Call for Evidence
Call for evidence
The House of Lords Constitution Committee, chaired by Baroness Drake, is conducting an inquiry into the role of the Lord Chancellor and the Law Officers. The inquiry will focus on how these roles currently operate and how they have evolved since the Constitutional Reform Act 2005. In particular it will examine the extent to which these office holders are able to remain impartial given their position in the executive branch of Government, and whether their ability to uphold the rule of law and defend the independence of the judiciary is affected.
The Committee invites interested organisations and individuals to submit written evidence to the inquiry.
The deadline for written evidence submissions is 5pm on Friday 18 March. Public hearings will be held from March 2022. The Committee will report to the House later in 2022.
Background
The Lord Chancellor is a senior member of the Cabinet appointed by the Monarch on the advice of the Prime Minister. Section 2 of the Constitutional Reform Act 2005 requires the Prime Minister to recommend a person who appears to the Prime Minister to be “qualified by experience”.
He or she has a duty to ensure the rule of law is respected within Cabinet and across Government.[1] The office holder has a responsibility to uphold the independence of the judiciary and consider the public interest in respect of matters relating to the judiciary. The Lord Chancellor is also responsible for ensuring an efficient and effective justice system.[2] After an individual is appointed to the role of Lord Chancellor they must take the following oath:
“I, [NAME], do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God.”[3]
There are three UK Government Law Officers: the Attorney General for England and Wales, the Solicitor General for England and Wales and the Advocate General for Scotland. The Attorney General also holds the separate office of Advocate General for Northern Ireland.[4] The Law Officers are politicians and government ministers who are also expected to act as independent guardians of the rule of law and provide impartial legal advice to ministers and government departments.[5]
The Attorney General has non-ministerial responsibilities including the provision of legal advice to the Government and powers related to individual prosecutions. He or she also has ministerial roles, including shared responsibility for criminal justice policy and responsibility for agencies that fall under the superintendence of the Office of the Attorney General. The Attorney General may be invited by the Prime Minister to attend Cabinet.[6]
The Constitutional Reform Act 2005 introduced substantial changes to the role of Lord Chancellor, including removing its functions as head of the judiciary and the presiding officer in the House of Lords.[7] This put an end to the role’s previous constitutional status as the crossroads of the three branches of state. While the Constitutional Reform Act 2005 did not address the position of the Law Officers, they became more significant guardians of the rule of law as a result of reforms made to the role of Lord Chancellor.[8]
It is now timely to revisit these topics and consider how these roles currently operate and how they have evolved since the Constitutional Reform Act 2005.
Questions
The Committee welcomes written submissions on any aspect of this topic, and particularly on the following questions:
1. How is the rule of law being protected within the Government, and how do the Lord Chancellor and the Law Officers ensure this? Have recent events demonstrated a shift in how the duty to protect the rule of law is being performed? How should the duty be applied in respect of international law? Could more be done to uphold the independent position of the judiciary?
2. How have the roles of the Lord Chancellor and the Law Officers evolved since the initial adjustments following the passing of the Constitutional Reform Act 2005?
3. Has the amendment of the role of the Lord Chancellor by the Constitutional Reform Act 2005, and the resulting separation of powers between the judiciary and the Government, been successful?
Is it now more difficult for Lord Chancellors, with their more overtly political position as Secretary of State for Justice, to carry out their duty in relation to ensuring respect for the rule of law across Government? Has the status of the Lord Chancellor altered since the Constitutional Reform Act 2005 and if so what are the consequences?
4. Is further reform of the role of Lord Chancellor necessary? Is the relationship between the Lord Chancellor and the Lord Chief Justice functioning effectively? Is it desirable for Lord Chancellors to have a legal or constitutional background in order to carry out their role effectively (the Constitutional Reform Act 2005 specifies in section 2 the qualifications necessary for the office of Lord Chancellor.[9])? Would it be preferable for Lord Chancellors to remain in post for longer periods and, if so, how could this be achieved? Are there any additional functions that the Lord Chancellor should take on?
5. Is it appropriate or helpful for the Law Officers, as Government legal advisers, to be politicians serving in Government? Would it be preferable for the Law Officers’ role in advising the Government to be separated from that of political Government ministers, i.e. independent roles unaffiliated to a political party? Would the separation of these roles improve public perception of the Law Officers as being capable of providing impartial legal advice to the Government? Would independent Law Officers command the same authority as Government ministers or would they risk being side lined by Government? Do the Law Officers need to be members of either the House of Commons or House of Lords in order to be accountable to Parliament? Do the changes to the role of Lord Chancellor brought about by the Constitutional Reform Act 2005 make it more important that the Law Officers be a member of the Government? Should the Law Officers’ legal advice to the Government be made public more routinely – if so, under what circumstances?
6. Is it appropriate for the Attorney General as a member of the Government to be involved in some decisions about whether to prosecute? Is the division of responsibility between the Attorney General and the Directors of the prosecution agencies clear?
7. Are any reforms necessary to the Attorney General’s ministerial responsibilities? Should the Attorney General regularly attend Cabinet? Should the Attorney General maintain his or her role in superintending the prosecution services? What aspects of the Attorney General’s role require them to be accountable to Parliament?
8. What are the constitutional boundaries that constrain the Law Officers and the Lord Chancellor? How could those boundaries best be clarified and maintained? Are their oaths useful or significant? Could the roles of the Lord Chancellor and Attorney General be realigned to improve maintenance of the rule of law?
[1] Constitution Committee, The Office of the Lord Chancellor (6th Report, Session 2014-15, HL Paper 75), p 4; Constitutional Reform Act, Part 1
[2] UK Government, The Cabinet Manual (October 2011), paras 6.38-6.39
[3] House of Commons Library, ‘Lord Chancellor’s oath and the rule of law’ (13 October 2020): https://commonslibrary.parliament.uk/research-briefings/cdp-2020-0107/
[4] UK Government, The Cabinet Manual (October 2011), para 6.1
[5] UK Government, The Cabinet Manual (October 2011), para 6.4; Institute for Government, ‘Law officers’: https://www.instituteforgovernment.org.uk/explainers/law-officers#:~:text=There%20are%20three%20UK%20government%20law%20officers%3A%20the,separate%20office%20of%20advocate%20general%20for%20Northern%20Ireland [accessed 1 February 2022]
[6] Constitution Committee, Reform of the Office of Attorney General (7 Report, Session 2007-08, HL Paper 93), paras 3-10
[7] Professor Kate Malleson, The effect of the Constitutional Reform Act 2005 on the relationship between the judiciary, the executive and parliament (2007)
[8] Constitution Committee, The Office of the Lord Chancellor (6th Report, Session 2014-15, HL Paper 75), p 4
[9] Constitutional Reform Act 2005, section 2
ANNEX: GUIDANCE FOR SUBMISSIONS
Written evidence must be submitted online via the committee’s inquiry page https://committees.parliament.uk/work/6540/role-of-the-lord-chancellor-and-the-law-officers/. Please do not submit PDFs (if you do not have access to Microsoft Word you may submit in another editable electronic form). If you cannot submit evidence online, please contact the committee staff.
The deadline for written evidence is 5pm on Friday 18 March.
Concise submissions are preferred. A submission longer than six pages should include a one-page summary. Paragraphs should be numbered. Submissions should be dated, with a note of the author’s name, and of whether the author is making the submission on an individual or a corporate basis. All submissions submitted online will be acknowledged automatically.
Personal contact details supplied to the committee will be removed from submissions before publication but will be retained by the committee staff for specific purposes relating to the committee’s work, such as seeking additional information.
Submissions become the property of the committee which will decide whether to accept them as evidence. Evidence may be published by the committee at any stage. It will appear on the committee’s website and be deposited in the Parliamentary Archives. Once you have received acknowledgement that your submission has been accepted as evidence you may publicise or publish it yourself, but in doing so you must indicate that it was prepared for the committee. If you publish your evidence separately you should be aware that you will be legally responsible for its content.
You should not comment on individual cases currently before a court of law, or matters in respect of which court proceedings are imminent. If you anticipate such issues arising, you should discuss with the clerk of the committee how this might affect your submission.
Certain individuals and organisations may be invited to appear in person before the committee to give oral evidence. Oral evidence is usually given in public at Westminster and broadcast in audio and online. Persons invited to give oral evidence will be notified separately of the procedure to be followed and the topics likely to be discussed.
Substantive communications to the committee about the inquiry should be addressed through the clerk or the chairman of the committee, whether or not they are intended to constitute formal evidence to the committee.
This is a public call for evidence. Please bring it to the attention of other groups and individuals who may not have received a copy directly.
Diversity comes in many forms and hearing a range of different perspectives means that committees are better informed and can more effectively scrutinise public policy and legislation. Committees can undertake their role most effectively when they hear from a wide range of individuals, sectors or groups in society affected by a particular policy or piece of legislation. We encourage anyone with experience or expertise of an issue under investigation by a select committee to share their views with the committee, with the full knowledge that their views have value and are welcome.
You may follow the progress of the inquiry at https://committees.parliament.uk/work/6540/role-of-the-lord-chancellor-and-the-law-officers/
To contact the staff of the committee, please email constitution@parliament.uk.
This call for written evidence has now closed.
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