I look forward to hearing from my noble friend the Minister and from other noble Lords speaking this afternoon.
At the risk of doing something unusual, I will talk about myself. I am by no means the only lawyer here, but I believe I am the only person here who can claim membership of the former Solicitors-General club. Long ago, an Attorney-General said that being Attorney-General was the worst job in government and being Solicitor-General was the best. Both have their upsides and downsides, but I have a certain pride that I held an office in the 21st century that was held in the 18th century by my direct ancestor William de Grey. I have inherited his gout but not his intellect: he had what we nowadays call a stellar chancery commercial practice at the Bar and, although in his final years his hands were riddled with gout, preventing him from holding a quill, he was able to give extempore judgments as Lord Chief Justice after long and complex trials that stand the test of time to this day.
Shortly after my appointment in 2010, I was showing off to the then Lord Chief Justice, the noble and learned Lord, Lord Judge, that de Grey had been successively Solicitor-General and Attorney-General from 1763 to 1771, under five Prime Ministers. After that, I told him, de Grey became Lord Chief Justice of the Common Pleas. The noble and learned Lord smiled engagingly and gently reminded me that some apparent precedents are easily distinguished upon their facts.
Before I return to the subject of law officers, I agree with the current Lord Chief Justice, the noble and learned Lord, Lord Burnett of Maldon, who said earlier this week at Mansion House—reflecting some of the remarks made by the noble Baroness, Lady Drake, a moment ago—that:
“It is my belief that a Lord Chancellor’s primary interest should lie in nurturing the long-term health of the Courts and Tribunals, the legal system and the independence of the judiciary”.
If I had my way, I would return to the Lord Chancellor’s duties doing the things that the noble and learned Lord mentioned. Some would say that the ship carrying that sort of Lord Chancellor has sailed, never to return. I disagree. If it can be changed in one way, it can be changed in another way.
Government departments are frequently repurposed. It simply requires the political will to do it. I would release the Lord Chancellor from the prisons portfolio and the expenditure responsibilities that go with being Secretary of State for Justice, save those connected with the administration of justice. The Lord Chancellor does not need to be an elderly lawyer devoid of ambition; our current Lord Chancellor is, after all, young—at least from where I am looking—but by no means the youngest there has been. He is a very able lawyer, bright and enterprising, and a member of the former Solicitors-General club. Whoever it is, they should be someone with sufficient calibre and character to hold their own in and be listened to with respect by the Cabinet—and someone who does not feel the need to ring up Downing Street for permission to support the judiciary. Elizabeth Truss’s response to the committee, as cited by the noble Baroness a moment ago, was inadequate. I agree with the assessment of the noble Baroness of what one needs in a Lord Chancellor.
In my evidence to the Constitution Committee last year, I said that one of the things I have worried about over the last several years is that the fellowship of lawyers and Members of Parliament, between the judiciary and the Government and the judiciary and Parliament, has gone. We no longer speak the same language. When I took one of the many recent Lord Chancellors to dinner in my inn, they felt like they were going into a foreign country. Not so very long ago, the Lord Chancellor not only would have known most of the people there but would have appointed many of the judges in the room. There was a shared constitutional understanding about their separate roles: the role of Parliament, the role of the Executive and the role of lawyers and the judiciary. That has gone.
It is a great pity, and it discourages members of the Bar and solicitors from entering public life. By that I mean not just those who have law degrees or those who are called to the Bar or admitted as solicitors or advocates in Scotland; I mean those with High Court and appellate practices, men and women of standing within the legal professions who command the respect, if not always the agreement, of the judges they appear before. These people are discouraged from coming into the House of Commons. Why give up a good practice? Why swap all that for the likely inability to continue your practice and, associated with that, the public obloquy that goes with being a Member of Parliament in an era of social media? I know plenty of people much younger than me who would make excellent Members of Parliament, excellent Ministers and excellent law officers, but they will not come anywhere near Parliament because they see it as poison. The consequence is that, although we may from time to time find lawyers of sufficient experience fit to be law officers, it is becoming increasingly difficult.
I was lucky enough to have a London-based practice, which required me to travel no further than the Royal Courts of Justice on the Strand, so I could maintain it to a reasonable level while a Member of Parliament. However, for a criminal barrister with a circuit practice, nowadays it is either Parliament or practice but not both. In 1992, when I first got in, the Whips kindly told me that I could not have two passports: I was either at the Bar or I was a Member of Parliament. I ignored them. But when, for example, my noble friend Lord Clarke of Nottingham was first in the House of Commons, he was in court in Birmingham during the day and in the Commons in the evenings. My late noble and learned friend Lord Rawlinson of Ewell told me that, when he entered the House of Commons in 1955, he was told by the Whips that he was not expected to be present until late afternoon and that, if he did come in, it would be assumed that he had no practice.
More than 40 years ago, Lord Rawlinson, a former Solicitor-General and Attorney-General, led me in a very long libel action that gave us plenty of time to get to know each other. He told me that, when he was appointed Solicitor-General in 1962, the then Prime Minister, Harold Macmillan, said, “Remember, you are the last of the Crown officers who remains a Member of the House of Commons”. He then gave him a learned seminar on the history and constitutional role of the law officers. It was made clear that, as Solicitor-General, his first duty was to the Crown, his second was to Parliament and his third—and it was only third—was to the Government of which he was a member. He was told that the Attorney-General is the principal agent for enforcing legal rights and is required to intervene when the public interest, not the Government’s interest, is affected. Sir Hartley Shawcross, one of the great Attorney-Generals, said that
“although the Attorney-General is a member of the government he has certain duties which he cannot abdicate in connection with the administration of the law, especially the criminal law”.
Of course, along with the DPP, the Crown Prosecution Service and other prosecution agencies such as the Serious Fraud Office, the Attorney-General and the Solicitor-General are responsible for criminal prosecutions as part of their quasi-judicial, independent role. Although Dominic Grieve and I made a point of going to court, for example to prosecute in contempt cases and to appear in criminal appeals that had nothing whatever to do with the Government or in the European Court of Human Rights and the European Court of Justice to represent the United Kingdom, we wished that we could have done so more often. I think that we appeared in court a good deal more than both our immediate predecessors and those who came after us.
More recently, the law officers have appeared in court only rarely and most often in unduly lenient appeals, but this was an important part of our duties that had nothing whatever to do with our political existence. Neither of us found it difficult to separate ourselves into our respective functions as politically aware but apolitical law officers on the one hand and party-political Members of Parliament on the other. Having a foot in both camps made us more useful advocates and advisers in a way that a Civil Service lawyer could not be.
Mr Cameron appointed me Solicitor-General in 2010 during a three-minute telephone call. Had he had the time to think about it, I am sure that he would have agreed with Macmillan. I certainly tried to keep Harold Macmillan’s advice to Peter Rawlinson in the forefront of my mind when I was Solicitor-General.
To many Ministers and Members of Parliament, the law officers are either mysterious, barely known creatures or an inconvenient reminder that the law of the land applies to them. Like lawyers in private practice, law officers cannot talk in detail about their work, which is confidential to their client—the Government. However, nor should they just say “no”; they should try to be imaginative and help the Government navigate through their difficulties. Their power, if they have any at all, lies in speaking truth unto power and in resignation. The law officers are more like submarines than the ships of the line in the Cabinet: you know that they are down there somewhere, unseen and unheard, quietly going about their business patrolling the murky waters of Whitehall, but, if they surface and their concerns or disagreements with the Government become known to the wider world, either the Government are in trouble or they are.
It is the fate of the law officers, if they behave as law officers and restrain themselves from making excessively political speeches, to be seen by their parliamentary colleagues as part of some mysterious priesthood, out of touch with the cut and thrust of political controversy. Their offices are off Central Lobby, well away from those of the departmental Ministers behind the Speaker’s Chair, and they cannot show off about their work because it is largely confidential. However, they are not vestal virgins or Trappist monks. They are active constituency MPs or legislators in one House or the other.
Lord Davies of Gower (Con)
Can I ask the noble and learned Lord to bring his speech to a close?
Lord Garnier (Con)
I am just doing precisely that. The law officers have party-political allegiances and accept collective government responsibility. Their offices and that of the Lord Chancellor are not bad because they are old; they are old because they are good. So long as we can encourage good lawyers from all parties and all three jurisdictions to come into Parliament—as we actively should—these offices should remain to serve our constitution. Let us therefore work tirelessly to restore that fellowship between the law and Parliament, which has been lost, and do both institutions a favour.
Lord Thomas of Gresford (LD)
My Lords, what a delight it is to see the noble Lord, Lord Hennessy, in his place. I have followed his wise counsel on many occasions, and it is great to see him back—not least because he was a very effective member of the Constitution Committee, even though he was at the other end of a television link.
As a member of the Constitution Committee, I first express my thanks to the noble Baroness, Lady Drake, for her calm, careful and considerate chairmanship of the committee, on this issue as on others. I am grateful to the clerk, John Turner, and his team for their invaluable work in putting the thoughts of the committee together in a compelling report.
I want to focus my remarks upon unfinished business: the dual role embodied in the one person of Lord Chancellor and Secretary of State for Justice. I am pleased to find myself again on the same side as the noble and learned Lord, Lord Garnier. This issue was very firmly kicked into the long grass by the Constitution Committee. In paragraph 186 of the report, we concluded that the advantages of separating the two roles were not clear and that we were not in favour of making changes at this point in time, having regard to the burdens inherent in any major machinery of government change. However, we recommended that a new Government, or a Prime Minister embarking on a reorganisation of government, might wish to consider or at least contemplate removing responsibility for prisons from the Lord Chancellor’s remit.
I do not think anyone on the committee wished to resurrect the Lord Chancellor of old as Speaker of this House or as head of the judiciary controlling the appointment of judges. His department had its problems in that regard in the old days. I met an old friend and colleague of mine a week ago. We took silk on the same day in 1979. Some years later, he discovered that, according to his personal but secret file in the department of the Lord Chancellor, he had fought eight general elections as a Liberal candidate, which was not really an advantage for judicial preferment. Unfortunately, his press cuttings had been mixed up with mine. It was not, in those pre-digital days, a perfect system.
Things changed in 2003 when the Lord Chancellor’s Department became the Department for Constitutional Affairs. In 2006, the appointment of judges became the responsibility of a new Judicial Appointments Commission. The Department for Constitutional Affairs morphed into the Ministry of Justice in 2007 and took over responsibility for prisons from the Home Office. Thus, the administration of courts, its staff and its estates merged with the administration of prisons.
In a speech on 24 May last, on the occasion of the swearing in of the latest Lord Chancellor—the excellent and able Alex Chalk—the Lord Chief Justice, the noble and learned Lord, Lord Burnett of Maldon, who has been quoted already many times, said:
“The functions of Lord Chancellor in a modern age might be thought enough to keep a minister fully occupied. The original concept of a Department for Constitutional Affairs did just that. But then along came prisons, bringing with it an obvious potential conflict of interest and problems themselves enough to consume the energies of a superhuman. That marriage may not have been made in heaven. When political breathing space allows, the time may well have come for the role of Lord Chancellor to be looked at again”.
The reason given by a number of witnesses to the Constitution Committee in the course of this inquiry for maintaining the joint responsibilities for courts and prisons in the hands of one Minister was that, unless the Lord Chancellor were given a significant spending department, he or she would have no clout in the struggle for funds from the Treasury. I defer to the experience of the former Lord Chancellors who appeared before us, but the fact is that both the court system and the prison system, which do need money, are starved of resources. I can put it no better than the noble and learned Lord, Lord Clarke of Nottingham, who told us in his evidence:
“The present Lord Chancellor has the misfortune of presiding over a department both the large chunks of which are in a pretty dire state—worse than I can recall for years ... In both these particular cases, you have a really dire problem of trying to get resources applied to tackling the problem against a background of economic crisis when the public finances are in a dire state”.
The noble and learned Lord, Lord Clarke, was nevertheless the advocate of no change, as was Mr David Gauke, on the basis of the “clout” reasoning, but having “clout” has not prevented the criminal Bar going on strike for lack of funds, the ceiling of the court in Hereford’s magnificent Shirehall collapsing or the general crumbling of our famous Assize Courts and indeed more modern courts. Nor has it prevented the shortcomings in staff, of which I have often spoken, in the large and modern Berwyn prison near Wrexham, my home town. Alex Chalk opened the new Fosse Way prison in Leicestershire two weeks ago as part of the Government’s £4 billion programme to create 20,000 new prison places. He had clout enough to lock people away—I mean, he is part of a Tory Government—but increasing room for prisoners must surely impact on sentencing policies and the courts: build it, and they will come.
Meanwhile, the Chief Inspector of Probation, Mr Justin Russell, wrote in his 2023 report on serious fraud offences:
“It is very concerning that assessments for the risk of harm a person on probation may pose remain inaccurate, incorrect, or incomplete. It is clear that reduced staffing levels within local services continue to have an impact on the quality of work we are seeing, both in these serious further offence reviews and the findings from our local inspections. Once again, I call on HMPPS to ensure services have the staff they need in order to manage every person on probation actively and effectively to monitor any risk of reoffending”.
Rehabilitation is not a priority compared with building prisons. On bread-and-butter issues, today we learned that the MoJ missed a statutory deadline by six months for dealing with intestate estates, in a time of inflation.
To my mind, certainly as to the mind of the noble and learned Lord, Lord Garnier, and others, the role of the Lord Chancellor is not to be a nuts-and-bolts mechanic but, as we have described in the report, to be the guardian of the rule of law: the one person of experience, judgment and standing who can say to a Prime Minister, “No, your policy is unlawful”. What we have seen under this Government is unlawful Prorogation, the unlawful United Kingdom Internal Market Act and now the Illegal Migration Bill, described yesterday by the United Nations High Commissioner for Refugees, Volker Türk, as
“contrary to prohibitions of refoulement and collective expulsions, rights to due process, to family and private life, and the principle of best interests of children”.
That is the current unlawful way in which this Government act.
The Lord Chancellor is now a diminished figure. It is not surprising. The noble and learned Lord, Lord Burnett, pointed out that Alex Chalk is the seventh Lord Chancellor he has served alongside in his six years as Lord Chief Justice. There have been 13 Lord Chancellors in the 20 years since 2003. Before then, there had been 13 Lord Chancellors in 64 years. In former days, it was a final destination job to close a distinguished career. Now it is but a stepping stone, with its independent role of guardian of the rule of law marred by hopes of preferment to a more important Ministry.
So, there it is in the long grass. I hope a new Government will recognise, as the noble and learned Lord, Lord Burnett, said, that the administration of justice is one of the building blocks of society, and that courts and prisons each require the focused energies of a single Minister to tackle their separate problems.
Lord Howell of Guildford (Con)
My Lords, I join other noble Lords in congratulating the noble Baroness, Lady Drake, on her skilled chairmanship of the sessions of the committee that gave birth to this report. It was not an easy task at all. I also echo strongly the words of welcome to the noble Lord, Lord Hennessy. It is marvellous to see him again. Although we have both long since been rotated off the committee, we worked together on earlier reports. That was a real honour and a pleasure, and something to keep in my memory. I greatly look forward to what he has to say in a few moments.
My contribution will focus not so much on the role of the Lord Chancellor and the law officers in upholding the rule of law—on which we have already heard some wise words—as on the first section of the report, which interestingly analyses what the rule of law really means today, and to what that rule extends.
First, I add briefly my agreement with the report’s finding that the Lord Chancellor must be a massively credible figure and the pillar not only in advising the Cabinet what is or is not constitutional and robustly defending the judiciary but in ensuring that no one is above the law and that it applies equally to both rulers and the ruled. That fundamental point seems to have escaped the comprehension, for instance, of the autocrats in today’s world, particularly the Chinese leaders, who often assert indignantly that of course the law applies to the people—but not to the leaders of the Government or the all-powerful Chinese Communist Party. That is the big geopolitical dilemma we all face.
All this begs the key question for us, which the report bravely faces in its first few pages, of what exactly the rule of law means and, especially, what it means in an international context, where other parties outside our national judicial space may not be playing quite the same game as we are. As one witness to the committee’s inquiry put it,
“One person’s legal nicety is another person’s rule of law”.
Other witnesses talked about the rule of law as a “protean”—presumably meaning “evolving”—concept, or, in one case, as being “somewhat nebulous”. There is also the dilemma, put to us by several very senior legal figures as witnesses, that when it comes to what some deem our international legal obligations, Parliament can legislate to the contrary, and since the will of Parliament is the law of the land, it must take precedence in the enforcement of the law in the courts.
The gospel to which many legal minds seem to return in untangling this dilemma—and to which the report itself returns—is the opinion of the late Lord Bingham, whose views get a whole half-page box in the report. Tom Bingham was pretty unequivocal about the rule of law applying just as much in the international legal order as in national domestic law. Others were more doubtful about that and that identity, arguing that international law raises quite different and changing issues. Personally, I share their doubts perhaps a little more strongly than the report consensus does.
It seems obvious to me that where one side in an international agreement or treaty is a foreign power or institution which then bends or even flouts the spirit of the agreement or treaty, or interprets it in unexpected ways, the other side—meaning us—has every right to alter its stance. Where dispute machinery exists, as in Article 16 of the EU withdrawal treaty, plainly, that should be the first port of call. That is obvious. The Vienna convention on treaties—which does not get much of a mention—makes allowance for this, in Article 60 and possibly Article 62 as well, if the dispute machinery fails to get a constructive and satisfying consequence, or in some cases is simply disregarded, as, for example, the Chinese nowadays often do.
In these circumstances, it seems to me that a unilateral response, even if temporary, to a unilateral move by another party may well be justified. Frankly, I am sorry that we did not go deeper into those kinds of circumstances. Moves by the UK Government such as the famous—some claim notorious—two clauses tacked on to the internal market Act, which were deemed to be in breach of UK treaty obligations, seemed to be assumed from the start to be “legal sins” rather than moves in an unfolding and wider drama. I know that that will not have the support or agreement of many colleagues. This all requires more careful thought before rushing to judgment.
The report both begins and ends its summary by emphasising the vital link between upholding the rule of law and the whole health of our modern democracy. That means being open-eyed and honest not only about the unfolding meaning of the rule of law but about our liberal democracy and how in the digital age it is evolving rapidly in response to the revolutionary change in the way people and institutions relate—indeed in all relationships, from the humblest, the family, up to the highest level of international exchange.
Democracy is not in decline, but it is certainly under attack. We must attend to what Alexis de Tocqueville called “the errors of democracy” if our rule of law is robustly to uphold democracy’s health as a better performer than the authoritarian alternatives. That is surely better than just standing by and letting democracy’s obvious errors and weaknesses grow or complacently assuming that it all works fine and needs no defence or adaptation.
Warning against that dangerous tendency is one more major task for a truly influential Lord Chancellor at the heart of the Government and the Cabinet but also at the heart of our independent judicial system—he or she is the bedrock—but that is clearly a task for another day and, maybe, another report.
Lord Hennessy of Nympsfield (CB)
My Lords, I thank noble Lords for their welcome back; it is an undiluted pleasure to be with you all again. It is funny what one misses. There is serious business, of course, but being a Member of this House is the most agreeable form of adult education the world has ever seen, and when it comes to providing weapons-grade gossip, it has no equal in any Parliament that I have ever come across.
Any nation that wishes to claim for itself the much-prized title of an open society has to meet, nourish and cherish a hierarchy of needs. Right at the top are the rule of law and regular elections conducted in a free and fair manner. In our country, so seriously do we take the rule of law that we keep a man or woman at every Cabinet table to incarnate it and to defend it through thick and thin in the person of the Lord Chancellor. As my noble friend Lady Drake has emphasised already, no other principle has a shop steward in the room to represent it at Cabinet meetings. If a Lord Chancellor fails in his or her duty of care, especially the defence of the independence of the judiciary, we feel, rightly, seriously let down at best and truly alarmed at worst.
Of all the senior posts in the Administration, the lord chancellorship must at times be a real short-straw draw of a job, for there will be occasions when your colleagues are itching to cut a corner, awash on a dopamine high or flushed with the righteousness that can befall those who think they have a special insight into the minds of the British people, unlike those tenacious human rights lawyers or the bewigged Inns of Court-polished smoothies sitting on the judicial benches nitpicking away at or, even worse, sabotaging the mandates of elected Ministers. I parody of course, but not entirely, for the Lord Chancellor lives by the light of an oath solemnly sworn, an oath for all seasons, with an overriding duty of speaking truth unto power in every circumstance.
The last great service Tom Bingham, the late Lord Bingham of Cornhill, did for us was to author a classic work on the rule of law in 2010. It was as if he stood at our shoulders as your Lordships’ Constitution Committee went about its work on the inquiry we are discussing this afternoon. Witness after witness praised it as the modern template for a rule of law country. For me, Lord Bingham’s thoughts and words help to explain why a society that lives by the rule of law is utterly different from one that does not. Perhaps my favourite passage in his book is the section where he cites the best-known encapsulation of the principle delivered by Thomas Fuller in 1733:
“Be you never so high, the law is above you”.
Lord Bingham wrote,
“If you maltreat a penguin in London Zoo, you do not escape prosecution even if you are the Archbishop of Canterbury”.
In case of any of your Lordships may have misheard what I have just said, I am not suggesting that any Archbishop of Canterbury, living or dead, has ever had such an encounter with a penguin, and nor, I am sure, did Lord Bingham.
The rule of law is a principle for all of us to live by, all of the time. As the noble Lord, Lord Finkelstein, put it on BBC Radio 4 on 11 June this year,
“the rule of law depends on enormous universal acceptance”.
People in political and public life need a string of rule of law alarm bells strung around their cortex. Somewhere in the minds of everyone engaged in the professions of Government, and the law in particular, there needs to be a bell tower ready to peal out a tocsin of warning when the rim of the rule of law is being approached by some new policy, plan of action or draft statute. Such a capacity should become innate, a crucial and permanent part of their political consciousness. For living up to the conventions and probities of the British system of government is very much a state of mind, given the absence of a formal written constitution. That is why we have various codes, ministerial and Civil Service, and the Nolan principles of public life. That is why we have Lord Chancellor’s oath, and that is why we need a Prime Minister’s oath as an aide to keeping all of the decencies and conventions alive and flourishing—but that is a subject for another day.
Lord Sandhurst (Con)
My Lords, it is a true pleasure to follow my friend the noble Lord, Lord Hennessy, who, like me, is a Bencher of Middle Temple. I declare my interest in the register, as chair of research for the Society of Conservative Lawyers, and I welcome this committee’s thoughtful report.
Historically, as we have heard, the Lord Chancellor and law officers have had special responsibilities. Lord Chancellors have had a special role in ensuring that their Cabinet colleagues adhere to the role of law. They sit in Cabinet; the Attorney-General, on the other hand, is not a member but attends Cabinet. The Government website describes the Attorney-General as the “chief legal adviser to the Crown”. That carries a heavy responsibility.
We are fortunate that the current Lord Chancellor has been a serious practitioner. He will properly understand the judges’ role in our unwritten constitution and the need to defend them against ill-considered abuse and commentary. As we know, sadly that entirely passed the notice of one of his non-legal predecessors. But we cannot undo the past. Today, there are many fewer serious lawyer politicians in either House, so there is a practical reason why it may be hard to appoint a lawyer as Lord Chancellor and Secretary of State for Justice. The committee and the outgoing Lord Chief Justice have suggested that prisons might be removed from the portfolio. I do not suggest that is a bad idea, but I am not convinced it will necessarily help with the problems with which we are truly concerned. It is not only because what would be left would be a small department. Put simply, it will not restore the authority of old. We need to look elsewhere for a parliamentarian to protect the rule of law, and we must do so.
We do not have a written constitution. We rely on the Crown in Parliament as the Executive, together with Parliament itself and the judiciary, each knowing where each stands and its respective role and, importantly, that each must not overstep the lines. Each of these three actors must observe their invisible boundaries. Recent events have stretched that understanding to their limit. I need only refer to the decision to advise the late Queen to prorogue Parliament. It is not the point whether the Supreme Court was right in strict constitutional theory to hold the prorogation unlawful. What is plain is that the Executive, the Crown, sought by fiat to render Parliament impotent. I ask noble Lords to think of this: if throughout the Supreme Court judgment, one substituted for the words “Prime Minister” the words “King James I” or “King Charles I”, would the court’s critics still find the decision questionable? This constitutional gambling was followed by the internal markets Bill. That led to the resignation of a distinguished Lord Advocate, my noble and learned friend Lord Keen, who was here a moment ago.
It is clear that the Executive must be constrained from overstepping important boundaries. These things matter; politicians must understand that. Our constitution and Parliament are not playthings for Prime Ministers. I do not have a complete answer, but it will not lie just in future Lord Chancellors, notwithstanding their statutory duty. If they do not properly understand our constitution, in the way that decent lawyers do, as some have not in the past, how can they attempt effectively to uphold the relevant law? So, it is with the law officers that our protections must rest. Here, I interject a personal note. James Mansfield, my four-times-great-grandfather, was like my noble and learned friend Lord Garnier, Solicitor General and later Chief Justice of the Common Pleas. He was also one of those who represented Somerset, the slave, and achieved his freedom—so he knew something about the rule of law and proper principles.
First, I agree with the committee that the concept of a “respectable legal argument” needs firming up. It is one thing for the Government to litigate a case in the English courts, having been advised that the prospects are weak—that is not improper—but how low should Government be free to go? They are not an amoral, commercial client. Nor are they necessarily wrong to act when the advice given by an Attorney General is that a proposed step might breach a treaty—and I emphasise “might”. While legal advice should ordinarily remain confidential and privileged, in matters of international law the Attorney General’s determination on the lawfulness of government action in relation to a treaty can provide an important legal constraint—or not, as the case may be.
Importantly, because advice on such an issue will not be tested in the courts—at least not till long after the event; it is not like advice which leads to one going into litigation. So the Attorney-General must be particularly mindful of the solemn and constitutional duty to advise on such questions objectively and impartially and, in my view, free to explain that decision to Parliament, which has a legitimate interest if a treaty is, or may have been, broken. Indeed, I suggest that the Attorney-General should be obliged to confirm to Parliament that the advice was given that this was not a deliberate knowing breach of treaty. Furthermore, and perhaps even more seriously, when it comes to going to war, government should act only if it is confident that this is the right course. Our Armed Forces, and in particular their commanders, must be confident that, in case of armed conflict, they are not in the wrong.
To conclude, I will make some points in summary form. As my noble and learned friend Lord Garnier just explained, law officers must be Members of one or other House of Parliament and answerable to it. They should be well-established practitioners. We can look at provisions such as seven years’ or 10 years’ practice; I will not go into the detail now.
To strengthen their role, the statutory duty currently imposed on the Lord Chancellor to defend the rule of law should be extended to the law officers, and the oath taken on appointment updated to reflect this situation. The law officers should also have to appear once a year before the Justice Committee of the House of Commons. The current powers given to a departmental Select Committee to send for persons should in this respect be put on a statutory footing of compulsion.
Next, an Attorney-General, while of course continuing to attend Cabinet, should not be a member of the Cabinet—there must be that element of detachment—nor should they be a member of a Cabinet committee that is not clearly related to legal or criminal justice issues. They should not be a pure politician.
Finally, law officers should not engage in media briefings on a range of government issues. Given the short time available, I leave things there.
Lord Norton of Louth (Con)
My Lords, I very much welcome this considered report, building as it does on earlier reports of the committee, not just on the role of the Lord Chancellor and the office of Attorney-General but on other constitutional issues, to which I shall refer. The report is thorough and balanced.
None of these commendations applies to the Government’s response, which no speaker so far has mentioned; there may be a reason for that. It is, regrettably, not untypical of some of the government responses we have had to committee reports. Where the report entails no action on the part of government, the Government agree with it; where there is a recommendation for change, the Government either disagree or deflect responsibility elsewhere. Indeed, the Government’s response reminds me of an episode of “Father Ted” in which Father Jack is coached to respond to difficult questions by saying, “That would be an ecumenical matter”. In the Government’s response, the equivalent is, “That would be a matter for the Prime Minister”. The response says:
“Ministerial appointments are a matter for the Prime Minister”,
and
“These, along with tenure … are all matters for the Prime Minister”,
at paragraph 9. Paragraph 13 says:
“It is ultimately the Prime Minister who has overall responsibility for the constitution”.
Paragraph 14 says that
“it is entirely for the Prime Minister to determine where constitutional responsibilities should sit”.
Paragraph 16 says:
“Decisions around Law Officer appointments are for the Prime Minister”,
and paragraph 22 says:
“Amendment of the Ministerial Code … is a matter for the Prime Minister”.
The Prime Minister, then, has ultimate responsibility. The Government say, at paragraph 12, that they see greater strength
“in having a number of senior Ministerial leads on discrete constitutional matters, all answerable to the Prime Minister”.
That position is stated but no justification is offered for it. Indeed, the Government now appear to have departed from it. Last month, I tabled a Question asking
“which member of the Cabinet has overall responsibility for constitutional affairs and upholding the constitution”.
My noble friend Lady Neville-Rolfe replied on 26 June:
“The Deputy Prime Minister holds ministerial responsibility for constitutional policy, with support on matters relating to the constitution from a wider ministerial team within the Cabinet Office and across Government”.
So there is now a senior Minister, other than the Prime Minister, with responsibility, which is to be welcomed. The Government have departed from the position they took in March.
The only problem is that I cannot find anywhere on the public record, other than in my noble friend’s Answer, the fact that the Deputy Prime Minister has responsibility for the constitution. It is not in his list of responsibilities on the Government’s website. It is obviously not in the List of Ministerial Responsibilities, which has not been updated since December. Last week, in answer to another Question of mine, my noble friend Lady Neville-Rolfe said that the updated list
“will be published before the summer recess”.
Perhaps my noble and learned friend Lord Bellamy can confirm that it will appear in the updated list.
It would also be valuable to hear from my noble and learned friend which Ministers comprise the wider ministerial team within the Cabinet Office and across government that supports the Deputy Prime Minister. In the December List of Ministerial Responsibilities, only three Ministers—all of them junior, including my noble and learned friend Lord Bellamy—have the constitution listed among their responsibilities.
Attempting to locate responsibility within government for dealing with constitutional issues is a task that has variously been undertaken by the Constitution Committee. I very much endorse its recommendations in this report, which are designed to enhance the position of the Lord Chancellor as the upholder of constitutional propriety within government. I also therefore endorse much of what other speakers, not least the noble Lord, Lord Hennessy, have said.
As the report recognises, the shift is as much to do with culture as with law and regulation. This entails, as we have heard, ensuring that we have a senior figure who has the qualities detailed by the committee and—this is equally important and has been stressed—is widely recognised within Parliament and the legal profession and beyond as having those qualities. It is imperative that there is a dedicated Minister with the responsibility not only for upholding constitutional propriety but for actively promoting the values of the constitution.
The Prime Minister is now the Minister for the Union; that establishes the importance of the union, but a Prime Minister does not have time to focus consistently on it. As I and the Constitution Committee have argued before, the Government need to be on the front foot in making the case for the union. We have to stress the benefits of coming together as one United Kingdom and not simply be on the back foot, responding to demands from different devolved bodies for more powers. We need to stop treating devolved parts of the union on a grace and favour basis.
John Major was the last Conservative Prime Minister to put the integrity of the constitution at the forefront of government thinking. His successors have been tied up with dealing with specific constitutional as well as economic and other issues. There has been no serious thinking about the constitution as a constitution.
I see merit not only in having a senior Cabinet Minister with responsibility for the constitution but in the Lord Chancellor being that Minister. Giving the task to the Deputy Prime Minister is a step forward—it means that a senior Minister has that dedicated responsibility—but not all Prime Ministers accord the title of Deputy Prime Minister to one of their colleagues, and it is a title and not a post. Oliver Dowden’s posts are Secretary of State for the Cabinet Office and Chancellor of the Duchy of Lancaster.
Giving responsibility to a different chancellor—the Lord Chancellor—not only ensures consistency but places it with a Minister who has or should have standing appropriate to the task and who will ideally be in post for some time. It provides a dedicated voice in a way that the Prime Minister cannot usually provide. The Lord Chancellor can ensure that other Ministers respect and are alert to the values of our constitution and the need to uphold them. Otherwise, there is the danger of those values being overlooked by Ministers as they address their departmental responsibilities and the Prime Minister addresses other crucial issues facing government.
I will not go through all the recommendations in the report. However, the report is like other reports from the committee: an extremely valuable and important study, which highlights the need for a body to address constitutional issues. The report merited a more substantive response, both in length and substance, from government. I look forward to my noble and learned friend the Minister providing such a response.
Lord Davies of Gower (Con)
The next speaker will be my noble friend Lord Cormack.
Lord Cormack (Con)
I am slightly taken by surprise to be speaking now.
Like others, I begin by saying that this is the one thing that unites us all. I am absolutely delighted that my friend the noble Lord, Lord Hennessy, is here today; he made a typically concise, precise and witty speech, and we long for him to make more.
For me, one of the key remarks of the noble Baroness, Lady Drake, who began the debate with a very measured and compelling speech, was about a previous Lord Chancellor—who has been referred to several times, but named, I think, only twice—communicating thoughts by tweet. Does not that say it all? Does not that illustrate why my noble and learned friend Lord Garnier talked about many able lawyers regarding Parliament as poison and not feeling able to follow a vocation in public service, as he most notably has done?
I take a slightly more worried view of the state of the constitution and democracy than my noble friend Lord Howell, for whom I have enormous respect and whom I first met at a Conservative Party conference in Lincolnshire as long ago as 1962. I believe that our democracy and constitution stand at a crossroads. One of the reasons for that is the subject we are discussing today: the role of the Lord Chancellor and the Justice Secretary following the abolition of the old role of Lord Chancellor and the creation of a new department which is perpetually—it almost has to be—under tension.
Prisons are very important, but they are a highly political subject. One has to think only of the debates in which I took part in another place, in which I strongly opposed the privatisation of prisons. There is of course a role for someone—call him the Justice Secretary, if you like, but I would not—in charge of prisons. It is a very important role, because we have consistently failed with our prisons; they are not, for the most part, places of rehabilitation, but rather colleges of crime.
For me, the Lord Chancellor should be one of the two ultimate Ministers. My noble friend Lord Norton, in a very thoughtful speech, talked about the Prime Minister having all these responsibilities. I believe that ultimate responsibilities, following the most solemn oath taken by any politician in our country, should rest with the Lord Chancellor. I believe that he should be a lawyer, and that it is important that he is learned in the law. I also believe that he should be, so far as it is possible, an apolitical and undivisive figure. At the end of the day, we all depend on the observance of the rule of law, and that should be the ultimate responsibility of the Lord Chancellor. So, while I of course welcome, applaud and pay genuine tribute to this report, I believe that the committee should have gone a step further and recommended the division of responsibility.
My noble friend Lord Sandhurst said that you cannot undo the past. Sadly, you cannot, but you can atone for it. I thought that, in his remarks, he coined the most wonderful oxymoron that I have heard in many a year when he talked about a “pure politician”. However, it is important that whoever is Lord Chancellor is as close to a pure politician as you can be, in the sense that he should be devoid of the acrimony and infighting of party politics.
Infinite damage has been done to our country by a neglect of the Tom Bingham principles—what a marvellous little handbook that is. I had the great good fortune to know Tom Bingham well. I worked closely with him on the Royal Commission on Historical Manuscripts, where he was chairman and I was the senior commissioner. He really nailed it in that book. However, we cannot get away from unfortunate recent events: the illegal Prorogation of Parliament and that extraordinary moment in the other place when the Secretary of State for Northern Ireland stood at the Dispatch Box and said that the Bill would go against the international rule of law, but only a little bit. It reminded me of a marvellous scene in one of the books of my childhood, Mr Midshipman Easy by Captain Marryat, which some noble Lords may remember. In that wonderful Victorian moral tale, a maid gave birth to a child outside wedlock. Her excuse was, “It was only a little one”. You cannot get away with that when you are talking about the rule of law.
I always feel uncomfortable when I talk, as I did in the House the other day, about the abrogation of an international treaty by China over Hong Kong. We cannot give lectures unless we are in a position to say, “We do not do that”. We will get nearer to not doing that in the future if we have a Lord Chancellor who is outside the realm of party politics to a large degree, a member of the Government but an ultimate member, as I said, and one who can indeed step aside and be looked up to.
In his time on the Woolsack, Lord Mackay of Clashfern was looked up to. Yes, he took the Conservative whip, but was he a creature of a Conservative Government? No, he was not. He was an ultimate Minister. We much miss him. We need someone cast in that mould in the future, and I very much hope that that is what we will get.
I am delighted to have had the chance to listen to some fascinating speeches and to take part in this debate. I very much hope that, when my noble and learned friend Lord Bellamy comes to reply, he will be able to give us some comfort and encouragement that the Government really are going to produce an answer very different from, and much more comprehensive and more precise than, the one from which my noble friend Lord Norton quoted so tellingly.
Lord Wallace of Saltaire (LD)
My Lords, I vividly remember the evening in which the news filtered through that the office of Lord Chancellor had been abolished. Lord Onslow dashed into the Lords to demand that we immediately suspend other proceedings until the Government gave us an answer as to what the implications of that were. The Government have not yet given us a full answer as to the implications of that, and here we are, many years later, discussing what sort of role we want the half-Lord Chancellor that we still have to play.
I am not a lawyer, although I spent three years in the United States teaching the American constitution when I was a graduate assistant in an American university. Like others, on the one occasion that my wife and I attended a formal event at one of the Inns of Court, we were certainly treated as outsiders and incomers. Those who recognised us kept asking us, “What are you doing here?” We had to explain that, although we were not in any sense lawyers, we had, as junior lecturers at the University of Manchester, regularly gone to the pub with a junior lecturer in law, who was then called Brenda Hoggett, and had retained that friendship over a long period.
There are three elements in this report and the debate. First, there is the importance of the rule of law as a guiding principle in government; the allocation of responsibility for safeguarding that principle; and, behind that, a wider issue of who is responsible for defending the conventions of our constitution, which have been so easily disregarded in the chaos of the last six or seven years. Secondly, there is the question of the combination of the role of the Lord Chancellor and the Ministry of Justice. The third, which is a little different, is the role of the law officers: the Attorney-General and the Solicitor-General.
Should we regard the experience of the last six or seven years, with its chaotic roundabouts of ministerial reshuffles, the bending of conventions and disregard for the principles of the rule of law, as an exceptional and unlikely event, not to be repeated, or as a shift that now requires us to tighten constraints on executive power? I fear that we need to tighten the constraints on executive power and cannot go back to the “good chaps” period, of which the noble Lord, Lord Hennessy, wrote a wonderful obituary.
There are further questions. I am fascinated by the question of the Lord Chancellor’s oath. I suspect it would be very good for the Government of this country if the Prime Minister, and perhaps a number of other senior Ministers, had to swear an oath on taking office. The Lord Chancellor should not be the only one to have to take an oath, but that is perhaps a subject for another study and another report. There is the related question of the size of the Cabinet. Some of us think that a Cabinet which has more than 30 people sitting around the table is completely ineffective and incapable of taking decisions, and ought to be reduced by at least a third. Effective Cabinet government requires really no more than 20 or 24 people around a table. Then there is the length of time in office. The extent to which ministerial reshuffles have taken place and, if one reads the press, are likely to take place again, just as Ministers are beginning to learn what their jobs are about, is one of the dysfunctional aspects of our current form of government.
The traditional Lord Chancellor’s role was, of course, extremely odd: both a senior Minister and a judge, and, at the same time, the Speaker of the House of Lords. I asked myself, as I read the report, whether we need a designated protector of constitutional behaviour and the rule of the law inside the Cabinet. I am not sure. Should we need such a person, would such a constitutional guardian role be better played now by officeholders in the institutions outside the Cabinet, as part of checks on executive power? We have moved in that direction to some extent, towards institutional checks and balances, over the last 30 years, with a separate Supreme Court, the Committee on Standards in Public Life, the various codes and the Independent Adviser on Ministers’ Interests. We may now need to move further.
I am attracted by the case for recreating a department of constitutional affairs and making that responsible not only for relations with the Crown dependencies but for the delicate task of relations with the devolved national Governments of Scotland, Wales and Northern Ireland. Post devolution, separate departments in Whitehall for each of these three nations are difficult to justify—three seats around the Cabinet table without much of substance to contribute to most discussions on domestic or foreign policy. Three Ministers of State, perhaps, supporting a Cabinet Minister whose focus on judicial and constitutional affairs would naturally include maintaining the delicate balance between devolved autonomy and UK oversight, might well be a great deal better.
I do not buy the “financial clout” argument for combining the judicial oversight and constitutional role with prisons and probation. The Foreign Office—the department of which I have the most experience and expertise—has always had one of the smallest budgets in Whitehall; that has not always led its Secretary of State to be marginalised in Cabinet.
The suggestion in the Government’s response to the Constitution Committee’s report that
“there is greater strength in having a number of senior Ministerial leads on discrete constitutional matters”
sounds like a recipe for confusion and chaos. I note, for example, that the Department for Levelling Up, Housing and Communities is now responsible for electoral law and administration, as if that were purely a matter of local concern rather than part of our constitutional procedures. For that matter, that department seems to muck about with our local and regional level of governance and democracy whenever its Secretary of State feels like it, although that is also part of, or ought to be considered part of, our constitutional structure.
There is a case for a stronger parliamentary counterbalance to the Executive in matters of constitutional importance and propriety. I am attracted by the idea I heard the other day from another noble Lord, a lawyer, for a Joint Committee of the two Houses on constitutional issues—a sort of parallel committee to the Intelligence and Security Committee in structure and status—that would act as Parliament’s cross-party voice and would relate to such other constitutional guardians as the Committee on Standards in Public Life, the Independent Adviser on Ministers’ Interests, the Commissioner for Public Appointments and the House of Lords Appointments Commission. Again, that is a matter for further discussion.
The Government’s requirement for legal advice is separate from the question of the post of Lord Chancellor. The Government clearly need a law officer—the Attorney-General—to advise on the domestic and international legality of proposed actions, among other duties. I am not sufficiently expert to know whether one needs a Solicitor-General as well as an Attorney-General; perhaps that is one question that we ought to throw out. Certainly, we do not need both as legally trained politicians when we are in a situation, as the noble and learned Lord, Lord Garnier, remarked, where it is very difficult for good lawyers to be encouraged to join Parliament.
Perhaps we have to recognise that the definition of what an MP does has changed quite radically. Part-time MPs are no longer regarded as acceptable, either by their constituents or by other MPs—as Geoffrey Cox has discovered on occasion. That may mean that we may need to look elsewhere, either to the Lords or to appointments that may be semi-political, such as lawyers advising the Government, because we will no longer have enough people of the calibre we want in the Commons, although we may well be able to continue to appoint them to whatever we call the second Chamber in 10 to 20 years’ time. Legally-expert figures who are also aware of politics are there to be found at the Bar but they do not necessarily want to commit themselves to becoming full-time, elected politicians.
After the unconstitutional shenanigans of the past six years, whatever Government emerge after the next election must embark on reforms to strengthen constitutional protections and improve the quality of governance. The Institute for Government and the Bennett Institute for Public Policy in Cambridge published just yesterday a new paper proposing a number of practical reforms and longer-term innovations that any Government who take office after the next election should consider. These are questions that I hope the Constitution Committee will continue to follow but which we should all consider in our parties, and across the parties, as we approach the next election.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords—or should I say “My noble and learned Lords”, given the level of expertise before us? I cannot express how intimidating a group of people noble Lords are, so I ask them to bear with me.
It is genuinely a privilege to have listened to this considered and informed debate and to be able to respond on behalf of His Majesty’s Opposition. I first thank my noble friend Lady Drake for her and her committee’s comprehensive review into the current working of the roles of the Lord Chancellor and the law officers—the first such review undertaken for five years. Her introduction was both direct and comprehensive, and I look forward to hearing the response from the Minister to the vital questions and issues raised by my noble friend and other noble Lords.
We have heard a great deal in the course of this debate about the rationale for undertaking the inquiry in the first place. More public attention has been given to the work, impartiality and propriety of the collective Law Lords in the last two years than there had been in the decade prior. This is therefore both a timely and a valuable report from the Constitution Committee, and the Government should heed its advice if they wish to re-establish the legal conventions that have been outlined throughout this debate and have historically served the Government and our country well.
The Government’s written response to the committee’s report, short as it is, includes an acknowledgment of the importance of the principle of the rule of law and the roles of the Lord Chancellor and the law officers in safeguarding it. The report highlights that it is critical that Ministers act in a way that is suffused with the concept and that they consider it to have primacy over political expediency.
As highlighted by my noble friend Lady Drake and the noble Lords, Lord Howell and Lord Cormack, Lord Bingham of Cornhill previously set out that an important and accepted principle of the rule of law includes the requirement of
“compliance by the state with its obligations in international law as in national law”.
The committee’s report should therefore serve as a valuable reminder to the Government and to our Parliament that the Government’s actions will be watched internationally as well as domestically. It is therefore somewhat disappointing that the government response to the report attempts to argue that
“reaching consensus on the precise components of the concept of the rule of law is elusive, and perceptions will therefore differ”.
I may not be a lawyer, but the confusion around the essential need to always honour international agreements as a component of the rule of law seems to be a peculiar affliction of this Government alone.
The committee notes that in introducing the United Kingdom Internal Market Bill and the Northern Ireland Protocol Bill the Government twice knowingly invited Parliament to endorse a breach of the UK’s international obligations. The committee warns us:
“While parliamentary sovereignty means that Parliament is able to legislate in this way, this does not alter the Government’s responsibility, as the state’s international representative, to ensure to the best of its ability that international obligations are adhered to. As part of this, it should refrain from knowingly inviting Parliament to legislate contrary to the UK’s obligations”.
In light of the Illegal Migration Bill, which is about to receive Royal Assent, will the Minister please apprise the House of how the rule-of-law principle will be upheld going forward? What discussions have taken place between the Lord Chancellor and other members of the Government concerning the country’s potential breach of international agreements? To the best of the Minister’s knowledge, has the Lord Chancellor actively advocated for the need to honour international agreements when discussing current and forthcoming government legislation with Cabinet colleagues and the Prime Minister, especially given the Prime Minister’s role, as highlighted earlier?
While we continue to explore the role of the rule of law, the committee described it as critical that Ministers understood the rule of law’s key principles. The committee stated:
“The Lord Chancellor should fulfil a wider, cross-departmental, role in defending the rule of law and educating … colleagues on its importance”.
Defending the judiciary promptly and publicly from unfair personal or threatening abuse is a core part of the Lord Chancellor’s role. The committee also said that law officers should have
“a wider role in defending the rule of law when issues arise”.
The reality, as has been the theme of many contributions to today’s debate, is that the Lord Chancellor and their law officers do not just need to have the confidence of both the Government and Parliament; they need to command the respect of the wider judiciary. To do that, the very least that would be required is for law officers to publicly defend the independence of the judiciary whenever it is called into question by politicians who do not like a specific judgment. So can the Minister inform the House what discussions are being held with key stakeholders to ensure that the independence and impartiality of our nation’s judiciary are defended when they are attacked in the pages of the tabloid media? Every unanswered and undefended attack on our nation’s legal framework undermines public trust in fundamental institutions. Can the Minister also inform the House what steps are being taken to strengthen public trust in the rule of law?
I have one final point for the Minister. The Government remain committed to producing an updated addition of the Cabinet Manual before the end of Parliament. As we quickly head towards Recess and the days count down to the end of this Parliament, when can we expect sight of the updated manual? I look forward to the response from the Minister.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I first thank the noble Baroness, Lady Drake, for securing this debate, all noble Lords who have contributed to our discussions this afternoon and, in particular, the noble Baroness and the members of her committee for producing such a valuable report, which has been rightly praised today in this debate and by the Attorney-General recently in another place. It is refreshing to have a report that so carefully examines important questions, hears some very distinguished witnesses and concludes in several instances that the case for major change is not made out, albeit rightly stressing the need for vigilance and for incremental improvements in the system.
I shall first make some general observations about the concept of the rule of law, then comment briefly on the respective roles of the Lord Chancellor and the law officers and finally deal with some other points raised by noble Lords this afternoon. I first disclose, as I should, my own close involvement with the foundation of the Bingham Centre for the Rule of Law, which was established in 2010 within the British Institute of International and Comparative Law in honour of Lord Bingham. The first director of the Bingham Centre was Sir Jeffrey Jowell QC, who was appointed only a few days before Tom Bingham’s untimely death. That centre, which I am glad to say continues to thrive, was set up not only to honour Lord Bingham but to better articulate, defend and promote education about the rule of law. I emphasise “education” since the co-founders, including me, saw above all a constant need to better explain and educate society in the fundamentals of the rule of law. That is a mission that we should all encompass and promote, including the Constitution Committee.
As to the fundamentals, “the rule of law” is a phrase that easily trips off the tongue, but, as the committee rightly points out, the exact extent of the concept is a matter for debate. I was somewhat relieved and pleased to hear that what I am citing is exactly what the noble Lord, Lord Hennessy, referred to, namely our 16th century friend Thomas Fuller’s famous words:
“Be ye never so high, the law is above you”.
That is surely the core of the matter.
In other words, the Government and all citizens, however powerful, must obey the rule of law. The law of the land is decided by Parliament or by common law and is administered in public by a judiciary that is independent, fearless and incorruptible. Decisions will be not arbitrary but authorised by law and within powers legally conferred. In the words of the judicial oath, the judges
“will do right by all manner of people”
according to law. Those judges are appointed on merit, not on political or other suspect grounds, and they have commensurate security of tenure—a most important point. The security of tenure of the judiciary is the foundation of any legal system. Of course, the orders of the court will be as fully obeyed by the Government as by any other citizen. There should be no doubt about that, even though, formally speaking, there is no coercive power of enforcement again the Crown.
So described, as a number of your Lordships have said this afternoon, the acceptance of such a system by society depends on the people’s trust in and respect for the judiciary and the knowledge that the courts will not hesitate to find against the Government where necessary and that the Government will accept the ruling and not change the law without the authority of Parliament.
That is not in any sense a nebulous concept. Your Lordships, sadly, well know how many countries in the world struggle to get anywhere near that standard. Indeed, I venture to suggest that, in this core sense, the rule of law is at least as strongly entrenched in this country as anywhere else, and has historically been and still is a beacon to many. It is in the public consciousness, if you like, and the DNA. It is in the education and culture of the legal profession; the law officers; Treasury counsel and the many barristers who are part of the Attorney-General’s various panels of advisers; the Government Legal Service, including departmental lawyers; and indeed, it is fully in the minds of the mainstream public civil servants as well.
The crucial point is that all public authorities know that their acts are susceptible to legal challenge and to being subjected to close scrutiny by, if I may say so, judges of outstanding integrity and competence. Having over the years had the privilege of working in or alongside other legal systems in various parts of the world, I respectfully suggest that there are few if any countries where the Government and public authorities are so susceptible to prompt and effective legal challenge. I add—and many noble Lords have seen this unfolding over the years—that we have come a very long way in the past 50 years or so. To be personal for a moment, when I first started at the Bar, judicial review hardly existed. The Government’s legal adviser consisted of one Treasury devil. Former Attorney-Generals were still on the Bench, having enjoyed the sinecure that then went with the office of a nice judicial appointment at the end of your period as a law officer.
We have come a very long way since those days in the 1940s and 1950s. The then judiciary would not have challenged the Labour Government under any circumstances—but the culture of challenge to the Government has developed and extended and is in my submission alive and well. I suggest that the organisations, structures and people I have mentioned collectively represent, or closely approximate to, the bell tower to which the noble Lord, Lord Hennessy, referred. There are enormous checks and balances in the system—one sees it every day as a Minister when submissions cross one’s desk and, in every part of government, the requirement to effect the rule of law and the legal framework is in the front of mind. That is the essence of the matter.
One can debate the further content of the rule of law but it would take too long to formulate the various aspects of it, and we have the principles formulated by Lord Bingham, promoted by the committee at paragraph 33. This is not actually my signed copy of The Rule of Law but it is a copy, and it is a remarkable work of exploration and articulation of what we are talking about. However, whereas in this Room we are subject to a picture of the tablets of stone coming down from the mountain, the eight principles of Lord Bingham are not quite yet the eight commandments, if I may say so. They are articulations of principles that need to be debated and elaborated on as the years go by.
If I may, I shall say a few words on one of the most difficult issues, on the international law point—and it is a difficult issue. The Government entirely accept the principle that international obligations should be observed. Indeed, that principle is the cornerstone of a rules-based international order, and plainly in the interests of the United Kingdom. However, it does not follow that international obligations should be justiciable in the courts in the way that I have just described unless Parliament has said so, as the committee rightly recognises at paragraphs 52 and following, particularly as explained by the sadly late Lord Brown of Eaton-under-Heywood in the cornerstone case. There are many other cases to the same effect.
It follows that one cannot automatically treat international obligations not forming part of domestic law as having exactly the same status as if they did. We are dealing here with relations between states. As I think my noble friend Lord Howell pointed out, these are circumstances in which a Government must have a margin of appreciation and must in particular have regard to the views of the national electorate from which alone the Government derive their authorities. Difficulties on the international plane typically arise where: relations have broken down; dispute solving or treaty amendment mechanisms either do not exist or are ineffective; the exact content of the relevant international law is unclear or debatable; circumstances have fundamentally changed since the relevant obligations were entered into; or unforeseen difficulties have arisen and other state parties refuse to recognise or choose to take unreasonable advantage of those changes of circumstance. In those circumstances any Government must, as a very last resort, have the ability to have regard to the public interest, while recognising the need to act as far as possible within the recognised parameters generally accepted in international law.
If I may say so in passing, the difficulty is illustrated in particular in relation to circumstances such as the Iraq war. The then Attorney-General, the noble and learned Lord, Lord Goldsmith, advised the Government that it was a lawful exercise of the Government’s power. The late Lord Bingham, in his eighth principle, disagrees with that. That is a classic example of how difficult it is sometimes to know what is right, what is wrong and where the line should be drawn in the international sphere. Sometimes Governments have to act in the national interest. That is all I will say in general terms about the concept of the rule of law and the importance of it in our constitution, which is entirely recognised by the Government.
I turn to the position of Lord Chancellor. I first suggest that the 2005 reforms have been, on the whole, astonishingly successful. The key to those reforms was the creation of the Supreme Court and the separation of the functions of the legislature, judiciary and Executive. The Lord Chancellor, as the noble Lord, Lord Wallace, pointed out, was a defiant embodiment of the rejection of the doctrine of separation of powers, combining in his own person legal, judicial and executive authority. The establishment of a separate Supreme Court and the Judicial Appointments Commission was substantial progress.
The question then is whether the current role of the Lord Chancellor is satisfactory, combining the functions of the Ministry of Justice with what is described somewhat bleakly in the 2005 Act as the Lord Chancellor’s existing constitutional role in relation to the rule of law. In that context, I respectfully slightly caution against a somewhat rose-tinted view of what went on in the past. Within living memory, Lord Chancellor Viscount Kilmuir advised the Prime Minister of the time Anthony Eden that the Suez invasion was perfectly legal, in defiance of the contrary advice from the then law officers. Viscount Kilmuir then proceeded to sit as a judge so disastrously that legislation was immediately introduced to reverse his leading judgment in the case DPP v Smith. There are other examples to that effect.
I remind the Committee that, although we all admire and respect Lord Mackay of Clashfern, relations between the Lord Chancellor and the legal profession broke down entirely when he attempted to introduce legal aid reforms, replacing hourly rates with fixed fees. Relations later broke down entirely between him and the then Lord Chief Justice, Lord Lane, when he successfully introduced solicitors’ rights of audience in the higher courts, which Lord Lane thought was the beginning of a fascist state, remarking that insidious progress does not necessarily come with a swastika on the armband but by other routes. The history of this office is not entirely clear, and we need to bear that in mind.
The overriding conclusion to which the committee rightly came—and with which the Government entirely agree—is that what is important is not so much whether the Lord Chancellor is a lawyer or a senior legal figure but the character, intelligence, integrity and commitment of the individual concerned. The Government would not necessarily accept that it is desirable in all circumstances for the Lord Chancellor to be a lawyer. One of the most influential Lord Chancellors in recent years was my right honourable friend Michael Gove MP, who introduced a significant and long-overdue programme of digitisation of the court system. He was a highly practical Lord Chancellor who got things done and was not in any sense susceptible to a perception of capture by the legal profession. He was not at all conservative, which many senior lawyers tend to be, if I may say so with respect to the many senior lawyers in the Room. In the Government’s view, it is about the character of the person rather than whether in some distant stage of the past they achieved a formal qualification which now enables them to call themselves a lawyer.
On the perfectly legitimate question of how this part of government machinery should be organised—whether the Ministry of Justice and the Lord Chancellor should have responsibility for prisons and probation as well as for the courts and other aspects—the Government respectfully agree with the committee’s conclusion that the case for change is not entirely obvious, although a future Government or Prime Minister will no doubt reconsider. They are now integrated and there is a huge cost to changing political and administrative structures within government once again. There is a logic to having courts, probation and prisons together. You must have probation and prisons together because they are now integrated under one roof much more than in the past. When you have a Criminal Justice Act, it will typically deal with sentencing, prisons, court processes, rehabilitation and so forth.
There is an internal logic to doing it, but it would be for any new Prime Minister or Government to consider. With respect to the thoughtful contributions from the noble Lord, Lord Wallace of Saltaire, and other noble Lords, there is a case for considering how we do this in terms of the constitution—whether you want some external body or person and whether they are in the Cabinet or not, and what we do about the constitution in general, as the noble Lord, Lord Norton, was asking.
With an unwritten constitution, the tradition up to now has been to let it evolve. On the whole, it has evolved fairly successfully without anyone trying to sort it all out. For some, it is rather messy—but an unwritten constitution is a bit messy. The test is whether it is working well, and one should not reorganise it for theological reasons or out of tidy-mindedness; one should look very carefully for the right balance, very much bearing in mind the importance of not only the administrative efficiency of government but the best ways to protect the rule of law. In that respect, the rule of law and its associated freedoms are also protected by Parliament, the media, public debate and all sorts of other means, as well as the formal processes through which the Government take their legal advice or decide to act in any particular way.
As for strengthening the Lord Chancellor’s role—if I have understood some of the points made—as someone who is a sort of general watchdog or guardian who in some sense sits on the Prime Minister’s shoulder and whispers in his ear, “No, you can’t possibly do that”, I respectfully doubt whether that was ever genuinely the Lord Chancellor’s role. In his evidence to the committee, Lord Mackay basically said—I paraphrase—“I never advised the Government. I might say to the Prime Minister that you need to take advice on it, but I couldn’t, as Lord Chancellor, actually go into the detail of what the advice should be. There were occasions when I had to tell the Government that they needed to take advice, but the giving of advice is for the Law Officers and Treasury counsel, and holding the Government accountable is ultimately for the courts”.
Respectfully, I wonder whether it would be a useful additional element in our constitution to have a Lord Chancellor who had no other departmental responsibility other than to act as some kind of guardian of the rule of law. I suggest that that would almost certainly be unnecessary, given the very detailed structures and processes we already have to protect the rule of law in this country.
It is perfectly true, and on behalf of the Government I would be the first to accept, that one incident some years ago involving the “enemies of the people” was unfortunate. It was very concerning to the judges involved; the noble and learned Lord, Lord Etherton, is here, listening. From a personal point of view, I have always imagined it a rather frightening—that is possibly not strong enough a word—or at least very unfortunate incident. Certainly, in those circumstances, the whole Government, as well as the Lord Chancellor specifically, need to be able to defend the judiciary.
If I may say so, our experience since suggests that, on the whole, that lesson has been learned. Noble Lords will find very muted comments from the Government on subsequent cases, whether it is the judgment of the Supreme Court in Miller 2, the recent judgment on Rwanda, and so on. We now have a completely different atmosphere. That was an unfortunate lapse, which should not happen. It would be one of the duties of the Lord Chancellor to defend the independence of the judiciary, and I am sure the present Lord Chancellor would undertake it with vigour, sincerity and integrity.
Indeed, if I may say so again, as far as I can see, the current channels of communication between the Lord Chancellor and the judiciary seem to work fairly well. The present Lord Chancellor is well aware of the importance of judicial independence and the efficient operation of the court system. The noble Baroness, Lady Drake, asked whether the Government agree with the observation of the noble and learned Lord, Lord Burnett, that the position of the Lord Chancellor and the relationship with the judiciary need further reflection. Why not have further reflection on this difficult but evolving issue? There is no reason not to continue to further reflect on these matters.
In that context, one other question that I was specifically asked was whether the updating of the Cabinet Manual will clarify and more clearly define the duties of the law officers. On that point, I am not able to give a full answer today. However, I can say that the Government will review Hansard and consider the ideas that have been raised in this debate and the drafting process in the light of the committee’s report. A draft of the updated memorandum will come to the Constitution Committee and the relevant committees in the other place to consider. That matter will, I hope, be taken forward.
Of course, this becomes a little more difficult in terms of the rule of law. This is very much the case on the international plane but also domestically. Where the rubber hits the road is where the law is not entirely clear, and that is most of the time, actually. It is not the case that everything is entirely straightforward, and that is particularly so in, for example, human rights cases involving social and economic rights, as distinct from classic legal rights under contracts or criminal law. There are many cases where more than one view is tenable. I hesitate to suggest that anything is wrong with the Government’s present legal approach to that difficult situation. Thinking back over one’s career, one has several times lost cases that seemed totally winnable and vice versa. That is the nature of the beast; it is not a science.
Again, to comment briefly from a personal point of view on the suggestion about the Government not putting forward legislation deliberately in breach of international law, yes, there is great force in that. However, possibly the only case where that problem resulted in a legal judgment goes back to the early 1990s, when the Government came under enormous pressure from all parties to save the Cornish fishing industry from the depredations of what was seen as Spanish fishermen illicitly coming on to the British fishing register. This led to the Merchant Shipping Act, which was challenged by the then European Commission. I was led by the then Solicitor-General, and we defended it as best we could. We thought that we were entirely justified in so defending it on the basis of our legal arguments. We lost all down the line, but it raised very starkly the question of what a Government do if they must respond to their electorate on the one hand but find themselves constrained by other rules on the other hand. It is a difficult problem. I respectfully caution against any formal limitation on a Government putting forward to Parliament appropriate legislation in the circumstances.
Have I dealt with everything that I should have dealt with? Forgive me if I have left something out—I am sure that it will be drawn to my attention. Particularly on the thoughtful comments of my noble friend Lord Norton on the constitution, I say that there is scope for further reflection on that. We have the Deputy Prime Minister, and we have different answers and possibly a lack of transparency about exactly who does what. That is something for further reflection. Those are points well made.
Regarding the points made by the noble Baroness, Lady Anderson, it is not the Government’s position that the Illegal Migration Bill will be in breach of our international obligations. That point has been discussed at length in the main Chamber. The independence of the judiciary is not at risk in any sense and is defended quite appropriately under the present system. As I just said, I will revert when I have further and better information on when the Cabinet Manual will be available.
I have done my best to cover everything, and it only remains for me to say again that the Government congratulate the committee on its report and warmly thank not only the noble Baroness, Lady Drake, but everyone who participated in this debate this afternoon.
Baroness Drake (Lab)
I thank the Minister for his comprehensive reply. It definitely warrants detailed reading, which I shall do. I share his aspiration to achieve wider understanding of the rule of law and our constitution—people often do not value what they have, and it is important that we bring it to their attention. As the Minister articulated, because we have so much to be proud of, it is even more important to defend it.
In recent times, we have experienced constitutional and associated governance processes being under pressure, and it would be easy to say that the problem was a one-off. But, for the Constitution Committee, we have to ask whether there is need to check whether the democratic protections and the important checks and balances lacked or had resilience under stress, as opposed to just taking at face value that it was a one-off and that everything is fine in the garden otherwise. We are resistant to just accept this as a premise for some of the things we have looked at and continue to look at.
If one takes the committee’s report as a whole, it is clear that it recognised that the realities of a functioning Government need flexibility. At various points in our report, we accepted that. I was pleased to hear the Minister say that he would take back his reflections from this debate and the points that were made, particularly about clearly defining the duties of the law officers in the Cabinet Manual. There have been significant differing conceptions of the rule of law and the duties of the law officers that have politically resonated in recent years, and there is the public trust issue. So, if the Minister is able to take that back, that would be helpful. I understand that the Cabinet Manual redraft will be available in weeks—that was the phrase put to us by the Cabinet Secretary.
I thank all noble Lords who participated today. It has been an excellent debate, but, as I look across the cast before us, that is not surprising. I thank John Turner, the committee clerk, and Rachel Borrell, the policy adviser, for their excellent work in helping the committee to prepare this report; it took a year and lot of work to get that definitive position in it. I also thank the press team, which managed to get what looks like a dry document out into the public space for reflection and debate. I thank all the committee members who worked hard on this for their deliberations, and I thank all those who submitted evidence. People were generous with their time and in interrogating issues with us.
I too am delighted to see the noble Lord, Lord Hennessy, in his place. He is so fondly regarded, and his reputation goes before him. I remember that he was poorly when we were preparing the evidence for this report, but he always joined remotely and would ring me to tell me the issues that he was concerned about and that he felt must be interrogated by the committee. He never lost that thread of what we had to focus on, so I thank him for that.
It has been a great debate; I have learned a lot and will reflect on what was said. I hope that between us and with the constitution, we can collectively defend what the Minister said we should be proud of.