The Rt Hon Dominic Raab MP, Lord Chancellor, Secretary of State for Justice and Deputy Prime Minister, Ministry of Justice – written evidence (RLC0021)

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

1. Former Lord Chancellor Sir Robert Buckland said that he was considering reforming the role of Lord Chancellor. Do you consider the role in need of reform?

• The Constitutional Reform Act 2005 transformed the office of Lord Chancellor and transferred many responsibilities about the judiciary and the courts to the Lord Chief Justice. Your current inquiry and the Committee’s report of 2014, The Office of Lord Chancellor, demonstrate the continuing interest in the constitutional settlement left by the Act and in how these arrangements should be calibrated.

• Reviewing the role of the Lord Chancellor would mean examining a wide range of justice and constitutional matters as well as their interrelationship. It is not a current priority to assess whether further legislative changes might be necessary to the Constitutional Reform Act 2005.

2. How would you define the “rule of law” and, as Lord Chancellor, how do you interpret your constitutional relationship to it as set out in section 1 of the Constitutional Reform Act and your duty under your oath to “respect” it?

• It is important to bear in mind that the rule of law is a very broad concept. It is not just about whether a particular law is good or whether justice is administered universally and impartially. It is also about how our democratic institutions work, individually and in our constitution as a whole. The independence of the judiciary is a core element of the rule of law and of the United Kingdom constitution more broadly. The rule of law is therefore not something that is reducible to a simple test or to a description of a duty. I can see why s.1 Constitutional Reform Act 2005 did not attempt to define the Lord Chancellor’s role in relation to it.

(a) Does your role include a duty to ensure the rule of law is upheld across Government? Would you support the oath being updated to include a commitment to respect and uphold the rule of law?

• My sworn duty involves respecting the rule of law. I take that seriously in my own duties and in conversations with Ministerial colleagues.

• Despite the Lord Chancellor’s unique duty to defend the independence of the judiciary, all Ministers – as well as officials with responsibility for matters relating to the judiciary or otherwise involved in the administration of justice – have a duty to uphold the continued independence of the judiciary. So maintaining judicial independence does not rest on an office held by one person. That is the right approach, and it would be misguided to place responsibility for the rule of law as whole, on a single office, when responsibilities rightly run across the piece.

(b) What role do the Law Officers play in assisting you in respect of the rule of law?

• I meet the Law Officers regularly. We have a shared interest in the rule of law across Government and in the operation of the wider justice system. It is, for example, the Attorney General who supervises the Crown Prosecution Service. As you appreciate, it is the role of the Law Officers to give legal advice to the Government, and it is this core function that supports all Ministers to act lawfully an in accordance with the rule of law.

(c)  Does your duty to respect the rule of law, and the requirement of the Ministerial Code to comply with the law, extend to international law?

• The Ministerial Code sets out that Ministers of the Crown are expected to maintain high standards of behaviour and to behave in a way that upholds the highest standards of propriety, and makes clear that the Code “should be read against the background of the overarching duty on Ministers to comply with the law”. The Ministerial Code is clear on this point and all Ministers are conscious of their duties in respect of the law.

(d) How should Parliamentary sovereignty be balanced with the rule of law in respect of international obligations?

• We want to make sure that the balance between our domestic institutions is right, which is why we have introduced the Bill of Rights, so that, among its other provisions, we will no longer require courts to read legislation in a way which is contrary to Parliament’s intent. This is important for monitoring the rule of law, and a clear separation of powers between the judicial and legislative branches.

• The Bill will allow us to remain a State Party to the European Convention of Human Rights (ECHR), while allowing us to fully avail ourselves of the margin of appreciation afforded to states under the ECHR. The Bill will ensure that the democratic will of Parliament is properly considered and respected in contexts where Parliament has legislated.

• We fully intend to maintain the UK’s leading role in the promotion and protection of human rights and the rule of law.

(e) Is the Ministerial Code effective in ensuring ministerial compliance with international law and treaty obligations? Could anything be done to strengthen the Code?

• The Ministerial Code is updated and amended at the discretion of the Prime Minister of the day. It sets out the standards of behaviour expected of all those who serve in Government. It also provides guidance to Ministers on how they should act and arrange their affairs in order to uphold these standards. The Ministerial Code is clear on this point and all Ministers are conscious of their duties in respect of the law.

3. How, in practice, do you fulfil your duty to uphold and defend the independence of the judiciary?

• I have said I take my duty very seriously. In my day-to-day responsibilities as Lord Chancellor I am mindful of constitutional boundaries. As to defence of the independence of the judiciary, it is for me as Lord Chancellor to determine the most effective action in any particular circumstances.

(a) During your time as Lord Chancellor what role have you played in the judicial appointments process? Are there any plans to enhance or alter the Lord Chancellor’s role?

• I have the roles set out in the 2005 Act, which of course focus on the selection of the most senior judges. More broadly, I work closely with the Lord Chief Justice, the chair of the Judicial Appointments Commission and others on recruitment matters as a whole and on particular priorities such as judicial diversity. It is not a current priority to consider further legislative changes to the system created by the Act.

(b) What is your constitutional relationship with the Lord Chief Justice? How often have you spoken? What sort of things have you discussed?

• Constitutionally, following the 2005 Act and the Concordat agreed the previous year, there is a range of matters where the Lord Chancellor and Lord Chief Justice must agree or where one must consult the other. This means the Lord Chancellor and the Lord Chief Justice must have a close partnership in a wide range of justice matters, including the running of the courts system.

• I have a strong and valuable working relationship with the senior judiciary. The Lord Chief Justice and I meet regularly to discuss shared responsibilities for the courts and other justice matters.

• As our predecessors have done, we enjoy regular bilateral meetings and will also speak, as necessary, outside those meetings. The Committee will appreciate that confidentiality is essential to these discussions.

4. What is your experience of occupying the role of Lord Chancellor alongside that of Secretary of State for Justice and Deputy Prime Minister?

• I have found value in holding the two offices of Lord Chancellor and Secretary of State. Combined, they allow me a strategic and holistic oversight of the justice system beyond the courts and tribunals. It is also helpful to have the additional coordinating or convening power or influence that comes with the role of Deputy Prime Minister across the wider criminal justice system.

5. How do you balance discharging your constitutional responsibilities as Lord Chancellor with holding the role of Secretary of State of a major spending department?

• Lord Chancellors before the 2005 reform were not isolated from having to make political or economic decisions about the justice system. Competing demands and interests are inherent for any Secretary of State. I am careful to treat my Lord Chancellor responsibilities appropriately, as are officials across the Ministry of Justice.

6. Have you found your legal background helpful in fulfilling your role as Lord Chancellor? If so, how?

• A legal background can be helpful, but I do not see it as imperative. In my own case, my legal background gave me familiarity with constitutional and justice matters on day one. This has been helpful on the detail, though the fundamental matter for any Lord Chancellor is to understand the position of the judiciary as a separate branch of the constitution.

• My legal background has also been to the benefit of my role as Secretary of State for Justice, with responsibilities for prisons and probation.

30 November 2022