Office of Lord Chancellor (Constitution Committee Report)

Lord Crickhowell Excerpts

Tuesday 7th July 2015 Lords Chamber

[Lord Crickhowell (Con)]

My Lords, it is an honour for a non-lawyer to follow a most distinguished lawyer. It is a situation that I frequently found myself in during my time as a member of the Constitution Committee, where I used to play what I called the “Pooh Bear role” of admitting that I was, perhaps, not very well informed so could an explanation be given clearly? That often produced a degree of clarity that had not previously existed.

A great deal has happened in the nearly seven months since this Constitution Committee report was published. The membership of the committee has substantially changed; I am one of those who is no longer a member. There is a new Government and a new Lord Chancellor. I intend to concentrate on reinforcing what my noble friend Lord Lang and the noble Lord, Lord Beecham, said about the response that the then Lord Chancellor, my right honourable friend Chris Grayling, finally gave the committee on behalf of the Government. I emphasise “finally”, because it was not until the end of February that a response was received to a report published well over two months earlier. When it was received, and then only after a good deal of pressure from our admirable clerks, it fell lamentably short of the standards that I believe Parliament is entitled to expect of ministerial responses to important Select Committees.

I say to the noble Lord, Lord Lester, many of whose remarks I agreed with, that I thought he was a little unwise to refer to the lack of the appropriate DNA in the Cabinet for these matters. We are talking about a previous Cabinet of an Administration of which a good many of his noble friends and others were Ministers and members. We are not talking now, in this report and the criticisms that we make, of the present Government. I hope that the new Lord Chancellor and the new Government will do better than was done previously. I am delighted that the new Lord Chancellor has started by emphasising the importance that he attaches to the rule of law and his determination to improve the all too obvious shortcomings and inefficiencies of the present court system.

My complaint is that too many of the individual responses were superficial and failed adequately to deal with the points that we made, all of which were based on the evidence that we received. My first example is the response to paragraph 25 of the report. The Government—I emphasise again that I speak of the former Government—responded to our recommendation that they should,

“agree that the rule of law extends beyond judicial independence and compliance with domestic and international law”,

and that they,

“should seek to govern in accordance with constitutional principles, as well as the letter of the law”,

by agreeing that they,

“should govern in accordance with constitutional principles”,

while dismissing the argument that we advanced about what that might imply. Without giving reasons, they simply rejected the view put forward in paragraphs 23 and 25,

“in so far as it suggests that judges have power to insist that primary legislation passed by the UK Parliament ‘is not law which the courts will recognise’”.

We had advanced the case that there must be some constraint on a Government’s power, through Parliament, to change laws in any way that they see fit. We had cited evidence given by the noble and learned Lord, Lord Falconer, who I am glad to see in his place today and who will take part in the debate, during an earlier inquiry, when he said:

“To take an extreme example simply to demonstrate the point, if Parliament sought to abolish all elections that would be so contrary to our constitutional principles that that would seem … to be contrary to the rule of law”.

We referred also to the judgment of the noble and learned Lord, Lord Hope of Craighead, in the case of Axa General Insurance Ltd and Others v The Lord Advocate—a case involving the Scottish Government—when he declared:

“The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise”.

These are serious issues. I believe, as did the committee, that there must be a constitutional constraint on a Government’s power, through Parliament, to change laws in any way they see fit. What those constraints should be is arguable, but it is much too important a matter to be dismissed in a single sentence. An acknowledgement that the question is important, and perhaps a statement that the Government would always seek to act in a manner that was compatible with the wider definitions of the rule of law, might have gone some way to meeting the point we were making.

The noble Lord, Lord Lester of Herne Hill, referred to paragraphs 49 and 50. In paragraph 49, the committee said:

“It is regrettable that the Ministerial Code and the Cabinet Manual do not address the Lord Chancellor’s role in respect of the rule of law, beyond judicial independence. The Cabinet Manual refers to the Law Officers’ role in ‘helping ministers to act lawfully and in accordance with the rule of law’ … but makes no mention of the Lord Chancellor’s duty in this respect”.

In paragraph 50, the report argued:

“The Lord Chancellor’s duty to respect of the rule of law extends beyond the policy remit of his or her department”,

to which the last Lord Chancellor seemed to think it was confined. We had concluded that,

“it requires him or her to seek to ensure that the rule of law is upheld within Cabinet and across Government”.

The recommendation was that,

“the Ministerial Code and the Cabinet Manual be revised accordingly”.

This important recommendation is casually dismissed, without an attempt to rebut the reasons given, but simply on the basis that the Government do not agree. Perhaps it is because duties of this kind are not referred to in the Ministerial Code and Cabinet Manual that the Constitution Committee so frequently has to draw to the attention of the House breaches of constitutional good practice in government Bills. I would add at this point that, as it is clearly the Government’s intention that the legislative programme in the early part of this Parliament is to be tightly confined to manifesto commitments, with departments refused permission to clutter up Bills with other bits and pieces, there is a real opportunity for the Business and Legislation Committee, I hope prompted and encouraged by the Lord Chancellor, to reject as well all those breaches of good constitutional practice that the Constitution Committee has repeatedly criticised.

Turning again to the response, in paragraph 101 we said that,

“there was no clear focus within Government for oversight of the constitution”.

We suggested that the Lord Chancellor was best placed to carry out this duty, as has already been pointed out. We were told that the Deputy Prime Minister was the relevant Secretary of State for constitutional policy, despite the fact that he did not appear to have been carrying out the wider responsibilities we had in mind. It is extraordinary that he was not a member of the devolution committee or of the Business and Legislation Committee. Today there is no Deputy Prime Minister; I hope my noble friend the Minister will be able to clarify who now holds those wider responsibilities.

In Paragraph 117, we suggested:

“Given the importance of the Lord Chancellor’s duty to uphold the rule of law, the Lord Chancellor should have a high rank in Cabinet and sufficient authority and seniority … to carry out this duty effectively and impartially”.

The response was that it is for the Prime Minister to determine the order of precedence of Cabinet Ministers. It was acknowledged that the Lord Chancellor is currently and traditionally one of the highest offices of state. Having served for eight years in Cabinet with Margaret Thatcher, I am fairly confident that that was a response that she would not have authorised. She understood the importance of the Lord Chancellor’s role very well and showed great respect for the office and its holders. It is really not an adequate response to say that it is all up to the Prime Minister. The Prime Minister, like other Ministers, is answerable to Parliament and Parliament is entitled to know where he stands on a matter recommended by one of its committees.

A similar point arises from the response to the recommendation in paragraph 79 that,

“the Attorney General continues to attend all Cabinet meetings”.

Here the response is:

“Though the expectation is that the Attorney General will continue to attend all Cabinet meetings, this is ultimately a matter for the Prime Minister”.

I am tempted to inquire: whose expectation? Surely we could have been told what the view of the Prime Minister was about this recommendation.

In the previous Parliament, the too-frequent delays in providing responses to Select Committee reports may have been due in part to the difficulty of reconciling the views of Conservative and Liberal Democrat Ministers, and it may be that that problem lies behind the shortcomings of the response. Be that as it may, I hope that with that difficulty removed, the responses will be delivered promptly. I also hope that the business managers will make a big effort to allocate time for debates to take place very soon after the responses have been published—something that does not happen very often.

--- Later in debate ---

[Lord Faulks]

The Lord Chancellor’s role and his oath, as the noble and learned Lord said, is defined by the Constitutional Reform Act 2005. Clearly, his role is the same as other Ministers’ but must be larger than theirs. Its precise ambit may be a question of some debate but clearly he would regard, as indeed he said in the Legatum Institute talk, that he has a greater and particularly specific role in relation to the rule of law.

I was dealing with the oversight of the constitution. The committee recommended that, “a senior Cabinet minister”—in its view, most appropriately the Lord Chancellor—should have responsibility,

“for oversight of the constitution as a whole, even if other ministers have responsibility for specific constitutional reforms”.

The Prime Minister, of course, has overall responsibility for the constitution. The Cabinet Office has oversight of constitutional policy and has done since 2010. The Chancellor of the Duchy of Lancaster, Oliver Letwin, oversees co-ordination of the Government’s constitutional reform programme and is supported by two Ministers and officials from the Cabinet Office constitution group. The Chancellor of the Duchy of Lancaster works in close collaboration with the Prime Minister and other relevant Cabinet Ministers, including the Lord Chancellor, the Attorney-General, the Leaders of the House of Commons and the House of Lords, and the Secretaries of State for Scotland, Wales and Northern Ireland. This senior ministerial oversight reflects the importance that the Government attach to their constitutional reform programme.

In answer to the noble and learned Lord, I am not aware of any precise protocol, but it is clear that there is a great concentration within the Cabinet Office, in close collaboration with the other offices.

[Lord Crickhowell]

My noble friend has again repeated the phrase that was used in the Government’s response with regard to who is responsible for constitutional reform. But the point that was made in the report, and has been made repeatedly this afternoon, is that the constitutional responsibility goes much wider than reform. Our concern, as expressed in the report, that the previous Deputy Prime Minister appeared to think he was responsible only for reform was one of the centrepieces of the criticism that we were making. I therefore hope that my noble friend will at least go back to his colleagues and point out that we are concerned about not just reform but the overall constitutional responsibility.

[Lord Faulks]

I am grateful to my noble friend. He makes a very fair point, which I entirely take: the constitution needs to be considered at a moment of any prospective reform but, none the less, the Government have a continuing duty to maintain constitutional integrity.

The Chancellor of the Duchy of Lancaster and other Cabinet Office constitution Ministers are currently dealing with some difficult constitutional policies, including English votes for English laws, devolution, English decentralisation, the EU referendum and the British Bill of Rights. There is a significant area of potential reform but I absolutely accept that the role those who are charged with looking after our constitution have goes beyond reform.

We could spend quite a lot of time dealing with the definition of “rule of law”. I am of course aware of the comments made in speeches by the noble and learned Lords, Lord Hope and Lord Steyn, and the discussion in Lord Bingham’s book The Rule of Law of whether parliamentary sovereignty really is the governing principle. At the moment, however, the supremacy of Parliament is generally considered to be the predominant constitutional principle and the capacity of judges in certain circumstances to strike down, as it were, an Act of Parliament is one that has not yet been taken advantage of.

In conclusion, we recognise that the office of the Lord Chancellor is an ancient one. During its time, the role has been occupied by individuals of varying skills and experience, reflecting the contemporary demands of the office and the somewhat quixotic choices made by Prime Ministers, which have sometimes haunted the noble Lord, Lord Beecham, and others. Some have been colourful characters, some have attracted criticism and some have even met an untimely end. The changes introduced in the Constitutional Reform Act 2005 were significant, albeit that they came about in rather an unusual way. They emphasised the independence of the judiciary and defined the new nature of the relationship with the Executive and Parliament.

The Lord Chief Justice said in his speech of the week before last:

“What appears clear is that over the first ten years since the reforms of 2005, the judiciary has evolved a new way of working. It has developed a capacity and a will to lead reform. It has forged a new method of engagement with the Executive and Parliament in this task so that all can work together to bring about an overhaul of the administration of justice”.

The House is very clear that the office of the Lord Chancellor will continue to be a key office of state, with very real and important duties that have a constitutional importance and underpin judicial independence and the rule of law. This Government are very grateful to the Constitution Committee for its clear and thorough report. I am sorry that there has been so much criticism of the inadequate response. I reassure the House that what has been said in that report, and what has been brought to the House’s attention in this debate, will be considered very carefully by the new Lord Chancellor. I thank all noble Lords who have taken part in this excellent debate.