Dr Patrick O’Brien, Senior Lecturer in Law, Oxford Brookes University – written evidence (RLC0013)

House of Lords Constitution Committee inquiry into the Role of the Lord Chancellor and the Law Officers

1.            This submission addresses the call for evidence from the House of Lord Constitution Committee’s inquiry into the role of the Lord Chancellor and the Law Officers. In this submission I focus on the role of the Lord Chancellor, drawing on research conducted with Robert Hazell, Kate Malleson and Graham Gee from 2011-2015[1] as well as other research I have done subsequently.

Changes to the role of the Lord Chancellor after the Constitutional Reform Act 2005: tenure and status

2.            Under the Constitutional Reform Act 2005, the judicial responsibilities of the Lord Chancellor were removed. The office need no longer be held by a lawyer. The ‘new’ Lord Chancellor is a more junior and more political figure than the ‘old’ Lord Chancellor. The role is increasingly filled by junior ranking politicians and often appears to be regarded as a career stepping-stone. This has been particularly clear with Lord Chancellors appointed after 2012 (when Chris Grayling, the first non-lawyer Lord Chancellor, was appointed). Prior to this point, Lord Chancellors had typically been senior politicians from a legal background, appointed late in their political careers. Since 2012, turnover in office has increased significantly and tenure has reduced.

There were three Lord Chancellors between 1990 and 2005. Between 2005 and 2022 there have been ten, including the incumbent (Dominic Raab).[2] If we again take 2012 as a turning point, tenure in office for Lord Chancellors who served from 1970-2012 was 4.7 years. For Lord Chancellors who served after 2012 it has been 1.4 years. This is not just low by the historical standards of the office, it is below the average figure for other Cabinet ministers (two years).

3.            The result of this trend towards shorter appointments of more junior figures is that Lord Chancellors are rarely in post long enough to make much impact or gain much authority. There is a powerful incentive for career-minded incumbents not to rock the boat, in the hope of promotion. This is not to suggest that ‘new’ Lord Chancellors do not take their responsibilities seriously. There is no reason to believe that the oath and formal duties of the Lord Chancellor are not regarded as important, and at a minimum they offer a basis for official advice on core matters concerned with judicial independence. We must also acknowledge that any private influence Lord Chancellors may exert over government policy is almost impossible to detect from outside, let alone analyse. However, the ‘new’ Lord Chancellors are political figures, not (just) legal ones. They will interpret the duties imposed on them in the Constitutional Reform Act 2005 as politicians. They also hold a broader and more complex brief. Since 2007 the Ministry of Justice is also responsible for prisons, commanding a significant budget and a great deal of political salience.

4.            They are less likely to be immersed in legal culture, or to intervene and engage with judges and the legal system in ways that judges and the legal profession may expect or desire. ‘New’ Lord Chancellors are justice ministers equivalent to those found in other European countries. They are unlikely to take positions that are distinct from those of the Government on matters affecting judicial independence, and they will interpret their duties under the 2005 Act in political terms. They will be advocates within Government for judges, the law and judicial independence in the same way that a Health Secretary will advocate for the NHS: filtered through the politics and policies to which they and the Government are committed. Judges and the profession are less likely to be given a sympathetic hearing, and distinctions between special pleading and core doctrines and principles of the law that are axiomatic to lawyers may not necessarily be understood or accepted by a ‘new’ Lord Chancellor.

5.            This entails that the core, politically uncontentious, aspects of judicial independence will (and have) been defended by the Lord Chancellor and by the Government. The tenure of judges and the systems by which they are appointed and disciplined remain robust and independent. Judges and the courts have not been politicised or threatened. Beyond this core, however, things are more contentious. Penumbral issues, such judicial pensions, the funding of the legal system and the nature of judicial review, are often politically salient and are open to multiple political interpretations. Changes in these areas cannot be regarded as challenges to judicial independence strictly speaking. (And even under ‘old’ Lord Chancellors such as Lord Mackay, reforms to judicial pensions were regarded with great suspicion by judges and the legal profession.)

6.            In moving the amendment to preserve the office of Lord Chancellor in the Constitutional Reform Act 2005, Lord Kingsland commented that “the Lord Chancellor in the Cabinet is a great inconvenience to the executive. That is the reason he should stay there.”[3] The new office of Lord Chancellor has not developed in this way. The power of the pre-2005 office of Lord Chancellor lay in its history and in its connection to the judiciary. These are gone and in this sense the Lord Chancellor no longer exists. Especially post-2012, the office is no longer an inconvenience to the Government.

7.            This outcome – a slimmed down Lord Chancellor – was deliberate. In this sense the 2005 Act has been successful in achieving its aims. The former Lord Chancellor’s Department was an anomaly in Government: a large department, run from the House of Lords, by a Lord Chancellor who straddled all three branches of Government. It is now a conventional government department – the Ministry of Justice – run from the Commons. There is now a more formal separation of powers, with the Lord Chancellor removed from the judiciary and the Law Lords removed from Parliament.

8.            It is also part of the design of the Act that what we might term ‘guardians’ of judicial independence are now diffuse and multiple. This aspect of the new arrangements has also been successful. Judicial independence is now protected by a much broader ecosystem of institutions and personalities. These include the Lord Chief Justice and the senior judiciary (now given significant management responsibilities over judges and the courts), the Judicial Appointments Commission and the Judicial Complaints Investigation Office. The incorporation of tribunals within the judiciary has led to a significant improvement in the independence of administrative justice. This Committee, together with others in Parliament, also perform a valuable function in mediating the relationship between judges and politicians, and in offering judges a forum for raising matters of concern. There are less formal but equally important relationships at official level between the judiciary and the executive. To focus on the Lord Chancellor in isolation is to miss this broader picture.

9.            The Law Officers also form part of this broader ecosystem of institutions and personalities who can support judicial independence and the rule of law and mediate the relationships between judges and politicians. In research I conducted with Robert Hazell, Kate Malleson and Graham Gee from 2011-2015, we anticipated that the Attorney General might become a guardian of judicial independence in these new arrangements. However, as with the role of Lord Chancellor, much will depend on the personality and political outlook of the incumbent.

10.       In my view, the Lord Chancellor should be kept in post for longer than has been typical in the past decade. It is difficult for the job (indeed, difficult for any ministerial job) to be adequately performed at the current rate of turnover. The Committee should recommend that the Prime Minister should, when considering ministerial appointments, consider the important of preserving expertise, particularly in constitutionally sensitive roles.

Criticism of judges and the role of the Lord Chancellor

11.       Many judges feel quite keenly that criticism of judges by politicians and by journalists is a challenge to judicial independence. In my view, media commentary can create challenges to judicial independence if it challenges their impartiality or causes them to fear for the security. Judges who feel aggrieved by an obviously unfair media mischaracterisation of themselves or their work may lose their objectivity, or be tempted to respond publicly, potentially imperilling their own independence. Judges may also feel threatened by a particular line of media reporting. The media reporting of the decision of the divisional High Court in Miller v Secretary of State for Existing the European Union [2016] EWHC 2768 (Admin) was a notable example of this. The very negative press – epitomised in the Daily Mail’s ‘Enemies of the People’ headline on 4 November 2016 – caused some judges to have concern for their personal safety. In March 2017 the Lord Chief Justice, in evidence to this Committee, indicated that he had taken advice from the police on security and protection for judges in light of the public reaction following the negative press reporting. Threats to judges are a very clear threat to their independence, because they may imperil the capacity of some judges to do their jobs ‘without fear or favour’.

12.       Following the negative press following Miller, the then Lord Chancellor, Liz Truss, was widely criticised for failing to publicly intervene to defend the judiciary, and for stating publicly that she did not believe that it was appropriate for her to do so. However, following very strong reactions from judges and the legal profession, Ms Truss did intervene following the Supreme Court judgment in that case. The media reaction to the Supreme Court judgment was also more muted. To my mind this tends to support the view that what was witnessed in Miller was less a challenge to the authority of the judiciary than it was a clash of cultures. Lay Lord Chancellors are not acculturated within the law and may not respond to events covered by their brief as a lawyer would respond. In general, however, they will wish to conduct their duties as best they can, and will be sensitive to the views of departmental ‘client groups’ such as lawyers and the judiciary. To my knowledge, nothing of the same scale as the ‘Enemies of the People’ headline has arisen subsequently, suggesting that lessons were learned within both the press and politics. Media responses to the Supreme Court decision on the prorogation of Parliament in 2019 did not challenge the legitimacy of the court decision, but rather focussed on what this meant for the Government in political terms.

13.       It is, however, correct to say that the tone of Government commentary about matters before the courts has been abrasive at times in recent years and has strained at the duty of comity owed by the Government to the judiciary. This can be problematic. Key institutions of the state should not communicate by shouting at one another across the public square. It can be a source of tension between judges and politicians (at least at a human level) because judges cannot normally answer back or defend their positions. To the extent that unfair criticism may encourage them to do so, it may occasionally threaten judicial independence.

14.       Political criticism is not, however, a new phenomenon. Governments periodically attempt to influence the judiciary through criticism or public statements. As Home Secretary in the 1990s, for example, it appears that Michael Howard may have sought to influence sentencing practice through public criticism of judges. Though there may be reason for concern if this kind of interaction became endemic, it is not inherently problematic. Criticism is not in itself a threat to judicial independence. Sometimes, indeed, it may be justified.

Reform of the role of the Lord Chancellor: judicial independence and the rule of law

15.       Empirical research into judicial independence consistently demonstrates that judicial independence is nurtured and sustained by culture and practice rather than by legal rules. De jure rules protecting judges are not a reliable indicator of de facto judicial independence. New democracies that have emerged in Europe in the past thirty years have often adopted very robust formal constitutional protections for judges, yet in some cases have not managed to read these protections across to political practice and culture. In some cases, the degree of independence afforded to judges has in fact damaged judicial independence by politicising the leadership of the judiciary.[4] Although many in the judiciary, the law and politics are firm in their belief that the old Lord Chancellor was a crucial defender of judicial independence, it is difficult to conclude with any certainty that the office itself was more important than the broader culture and structures within which it was located. The culture of respect and political restraint from which the office of Lord Chancellor in part derived its authority also extended to the judiciary and the law more generally.

16.       For this reason, we should be cautious about assuming that the protection of judicial independence rests on a specific office or on section 3 of the 2005 Act and chary of claims that alterations to the precise wording of the Act would make a meaningful difference to the protection of judicial independence. Judicial independence is not something that can be imposed upon politics and politicians. It is a political achievement.[5] Defending it requires a political class that believe in it and institutions that practice it. This in turn requires that we sustain personal and institutional relationships between politicians, judges and lawyers and do not allow independence to become a source of alienation and distrust.

17.       This inquiry also addresses the rule of law, against a backdrop of a number of controversial government proposals in recent years; in particular the Internal Market Bill and proposed reforms to the Human Rights Act and judicial review powers. In my view it is not – and never has been – the special role of Lord Chancellor specifically to push back against proposals of this kind. The rule of law is not something that can be imposed or defended by a single office or personality. Even to define it may be a challenge. Although section 1 of the 2005 Act confers a particular responsibility on the Lord Chancellor to defend the rule of law, the rule of law is a contested ideal; perhaps even ‘essentially contested’[6] (that is, contested even at its very core). Discussions about the limits of judicial review and human rights are clearly relevant to the rule of law, but they are necessarily (and reasonably) the subject of political disagreement. In scholarly discussions, there are broad and narrow understandings of the rule of law. A narrow understanding of the rule of law includes concern for the stability and clarity of the law, and the requirement that the state is bound by the law. The core indicia of judicial independence may also be included. The broad understanding of the rule of law includes all of this, but also broader conceptions of human rights and the judicial review powers of the courts. Other conceptions of the rule of law would also include core functions of democracy within its ambit. These are clearly not just questions of law. Typically, though not universally, they form part of more general views about politics. Those with relatively liberal politics tend to agree that the courts should have robust powers against the government in relation to human rights and judicial review, whereas those with relatively conservative politics tend to believe that these powers should be relatively limited, with concerns for rights and good governance left to politics.

18.       The rule of law is an important concept, but clearly much of its content must be supplied by politics and by culture. This creates difficulties for a Lord Chancellor who is expected (per section 1 of the 2005 Act) to defend the rule of law. Which conception of the rule of law do we require them to defend: the broad or the narrow? If it is proposed that the Lord Chancellor should take a particular position on matters connection with human rights and judicial review, it seems that we are drawing on the broad definition. To conclude that section 1 of the Act requires the Lord Chancellor to take a particular view on debates about the appropriate limits of judicial review, for example, appears to require the Lord Chancellor to be someone who holds a particular political viewpoint, perhaps even a particular party-political affiliation. This appears to me to go far beyond what was originally intended by the 2005 Act, and beyond the role that was traditionally exercised by the pre-2005 Lord Chancellors, which was largely bound up with the administration of judges and the courts rather than these larger political concerns. Requiring the Lord Chancellor to defend a broad (as opposed to a narrow) understanding of the rule of law goes beyond what the office is equipped to do. It is not clear that a pre-2005 Lord Chancellor would have done so in any meaningful way. Given the political and structural limitations of the post-2005 office (described above) it is certainly not a role that new Lord Chancellors can perform. It may be beyond the scope of any office.

19.       Judicial independence and the rule of law depend less on formal rules than on a sympathetic political culture. Finding ways to sustain this culture, through reinforcing the duties of comity owed by politicians to judges (and vice versa) and through ensuring that there are adequate opportunities for judges and politicians to engage with one another, is more important and likely to be more worthwhile than formal changes to the wording or duties of the Lord Chancellor.

18 March 2022

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