The Rt Hon Jack Straw – written evidence (RLC0020)
House of Lords Constitution Committee inquiry into the Role of the Lord Chancellor and the Law Officers
Memorandum from the Rt Hon Jack Straw
The machinery of government, including the existence or otherwise of particular government departments, and their nomenclature, is entirely a matter for the Prime Minister, under the Royal Prerogative.
From a Prime Minister’s point of view this has many advantages. He or she can mould the machinery of government to his or her wishes. More significantly, he/she may create new departments (occasionally merge them) either to meet policy objectives (eg the merger in September 2020 of DfiD and the FCO to form the FCDO), or, more frequently, to meet particular personnel needs of members of the Cabinet. (The examples here are legion – from the creation of the DHSS in the late 1960’s for Richard Crossman, through to the sudden announcement in May 2007 of the Ministry of Justice, to meet the needs of the then Home Secretary who evidently felt that a downsized Home Office would be easier to run.)
Some departments have had a dizzying number of name changes, to reflect specific, and temporary, policy objectives – the business, and local government and planning departments in particular. This is confusing to the public amongst other disadvantages. (It is noteworthy that the Departments of the so-called ‘Great Offices of State’ have not suffered this fate, with the minor exception of the Foreign Office which had ‘Development’ added to its name its absorption of DfID).
However, from a point of view of good governance the current system is defective.
Government departments are key public institutions. They should not be so vulnerable to caprice by the Prime Minister and their advisers. Of course, there will be occasions when the relative responsibilities of departments needs to change. If so, Prime Ministers of the day should be required to publish their proposals in draft, for consultation. If the case made is a good one, a three months’ consultation period will make no difference to the ultimate success of the proposal. On the other hand, if it has weaknesses, far better for those to be identified in advance, and adjustments made to the proposals.
1. How would you define the “rule of law” and what do you see as the role of the Lord Chancellor in protecting it within Government?
d) Should the Ministerial Code be placed on a statutory footing?
1. There are any number of specific interpretations of this concept, and, as the Committee will be well aware, there is plenty of dispute by legal theorists about what exactly the concept means.
In essence, however, the concept is very straightforward. It is that no one should be able to exercise unchecked, arbitrary power; that all, however high or low, are subject to the same laws; and that the courts must be able to arbitrate on the law independently and without regard to the relative wealth or power of those before it.
At a very practical level, this means that those with the greatest power – Ministers – must not only tolerate but embrace the reality that a society can only be democratic if they accept that the decisions they make (including by omission) can and will be checked by the courts.
At a personal level it can be very irritating if a decision which one has taken as a Minister is nullified by a court on grounds of some procedural defect or (rarely) egregious irrationality. That is however no argument for departing from this important check on arbitrary or capricious decision-making.
Those who take the contrary view should be reminded of our history. Intervention in executive decisions did not start with our ratification of the ECHR, nor with the incorporation into domestic law of most (not all) the articles of the Convention. It, and the concept of the rule of law began in the late seventeenth century, with the Bill of Rights.
a) Should the duty to protect the rule of law extend to international law?
c) Should the reference to Ministers needing to comply with international law and treaty obligations be reinstated in the Ministerial Code?
Yes. But there should be a separate paragraph in the Code to cover this area.
In contrast to some other jurisdictions, the British legislature plays a very limited role in ratifying treaties. It played no legal role at all before Part 2 of the Constitutional Reform and Governance Act 2010 came into force in October 2010. Before that the only provisions were in the non-statutory ‘Ponsonby’ rules. The 2010 Act requires the approval of both Houses before a Treaty is ratified, but on the negative resolution procedure, and with exceptions for urgency.
Thus, unless UK legislation is required to incorporate the provisions of a Treaty into UK domestic legislation, the country’s international obligations are the subject of remarkably little Parliamentary scrutiny.
Some aspects of our international obligations are the subject of mandatory arbitration arrangements – eg in respect of WTO obligations. But in practice many are not. Most notably, whether a decision to take military action is lawful within the terms of Chapter VII of the UN Charter is open to argument -as was seen in the intense legal/political arguments as to whether the UK’s military participation in the invasion of Iraq in 2003 was, or was not, lawful. In the UK, the final decision was a matter for the Attorney-General.
In some instances, there can and has been great argument over what action the UK should, and could in practice, take in response to adverse decisions of international courts. The best example I can give here relates to the decision of the ECtHR in Hirst v UK (No 2) (2005) when that Court ruled that the blanket ban on any convicted prisoner exercising a vote whilst in custody was incompatible with the Convention.
Many regarded this decision as overstepping the jurisdiction of the Court, and that the matter should have been left to national courts (all of which had said that the blanket ban was compatible with Convention rights). That was my view – and the view of a minority of the court’s judges too.
But regardless of my view, the reality was that there was no majority in the Commons for any significant change in UK legislation to bring the UK into conformity with the full terms of the ECtHR judgement. So successive Justice Ministers played it long. Lord Falconer embarked on a public consultation in 2006; I did the same in 2009.
When I went on to the opposition back benches in late 2010 I worked with the senior Conservative, David Davis MP, on a strategy to encourage the ECtHR to climb down gracefully. We visited Strasbourg for a meeting with the then President of the Court to stress to him widespread concerns about the factual accuracy of the ECt’s judgement, and the overwhelming opposition on both sides of the Commons to removing the ban, or making substantial modifications to it.
A back-bench debate which we sponsored confirmed the scale of opposition, on a division.
The matter was finally resolved in November 2017 to the satisfaction of the Council of Europe by David Liddington when he was Lord Chancellor, by a very minor amendment allowing prisoners on temporary release to vote. Government practice is now set out in a policy document issued in 2020.
The saga however illustrates that a duty to respect out international obligations, though in my view essential, can sometimes be a little complicated.
b) How should Parliamentary sovereignty be balanced with the rule of law in respect of international obligations?
The prisoner voting saga also illustrates that ultimately the Commons has to be the judge of this.
I recall no Member claiming that Parliament or Ministers should simply ignore the ECtHR decision. But the ECt’s decision in Hirst was aberrant, and successive Ministers worked hard to get the Court off the hook onto which it had impaled itself.
d) Should the Ministerial Code be placed on a statutory footing?
Yes. As should the position of adviser to the Prime Minister on the Code. There should be a requirement for any chosen candidate for this position to have their appointment endorsed by the relevant Commons’ Select Committee, and an obligation on the Prime Minister to have regard to his/her recommendations.
2. Do you detect a shift in recent years in the political culture within which the Lord Chancellor operates?
a) What impact do you think that political culture has on the Lord Chancellor’s relationship with the Lord Chief Justice and the judiciary more widely?
b) Does the Lord Chancellor play a meaningful role in the judicial appointments process? Should the Lord Chancellor’s role be enhanced?
a) Yes. It is a consequence of coarsening of the political discourse from the Brexit referendum, and the unwillingness of the outgoing Prime Minister to abide by any constitutional norms which he found inconvenient. The best/worst illustration of this is the reaction of Mr Johnson and his supporters (including the Daily Mail) to the Supreme Court’s decision in the prorogation decision in Miller (September 2019) – where far from the Supreme Court seeking to override the decisions of Parliament they were seeking to reinforce Parliamentary sovereignty.
b) Yes, in respect of some senior appointments (LCJ, Heads of Division, SC). I wrote about this in a foreword to a paper published in early 2021 by Policy Exchange. This is appended.
3. Do you think the role of Lord Chancellor should be separated from that of Secretary of State for Justice, or at least from some of its higher-profile responsibilities? Is it wise to combine the role with Deputy Prime Minister?
No. To do so would be to make the position of LC a shell.
A case could be made for transferring Prisons and Probation back to the Home Office, and to transfer responsibility for the criminal law too. I would never have shifted them to a MoJ in the first place. But given the 15 years which has elapsed since the MoJ was created, and the fact that this Parliament is now beyond its mid-point, I would counsel against any change now.
The position of DPM is, in my view, irrelevant to whether the LC properly exercises his/her responsibilities to uphold the rule of law and the independence of the judiciary.
a) Is the Lord Chancellor’s ability to discharge his or her constitutional responsibilities compromised by also holding the role of Secretary of State of a major spending department?
There is no going back to the old days of the LCD. Post-war those who held the position of LC generally did so with success, and were able to protect the judiciary from more partisan attack. But the position of LC – a Cabinet Minister, a senior judge, and Speaker of the Lords rolled into one, was anachronistic, and could never be re-established.
I found no difficulty in seeking to discharge my constitutional responsibilities by my role heading a major spending department; nor have most LC’s since 2007. But it’s essential that there is at the head of government a Prime Minister who also understands the imperative of judicial independence.
b) Should Lord Chancellors remain in post longer? How could this be achieved?
The turnover of all Ministers is far too high. I was an exception. I did home and constitutional affairs for eight years (Home Sec., Leader, LC), and foreign affairs for five. Most Ministers are not that fortunate.
Some churn in unavoidable, usually caused by unplanned resignations. But a lot is not.
I do not, however, think a minimum term for the LC would be sensible in our system.
4. Do you think the Lord Chancellor should be required to produce an annual report to be debated in Parliament? If so, what should it cover?
I have no strong views on this.
5. Should Lord Chancellors have a legal or constitutional background? If so, should Section 5 of the Constitutional Reform Act 2005 be amended to reflect this?
I assume the reference is to section 2 of the 2005 Act. (section 5 is about the right of representation to Parliament.)
I think it helps to have a legal background. But I can think of at least one non-lawyer who carried out his responsibilities at least as well as those who have been legally qualified.
6. Do you think there is merit in the Prime Minister being required to swear an oath? Would the Prime Minister swearing an oath improve public perception of Government adherence to the rule of law?
Good idea – good luck in trying to get any PM to agree this.
Annex 1. Foreword by Jack Straw to Policy Exchange paper on Judicial Appointments (January 2021).
The Lord Chancellor’s Role in Senior Judicial Appointments
The redoubtable former President of the UK Supreme Court, Baroness Hale, was absolutely correct when she said of the current system of judicial appointments, ‘the Lord Chancellor basically is in an almost impossible position’.
I can testify to that. What happened when, as Lord Chancellor, I sought to exercise the limited powers available to me to express disagreement about a nomination for one of the senior judicial positions tells all one needs to know as to why the scheme in the 2005 Constitutional Reform Act does not work.
This appointment was for the Head of the Family Division. Sir Nicholas Wall had been nominated by the special panel for such positions. I knew absolutely nothing about Sir Nicolas’s politics (and had no interest in them anyway). Nor was I remotely bothered about his views about opening up the family courts. I simply judged that he would not be competent to do the job. I had formed this view in part from my own experience. I asked to see the file of ‘judicial consultees’ to which the authors of this paper refer. After some teeth-sucking, the file was produced. It contained responses from about 25 senior colleagues. Despite the guarded language, it was obvious to me that Sir Nicholas was being damned with faint praise. I checked very privately with two senior judges whose opinions I valued (and whose own written references were notable for what they did not say). Both confirmed my view. I asked for the nomination to be reconsidered, having gone to some lengths that this would not be seen as a partisan act.
There was outrage in some quarters about my impertinence. I had preserved the necessary confidentiality around this appointment; so, I am sure, had those on the panel. But partisans for Sir Nicholas leaked the story to The Times. So close to the 2010 General Election, they knew this would place me in an impossible position. The panel duly resubmitted the same name. I reluctantly conceded – but told those pressing so hard they were making a mistake.
As, sadly, it transpired. Poor Sir Nicholas was not up to the job, and retired on grounds of ill-health thirty month later.
What this sad case also illustrated was that the whole system had become far too introspective – never healthy.
There will probably be more expressions of outrage, and charges of ‘political interference’ when this paper is published. Such would be wholly misplaced. The issues which the authors raise should be of wide concern. Their suggested solution – that the Lord Chancellor should be able to select the very senior appointments from a shortlist drawn up by a panel under the JAC is just very sensible – and is not going to lead to the end of civilisation. Indeed, it would simply be a modest step to putting England and Wales’ system on a par with Australia, New Zealand and Canada, whose judges are at least as robustly independent as ours – but where more progress has been made on diversity than here.
Lord Chancellor, 2007 – 2010.
30 August 2022