Justice Secretary | The Constitution Unit Blog

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.

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The latest edition of Monitor, the Unit’s regular news update on constitutional issues, was published today. The Brexit vote happened more than five years ago, but many of the the worrying constitutional trends that characterised the years that immediately followed the referendum remain a part of public life. Here, in the lead article from Monitor 79, Unit Director Meg Russell and Deputy Director Alan Renwick express serious concerns about a repeated lack of parliamentary scrutiny, proposed changes to the way elections are overseen and conducted, standards in public life, the proper role of government, and the effect of all four on the perception of our public servants.

Each new issue of Monitor for the last three years has reported on torrid developments in UK constitutional politics. Brexit, the 2019 general election and COVID-19 all raised new and difficult questions about democratic governance and the balance of power between our institutions. As the political dominance of the pandemic fades, and matters tentatively approach something closer to ‘normal’, constitutional controversy nonetheless remains centre stage.

A major question raised in the previous Monitor, and bubbling for some time before that, is whether the UK is witnessing a kind of ‘democratic backsliding’, whereby elected politicians gradually dismantle the checks and balances that constrain their power. The UK government’s legislative programme, and its wider activities as reported in this issue, have done little to soothe those fears. A valuable new online tracker, launched in October by the Public Law Project, allows for systematic exploration of constitutional developments throughout the period of the Johnson government.

The action that achieved greatest cut-through was the government’s extraordinarily ill-judged attempt to change how allegations of misconduct against MPs are dealt with, in response to dissatisfaction with the outcome of a given case – that of Conservative former cabinet minister Owen Paterson. The mechanism proposed for the review – a Commons committee with a government majority – was also entirely inappropriate. The ensuing controversy was still raging as Monitor went to press.

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