Select committee: Constitution Committee
Conclusion 14
9th Report - The roles of the Lord Chancellor and the Law Officers
Published 18 Jan 2023
Paragraph 148
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 validity of the “respectable legal argument” threshold itself depends on an uncertain threshold in the Attorney General’s guidance: the level at which an argument becomes “respectable”. The guidance explains that this is an argument that can be properly put before a court, but this may be a subjective judgement. It also refers to an absence of such arguments as being “rare” or “exceptional”: it is unclear whether this suggests the threshold is so low that an argument will almost always be found or whether the Government would not expect frequently to be contemplating legally dubious action. While the “respectable legal argument” threshold may be justified in some circumstances of genuine legal uncertainty we are concerned that the threshold as currently set out in the guidance could sometimes be used purely for the convenience of the Government. Public confidence in the Government’s commitment to the rule of law demands that any threshold is meaningful and aligns with an ethos of genuinely seeking to comply with the law.
From: Constitution Committee, 9th Report - The roles of the Lord Chancellor and the Law Officers, paragraph 148, 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".