Mr Yuan Yi Zhu, Associate Member, Pembroke College, University of Oxford, and DPhil candidate in International Relations, Nuffield College, University of Oxford – written evidence (RLC0016)

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

1.            I am a political scientist based at Nuffield and Pembroke Colleges, University of Oxford. I make this submission in a personal capacity only. This submission draws on my unpublished paper on breaches of international law and on a talk I gave in March 2021 at the “UK Constitutional Reform: What Has Worked and What Hasn't?” conference at Queen Mary, University of London.

2.            I answer questions [1] to [5]; where I only address a specific aspect of a question, I will note this at the beginning of the section. For questions [6] through [8], I particularly commend to you the submission of Dr Conor Casey, who is a leading authority on the subject of the law officers. I also commend to you the submission of Professor Graham Gee: whilst we disagree on some issues, we are in entire agreement about the basic approach to these questions, even if our final analyses might differ.

3.            As many of the questions involve answers which are inter-related, I shall group them whenever appropriate.

[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?

4.            I shall address my answer with particular reference to the relationship between the protection of the rule of law and international law. Although this is not stated explicitly, it is obvious that this part of the question refers to the controversy surrounding the 2020 announcement that the Government was to introduce legislation which could breach the United Kingdom’s international legal obligations in a “limited and specific way”, which was very controversial at the time.

5.            To answer this question, it first is necessary to revisit some fundamental principles of international law and of the United Kingdom constitution, and I ask for the reader’s indulgence in doing so. 

6.            International law and municipal law exist on two separate planes. Those planes frequently intersect, and municipal law generally, though not always requires international law to be respected. This is particularly true in the United Kingdom, which has a “dualist” system. This means that international law has to be “translated” into municipal law in order to be effective. 

7.            Sometime, the translation is dome by the courts. For instance, it has been long recognized that customary international law is one of the sources of common law, subject to qualifications.[1] In other contexts, the translation has to be effected by Parliament legislating to give effect to international law.

8.            But the United Kingdom’s constitutional arrangements, and in particular Parliamentary sovereignty, necessarily involve the possibility of Parliament deciding to violate international law. As the Supreme Court correctly said in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2] at [57]:

It can thus fairly be said that the dualist system is a necessary corollary of Parliamentary sovereignty, or, to put the point another way, it exists to protect Parliament not ministers. Professor Campbell McLachlan in Foreign Relations Law (2014), para 5.20, neatly summarises the position in the following way: 

“If treaties have no effect within domestic law, Parliament’s legislative supremacy within its own polity is secure. If the executive must always seek the sanction of Parliament in the event that a proposed action on the international plane will require domestic implementation, parliamentary sovereignty is reinforced at the very point at which the legislative power is engaged.”

9.            Nor is this limited to Parliament legislating in ways which are incompatible with international law, as long as the relevant international law obligation has not been incorporated into domestic law. As Philip Sales QC (now Lord Sales) observed in the context of administrative decision-makers and unincorporated international law obligations:

The general position in English law is that administrative decisionmakers who have a discretion conferred upon them by statute are not obliged to comply with or have regard to the United Kingdom’s international law obligations when exercising their discretion, but that they may lawfully at their own choice elect to do so.[3]

10.       This goes for the executive more broadly as well. In 1968 Lord Justice Diplock (as he then was) took it for granted that:

"[T]he Crown has a sovereign right, which the court cannot question, to change its policy, even if this involves breaking an international convention to which it is a party and which has come into force so recently as fifteen days before."[4]

11.       None of this is incompatible with the protection of the rule of law. On the contrary, it is a guarantee of rule of law and of democratic self-governance within the United Kingdom. As Lord Judge said in 2014:

in our arrangements, although Parliament is expected to respect a Treaty obligation, it is not bound to do so, and legislative enactments are themselves of course subject to subsequent amendment or repeal by the same or later parliaments. For us this principle, embodied in a constitution which is partly written and partly unwritten, underpins the rule of law and represents the rule of law in operation. [Emphasis added].[5]

12.       Or as Professor David Feldman QC (Hon) FBA puts it:

there are sound reasons for having filters at national level to control the way in which the 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 nations 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. This prevents international law from directly affecting national law. The UK has traditionally adopted a broadly dualist approach….

In other cases, to compensate for the loss of democratic control, dualism prevents the treaty- making prerogative being used to extend the power of the executive, and protects the legislative supremacy of Parliament against attrition. It also protects both the government and Parliament against the direct imposition of the will of other states, contrary to the UK’s national interests, through international treaties and the resolutions of international organizations. The UK Parliament can refuse to give effect to treaty obligations in municipal law. It, and the government of the day, can also refuse to accept that a treaty imposes any binding obligation. For example, the previous (Labour) government’s view of economic and social rights arising under the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child was that the obligations were aspirational rather than immediate, and did not require the state to guarantee an ascertainable level of protection at any one time. Refusing to recognize or comply with treaty obligations might lead to sanctions for breach of international law if any are available, but it leaves the UK’s legislatures ultimately in control of their own legal systems. [Emphasis added].[6]

13.       This is not a ‘quirk’ or a ‘loophole’ of the United Kingdom constitution, but is true of many other countries which do not have a doctrine of Parliamentary sovereignty. For instance, Canada legalized cannabis for all purposes in 2018, even though this ran against Canada’s international legal obligations under three drug control treaties signed by almost all members of the United Nations. The Canadian foreign minister at the time (now deputy prime minister) explicitly admitted it to the Canadian parliament.[7] Canada is still a signatory to all three treaties (which it continues to break) but has suffered very limited consequences because of this.

14.       Canada is of course also a dualist jurisdiction, but even some monist jurisdiction enshrine the supremacy of their national constitutions over international law in case of irreconcilable conflict.

15.       Of course, in most cases it is desirable for the United Kingdom’s duties under international law and its municipal law to coincide, not least because, as a matter of international law, domestic constitutional arrangements do not excuse breaches of international law. But this does not mean that any breach of international law is an attack on the rule of law. International and municipal law exist on two different planes, and in a dualist system it is impossible to have an ‘overall’ notion of rule of law which requires strict adherence to both at the same time, given the possibility of conflict between the two.

16.       Moreover, compliance with international legal obligations, whilst important, is not the only concern ministers, law officers, and Parliament must consider. Professor Feldman has alluded to, for instance, the advancement of important national objectives. If strict compliance with international law would undermine a key national objective, and withdrawal from the relevant international law regime is not an option, it is obviously ministers’ duty to consider whether they should act in ways which are incompatible with international law, although I emphasize that this should obviously done sparingly and after great deliberation.

17.       There are many examples of such conflicts being resolved in favour of the pursuit of key national objectives. For instance, during the First World War, Mr Asquith told the House of Commons that:

In dealing with an opponent who has openly repudiated all the restraints, both of law and of humanity, we are not going to allow our efforts to be strangled in a network of juridical niceties.[8]

18.       During the Second World War, Mr Churchill openly advocated in Cabinet policies which he knew which would breach international law, for instance the mining of ports belonging to neural countries but which he viewed as necessary for the successful prosecution of the war.[9]

19.       The late Amanda Perreau-Saussine points to Buron v. Denman, where the government of its day (in 1840) explicitly endorsed the actions of a Royal Navy captain in breaching international law for the purpose of freeing slaves, even after the law officers advised the government that what had been done was illegal under international law.[10]

20.       This is not to mention the awkward question of tax treaty overrides, the practice through which Parliament regularly breaches the United Kingdom’s international legal obligations through legislative overrides of international taxation treaties. Should the law officers have resigned because of them? To ask the question is to answer it.

21.       To return to the original question, law officers are officers appointed under United Kingdom law, members of the United Kingdom government, responsible to the Parliament of the United Kingdom and to the people of the United Kingdom people. Given that the United Kingdom constitution within which they operate explicitly allows for the breach of international law through municipal law, it cannot be that they have an overriding duty to obey international law in preference to the law of their own country. 

22.       As a corollary, it cannot be said that they have a duty not to facilitate the breach of international law by refusing to provide legal advice or introducing bills which are potentially incompatible with international law, as the examples above demonstrate. They are ministers and as such have the same duty to act in the national interest as any other minister.

23.       Of course, if a law officer feels that the breach of international law is not justifiable in any particular case, as Lord Keen of Elie QC felt in 2020, he should consider resignation, like on any other issue on which he disagrees with the government. But that does not mean that law officers should be expected to do so, and it was plainly the right of the other law officers and the-then lord chancellor to refuse to do so at the time.

24.       It is of course legitimate to criticise them for their judgment in relation to that particular case; but it is not fair to suggest that they have an automatic duty to resign when Parliament contemplates the breach of international law.

25.       Thus, the status quo in that regard, where the law officers and the lord chancellor exercise their individual judgments on a case-by-case basis, is the only possible one. It does not undermine the rule of law and it would be undesirable to change it.

[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?

26.       In this section, I will address the role of the lord chancellor only. As to the work of the law officers, I commend to the committee the submissions of my colleague Dr Conor Casey, who is a leading authority on the subject.

27.       In life, whether you are winning or not depends on your yardstick. On a previous occasion when this committee examined Mr Blair’s reforms to the lord chancellorship, he wrote the following (for he was regrettably unable to attend in person):

I was elected on a programme of reform of the law and order system to make it more effective. I wanted to carry out that mandate. I thought the best way to do it, involved making the Home Office a crime-fighting and immigration department; separating out its constitutional role, on which it seemed to me to spend a great deal of its practical and intellectual energy; and focusing the Lord Chancellor's Department on making the courts work effectively and actively on the same law and order agenda as the Home Office.[11]

28.       This must be the starting-point to answering the question. The purpose of the back-ofthe-envelope reforms to the lord chancellorship of the 2005 Act was to kill the old lord chancellorship and to turn the post into a ‘normal’ minister, with ‘normal’ departmental duties. And that is exactly what happened. In that narrow sense it has been “successful”.

29.       Given the nature of the 2005 reforms, what is surprising is not that some recent lord chancellors were perceived by some to have failed to defend judicial independence, but that recent lord chancellors have bothered to defend the judiciary at all. Given the nature of the reformed lord chancellorship, they have little incentive and none of their traditional prestige to do so.

30.       I must make it clear at this point that I do not intend to criticize the performance of post2005 lord chancellors. As the evidence of Professor Gee shows, ‘new-style’ lord chancellors have in fact defended judicial independence, even though they “tend to do so in a manner consistent with the fact the officeholder is an ordinary politician”. But the point I am making here is that, given the built-in tensions in the post-2005 lord chancellorship, it speaks very well of incumbents that they have in fact done so, given the formidable array of institutional and political disincentives against them performing this vital task.

31.       The old-style lord chancellor was often described as a “three-legged stool” or an “universal joint”. This was a source of embarrassment to some constitutional reformers, but the old lord chancellorship worked precisely because its irrational organisation ignored separation of powers completely (and I note that the United Kingdom has never had true separation of powers in that the executive and legislative branches are fused).

32.       The lord chancellor was not a judge because he would necessarily be a great one, although a few were and almost all were good enough. Instead, they were judges so that the lord chancellor could speak with special authority in Cabinet (and to discipline his ministerial colleagues) because he was a judge and could speak with special authority to judges because he was a colleague, but one with the ear of the Prime Minister.

33.       The presence of a senior judge in government contributed to what Dicey memorably described as the “predominance of legal spirit” within the government, which is essential to the rule of law. His twin hat also enabled him to serve as a buffer, a mediating institution between the executive and the judiciary, a role of some importance in a constitutional system where the outer limits of each’s sphere are not strictly delineated. 

34.       And his overlapping roles gave him a certain special prestige in Cabinet. It is unnatural for a prime minister to defer to a colleague, but to defer to one who was also a judge was considerably easier. Even Mrs Thatcher, who berated even her most senior ministers, was never reported to have raised her voice at Lord Hailsham, who sat next to her at the Cabinet table.

35.       The post-CRA lord chancellor, by contrast, is an ordinary minister, who is not required to be a lawyer, whose main job is to run prisons but who is also somehow expected to take on an extraordinary role as the defender of judicial independence, especially against his own colleagues and own boss, on the basis that he has taken another oath and wears fancy dress from time to time.

36.       He must do so with none of the traditional judicial prestige and historical legitimacy of his office. Reforms have deliberately isolated the lord chancellor from the very judiciary which he is supposed to defend. He has “systemic” duties in relation to the judiciary, but unlike a normal minister he is barred from exerting real influence on the judges who he is expected to fund and to defend.

37.       Moreover, given his wide departmental duties, he is necessarily in potential conflict with the judiciary much more often than before. The pre-reform Lord Chancellor was occasionally the target of judicial review, but those were relatively rare. By contrast, in 2019, more applications for judicial review were filed against the MOJ than any other department including the Home Office. 

38.       Finally, the pre-CRA lord chancellorship was the kiss of death for political ambitions. The post-CRA lord chancellor is a minister like everyone else, with a field marshal’s baton in his knapsack.

39.       According to the yardstick set in Mr Blair’s initial plans, viz. having a lord chancellor in name only charged with running the courts and working on law and order issues, these reforms have been successful. One might think that these reforms have been rather less successful when it comes to having a lord chancellor which defends judicial independence and the constitution within the government, but that was the very point of the 2005 reforms.

[4] Is further reform of the role of Lord Chancellor necessary?

40.       Many lawyers and constitutionalists from across the political spectrum wish for the return of the pre-reform lord chancellorship. I agree with them. The lord chancellorship should be restored to something like its pre-2005 shape. The best solution to bad reforms is not always further reform, but to reverse them.

41.       The lord chancellor should be responsible for the courts system, for the maintenance of the constitution, and for judicial appointments. He should not be responsible for law and order issues except when relevant to his other duties. He should be a defender of the judiciary within the government, a champion of Parliament within the judiciary, and a manager of executive-judicial and legislative-judicial relations. He should act as a buffer and mediator between all of them. In the words of Lord Irving or Laing, he should be “the natural conduit for communications between the judiciary and the executive, so that each fully understands the legitimate objectives of the other”.[12]

42.       Given what I wrote in the previous section and for reasons I will develop further here, I think it is obvious that the “restored” lord chancellor needs to be a member of the government because that was where the pre-2005 lord chancellor’s effectiveness came from. 

43.       Having an apolitical lord chancellor running around the House of Lords sending strongly worded letters to the government would not be an improvement in any shape or form. The President of the Supreme Court and the heads of the three judiciaries can do that on their own.

44.       As Professor Gee has pointed out, judicial independence and ultimately the rule of law are political achievements, and their long-term futures require political actors to remain engaged. I note that Professor Gee and I disagree as to the desirability of restoring the old-style lord chancellorship, but we both believe that guarantees to judicial independence and the rule of law require the involvement of political actors.

45.       Obviously, not all aspects of the pre-2005 lord chancellorship can be restored. Even before these reforms, some lord chancellors were more ‘political’ and others more ‘legal’. The increasing complexity of appeals as well as the punishing sitting hours of the House of Lords was making it difficult for incumbents to do everything, so in practice some sat as judges often and others almost never.

46.       But it is wrong to say that what has been done cannot be undone. It is possible to restore the lord chancellorship. But it is important to think about which of the old lord chancellorship’s roles ought to be restored and which can be safely left alone. What then should the restored lord chancellor look like? 

47.       Firstly, the lord chancellor has to be a lawyer, and preferably one of standing. It is often said that just as the Health Secretary is not required to be a doctor and the Defence Secretary is not supposed to be a general, the Lord Chancellor does not have to be a lawyer. This is a superficially attractive analogy, but it is also fundamentally wrong. The government does not cure the sick nor lead troops in battle, but it does make laws and has systemic responsibilities toward the constitution. And the Chancellor of the Exchequer, say, is usually expected to be somewhat numerate; there is no reason to treat the lord chancellor differently.

48.       Secondly, the Ministry of Justice should be broken up, with “Home Office” functions transferred back or to another new department, or left in a reduced Ministry of Justice focused on law and order, in which case the Justice Secretary and the Lord Chancellor will be separated into two distinct offices. There simply are too many potential conflicts of interest between the two hats, much more so than under the old system.

49.       Mr Blair complained that the old lord chancellors spent too much energy on constitutional matters and not enough on law-and-order issues. But now the balance is tilted the other way even though managing the executive-judiciary relationship, at a time when courts are more involved in ongoing political controversies than ever, should be a full-time job. 

50.       It is sometime argued that giving the Lord Chancellor a great department of state with a large budget made up for the loss of his judicial role in terms of political influence, but I do not agree. The department with the biggest budget is the Department for Work and Pensions, yet no one would argue that it is a particularly influential department. Conversely, some ministers with almost no budget at all have exerted great influence over this country’s direction in recent years.

51.       Thirdly, and more controversially, the Lord Chancellor should sit as a judge again. The pre-reform lord chancellorship could speak with special authority in Cabinet because he was a judge and could speak with special authority to judges because he was one of them, but one with the ear of the Prime Minister. 

52.       To require the Lord Chancellor to be a judge would also force the Prime Minister to appoint someone at least minimally credible as an appellate judge to the post, instead of treating the choice as that of ordinary Cabinet minister, which is currently the case.

53.       I realize that if the lord chancellor were to sit judicially in this country, there would inevitably be objections and challenges under the European Convention on Human Rights. One simple solution is for the Lord Chancellor should sit instead on the Judicial Committee of the Privy Council on appeals from Commonwealth jurisdictions, and possibly Crown dependencies.

54.       Relatedly, I would like to draw your attention to the observations of Lord Hope of Craighead, who reminds us that there is no categorical prohibition against legislators serving as judges, contrary to what was commonly claimed at the time of the reforms:

Applied to our own constitutional arrangements, Pabla Ky v Finland teaches us that there is no fundamental objection to members of either House of Parliament serving, while still members of the House, as members of a court. Arguments based on the theory of the separation of powers alone will not suffice. It all depends on what they say and do in Parliament and how that relates to the issue which they have to decide as members of that tribunal. The requirement which the Strasbourg Court stressed in para 30 of its judgment that the fear that the tribunal was not impartial must be justified objectively is an important safeguard against abuse of the objection. What is decisive is whether the fear is based on an objective appraisal [emphasis added].[13]

55.       If the lord chancellor sat from time to time as a judge, he would be able to speak with that special judicial authority in Cabinet, have credibility in the eyes of the judiciary, but avoid the appearance of bias. The workload would not be heavy: Lord Hailsham of St Marylebone, the most “judicial” of lord chancellors in recent decades, averaged just under six cases a year, and many sat far less often.

56.       I very strongly endorse the recent remarks of a recent lord chancellor, Sir Robert Buckland QC:

The 2005 Act sought to end all of this [the old lord chancellorship].  It was brought home to me most starkly when I was asked to resign my post as a Crown Court Recorder by the LCJ, as part of an agreement that was reached in the spirit of these changes.  Fine, some you might say, but the founding notion of all of this – that Separation of Powers was the overwhelming priority of constitutional reform, is wrong.  It is a matter of fact, not opinion, to state that we are not a separation of powers constitution.  Instead, we have a system of checks and balances.  Imperfect, and not neatly defined.  Amen to that.[14]

57.       As to the speakership of the House of Lords, I am agnostic. It does not contribute that much to the lord chancellor’s other roles, although even today the lord chancellor occasionally performs ceremonial duties in the House of Lords. To continue the illusion of the return of the lord chancellor (and illusions matter a great deal in politics) a system could be devised whereby the lord chancellor is restored to the nominal speakership of the upper house and attends ceremonies occasionally, but delegates the day-to-day work to permanent deputies. Incidentally, this would de facto require the lord chancellor to be a peer, which many (myself included) consider to be desirable.

58.       It is probably not strictly necessary for the lord chancellor to be the head of the Chancery Division—none of the lord chancellors of the past century has been, I think it is fair to say, especially notable as first-instance equity judges.

59.       Taken together, the reforms would lead to something resembling the reformed lord chancellorship as envisaged by Lord Haldane in his 1918 Machinery of Government Commission report, a very reasonable proposal then and now, sadly not taken up at the time.

60.       I conclude with the following observation. Many will no doubt scoff at the idea of restoring the pre-2005 lord chancellorship. They will point to practical difficulties (none of which is unsurmountable) but they really object to the fact that such a strange and irrational position does not exist in other countries (although some Scandinavian countries have a position of Chancellor of Justice, which has some similarities). Why should the UK be different?

61.       But as long as this country has the constitution it has it needs suitable institutions to make it work. Piecemeal reform without regard to the broader constitutional architecture is bound to lead to problems, as the reform of the lord chancellorship has shown. Fear of ‘standing out’ and of ‘going back’ is not an adequate answer.

[5] Is it appropriate or helpful for the Law Officers, as Government legal advisers, to be politicians serving in Government?

62.       I draw again your attention to the evidence of Dr Casey. I will only limit myself to observing that what is true of the lord chancellor in terms of the admixture of legal and political functions also applies pari passu to the law officers. Given the difficulties of balancing a legal and a political career, however, there is no constitutional reason why law officers should not be peers as well.

18 March 2022

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