Professor Graham Gee, Professor of Public Law, University of Sheffield – written evidence (RLC0004)
House of Lords Constitution Committee inquiry into the Role of the Lord Chancellor and the Law Officers
1. This submission responds to the call for evidence from the Lords Constitution Committee as parts of its inquiry on the role of the Lord Chancellor and the Law Officers. In preparing this submission, I draw on research conducted between 2010-15 (with Robert Hazell, Kate Malleson and Patrick O’Brien) as part of an AHRC project on The Politics of Judicial Independence in the UK’s Changing Constitution and my other published work on this topic.
How is the rule of law protected within the Government?
2. The rule of law is a contested notion, which gives rise to rival and competing interpretations. This means that, amongst other things, the rule of law may be differently understood by different Lord Chancellors, law officers or other public officials. That being said, in the UK constitutional tradition, the rule of law is best understood as an ideal about the role of positive law and certain important legal institutions (e.g. courts) in the life of a political community. The rule of law rests on the basic intuition that law should be capable of guiding those who are subject to it, where legal rules address the subjects of law as persons capable of acting for reasons, and which thus instantiates relationships of reciprocity between ruler and ruled. In more everyday parlance, the rule of law is sometimes taken to indicate that the legal system and legal institutions are in good working order, with the exercise of governmental power having a sound basis in law, and where the legal limits of such power are not exceeded. The rule of law requires officials to uphold positive law, but does not require that all questions about how a community is governed should be settled by law. Understood in this way, the rule of law is an important constitutional principle, but is only one amongst many principles that the UK constitution should embrace, and in our constitutional tradition is secondary to parliamentary sovereignty, which itself promotes the rule of law by establishing the legal validity of legislation, avoiding legislation being quashed by judicial review with retrospective effect, and encouraging Parliament to exercise its legislative authority in a way that avoids unfairness and uncertainty.
3. There are multiple ways in which the rule of law is promoted inside the Government, including: the fact that Ministers are under an overarching duty to comply with the rule of law (paragraph 1.3 of the Ministerial Code); the Law Officers advise ministers on legal issues and help to ensure they act lawfully, with the Ministerial Code providing that the Law Officers should be consulted in good time before the Government is committed to key decisions involving legal considerations (para 2.10); proposals for retrospective legislation must secure the consent of the Law Officers, which fosters the general expectation that legislation should be prospective and promotes law’s capacity to guide behaviour; the Parliamentary Business and Legislation Committee oversees the preparation of legislation by departments, with the Law Officers sitting on it to monitor proposals that raise legal issues; and parliamentary counsel draft government bills in ways that translate policies into clear, effective, coherent and accessible law that promotes legal certainty. Finally, the Government’s responsibilities are far-reaching, but the fact that its members are drawn from and answerable to Parliament is a very important—and in the UK’s constitutional tradition: largely very effective—discipline, which deploys political and electoral pressure to incentivize ministers to govern within the frame of settled law.
4. As I see it, there is little evidence to suggest that there has been a shift in how the rule of law is promoted and protected in Government. Occasional statements by commentators suggesting that the rule of law is backsliding in the UK are overwrought, reckless and possibly irresponsible. The UK has a long and enviable tradition of the rule of law, with occasional tensions between the Government and the courts an inevitable feature—not a bug—of a constitutional system where a culture of ministers and politicians respecting the law flourishes. It also bears emphasis that UK ministers are currently pursuing reforms to judicial review and the Human Rights Act which are justified in large part by reference to the rule of law.
5. Some might suggest that controversies over the revision to the Ministerial Code in 2015 and clauses in the Internal Market Bill in 2020 suggest a concerning shift in how the rule of law is both viewed and protected by Government. I do not share those concerns. The relationship of the rule of law to international law and treaty obligations is not straightforward, and as such is prone to misunderstanding. An important starting point is to recognise that there are good reasons for ministers to comply with international law and honour the UK’s treaty obligations in most situations. These include the need as a matter of foreign policy to think about how other states will view compliance or non-compliance as well as the importance to UK national interests of a stable international legal order based on widespread compliance with treaty obligations. But it does not follow that the rule of law should treat domestic law and international law, or indeed the obligations of ministers thereto, as the same.
6. Our understanding of the rule of law should reflect the fact that the UK has a dualist legal system, with the rule of law best viewed as applying primarily to domestic law (which includes treating obligations that have become part of domestic law through incorporation by a statute). The constitutional rationale for the UK’s dualist approach is partly to maintain freedom for domestic policymaking, including via legislation, in order to make possible self-government by way of parliamentary democracy in the public interest. This is inconsistent with the claim that the rule of law requires international law to be treated in the same way as domestic law. As Professor David Feldman has noted, there are both principled and pragmatic reasons justifying this approach: “…there are sound reasons for having filters at national levels to control the way in which [international] obligations affect national law and policy-making. The principled reason is the desire to uphold constitutional guarantees, including the rule of law, and keep in the hands of the nation the democratic control of and accountability for national law and policy, in order to maintain the legitimacy of politics and public law in the state. The pragmatic reason is that international obligations may be contrary to the national interest and may derail important national objectives. ‘Dualism’ provides such a filter by treating national and international law as two separate systems’”. It is true that this understanding, and by extension how we should view the rule of law, conceives of potential dissonance between domestic law ad international law, but as Philip Sales (now Lord Sales of the Supreme Court) and Joanne Clement have observed, “potential dissonance is the price which is paid for the benefits of self-governance via a democratic system within the nation state”.
7. Obligations in international treaties become binding on the UK as a matter of international law when ministers sign and ratify them. But as a matter of domestic law, those obligations only become part of our domestic law when given legal force by Parliament incorporating them in a statute. It follows that there is no general duty on ministers to comply with international law. To suggest otherwise would seem to imply that ministers can change legal rights and duties in domestic law merely by agreeing or ratifying international treaties. This would be contrary to constitutional law, which provides that ministers cannot change legal rights and duties unless authorised by Parliament.
8. The rule of law must also be understood by reference (and as secondary to) parliamentary sovereignty, which is foundational constitutional law in the UK (and thus an important part of the rule of law in our polity). Parliamentary sovereignty means that, as a matter of law, the UK Parliament can make or unmake any law whatever, including legislation that is inconsistent with international law. It is inconsistent with this to assert that Parliament cannot legislate to repeal or amend to earlier statutes that give effect to international treaties. Whether parliament should do so is matter of political judgment (and, generally speaking, as noted above, for good reasons the UK has longstanding general policy of complying with international law and treaty obligations).
The Constitutional Significance of the Lord Chancellor
9. In one of his final speeches as Lord Chief Justice, Lord Thomas suggested that the job of Lord Chancellor is “manifestly different from any other minister”, and “is not simply a Secretary of State with a separate title resonant of our long history”. For better or worse, this is not correct. The office is part of the UK’s arrangements for securing judicial independence (and thus the rule of law), and important for that reason, but its place in the constitutional firmament is much reduced since 2005. Whether lawyers and judges like it, the office is now a conventional ministerial job, albeit one carrying important functions relating to the courts and judges and a statutory duty and special oath to uphold and defend judicial independence. These functions, the statutory duty and the oath are important dimensions to the role of Lord Chancellor, but they do not change the fact that the role is now, more or less, a conventional ministerial job. Seventeen years on from the 2005 reforms, it is time for lawyers, judges and others to recognise that this run-of-the-mill ministerial position is likely to be filled by a jobbing politician. The sooner that this is accepted, the easier it will be to develop a shared set of realistic expectations for how Lord Chancellors should perform an important but much reduced role, with those expectations then shaping how the officeholder is held to political account.
10. None of this denies that Lords Chancellors can promote and protect judicial independence (and, in this way, foster the rule of law). They can and have, but today they tend to do so in a manner consistent with the fact the officeholder is an ordinary politician. They can contribute to judicial independence and the rule of law primarily by diligently and carefully exercising their departmental responsibilities for the courts and judges. Beyond this, they are best understood as “political guardians” whose willingness and ability to intervene where there is a risk or challenge to judicial independence will be shaped by and responsive to the political process. Compared with their pre-2005 predecessors, Lord Chancellors will today tend to be reactive guardians, who might at times only be impelled to take actions to defend judicial independence by pressures inside the political system (e.g. criticism from backbenchers or the press). Partisan considerations will tend to weigh more heavily with whether and how the Lord Chancellor decides to defend judicial independence; for example, a private rebuke of a ministerial colleague who has acted inappropriately towards the judiciary is more likely than a public rebuke. To exaggerate the point slightly, it may also be that Lord Chancellors will do the right thing only after exhausting all other possibilities.
11. More bluntly put: care should be taken not to fall prone to the “saviour theory” of the Lord Chancellor, which encourages us to mistakenly assume that judicial independence (or the rule of law) stands or falls on whether or not Lord Chancellors visibly and proactively defend the judges and the judicial system from every conceivable challenge to their authority, whether that challenge is from the Government or elsewhere. As noted above, we need to furnish a set of shared expectations for the role, which will likely involve some judges and lawyers needing to be more realistic about the office. The saviour theory is perversely strong today: the logic of the 2005 reforms was to dilute the significance of the Lord Chancellor, yet many judges and lawyers today seem to pay greater attention to the office. The outsized focus on this single office is both unhelpful and unhealthy. For a start, it overlooks other guardians of judicial independence inside the Government (the law officers, government lawyers, parliamentary counsel, and civil servants). It downplays the role that other public bodies perform in the judicial eco-system (e.g. Judicial Appointments Commission and Judicial Conduct Investigations Office), role which contribute to a culture of judicial independence. Finally, it obscures the vitally important role that senior judges have long played in safeguarding their own independence, as illustrated though the years by judges intervening at times decisively in policy debates affecting the constitutional position of the judiciary.
The Lord Chancellor and the rule of law
12. The scope and content of the Lord Chancellor’s duty to promote and protect the rule of law is uncertain and contested. That said, three points can be safely suggested. First, like every minister, the Lord Chancellor is subject to “an overarching duty to comply with the law”, as set out in paragraph 1.3 of the Ministerial Code. Second, the Lord Chancellor is subject to a more expansive duty than other ministers. This is suggested by the Constitutional Reform Act 2005, where s1 provides that none of that statute’s provisions affect the office’s “existing constitutional role” in relation to the rule of law, although neither the rule of law nor the office’s responsibilities regarding it are defined. Furthermore, s17 requires that Lord Chancellors swear a special oath to “respect the rule of law”. Also of note is that several officeholders, both before and after the 2005 reforms, have said that they viewed their role as involving a special duty to uphold the rule of law. Third, the Lord Chancellor’s elevated responsibility for the rule of law embraces a special, longstanding and now statutory duty to defend judicial independence, with this expressed in s3(6) of the 2005 Act.
13. Beyond these three preliminary points, there is disagreement about the scope of the office’s elevated responsibility for the rule of law, with two main rival views. The first is a (narrow) “departmental” view which takes the duty to be defined largely through and exhausted by the Lord Chancellor’s departmental responsibilities. On this view, the Lord Chancellor is required to promote the rule of law primarily via the efficient and effective stewardship of the judiciary and the justice system. This duty is fulfilled by exercising ministerial responsibility for the courts and judiciary, including by providing sufficient resources and accounting to the UK Parliament for their efficient and proper use. The Lord Chancellor further helps to secure the rule of law by diligently discharging responsibilities relating to the judiciary, such as: jointly determining (with the Lord Chief Justice, “LCJ”) the aims of the Court Service and attempting to agree its budget with the LCJ; determining the framework for the organisation of the courts, including the overall number of judges after consulting the LCJ; deciding judicial pay, pensions and conditions of service, taking account of the recommendations of the Senior Salaries Review Body; exercising responsibility (with the LCJ) for complaints about judges, supported by the Judicial Conduct and Investigation Office, and accounting to Parliament for the discipline and complaints system; and exercising the office’s (limited) role in individual selection decisions, and answering to Parliament for the operations of the judicial selection system. Other relevant departmental responsibilities include oversight of legal aid and resourcing for the Legal Services Board. On this narrow view, then, the Lord Chancellor’s enhanced responsibility for the rule of law is largely co-extensive with the office’s statutory duties to defend judicial independence and to ensure an efficient and effective court system.
14. The second is a (broad) cross-government view, which understands the Lord Chancellor’s duty to extend beyond departmental responsibilities and to encompass instead a much wider duty to ensure that the rule of law is upheld within the Cabinet and across the Government. On this view, the duty is not exhausted by the office’s policy remit over the courts, the judiciary and judicial independence, but embraces cross-government leadership on the rule of law. This includes a duty to warn and advise ministerial colleagues on how proposed policies and actions may impact on the rule of law, and, in this way, is analogous to the role of the law offices in helping ministers to act lawfully and in accordance with the rule of law. Implicit in this is the suggestion that the office’s leadership role includes a duty to intervene whenever questions arise about whether ministers are proposing a course of action inconsistent with the rule of law (and to resign if their warning and advice is not heeded). Sometimes this is further widened to suggest that the Lord Chancellor’s duty entails a wider role as the “constitutional conscience” of the Government, which includes a responsibility to ensure that ministers adhere to constitutional principles, including but not limited to the rule of law.
15. In 2014, the Constitution Committee opined that the Lord Chancellor’s duty to respect the rule of law “extends beyond the policy remit of his or her department; it requires him or her to ensure that the rule of law is upheld within Cabinet and across Government”. To my mind, this is a case of wishful thinking, based more on what many lawyers, judges and others might like to believe rather than reality. It is of course difficult to know with any certainty how each individual Lord Chancellor has interpreted their enhanced responsibility for the rule of law or how effectively they have discharged that responsibility inside the Government. This is due in large part to collective responsibility, which provides that discussions between ministers should remain confidential. That being said, so far as I am aware, there are very few (if any) publicly acknowledged examples of post-2005 Lord Chancellors defending the rule of law in the more expansive way envisaged by the broad view. Between 2011 and 2015, Hazell, Malleson, O’Brien and I interviewed many politicians, judges and officials closely involved in the management and leadership of the judiciary. Several interviewees cited examples of how various Lord Chancellors had defended judicial independence before and after 2005 in line with the narrow view, but we did not identify clear-cut examples of either pre-2005 or post-2005 Lord Chancellors upholding the rule of law in the expansive way envisaged by the broad view.
16. My view is that tasking Lord Chancellors to uphold the rule of law in the expansive fashion envisaged by the broad view may be setting the officeholder up to fail because the post-2005 office is not designed to support such a function. There is no longer any requirement for the officeholder to be: legally qualified (let alone the sort of eminent lawyer who generally occupied the office before 2005); a peer rather than an MP; or at the twilight of their professional career and without ambition for political advancement. Since the 2005 reforms, most Lord Chancellor have not sat on the Parliamentary Business and Legislation Committee, which considers inter alia the delivery of the Government’s legislative programme, and where a member has an opportunity to monitor policy developments and legislative proposals across Government for potential rule of law issues. Above all, since 2007 the role of Lord Chancellor is twinned with that of Secretary of State for Justice, with the Prime Minister appointing the same person to both roles. This means that the appointee has a substantial policy portfolio spanning prisons and probation as well as the courts and judiciary, leads a large ministerial team, and oversees a large departmental budget. This will leave little time or attention to superintend rule of law issues across the Government. It is true that from time to time there might be officeholders who have the standing, professional background, and interest to fulfil a more expansive duty to promote the rule of law. But given the design of the post-2005 office, it is perhaps more prudent to encourage Lord Chancellors to focus their energies on furthering their rule of law through their departmental functions.
How has the role of Lord Chancellor evolved since the initial adjustments following the passing of the Constitutional Reform Act 2005?
17. As noted above, the general thrust of the reforms instituted by the Constitutional Reform Act 2005 was to convert the Lord Chancellor into a conventional ministerial office, albeit one to which several constitutional functions and a special oath attach. Developments since 2005 has underscored that this is an ordinary ministerial position in the following five main ways:
First, the office has been twinned with that of the Secretary of State for Justice since 2007, with a combined ministerial portfolio that spans prisons, probation, the courts and the judiciary. As a result, the courts and judiciary are only now part of the officeholder’s responsibility, and arguably the less politically salient part, which could be said to have further deflated the status and prestige of the role of Lord Chancellor.
Second, the tenure of Lord Chancellors has shrunk significantly. It is clear that there is no longer an expectation that the officeholder will not be shuffled out of the role in the same way as another minister. There have been 10 Lord Chancellors since 2003, with an average tenure between 2007 and 2021 of 649 days (c. 21 months), with two officeholders in the role for less than a year. This is in line with the average tenure in individual cabinet posts over the last 25 years (average 2 years), but a sizable change from the practice prior to 2005, where the average tenure across 11 Lord Chancellors between 1945 and 2003 was 1921 days (63 months or 5 ¼ years). Since 2010 there has also been more turnover of Lord Chancellors than in most cabinet roles. This turnover rate compares unfavourably with the “great offices of state” (10 Lord Chancellors since 2010 versus 4 Chancellors, 4 Home Secretaries, and 6 Foreign Secretaries) and less prestigious offices (since 2010, 7 SoSs for each of Environment and Rural Affairs, for International Development, and for Work and Pensions; 6 SoSs for Defence; and 5 SoSs for Transport). Only one cabinet departmental post has had more churn since 2010 (11 SoSs for Digital, Culture, Media and Sport). The high turnover rate of Lord Chancellors compares unfavourably with the relative stability of Attorneys General, where there have been only four permanently appointed to the post since 2010.
Third, the role of Lord Chancellor is no longer expected to be the last public office before retirement, with six of 9 former officeholders since 2003 having held at least one further front bench position subsequent to their spell as Lord Chancellor.
Fourth, there have been more lawyers than now-lawyers who have held the office since 2003, but the last 10 years have seen the first non-lawyers occupy the office, with four non-lawyers between 2012 and 2018. The first solicitor took the role in 2018, with the current officeholder also a solicitor. A possible pattern of appointing lawyers to this office might be returning, with the last three Lord Chancellors all lawyers, but none of the post-2005 legally qualified officeholders have had the sort of professional standing in the legal community as the pre-2005 Lord Chancellors.
Fifth, in a stark change from the pre-2005 convention whereby the officeholder would sit in the upper chamber, every Lord Chancellor since 2007 has been an MP, and thus firmly enveloped by and a participant in day-to-day partisan politics.
18. It is important to recall that the changes to the role of the Lord Chancellor have not occurred in isolation, with other important reforms in (and since) 2005 to buttress judicial independence and the rule of law. For example, the 2005 reforms led to the creation of new public bodies in the judicial eco-system (e.g. Judicial Appointments Commission and Judicial Conduct Investigations Office), each of play in promoting a culture of judicial independence and the rule of law. Similarly, senior judges such as the Lord Chief Justice and the President of the Supreme Court occupy very important places in our constitutional architecture, with various tools available to them to defend the independence of the judiciary and the rule of law, including a power to lay representations before the UK Parliament.
Has the politicisation of the role through combining it with Justice Secretary made it harder for Lord Chancellors to defend the rule of law?
19. Contrary to what is suggested in the question above, there is little (if any) evidence to suggest that combining it with the job of Secretary of State for Justice has “politicised” the role of Lord Chancellor (where I take politicisation to mean that the nature of the role and the exercise of the office’s functions are more likely to be subject to partisan political considerations, with the role now more ensconced in the hurly-burly of the political system). The Constitutional Reform Act 2005 had already in effect politicised the office by converting it into a standard ministerial job.
20. In 2007, there were fears that twinning the roles, together with the creation of the Ministry of Justice, might undermine the officeholder’s ability to fulfil the Lord Chancellor’s statutory functions relating to the judiciary, both in organisational and budgetary terms. But there is little (if any) evidence that those fears have been borne out. Nor is there evidence that combining the roles has made it harder for Lord Chancellors to defend the rule of law (as distinct from the 2005 changes which arguably have meant that the office is designed only to support the narrow “departmental” responsibilities outlined above towards the rule of law, and not wider “cross-government” responsibilities).
21. In practice, the most important by-product of twinning the roles is that since 2007 every Lord Chancellor has been an MP, sitting in the Commons, answerable to the elected chamber for a combined policy portfolio that includes the politically sensitive subjects of prisons and probation and for spending decisions in a moderately sized departmental budget. This has helped promote democratic accountability for the Lord Chancellor’s exercise of ministerial responsibility over the courts and judiciary, but also means that officeholders since 2007 have been squarely part of the rough-and-tumble of partisan politics in the House of Commons.
22. On the basis of the current division of ministerial roles, it is better that the two are combined, rather than separating out the Secretary of State for Justice (responsibile for criminal justice, prisons and probations) from a rump office of Lord Chancellor (responsible for the courts and judiciary). The twinned roles arguably give the officeholder more political clout, which might make it more likely to secure favourable outcomes in intra-government negotiations when exercising functions assigned to the Lord Chancellor, which is important given that the office no longer possesses the prestige and standing of the pre-2005 office. Of note is that a rump office of Lord Chancellor without the cojoined prisons and probation policy portfolio might make for an unattractive ministerial post and, by extension, lessen its informal standing and influence in Whitehall.
Should Lord Chancellors have a legal or constitutional background?
23. A “legal background” covers a lot of possibilities, including but not limited to: someone who read law at university but never practiced; someone who was in practice but only very briefly; someone with a longer period in legal practice, but without excelling; and someone who has had a career in the law but without any litigation experience and/or much exposure to the work of the courts and judiciary. Equally, “a constitutional background” is a phrase much too wide to have any real meaning.
24. Possible advantages of having a Lord Chancellor with a “legal background” include that this might mean that the person has: (i) a sound understanding of the meaning, content and limits of core constitutional principles such as judicial independence and the rule of law, (ii) has a good understanding of the key pressures and challenges confronting judges, lawyer and litigants; and (iii) has long-standing professional relationships with senior judges and practitioners which help to foster confidence in the officeholder, the Ministry of Justice and the Government.
25. The possible disadvantages include that: (i) long-standing professional relationships might mean that an officeholder too easily swayed by arguments advanced on behalf of vested interests in the legal and judicial system, and more particularly, lead them to place insufficient weight on the public interest where it is at odds with judicial interest; (ii) the officeholder’s prior experience might be relatively historic, meaning that they have an outdated understanding of the challenges confront judges, lawyers and litigants; and (iii) a legal background may mean that the officeholder fails to bring a sufficiently detach, critical and fresh perspective to the courts and judiciary policy and instead might be reluctant to initiate necessary change in the judicial system.
26. It is a mistake to fetishize a legal background. Being an effective Lord Chancellor does not turn on whether the officeholder is a lawyer or not; rather, it requires essentially the same skillset as other ministerial roles (intelligence; industriousness; the ability to master a complex brief; the ability to lead a department and set its direction; the ability to think strategically and to lead a in implementing strategic plans; the ability to negotiate with a diverse set of internal and external stakeholders; the ability to delegate; a strong set of political skills, including judgment, diplomacy, persuasion, and courage; and the ability to command the confidence of ministerial and parliamentary colleagues). More particularly, the Lord Chancellor must be strong enough and possess sufficient political capital to defend judicial independence where appropriate, including by persuading other ministers to ditch policies and/or to avoid actions at odds with judicial independence, and by withstanding unreasonable demands that senior judges might make.
Should Lord Chancellors remain in post longer? How could this be achieved?
27. As noted above, Lord Chancellors are now in post on average for much a shorter time compared with both pre-2005 Lord Chancellors and also most other cabinet jobs. This risks an officeholder being unable to see policies through to implementation, and may make it difficult for Parliament to hold individual officeholders to account for the outcomes of their decisions. Frequent changes in political leadership might also lessen the Ministry of Justice’s ability to plan for the long term and might lead to confusion and inefficiencies. Exacerbating the high turnover rate of Lord Chancellors has been the high level of churn amongst civil servants in the Ministry of Justice, who have changed roles often. Of course, sometimes ministerial changes are necessary and/or unavoidable (e.g. where a person performs poorly and/or loses the confidence of critical stakeholders, or where a serious policy disagreement or a scandal leads to a minister resigning). It is also true that the ability to appoint and remove ministers is amongst the Prime Minister’s main sources of power and helps to foster party unity. It is also the case that a Prime Minister needs to be able to populate his or her government with the people that they deem most likely to secure effective policy outcomes. That said, generally speaking, it would be desirable for Lord Chancellors to remain in post for longer than the current average tenure of 21 months, but the case for being longer in post applies for almost all ministerial roles (where the average tenure is 2 years).
28. There is no (appropriate) legislative remedy to this. Instead, a Prime Minister would be well advised to consider whether and how overly frequent ministerial reshuffles can impede good government and to reflect on whether at any given point in time there are certain offices where the pursuit of effective policy requires longer in post than others. There is at least an arguable case that the nature of the constitutional functions exercised by the Lord Chancellor, the need to require an in-depth understanding of issues relating to the courts and judiciary, and the need to foster stable and constructive relationships with senior judges suggest that this might be a role which requires longer in post than some others. But this argument will apply with broadly similar force to many other cabinet posts.
Is further reform of the role of Lord Chancellor and is now the time to do it? Are there additional functions that the Lord Chancellor should take on?
29. There are four main options for reform, but none is desirable. The first is to seek to rebuild the “old” pre-2005 Lord Chancellor by requiring officeholders to be legally qualified, peers and at the end of their careers. This is not realistic: the constitutional vase was shattered in 2005 and it cannot now be glued back together in a way that recreates the office’s former status and influence. The second option is to decouple the Lord Chancellor from the Secretary of State for Justice. There is little to be gained from this, since the cojoined roles contributes to the political clout of the Lord Chancellor. A rump office of Lord Chancellor would likely have little political heft, little status in Whitehall, and not be an attractive role for politicians. A third option would be to combine the Lord Chancellor with ministerial responsibility for the constitution. This is likely to hold some appeal for senior judges, who may assume that this role would remove the Lord Chancellor from much partisan politics, although polarised debates about constitutional questions such as EU membership and Scottish independence would seem to suggest otherwise. The key problem with this option is that sometimes a constitutional brief would be all-consuming (leaving little time for the Lord Chancellor to focus on the courts and judiciary), but at other times it might be much less prominent on the political agenda (with a combined courts, judiciary and constitutional policy brief ranking very low in Whitehall’s priorities and influence, with the Prime Minister unlike to appoint a heavy-hitter to the office). The final option is to abolish the office of the Lord Chancellor and subsume its responsibilities into the job of Secretary of State for Justice. Some argue that functions currently attached to the office of the Lord Chancellor can be exercised by the Secretary of State for Justice, and that judges need no longer shelter behind the Lord Chancellor’s robes when interacting with the government. In my view, it would be a mistake to scrap the office of Lord Chancellor since there remains some value in identifying certain constitutional functions as attached to the office that are distinct from those attached to the Secretary of State for Justice, even if exercised by the same person. On appointment, this might be helpful to civil servants who brief the new minister to explain the special responsibility to defend judicial independence, especially if the minister is not a lawyer. It might also be helpful to the officeholder when reprimanding ministerial colleagues if he or she can point to their special duty as Lord Chancellor, and possibly even if standing up to the PM. At the same time, and as noted above, we need to foster realistic expectations for the role, and avoid the trap of the “saviour theory” discussed above.
30. There is an argument that the Lord Chancellor’s role should be enhanced in senior judicial appointments, as Professor Richard Ekins and I argued in a paper for Policy Exchange last year.
Is the Lord Chancellor’s oath useful or significant? Should it be changed?
31. The Lord Chancellor’s oath is useful in signalling the constitutional importance of the office-holder’s functions, and in particular the duty to defend judicial independence and to provide resources to the court system. To be sure, the oath does not convert the office into something other than a standard ministerial role, but it serves a useful ceremonial function in signalling to officeholders that this particular job has important constitutional duties attached to it. The oath is also useful to civil servants who can cite the oath when briefing the Lord Chancellor on whether and how to fulfil the duty to safeguard judicial independence.
32. The oath could be changed to provide that the Lord Chancellor must “respect and uphold the rule of law”, as the Committee suggested in 2014. In truth, little will turn on this, and the oath (as currently worded) already signals to the officeholder that the role of Lord Chancellor has certain important responsibilities towards the rule of law.
9 March 2022
 G. Gee, R. Hazell, K. Malleson and P. O’Brien, The Politics of Judicial Independence in the UK’s Changing Constitution (CUP, 2015).
 See e.g. G. Gee, ‘What are Lord Chancellors For?’  Public Law 11; G. Gee, ‘Rethinking the Lord Chancellor’s Role in Judicial Appointments in England and Wales’  20 Legal Ethics 1; G. Gee, ‘Legal Elites, Lord Chancellors and Judicial Independence’ in D. Galligan (ed), The Courts and the People: Friend or Foe (Hart, 2021) 205; and R. Ekins and G. Gee, Reforming the Lord Chancellor’s Role in Senior Judicial Appointments, Policy Exchange, Judicial Power Project .
 D. Feldman, ‘The Internationalization of Public Law’ in J. Jowell and D. Oliver, The Changing Constitution (OUP, 2007) 108, 113.
 P. Sales and J. Clement, ‘International Law in Domestic Courts: the Developing Framework’ (2008) 124 Law Quarterly Review 388.
 Lord Thomas, The Judiciary Within the State—The Relationships between the Branches of the State (Michael Ryle Memorial Lecture, 15 June 2017) at para 55.
 There are two other legally distinctive features of the office: first, section 2 of the Constitutional Reform Act provides for factors that the Prime Minister may take into account when appointing the officeholder, although in practice this provision is a “dead letter”; and second, section 20 prevents certain of the office’s responsibilities from being transferred to other ministers by way of the general provisions relating to machinery of government changes in the Ministers of the Crown Act 1975.
 G. Gee, ‘Legal Elites, Lord Chancellors and Judicial Independence’ in D. Galligan (ed), The Courts and the People: Friend or Foe (Hart, 2021) 205
 On the statutory duty to ensure an efficient and effective court system, see: Courts Act 2003, s1; and Tribunals, Courts and Enforcement Act 2007, s39.
 T. Sase, T. Durrant, E. Norris and K. Zodgekar, Government Reshuffles: The Case for Keeping Ministers in Post Longer (Institute for Government, January 2020) https://www.instituteforgovernment.org.uk/sites/default/files/publications/government-reshuffles.pdf.
 Richard Ekins and Graham Gee, Reforming the Lord Chancellor’s Role in Senior Judicial Appointments (Policy Exchange Judicial Power Project, February 2021) https://policyexchange.org.uk/wp-content/uploads/Reforming-the-Lord-Chancellor’s-Role-in-Senior-Judicial-Appointments.pdf.