Professor Andrew Le Sueur—Written evidence (OLC0005)

Inquiry into the office of Lord Chancellor

Executive summary

• The current institutional arrangements for a conjoined-minister (Lord Chancellor and Secretary of State) arose out of inadequately scrutinised party political compromises as the Constitutional Reform Bill ended its passage through Parliament in 2005. They are complicated and little understood beyond a small group of insiders and experts.
• The Lord Chancellor has two broad roles. First, he is the minister who exercises numerous specific statutory functions relating to courts, tribunals, the judiciary and the legal profession. Second, he is the minister who is said to be the ‘constitutional conscience’ of government (a vaguely defined non-statutory function).
• The maintenance of the office of Lord Chancellor (with a radically changed character) served a useful transitional purpose in 2005. The constitutional settlement has evolved and matured and there is now no need for the elaborate conjoined-minister model to continue.
• A Secretary of State could equally well carry out the numerous court and judiciary-related statutory functions currently conferred on ‘the Lord Chancellor’.
• There is little evidence to suggest that Lord Chancellors have been effective in their role as the constitutional conscience of government other than in a sporadic and peripheral way. Future Lord Chancellors who are likely to be mainstream, mid-career ministers (rather than legally trained and at the pinnacle of their career) are even less likely to be successful in this role. Attention should instead focus on the continued strengthening of the external accountability of government.
• A bill is proposed that would: (a) abolish the office of Lord Chancellor; (b) transfer statutory functions to the Secretary of State; (c) rationalise and strengthen the constitutional principles that the Secretary of State must have regard to in exercising statutory functions related to the courts, judiciary, etc; and (d) establish a statutory committee of Parliament with a remit over judiciary and court-related matters.

Background

1. I am Professor of Constitutional Justice at the University of Essex and make this submission in a personal capacity. In 2004, I was the specialist adviser to the House of Lords Select Committee on the Constitutional Reform Bill chaired by Lord Richard, which (in a little-used procedure) took evidence, deliberated and made amendments to the bill, before recommitting it to the whole House for further consideration. I also served as a specialist adviser to the House of Commons Constitutional Affairs Committee (later Justice Committee) in relation to the reforms. From 2006 to 2009 I was the legal adviser to the House of Lords Constitution Committee.
2. My published work relating to the role of the Lord Chancellor and the constitutional position of the judiciary includes: ‘Judicial Power in the Changing Constitution’, chapter 13 in D Oliver and J Jowell (eds), The Changing Constitution (5th edition, Oxford University Press, 2004); ‘From Appellate Court to Supreme Court: a Narrative’, chapter 5 in L Blom-Cooper, B Dickson and G Drewry, The Judicial House of Lords 1876-2009 (Oxford University Press, 2009); and ‘Parliamentary Accountability and the Judicial System’, chapter 9 in N Bamforth and P Leyland (eds), Accountability in the Contemporary Constitution (OUP, 2013).

Some necessary recent history

3. The current arrangements for the office of Lord Chancellor cannot be well understood without reference to the events surrounding their origin.  The following account demonstrates that:
1. the institutional framework created between 2003 and 2005 is complicated;
2. it was the product of party political deals and several important aspects were inadequately scrutinised during the passage of the Constitutional Reform Bill;
3. although in 2005 the Conservatives were implacably opposed to the prospect of the modernised office of Lord Chancellor being occupied by a mainstream, non-lawyer, mid-career political figure (the spectre of David Blunkett MP, the then Home Secretary, becoming Lord Chancellor was sometimes mentioned), it was a Conservative Prime Minister who first appointed such a person to the office (Chris Grayling MP in 2012);
4. there have been significant changes to the functions of the Lord Chancellor, and the context in which that ministerial office operates, since the enactment of the Constitutional Reform Act 2005 (CRA 2005).
4. Until June 2003, the principal minister responsible to Parliament for court and judiciary-related matters was the Lord Chancellor. In the Cabinet reshuffle that month, a new ministerial post of Secretary of State for Constitutional Affairs was created by the Prime Minister. As an interim measure, pending primary legislation, Lord Falconer of Thoroton simultaneously held the offices of Secretary of State and Lord Chancellor. The concordat negotiated between Lord Falconer and Lord Woolf (the Lord Chief Justice) was based on the Government’s proposal for a single principal minister in the form of a Secretary of State.[1]
5. The Constitutional Reform Bill as introduced to the House of Lords in February 2004 sought to abolish the office of Lord Chancellor. At the time, there was a broad consensus that it was no longer appropriate for a person holding office as a minister to sit as a judge in the highest courts, even occasionally, or to be designated head of the judiciary. 
6. During the passage of the bill, four different ministerial models were scrutinised (including by the House of Lords Select Committee on the Constitutional Reform Bill).[2]
1. The Government’s preferred model of a single Secretary of State, in which a mainstream minister would be responsible for judiciary and court-related functions of government as well as some other areas of policy related to the constitution.
2. A change of name: some people advocated the retention of the ministerial title ‘Lord Chancellor’ for the mainstream minister proposed by the Government.
3. A ‘legal grandee’ model. This option would have retained the title of Lord Chancellor, preserving and enhancing several crucial features of the office, including that the minister be a senior lawyer in the House of Lords and be expected to hold office for a considerable period of time.
4. A ‘minister for judicial affairs’ model. Under this option, there would have been a redefinition of the office of Lord Chancellor to become more of a judicial figure than a political one and transferring responsibility for major areas of spending (including legal aid) to other ministers; the narrow focus of the ministerial post, which would be held by a person with a background in the law, would essentially be running the courts and tribunal system.
7. The Select Committee was divided on the central questions and therefore made no recommendations to the House on whether there should be a ministerial office of Lord Chancellor, whether the minister should hold legal qualification, and whether the minister should be in the House of Lords.
8. The Select Committee did not consider in any detail – because at that stage it was not high on the political agenda – a conjoined-ministers model in which there would be two ministerial posts (Lord Chancellor and Secretary of State) held by the same person, but with different statutory and broader constitutional functions. This model emerged as a political reality in late January 2005 during the bill’s committee stage in the House of Commons, with no adequate constitutional scrutiny, as a result of the Government’s concession to retain the title and formal office of Lord Chancellor. No detailed consideration was given to the role of a Secretary of State in other legislation or the relationship between the two distinct ministerial posts. There is no reference to the office of Secretary of State in the Constitutional Reform Act 2005.
9. The issues whether the new-style Lord Chancellor should be a Lord and/or a lawyer were not settled until the ‘ping pong’ phase of the bill (under pressure of time due to the impending prorogation of Parliament for the 2005 General Election).
10. The Government and the House of Commons refused to accept the Lords’ preference for the Lord Chancellor to be in the House of Lords. For the Government, it was said that that ‘it would be irrational to pickle for ever the Lord Chancellor in an unelected House when the ministerial post has changed. Although it has the title “Lord Chancellor”, it is a different post’.[3]
11. On the question of whether the Lord Chancellor should be a lawyer, the Government put forward a compromise clause, listing the various factors that the Prime Minister should take into account in appointing future Lord Chancellors; this became section 2 of the CRA 2005. The Government’s rationale was that there was ‘nothing in the reforms that requires a Prime Minister to pick only a high judicial office holder or similar as one of his or her Ministers. Such a restriction could potentially narrow the field so greatly that perfectly eminent individuals—perhaps senior law academics—would be debarred by statute from appointment’.[4] For the Opposition, Dominic Grieve MP was unpersuaded by the clause, labelling it ‘an absolutely vacuous amendment’: ‘I know that the Government specialise in meaningless words, but the hon. Gentleman must agree that if he reads the amendment …, it amounts to nothing whatsoever. It is not worth the paper it is written on because the Prime Minister can still do exactly as he pleases’.[5]
12. One other characteristic of Lord Chancellors that was debated during the passage of the bill was that this should be an office held by somebody at the pinnacle of their career, who had no further professional and political ambitions. When the bill was in the committee stage of the House of Commons, Dominic Grieve MP for the Conservatives, with Liberal Democrat support, unsuccessfully pressed to the vote an amendment that sought to disqualify the Lord Chancellor from holding further ministerial office after he stepped down ­– ‘Once a person has held the post of Lord Chancellor he is disqualified from holding any other ministerial office’.[6] He said ‘that will ensure that he is somebody who is at the end or peak of his career when he is appointed, who has no further desire for preferment’ and so immune from political pressures and patronage powers of the Prime Minister, adding (col 896):

I do not want to see in 10 years' time—if the Government get their way on this Bill—someone who is effectively a junior ministerial appointment in the House suddenly realising that they are in fact at the mercy of the political pressures with which they will inevitably be surrounded. We should be sensible. One of the reasons why our political system has worked well to prevent impropriety is that it is robust. What the Minister is doing, with the changes that he is introducing, is making it much less robust in terms of the Lord Chancellor's independence. 

13. Since the enactment of the CRA 2005, there have been several developments affecting the character and scope of the ministerial offices of Lord Chancellor and the conjoined Secretary of State.
1. In May 2007, the scope of the Secretary of State’s statutory and policy responsibilities was significantly extended with the Prime Minister’s decision to transfer some functions from the Home Office, notably for criminal law and sentencing, prisons and probation, to the Secretary of State’s department (which changed its name from the Department of Constitutional Affairs to the Ministry for Justice). Under the conjoined-ministers model, the balance of work as between the Lord Chancellor and the Secretary of State shifted.
2. HM Courts and Tribunals Service, an executive agency of the Ministry of Justice, has developed to operate as a partnership between the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals. Judges are move involved than in the past in resource planning and management.
3. The Judicial Office, the civil service of the Lord Chief Justice, has expanded greatly in its size and work.
4. The Judicial Appointments Commission now reports on selections of judges below the level of the High Court Justices to the Lord Chief Justice rather than the Lord Chancellor.
5. The Lord Chancellor has moved from the House of Lords to the House of Commons. Lord Falconer was the last Lord Chancellor/Secretary of State for Justice to sit in the House of Lords. His successors – Jack Straw MP, Kenneth Clarke MP, and Chris Grayling MP – are members of the House of Commons. With the enlargement of the Ministry of Justice portfolio it seems unlikely that a Lord Chancellor/Secretary of State for Justice will in future sit in the upper chamber.
6. A lawyer no longer holds the office of Lord Chancellor. Chris Grayling MP, appointed by the Prime Minister in September 2012, became the first Lord Chancellor of modern times not to have a legal training. 

The constitutional and legal status of ministerial offices

14. Before proceeding further, it is necessary to consider the general constitutional and legal status of ministerial office. In law, all Secretaries of State hold a single office. Acts of Parliament confer powers and impose duties on ‘the Secretary of State’ without further elaboration as to which minister will in practice exercise those powers or carry out those duties. The Interpretation Act 1978 provides that a reference to ‘Secretary of State’ is a reference to ‘one of Her Majesty’s Principal Secretaries of State for the time being’. The previous practice of creating statutory ministerial posts responsible for particular areas of policy (for example, the Minister of Transport or the Minister of Agriculture, Fisheries and Food) has fallen into disuse.
15. The Prime Minister has considerable scope for making ‘machinery of government’ changes, creating new Secretaries of State and departments and transferring work between Secretaries of State and departments. These are normally done with little parliamentary scrutiny. Changes are given legal effect by secondary legislation made under the Ministers of the Crown Act 1975.
16. Legally, the distinctive nature of the office of Lord Chancellor – distinguishing it from that of Secretary of State – is therefore achieved by the following means.
1. CRA 2005 and numerous other statutes confer powers and duties on the Lord Chancellor (rather than the Secretary of State).
2. CRA 2005 section 20 prevents many powers of the Lord Chancellor (listed in Schedule 7 to the CRA 2005) being transferred to other ministers under the general machinery of government provisions of the Ministers of the Crown Act 1975. These Lord Chancellor powers are in effect ring-fenced and require primary legislation to allocate them elsewhere; but the Lord Chancellor also has statutory functions that are not ring-fenced in this way, for example those under the Legal Services Act 2007.
3. The oath of office taken by the Lord Chancellor is different from that sworn by a Secretary of State (Constitutional Reform Act 2005 section 17)
4. CRA 2005 section 2 sets out a series of factors that the Prime Minister ‘may take into account’ in selecting a colleague to be Lord Chancellor, which do not apply to selection of a Secretary of State. As noted above, these provide few if any political or legal constraints on the Prime Minister’s discretion.

Two broad roles of the Lord Chancellor

17. The complexity of the CRA 2005 and associated changes to the constitutional framework make it easy to lose sight of the wood for the trees. In 2004, the House of Lords Select Committee on the Constitutional Reform Bill described the office of Lord Chancellor in the following terms, which are still apt. The Lord Chancellor is the minister

‘responsible for “judiciary-related matters” (a shorthand expression for the provision of systems to support the carrying on of the business of courts and tribunals, judicial appointments, and overseeing judicial discipline), and

who has special responsibilities as the “constitutional conscience” of Government, defending judicial independence and the rule of law in Cabinet.’[7]

Role 1: a minister responsible for courts and judiciary-related matters

18. The constitution needs to create an institutional framework for governance of the judiciary, courts and tribunals, and connected activities (such as legal aid and the regulation of the legal profession). Two competing demands have to be reconciled. On the one hand, democratic imperatives require that there is a minister answerable to Parliament for matters that are of general public interest, especially but not only financial resources. On the other hand, the imperative of judicial independence requires that the judiciary and courts should operate (and demonstrably be seen to operate) with a high degree of autonomy from the government of the day.
19. The current solution is an intricate network of institutions, of which the ministerial office Lord Chancellor is only one part.
1. The Lord Chancellor has numerous specific statutory functions.
2. There is an array of arm’s length bodies, including the Judicial Appointments Commission for England and Wales, the ad hoc appointments commissions formed for UK Supreme Court vacancies, the Judicial Appointments and Conduct Ombudsman, and HM Courts and Tribunals Service.
3. The judiciary has self-governance institutions. The Lord Chief Justice of England and Wales is statutorily recognised as head of the judiciary; the CRA 2005 also creates other judicial leadership roles; the governance work is supported by bodies including the Judicial Office (which has a staff of 186), the Judicial Executive Board (essentially the Cabinet for the judiciary), the Judicial College, and the Judges’ Council.
20. Having a minister as a key part of this network is essential. One could perhaps imagine, for purposes of discussion, a constitutional framework in which there was an extreme separation of powers, with the judiciary solely responsible for running courts, appointing and disciplining themselves and having direct negotiating powers with HM Treasury for resources – but such a system would be completely alien to British traditions of parliamentary government and democratic imperatives.
21. Between January 2006 and June 2014, Parliament enacted 73 Acts of Parliament referring to the Lord Chancellor, many of which will contain multiple specific statutory powers and duties. A sample of the most recent provisions in primary legislation is set out in Appendix A, below. During the same period, more than 800 statutory instruments referring to the Lord Chancellor were made. Almost all of this primary and secondary legislation is to do with the operation of courts, tribunals, the judiciary, and legal services.
22. The Lord Chancellor is also the designated minister in relation to the Law Commission of England and Wales, approving programmes of law reform (Law Commission Act 1965); has general responsibility for public records (Public Records Act 1958); and is one of the 33 Church Commissioners responsible for the resources of the Church of England (Church Commissioners Measure 1947). The Lord Chancellor also has functions relating to the custody or use of the Great Seal of the Realm, used to authenticate official documents on behalf of the Queen.
23. The Secretary of State element of the conjoined-ministers model, as described above, has grown considerably with the creation of the Ministry of Justice in 2007. That department’s areas of policy in respect of which the Secretary of State for Justice, rather than the Lord Chancellor, exercises functions include: prisons and probation services; youth justice; parole; criminal law and sentencing policy.
24. Occasionally, there seems to have been uncertainty in Government when designing legislation whether a particular new function should be conferred on the Lord Chancellor or Secretary of State. In 2006, the Legal Services Bill was introduced to the House of Lords, creating a new framework for regulating the legal professions. The bill referred to throughout the Secretary of State but the Government later accepted an amendment so that the Bill would refer to the Lord Chancellor.[8] Members supporting the amendment regarded the Lord Chancellor, rather than the Secretary of State, as better placed to ensure the independence of the new regulatory system. Lord Hunt of Wirral explained ‘when we have a Lord Chancellor, who is responsible for the operation of the legal system and is required, under his oath of office, to respect the rule of law, we have confidence that the occupant of that post will follow the example of his learned predecessors and maintain the independence of the legal profession and all the other values that we have talked about in today’s debates’. Lord Kingsland referred to ‘the dangers of a Secretary of State, such as the Home Secretary or the Secretary of State for Trade and Industry, taking over responsibility for the Legal Services Board. It would be tempting in those circumstances for one or other of those Secretaries of State to rank other considerations higher than the rule of law. The Lord Chancellor, by contrast, would be obliged to place the rule of law at the head of his considerations in making decisions about the Legal Services Board.’ Lord Lyell of Markyate (a former Law Officer) said: ‘When the noble and learned Lords, Lord Irvine of Lairg and Lord Mackay of Clashfern, were Lord Chancellor—and, indeed, for the whole of my legal and parliamentary life—it was absolutely axiomatic that if the Government or a member of the Government sought to stray from the law, which sometimes happens, it would be made clear that, if the matter were not immediately corrected, the Lord Chancellor and the law officers would resign. There would be a constitutional crisis of massive proportions. I would like to think that that still applies.’

Role 2: the Lord Chancellor as the ‘constitutional conscience’ of Government  

25. A role of the Lord Chancellor acknowledged throughout the debates on the Constitutional Reform Bill is that he is the ‘constitutional conscience’ of the Government. This is not a specific statutory function, though it was acknowledged laconically in relation to the rule of law in CRA 2005 section 1. It reaches beyond the specific statutory functions related to the judiciary and courts (role 1, above) and potentially extends across the whole of government.
26. Curiously, there is no reference to this function in the key official guides to the operation of government: The Cabinet Manual: a guide to the laws, conventions and rules on the operation of government (1st edition, 2011); the Ministerial Code (May 2010) and Cabinet Office, Guide to Making Legislation (July 2014) are all silent on this function of the Lord Chancellor – though they make reference to the role of the Law Officers in giving legal advice. 
27. Nonetheless, based on explanations of previous Lord Chancellors, there can be little doubt that this function exists. Giving evidence to the House of Commons Constitutional Affairs Committee in 2004, Lord Falconer said explained:[9]

‘Immediately I can think of a whole range of issues that are not [sic] issues at the moment which are not within my policy area where plainly the Lord Chancellor would intervene and make his views known on rule of law issues. Yes, you would definitely in relation to rule of law issues in other areas if it was appropriate. The only slight caveat, however, is quite a lot of issues are described as rule of law issues when they are not. The best example is the one about the rights of solicitors to appear in High Court.’

‘The office, whatever you call it, has to have sufficient clout both from, as it were, what surrounds it and the holder of it to be able to take a stand on issues that transcend politics’.[10]

28. In his evidence to the House of Lords Select Committee on the Constitutional Reform Bill, Lord Mackay of Clashfern said the Lord Chancellor:

‘… is the only member of the Cabinet with that responsibility to see that the Cabinet is acting in accordance with the law of the country, and if any question arises that proper legal advice is taken—a very important role, and not one that requires to be expressed very often but it can occur and when it does occur usually attention is paid to it. If the Lord Chancellor opens his mouth in that area he is usually attended to.’[11]

29. The Lord Chancellor is not the only defender of these values. The Attorney General, as the government’s chief legal adviser, may also be expected to recognise and advocate the importance of the rule of law, judicial independence and other constitutional principles when requested to provide legal advice (but the Attorney General is not a member of Cabinet). The professional ethos of lawyers employed by government may also operate as a brake: members of the Government Legal Service and Parliamentary Counsel may also be guardians of these constitutional values (but they are employees and cannot insist on their view).
30. Civil servants, too, advise on constitutional principles and conventions. Speaking in 2004, Lord Wilson of Dinton (Cabinet Secretary 1998-2002) explained in relation to constitutional conventions that ‘kept in a drawer, was of course the Precedent Book, seven loose-leaf folders covered in tatty red plastic, full of loose slips of paper which have to be kept carefully in place, which each Secretary of the Cabinet hands on to his successor. I consulted this collection frequently and almost always failed to find the answer to whatever point concerned me’.[12] Giving evidence to the House of Lords Constitution Committee for its inquiry into the Cabinet Office and the centre of government, Lord Armstrong of Ilminster (Cabinet Secretary 1979-87) outlined the ideal scenario where a Prime Minister proposing a course of action with constitutional implications would ask for ‘a note about it and what are the pros and cons’, which ‘would have been produced in a very short time’.[13]
31. The stature of the person occupying the office of Lord Chancellor is regarded as important in carrying out the constitutional conscience role. The Lord Chancellor needs to command the respect of all Cabinet colleagues and occasionally intrude into matters outside the remit of his own department. In 2004, Sir Haydon Phillips (Permanent Secretary, Department of Constitutional Affairs) told the Constitutional Affairs Committee:

‘I take rather dangerous views on this subject in the sense that I think so much depends not so much on the nature of the office somebody holds but on their personality, attitude, experience and strength. You can look back over the last 30 years and you can see some profound defenders of the rule of law who were not Lord Chancellors and they might have been stronger defenders of the rule of law than some Lord Chancellors.’[14]

32. In its pre-2005 incarnation, the office of Lord Chancellor supplied to the Cabinet a senior statesman, with a legal and judicial background steeped in professional culture different from those of mainstream ministers. Giving evidence in 2004 to the House of Lords Select Committee on the Constitutional Reform Bill, Lord Mackay of Clashfern said the position of Lord Chancellor brought with it the long established convention of political seniority: ‘In my experience until then [12 June 2003] the Lord Chancellor, notwithstanding how junior he might be in the Cabinet in terms of service, was always regarded as a pretty senior member of the Cabinet’.[15]  
33. It is difficult to build up a systematic assessment of how effective the Lord Chancellor’s work as the government’s constitutional conscience has been in past decades. Most evidence is subject to Cabinet confidentiality or exchanges between the Lord Chancellor and other ministers may have been informal. It is however possible to point to examples on the public record where the constitutional conscience role of the Lord Chancellor appears to have been ineffective.
34. First, the constitutional convention that ministers are not openly hostile to judges who have ruled against their departments was broken for the first time in the early 1990s. According to an editorial in The Times during this period, ‘it is tempting to observe a pattern emerging, a potentially alarming hostility between an overmighty executive and an ambitious judiciary’. The conflict was especially apparent in relation to the Home Office (and the Home Secretary at the time was Michael Howard QC, a lawyer). Radio and television journalists described a situation of ‘mutual resentment and suspicion’ and ‘unprecedented conflict between a Conservative government and the judiciary’. This episode appeared to be a deliberate government strategy against the growing influence of judicial review on policy making.[16] It is not known what if any steps the Lord Chancellor (Lord Mackay of Clashfern) took in relation to this antagonism but whatever it was seems not to have been particularly successful in pouring oil on troubled waters.
35. A second example of failure surrounds Tony Blair’s decision to remove Lord Irvine of Lairg from the office of Lord Chancellor in 2003. Several years later, Lord Irvine explained to the Constitution Committee that he was not properly consulted ahead of the Prime Minister’s decision to announce the policy of abolishing the office of Lord Chancellor and was accordingly unable to warn of the profound constitutional consequences of this course of action.[17]
36. A third example also relates to Lord Irvine’s departure from government. During a ‘take note’ debate in the House of Lords on 12 February 2004 about the Government’s reform proposals, several Members speculated about the substantive reasons for the Prime Minister’s decision to remove Lord Irvine from office. Lord Ackner, a retired Law Lord, pointed to the genesis of ‘the unconstitutional and inexcusable behaviour of the Home Secretary [David Blunkett MP] in attacking’ a House of Lords judgment on human rights; he said ‘I have no doubt that then Lord Chancellor acted with enormous energy behind the scenes to try to sort this out. He was unsuccessful’.[18] Baroness Kennedy of The Shaws described a situation in which ‘it became necessary for the Lord Chancellor to say to the Home Secretary, “Take your tanks off Middle Temple’s lawns. Take your tanks away from the front of the Royal Courts of Justice”. The Prime Minister had to decide where his loyalty lay – did it lie with authoritarianism or liberalism?’.[19]
37. A fourth example is from 2004. A comprehensive ouster clause contained in the Asylum and Immigration (Treatment of Claimants, etc) Bill sought to prevent the High Court reviewing the legality of immigration and asylum decisions. This proposal was met with strong public opposition on constitutional grounds from the judiciary (Lord Woolf, the then Lord Chief Justice described the plans as a ‘blot on the reputation of the Government’), the legal profession, academics, and within Parliament. Lord Falconer, the Lord Chancellor at the time, did not regard the clause as constitutionally problematic.
38. These examples suggest that the Lord Chancellor’s broad role as the constitutional conscience of government may be of limited efficacy where
1. a matter of potential constitutional significance is not brought to the attention of the Lord Chancellor (because it is not discussed in Cabinet or the Prime Minister does not inform the Lord Chancellor about it)
2. the Lord Chancellor does not regard a government proposal as unconstitutional (even though many people outside government do)
3. ministerial colleagues do not heed advice from the Lord Chancellor
4. the Prime Minister dismisses the Lord Chancellor from office because of unpalatable advice.
39. Generally, I am sceptical about the idea that the Lord Chancellor is able to exert strong, systematic influence on questions of constitutional propriety across government. The Lord Chancellor’s authority on broad constitutional questions is probably better seen as, at very best, providing sporadic and peripheral direction to the government’s agenda. It is also inappropriate, in modern times, for a constitutional safeguard mechanism to depend ultimately on the patronage powers of the Prime Minister.
40. A more realistic view is to accept that governments will make the decisions they make (advised the Law Officers, government lawyers and civil servants) and that effective constitutional checks and balances are external ones in Parliament and the courts.

What Lord Chancellors have said about the conjoined-ministers model

41. Lord Chancellors have sought to defend the conjoined offices of Lord Chancellor and Secretary of State in different ways. Clearly, in assessing the future of the post of Lord Chancellor weight should be accorded to the views of those who have occupied the post, for they better than outsiders understand the subtleties of the role.
42. In November 2006, Lord Falconer told the Constitution Committee:[20]

‘The original proposal was that the Secretary of State for Constitutional Affairs would do both the jobs in the Lord Chancellor's list and the jobs in the Secretary of State for Constitutional Affairs’ list. What then happened was that the role of Lord Chancellor was preserved and certain jobs were basically tied to the office of Lord Chancellor. I still have two titles and in my view rightly so. There is still a very, very big job to do. If, however, you separated out those things which I do under my heading of Secretary of State for Constitutional Affairs there is not very much in those.

43. As previously noted, however, in May 2007, the Ministry of Justice was created and the corresponding ministerial title changed from Secretary of State for Constitutional Affairs to Secretary of State for Justice. There was a substantial increase in the scope of responsibility of the Secretary of State, including for criminal law, prisons and probation services. These new areas of responsibility radically changed the position since Lord Falconer explained, in 2006, that his Secretary of State role did not ‘have very much in it’.
44. In February 2010, Jack Straw MP told the Constitution Committee:[21]

‘I am perfectly comfortable about exercising both roles. They are distinct. Many of your Lordships will remember the great debate that took place following the original proposals in the Constitutional Reform Bill, which led to the continuation of the position of Lord Chancellor. I happen to think that was the right decision, for all sorts of reasons. The distinction in practice—I believe in theory but actually in practice—is a very important one, because on the one hand you have the Justice Secretary functions, which in terms of their operation and how they are moderated by other colleagues in Government are no different from any other secretary of state functions. The functions may differ but how they are operated is no different. On the other hand, the functions of Lord Chancellor are principally related to the judiciary and the maintenance of the independence of the judiciary. On those, in turn, I act independently of other colleagues in Government. 

45. In relation to the practice of a minister acting independently from other ministers, this is not a requirement unique to the Lord Chancellor’s role or to decision-making about the courts and judiciary. For instance, the Secretary of State for Communities and Local Government must exercise independence in relation to some important planning permission functions; similarly, the Home Secretary in relation to some individual immigration control decisions. Moreover, working with arm’s length bodies is part of the normal repertoire of a Secretary of State. Provided the right statutory framework is in place, I see no reason why a minister occupying a post of Secretary of State would be worse placed than one occupying the post of Lord Chancellor in making decisions about courts and on judiciary-related matters.

Reform proposals

46. When developing proposals for the future of the office of Lord Chancellor, it is important to take a holistic approach. The Lord Chancellor’s numerous specific court and judiciary-related statutory functions operate as part of a network of institutions and process, many linked to work of arm’s length bodies or carried out in conjunction with the judiciary. Similarly, the Lord Chancellor’s role as the constitutional conscience of government is not the only internal scrutiny within government: the Law Officers, government lawyers, and the civil service may also offer advice to constrain proposed unconstitutional action. To focus on only one part of these systems (the Lord Chancellor) is artificial.

Reform of role 1: statutory functions relating to the courts and judiciary

47. For the reasons explained above, I take the view that a Secretary of State could equally well exercise the hundreds of specific statutory functions currently conferred on the Lord Chancellor. I would support such a transfer as it would simplify the institutional arrangements and help improve public understanding of the system.
48. The constitutional considerations that should inform the exercise of these statutory functions should be clarified and consolidated into a single piece of legislation. The CRA 2005 refers to only two constitutional principles that need to influence the Lord Chancellor’s decision-making – the rule of law (section 1) and judicial independence (section 3). Other principles are, however, also important – some of which have already received statutory recognition in other Acts of Parliament. These include the ‘regulatory objectives’ of the Legal Services Act 2007 and the ‘general duty in relation to the courts’ placed on the Lord Chancellor under the Courts Act 2003. A new Act of Parliament should strengthen and consolidate all the constitutional norms to which a minister should have regard in making decisions about the courts and judiciary (see Appendix B, below).
49. The formula used in the CRA 2005 and other legislation is that the minister must ‘have regard to’ specified factors of constitutional importance. In other contexts (notably the public sector equality duty created by the Equality Act 2010), the courts have laid down guidelines as to what is expected of a minister or other public body in fulfilling a duty ‘to have regard to’ a factor.[22] It is not sufficient for a minister to show merely that the decision was made with ‘a general awareness of the duty’; rather ‘a substantial, rigorous and open-minded approach’ is required. The test is one of substance not of mere box ticking. The duty must be performed with ‘vigour and an open mind’, with a ‘conscious directing of the mind to the obligations’. The duty is ‘an essential preliminary’ to the policy decision, not a ‘rearguard action following a concluded decision’. The weight to be given to various factors is for the public authority (not a court) unless the weight given by the public authority is irrational.
50. The minister’s awareness of the relevant constitutional principles in relation to court and judiciary-related policy making and implementation could be made more concrete by a requirement that the minister make an annual report to Parliament, explaining how these factors have influenced his department’s work. Already, the Constitution Committee has through its annual meetings with the Lord Chancellor/Secretary of State, and members of the judiciary, with academic contributions, sought to develop understanding of the concept of ‘the rule of law’.[23] An annual report could form the basis for a systematic official articulation of this and other principles.

Reform of role 2: the Lord Chancellor as the government’s constitutional conscience

51. I am unconvinced that the Lord Chancellor has in recent years – or can in the future – effectively exercised a function as the constitutional conscience of government. The role is ill defined. Accordingly, my draft bill makes no reference to this non-statutory role.
52. If I am wrong about this, the key official documents describing the operation of government (The Cabinet Manual, the Ministerial Code, and Guide to Making Legislation) should be revised to clarify and articulate this role.

A specialist, statutory committee in Parliament

53. In developing the future governance arrangements for judiciary-related matters and the courts, Parliament should have a role to play. The work of the House of Lords Constitution Committee and the House of Commons Justice Committee regularly consider issues relating to the Ministry of Justice, the judiciary, and the arm’s length bodies (sometimes duplicating efforts). There has been an exponential increase in the frequency with which judges appear before parliamentary committees. This said, there are gaps in accountability. Many annual reports of courts and arm’s length bodies go unscrutinised in Parliament and important draft bills have not been considered (for example, the draft Tribunals, Courts and Enforcement Bill). Parliament could better coordinate its work through a statutory joint committee on courts and the judiciary. This would provide a focus for calling to account the responsible minister (whether that be the Lord Chancellor or a Secretary of State) and the arm’s length bodies, and provide a channel of communication between the judiciary and parliamentarians. Providing the committee with a statutory basis would emphasise its importance as an organ of the constitution overseeing the relationships between the executive, the arm’s length bodies, and the judiciary.
54. A draft bill designed to give effect to these reforms is envisaged in Appendix B, below.

Appendix A: Examples of recent statutory functions conferred on the Lord Chancellor

This list provides illustrations of recent legislation modifying or conferring new functions on the Lord Chancellor.

• Inheritance and Trustees' Powers Act 2014: this amends provisions relating to intestate succession under the Administration of Estates Act 1925 following creation of civil partnerships, giving the Lord Chancellor power to make regulations about the ‘Bank of England rate’ of interest and power to make commencement orders. Protected from transfer to a Secretary of State by CRA 2005 Schedule 7.
• Intellectual Property Act 2014, amending the Registered Designs Act 1949: confers on the Lord Chancellor power to appoint (and remove) a person to hear appeals from the registrar. This function is protected from transfer to a Secretary of State by CRA 2005 Schedule 7.
• Social Services and Well-being (Wales) Act 2014: Lord Chancellor given power to make regulations extending functions of the Welsh family proceedings officers in respect of family proceedings (within the meaning of section 12 of the Criminal Justice and Court Services Act 2000) to other proceedings. 
• Anti-social Behaviour, Crime and Policing Act 2014, section 180: the Lord Chancellor may with the consent of the Treasury prescribe court and tribunal fees of an amount which is intended to exceed the cost of anything in respect of which the fee is charged.
• Children and Families Act 2014, amending the Children Act 1989: Lord Chancellor given order making powers relating to timetable for dealing with application for care or supervision order; and carrying out reviews of resolution of disagreements in conjunction with the Secretary of State for Education.
• Northern Ireland (Miscellaneous Provisions) Act 2014: Rules committee of Northern Ireland High Court and Court of Appeal submits some rules to the Lord Chancellor for passage through UK Parliament; other rules are the responsibility of the NI Department of Justice.
• Financial Services (Banking Reform) Act 2013, amending Legal Services Act 2007: Lord Chancellor has rule making power on fees relating to the Office for Legal Complaints.
• Marriage (Same Sex Couples) Act 2013: Lord Chancellor given order-making power if the Governing Body of the Church in Wales decides to permit the marriage of same sex couples according to the rites of the Church of Wales.
• Crime and Courts Act 2013: office of Lord Chancellor referred to in context of transfer of functions in connection with selection and appointment of judges to the Lord Chief Justice or Senior President of Tribunals; rule-making powers in relation to court security; and other matters. Some functions are protected from transfer to a Secretary of State by CRA 2005 Schedule 7.

Appendix B: Draft bill

This draft bill is an attempt to envisage how the proposed reforms might be implemented.

Judiciary and Courts (Functions of the Secretary of State) Act

An Act to make provision for abolition of the office of Lord Chancellor, and to make provision relating to the transfer of functions of that office to the Secretary of State; to make provision for adherence to constitutional principles in relation to government functions relating to the judiciary and the courts; and to provide for oversight of the governance of the judiciary and the courts.

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: —

1. Abolition of the office of Lord Chancellor

(1) The office of Lord Chancellor is abolished.

(2) Functions that are within Schedule 1 to this Act are transferred from the Lord Chancellor to the Secretary of State.[24]

2. The general duty relating to courts and the judiciary

(1) In exercising functions listed in Schedule 1 to this Act, the Secretary of State must have regard to­–

(a)    the need to support the constitutional principle of the rule of law;[25]

(b)    the need to uphold and defend judicial independence;[26]

(c)    the need for the judiciary to have the support necessary to enable them to exercise their functions;[27]

(d)    the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters;[28]

(e)    the need for the system of justice to be accessible, fair and efficient;[29]

(f)     the need to increase public understanding of citizen’s legal rights and duties.[30]

(2)   In this Act references to the Secretary of State’s general duty in relation to the courts and judiciary are to his duty under this section.

(3) The Secretary of State must annually prepare and lay before both Houses of Parliament a report as the way he has discharged his general duty to the courts and the judiciary.[31]

3. The Courts and Judiciary Committee of Parliament

(1) There is to be a body known as the Courts and Judiciary Committee of Parliament (in this Act referred to as ‘the CJCP’).[32]

(2) The CJCP is to consist of nine members who are to be drawn both from the members of the House of Commons and from the members of the House of Lords.

(3) Each member of the CJCP is to be appointed by the House of Parliament from which the member is to be drawn.

(4) A person is not eligible to become a member of the CJCP unless the person—

(a) is nominated for membership by the Prime Minister after consultation with

(i) the Lord Chief Justice of England and Wales

(ii) the President of the UK Supreme Court,

(ii) the Leader of the Opposition, and

(b) is not a Minister of the Crown.

(5) A member of the CJCP is to be the Chair of the CJCP chosen by its members.

14 July 2014