How should the Lord Chancellor and law officers safeguard the rule of law within government?

The government has now published its response to the Constitution Committee’s report on the role of the Lord Chancellor and government law officers, making clear it will take no action based on the committee’s recommendations. Will Knatchbull discusses the key findings of the report and argues that in some cases the committee has expressed clear policy preferences but then declined to recommend mechanisms to implement them.

The House of Lords Constitution Committee published its report on the role of the Lord Chancellor and the law officers (legal ministers as a collective) on 18 January. Since the changes made by the Constitutional Reform Act 2005, further reforms have been considered in reports from the Lords Constitution Committee and the Commons Public Administration and Constitutional Affairs Committee, a government consultation and a white paper. Ultimately, very little reform or reversal has occurred since the 2005 Act, and the government’s response to the report (published on 17 March), made clear that it will not review the existing arrangements.

The overall message of this latest report makes three important and related points: the value of the rule of law, the centrality of the legal ministers in being seen to uphold it within government, and the required character of the legal ministers to be able to do so. It is well summarised in this paragraph:

The thread running through this report is that the rule of law is vitally important to the health of our democracy. Whatever formal reforms might be contemplated, appointing those with the correct character, authority, intellect and independence is the best way to ensure that the Lord Chancellor and the Law Officers are able to defend it. [emphasis added]

This is an important statement and one that cannot easily be disputed. This blogpost will briefly examine three elements of the report: the engagement with the international rule of law, the nature of the role of Lord Chancellor and possibilities for reform of the role of the law officers. I will suggest the report is a step in the right direction. However, it may be too trusting of the political system and the politicians operating in it to produce and appoint individuals of the correct experience and calibre that would enable them to be the fierce guardians of the rule of law that the report envisages.

Squaring the circle of the international rule of law

Before dealing with either the role of the Lord Chancellor or that of the law officers, the report examines the meaning and purpose of the rule of law. The committee acknowledges that there is ‘no concise, enduring and conclusive definition of the concept’, but adopts Lord Bingham of Cornhill’s classic statement of the principle, including that ‘the rule of law requires compliance by the state with its obligations in international law as in national law’.

Evidence received by the committee on this point cut both ways. Though the value of recognising the rule of law internationally is clear, it is not possible to be unequivocal on the matter. The written evidence of former Lord Chancellor Jack Straw, where he discussed the long-running dispute about how to comply with a judgment of the European Court of Human Rights on voting rights for people in prison, is an understandable example of where, as he says, ‘a duty to respect our international obligations, though… essential, can sometimes be a little complicated’.

The report states that the rule of law and the Ministerial Code include an overarching duty on the government as the UK’s representative in international law ‘to honour the state’s international obligations [which] requires it to refrain from inviting Parliament to legislate knowingly contrary to the UK’s international obligation’. In 2011 the House of Commons supported a resolution acknowledging the UK’s international obligations, though indicating its intention to maintain the existing constraints on prisoner voting. Dominic Grieve, the then Attorney General, indicated that he had advised the government that in accordance with the UK’s international obligations, it could not be seen to support the motion, and so its ministers abstained. Compare this to the attitude shown by the Johnson government in bringing forward the Internal Market Bill in acknowledged contravention of its international obligations. The comparison highlights a shift that has taken place whereby recent governments have contended, contrary to previous understanding, that the duty to comply with international law and treaty obligations does not prevent ministers from introducing legislation to parliament.

As it is impossible with an open-textured and protean concept like the rule of law to be fully prescriptive about its scope, it is difficult to draw hard and fast conclusions about when a breach of international obligations is a derogation from the rule of law (although, in most instances, it’s obvious). This only shows the necessity of having the appropriate individuals in place who have the necessary experience, standing and intuition to be able to apply the principle.

There is also a wider question about whether the mechanisms of treaty scrutiny available to parliament are sufficient, though that is beyond the scope of this post.

The committee’s ideal Lord Chancellor

When considering the Lord Chancellor’s duty towards the rule of law, the committee concluded that ‘the Lord Chancellor should fulfil a wider, cross-departmental, role in defending the rule of law and educating his or her colleagues on its importance’. This was on the basis that the office had historically fulfilled such a role and that none of the former Lord Chancellors that gave evidence objected to the principle (although some of the academic witnesses such as Graham Gee and Patrick O’Brien, gave evidence that the post-2005 role was not designed to fulfil such a wider cross-departmental obligation). The implication is that significant reforms should accompany the conclusion of a wider responsibility to give effect to it, but no such changes are then recommended.

The report sets out the expectation that ‘the Lord Chancellor will normally be a senior legal figure’ but does not consider it necessary to amend the statutory criteria for appointment. It invites Prime Ministers to give weight to candidates with the necessary political clout to defend the rule of law. Furthermore, it is recommended that Prime Ministers consider the benefits of Lord Chancellors remaining in post long term when conducting reshuffles. These are all desirable outcomes, but the report does not propose mechanisms for achieving them.

Whether the Lord Chancellor should be a lawyer is an open question, though it is noteworthy that two previous Lord Chief Justices who gave evidence indicated it was helpful for Lord Chancellors to have a legal background. The current eligibility criteria in section 2  of the Constitutional Reform Act allows the Prime Minister to take into account ‘other experience the Prime Minister considers relevant’, which amounts to an almost complete discretion to appoint whoever they wish. This is arguably related to the shift the report identifies from the Lord Chancellor previously being a role for a ‘big beast around Cabinet… at the end of their career’ to one for a ‘minor Minister’. Making the statutory criteria for an appointment more exacting would improve the status of the role and make replacing a Lord Chancellor more difficult, providing an incentive to insulate them from reshuffles. This would serve the committee’s aim of keeping Lord Chancellors in post for longer.

The report further considers whether the roles of Lord Chancellor and Secretary of State for Justice should be separated. The evidence on this point was mixed and led to the conclusion that in light of the disruption caused by changes to the machinery of government, there was currently not a clear advantage in separating the roles. However, if such a change were made, it would open up the possibility of appointing the Lord Chancellor from the Lords, as they would no longer be the head of a major spending department. This would allow a greater pool of individuals to be considered for appointment.

Law officers to remain political appointees

The most fundamental question in relation to the law officers is whether they should remain political appointments or become non-political civil servants. The report rejects any fundamental reforms to transform the law officers into non-political actors. In doing so, the committee is aligned with recent publications on the question. The report stated that being a member of the government provided the law officers ‘with a strong understanding of the political context in which they operate and bolsters the authority of the advice’ and that being a member of parliament allows the law officers to be scrutinised and held accountable by it.  

The report acknowledged that it is important that the political status and rule of law functions of the role are balanced, emphasising that holders must ‘recognise that they are different from other ministers in that key aspects of their role require independence from party politics and Government priorities’. It recommends that ‘Law Officers should refrain from making public statements which could damage public perception of their impartiality’. This is a sensible recommendation. It may be that further consideration needs to be given to how this recommendation would be instilled into the understanding of holders and those around them. A codified restatement of the law officers’ role and responsibilities and a post-appointment hearing before a parliamentary committee on appointees’ understanding of the role have been suggested elsewhere. Additional measures that may contribute to demonstrating impartiality include updating section 1 of the Constitutional Reform Act to give statutory recognition to the heightened responsibility to the rule of law that the law officers have developed since 2005, the provision of a modern oath for the law officers (which the report recommends) and the clarification that the Attorney General is not a member of Cabinet. The argument for this last measure is that it is a further reminder to both the Attorney General and the public that the role is of a special nature, different from other ministers. The report avows no ‘strong view’ on whether the Attorney General should be a member of Cabinet.

The report is sceptical of the ‘respectable legal argument’ standard by which law officers now advise, observing that it could be an overly low threshold. The committee stated that there is a distinction between scenarios regulated by domestic law that can be tested in court and those such as international law issues where the decision taken by the law officers is often determinative. In the latter category of cases, the committee concluded that ‘greater certainty is required’. In addition, the report states that ‘in exceptional cases of national importance, especially where litigation is unlikely, there is a stronger case for publishing advice either in full or in summary’. I would add that in such scenarios, it is of paramount importance that a law officer, preferably the Attorney General, fulfils their constitutional duty to advise the House of Commons on key legal issues objectively and impartially.

Whether advice is sought on domestic or international law matters, the respectable argument standard underlines that law officers are called on to make very difficult decisions in uncertain circumstances. This serves to highlight the importance of law officers being highly respected and significantly experienced legal practitioners whose judgement can be trusted. This has unfortunately not always been the case, as the report points to the work of James Hand, which concludes that the level of legal experience of Attorneys General appointed since 2010 is significantly less than the average of those appointed in the twentieth century. The report recommends that ‘Prime Ministers appoint only Law Officers with the independence of mind, autonomy and strength of character to deliver impartial legal advice to the Government, even where it is unwelcome.’ This is a sensible recommendation but is arguably too trusting of Prime Ministers to sincerely engage with the above requirements. Perhaps further thought should be given to an eligibility criterion formulated as a requirement for legal experience of a certain number of years.

Finally, the report concluded that more consideration should be given to appointing individuals to the Lords for the purpose of them serving as law officers, as was done by the Blair and Brown governments, which on several occasions appointed a legally qualified MP as Solicitor General and a distinguished private practitioner in the Lords as Attorney General. This is a pragmatic consideration since the proportion of MPs who are lawyers is falling. It is very difficult to combine the job of an MP with acquiring the level of legal experience that the law officers should possess.

It is desirable that law officers are appointed from the Lords – and that individuals can be appointed to the chamber to serve as law officers – if this allows the government to select from a wider pool of candidates. However, it is sub-optimal for the Attorney General not to be accountable to MPs at key moments in the Commons. Consideration could be given to the radical but not unimaginable step of allowing an Attorney General who is a member of the Lords to participate in the debates of the Commons when summoned to do so. There is an existing model for this in the devolved legislatures: in Scotland the Lord Advocate can take part in proceedings of the Scottish Parliament, but may not vote. A similar provision exists in Wales, although the current Counsel General is a Member of the Senedd, and only one of his predecessors has been appointed from the independent bar. Alternatively, wider questions concerning the demographics of MPs could be investigated and thought given to what incentive there is for highly respected lawyers to run for election to the Commons.

If you are interested in the topics discussed in this post, then the Unit recommends that you attend its annual conference, entitled The Future of the Constitution, which is due to take place on 28 and 29 June. The conference is free to access, open to all, and will include a panel discussion on the topic of the courts and the rule of law, with barrister and MP Laura Farris, Murray Hunt, the Director of the Bingham Centre for the Rule of Law, and Fiona Rutherford, the Chief Executive of Justice.

About the author

Will Knatchbull is a Bar Course student at the Inns of Court College of Advocacy, previous research volunteer at the Constitution Unit and Lyell Scholar at the Society of Conservative Lawyers, where he co-authored a paper on the role of the Attorney General.

The featured image associated with this post is Lord Chancellor Dominic Raab (CC BY 2.0) by UK Government.