Select committee: Constitution Committee
Conclusion 13
9th Report - The roles of the Lord Chancellor and the Law Officers
Published 18 Jan 2023
Paragraph 147
Constitution Committee Role of the Lord Chancellor and the Law Officers All items in this report Report on parliament.uk ↗ Inquiry on parliament.uk ↗
Conclusion (the committee's words)
The existence of a “respectable legal argument” as set out in the guidance and elaborated by the then Attorney General, Rt Hon Suella Braverman KC MP, could sometimes represent a very low threshold for authorising legally uncertain action. While it may be conceptually correct that an action is not “unlawful” until tested by the courts or where no legal justification can be found, acting on such an uncertain basis is dubious practice and contrary to the rule of law. The concept may provide a helpful framework for the provision of advice by Government lawyers but a decision by ministers to act must not be based solely on a calculation of legal inconvenience. An alternative framework for assessing legal risk might be to do so in terms of a “necessary degree of confidence”, as recently exemplified in the Lord Advocate’s reference to the Supreme Court on a Scottish Independence Referendum Bill.
From: Constitution Committee, 9th Report - The roles of the Lord Chancellor and the Law Officers, paragraph 147, 18 January 2023
Government response
The government responded to the whole report on 17 March 2023 (deadline 18 March 2023).
Summary written by Accountability Index from the government's response. It is not the government's own words.The Government agrees with the Committee on the importance of the rule of law and the value of Law Officers being politicians, but it has "no current plans to review the existing arrangements" for the offices of Lord Chancellor and the Law Officers.
- The Government agrees that "defending the judiciary against unfair, personal or threatening abuse is a core part of the Lord Chancellor’s role", but "respectfully disagrees" that a Lord Chancellor must intervene publicly, saying that an expectation of public intervention "might prove counterproductive".
- On a constitutional lead, the Government believes there is "greater strength in having a number of senior Ministerial leads on discrete constitutional matters", rather than the Lord Chancellor holding overall responsibility, and says ministerial appointments are a matter for the Prime Minister.
- On the Ministerial Code and Cabinet Manual, the Government is "always open to looking at whether updates or amendments are needed" and "remains committed to producing an updated edition of the Cabinet Manual before the end of the current Parliament". It notes a possible danger that codification "is reductive".
- On the Lord Chancellor's oath, the Government "remains unpersuaded" that rewording it to refer to upholding the rule of law would affect the discharge of the duty. On the Internal Market Act and Northern Ireland Protocol Bill, the Law Officers "have nothing further to add at this time".