On 20 July 2023, the House of Lords is due to debate the following motion: 

Baroness Drake to move that the Grand Committee takes note of the Report from the Constitution Committee ‘The roles of the Lord Chancellor and the Law Officers’ (9th Report, HL Paper 118). 

1. Lord chancellor, law officers and the rule of law

The lord chancellor and the law officers (the attorney general, the solicitor general and the advocate general for Scotland) are UK government ministers with certain constitutional and legal responsibilities.

The lord chancellor is a senior member of the cabinet who also heads the Ministry of Justice as secretary of state for justice. The Constitutional Reform Act 2005 (CRA 2005) changed the role of the lord chancellor in various ways. It codified the lord chancellor’s role in relation to the rule of law and introduced a new oath that pledged the lord chancellor to:

[…] respect the rule of law, defend the independence of the judiciary and discharge [their] duty to ensure the provision of resources for the efficient and effective support of the courts for which [they are] responsible.

The ‘Cabinet manual’ explains that the law officers provide legal advice to all government departments and support ministers to act lawfully and in accordance with the rule of law. They also have several public interest functions which require them to act independently from the government, including when referring unduly lenient sentences to the Court of Appeal and bringing contempt of court proceedings.

The lord chancellor and law officers are required to uphold the rule of law. This principle is not defined in statute, but its central tenets are widely recognised. One well-known interpretation came in 2006 from Lord Bingham of Cornhill, a former master of the rolls, lord chief justice of England and Wales and senior lord of appeal in ordinary (law lord). In a lecture on the rule of law, Lord Bingham described the core principles of the rule of law as follows:

[…] all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.

In 2010, Lord Bingham expanded these core principles into the following eight key principles:

  • The law must be accessible and, so far as possible, intelligible, clear and predictable.
  • Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
  • The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
  • Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.
  • The law must afford adequate protection of fundamental human rights.
  • Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.
  • The adjudicative procedures provided by the state should be fair.
  • The rule of law requires compliance by the state with its obligations in international law as in national law.

2. House of Lords Constitution Committee inquiry

In February 2022, the House of Lords Constitution Committee launched an inquiry into the roles of the lord chancellor and the law officers. The committee said it was interested to understand how the roles had developed since it last considered them in 2008 and 2014.

In its latest inquiry, the committee examined how the roles currently operate and how they have evolved since the CRA 2005. The committee also considered the impact of the role holders’ government responsibilities on their impartiality and ability to uphold the rule of law and defend the judiciary.

As context to the inquiry, the committee said the government’s commitment to the rule of law had been called into question in recent years. Referring to the United Kingdom Internal Market Act 2020 and the Northern Ireland Protocol Bill, the committee said the government had “twice knowingly introduced legislation in Parliament which would breach the UK’s international obligations and in doing so, undermine the rule of law”.

The committee stated its inquiry would look at the roles of lord chancellor and the law officers with a view to examining how the rule of law is upheld within government, and how the office holders ensure respect for what the committee described as “this fundamental tenet of our constitution”.

3. What were the committee’s findings?

On 18 January 2023, the committee published its report on the roles of the lord chancellor and the law officers. It described the rule of law as “vitally important to the health of our democracy” and said the lord chancellor and law officers needed to have the “correct character, authority, intellect and independence” to defend it.

The committee’s key findings and recommendations are summarised below.

3.1 The rule of law

The committee described it as “fundamental to our constitution” that the government acts in accordance with the rule of law. In the absence of an official definition, the committee said the rule of law’s fundamental principles as set out by Lord Bingham were well understood. The committee described it as “critical” that ministers understood the rule of law’s key principles and considered these to have primacy over political expediency. It stated this was particularly relevant to those undertaking the roles of lord chancellor and the law officers.

The committee said the lord chancellor should fulfil a “wider, cross-departmental” role in defending the rule of law and educating colleagues on its importance. It stated that defending the judiciary “promptly and publicly” from unfair, personal or threatening abuse is a “core part” of the lord chancellor’s role. It also said law officers should play a wider role in defending the rule of law when issues arise.

When determining whether the government has acted lawfully in certain situations, law officers and government lawyers consider whether a “respectable legal argument” can be found to justify the action. The committee argued this test set a “very low threshold” for authorising legally-uncertain actions. The committee stated the test should instead be “meaningful” and “align with an ethos of genuinely seeking to comply with the law”.

Another issue considered by the committee was whether legal advice provided to the government should be made public. Whilst the committee said legal advice should not be routinely published, it argued there was a case for publishing advice in cases of national importance such as government decisions to use the armed forces. It recommended the government should consider updating the ‘Ministerial code’ to introduce this exception.

3.2 Reform of the role of lord chancellor

The committee said it did not consider it necessary to amend the CRA 2005 to require the lord chancellor to be legally qualified. However, the committee stated it would normally expect a lord chancellor to be a senior legal figure:

They should be respected both in the legal community and in Parliament, well equipped with the necessary qualities and knowledge successfully to uphold the rule of law and defend the independence of the judiciary in government.

The committee said the lord chancellor should be able to “stand up” to cabinet colleagues and the prime minister. When considering candidates for the role, the committee said prime ministers should “give weight to candidates [who have] the authority and political clout necessary” to defend the rule of law in government, even if this conflicted with political priorities. In cabinet reshuffles, the committee stated the prime minister should consider the benefits of lord chancellors remaining in office for longer periods of time to “maintain confidence in the status and effectiveness of the office”.

The committee also considered the merit of separating the roles of lord chancellor and secretary of state for justice. Whilst it concluded it would not be in favour of this separation, the committee said a new prime minister may wish to consider the potential separation in the future. The committee noted that separating these roles could mean the role of lord chancellor could more frequently be filled by a member of the House of Lords. This was because currently, the role of lord chancellor, as secretary of state for justice, remains in charge of a major spending department and is therefore “likely to be filled by an MP”. If the role were to be changed, the committee said the lord chancellor could also be given overall responsibility for constitutional affairs.

3.3 Reform of the roles of the law officers

The committee described there being “great value” in law officers being politicians because it ensured they understood the political context in which they operated. However, as law officers are required to act independently from government in certain circumstances, the committee said law officers should refrain from making public statements which could damage public perception of their impartiality. The committee also described it as “essential” and “important” that those appointed as law officers were legally qualified, had relevant experience and were members of Parliament from either House. However, it did not support making this a legislative requirement. It recommended prime ministers should only appoint law officers who have the “independence of mind, autonomy and strength of character” to deliver impartial legal advice to the government.

3.4 Codification, guidance and accountability

To improve public understanding of law officers’ roles, the committee said the law officers’ duties should be written down in guidance. It recommended the ‘Ministerial code’ and the ‘Cabinet manual’ be amended to clearly define these duties. The committee said such duties should include:

  • a commitment to the rule of law
  • definitions of which of the law officers’ duties were ministerial in nature and subject to collective responsibility, and which duties should be conducted independently of government
  • the principle of parliamentary accountability which applies to the law officers by virtue of them being parliamentarians

On oaths, the committee described the lord chancellor’s oath as “well written and easily understood”. However, it raised concerns that it did not fully reflect the lord chancellor’s role in overseeing respect for the rule of law in government. The committee recommended the oath be amended to include the duty to uphold the rule of law. Referring to the law officers’ oaths, the committee said these should be updated to include references to their duty to uphold the rule of law and fulfil public interest functions. It also said the language used in the law officers’ oaths should be made understandable to the public.

4. Government response to the committee’s report

The government responded to the committee’s report on 16 March 2023. The then lord chancellor and secretary of state for justice, Dominic Raab, said the government had no plans to review the existing roles of lord chancellor and the law officers. However, Mr Raab said the government would “continue to reflect” on the findings in the committee’s report.

On the rule of law, the government acknowledged the importance of the principle and the roles of the lord chancellor and law officers in safeguarding this. It also agreed that defending the judiciary from unfair, personal or threatening abuse was a key part of the lord chancellor’s role. However, it disagreed that the lord chancellor must intervene “publicly” when defending the judiciary. It argued there would be occasions where it would be most effective for the lord chancellor to resolve issues “behind the scenes”. The government also defended the use of the “respectable legal argument” test but agreed with the committee’s wider point that public confidence in the government’s commitment to the rule of law was key.

On reform of the lord chancellor’s role, the government said it agreed with the committee that legislative changes were not necessary to ensure the effective exercise of the lord chancellor’s duties. The government also agreed there was “no clear advantage” in separating the responsibilities of the lord chancellor from those of the secretary of state for justice. The government said it believed the existing responsibilities of the Ministry of Justice gave the lord chancellor a greater strategic oversight of the wider justice system. However, the government disagreed with the committee’s suggestion that the lord chancellor be given responsibility for the constitution. It said there was “greater strength in having [several] senior ministerial leads on discrete constitutional matters, all answerable to the prime minister”. On reform of the law officers’ roles, the government agreed on the value of law officers being politicians.

Lastly, responding to the committee’s comments on codification, guidance and accountability, the government disagreed with the committee that government legal advice should be published publicly in exceptional circumstances. The government said the wording of the ‘Ministerial code’ was already wide enough for exceptional cases for publication to be considered. On oaths, the government disagreed with the committee’s recommendation that the lord chancellor’s oath should be amended. It said it remained unpersuaded that amending the oath would enhance the current position and provide clearer boundaries on the role-holder’s responsibilities.

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Cover image by William Cho on Pixabay.