Lord Chancellor and Law Officers (Constitution Committee Report)

Lord Cormack Excerpts

Thursday 20th July 2023 Grand Committee

[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.