Committees

Lord Chancellor and Law Officers must have the character, authority, intellect and independence to defend the rule of law

18 January 2023

Today the Constitution Committee publishes its 9th report of the session on the roles of the Lord Chancellor and the Law Officers.

Background

The Lord Chancellor and the Law Officers (the Attorney General, Solicitor General and Advocate General for Scotland) are Government ministers with particular constitutional and legal responsibilities (notably, in upholding the rule of law).

The Committee’s inquiry focussed on how these roles currently operate and how they have evolved since the Constitutional Reform Act 2005. It looked at these issues with a particular view to examining how the rule of law is upheld within Government and the role these actors play in ensuring respect for this fundamental tenet of our constitution.

The report

  • In recent years the Government’s commitment to the rule of law has been called into question. It has twice knowingly introduced legislation in Parliament which would breach the UK’s international obligations and in doing so, undermine the rule of law: the United Kingdom Internal Market Bill and the Northern Ireland Protocol Bill. 
  • All ministers have a responsibility to the rule of law but the Lord Chancellor and the Law Officers have special duties, and it is in this context that the Committee examines the development of, and interaction between, their roles since the constitutional changes of the mid-2000s fundamentally altered that of the Lord Chancellor.

Key finds

  • It is fundamental to our constitution that the Government acts according to the rule of law. While there is no concise, enduring and conclusive definition of the concept, its fundamental tenets are well understood and set out in Lord Bingham’s exposition. What is critical is that ministers are mindful of the concept, understand its key principles and act in accordance with them, and consider the rule of law to have primacy over political expediency. This is especially relevant to those with distinct rule of law functions such as the Lord Chancellor and the Law Officers.
  • A treaty, once agreed, binds the state. It is the responsibility of the Government, as the state’s international representative, to ensure that agreements entered into internationally are respected. The responsibility of the Government to honour the state’s international obligations requires it to refrain from inviting Parliament to legislate knowingly contrary to the UK’s international obligations.
  • The Lord Chancellor should fulfil a wider, cross-departmental, role in defending the rule of law and educating his or her colleagues on its importance. Historically, the office has fulfilled that role, there is already a statutory duty and, unlike the Law Officers, the Lord Chancellor is a full member of the Cabinet.
  • Defending the judiciary against unfair, personal or threatening abuse is a core part of the Lord Chancellor’s role. While criticism of the content of a judgment is acceptable, targeted personal criticism which unfairly impugns a judge’s impartiality or inflames public sentiment against the judiciary is not. In such cases, a Lord Chancellor must intervene promptly and publicly.
  • The threshold by which Government lawyers – including the Law Officers – determine the lawfulness of proposed Government action, the existence of a “respectable legal argument”, could sometimes represent a very low threshold for authorising legally uncertain action. The concept may provide a helpful framework for the provision of advice by Government lawyers but a decision by ministers to act must not be based solely on a calculation of legal inconvenience.

Chair’s comments

Baroness Drake, Chair of the Constitution Committee said:

“The Lord Chancellor and Law Officers are among the chief guardians of the rule of law in our constitution.

“In a world in which authoritarianism and populism have challenged a rules-based global order in which democracy is sacrosanct, the protection of the rule of law in the UK– and in its interactions with the world—is ever more important.

"It is therefore essential that we have a Lord Chancellor who is willing and able, where necessary, to stand up to Cabinet colleagues and the Prime Minister, and Law Officers with the autonomy and strength of character to deliver impartial legal advice to the Government, even where it is unwelcome. This will help to ensure that the UK remains compliant with the rule of law, including its international obligations.

“The rule of law is vitally important to the health of our democracy. We urge the Government to renew and strengthen its commitment to this fundamental tenet of our constitution.”

Further information