9th Report - The roles of the Lord Chancellor and the Law Officers

The government's response

What the committee recommended 34

1. 1
   It is fundamental to our constitution that the Government acts according to the rule of... Conclusion · paragraph 41
2. 2
   The Government has now twice knowingly introduced legislation in Parliament which would breach the UK’s... Conclusion · paragraph 45
3. 3
   Parliamentary sovereignty means that Parliament can legislate contrary to the UK’s obligations under international law. Conclusion · paragraph 58
4. 4
   A treaty, once agreed, binds the state. Conclusion · paragraph 59
5. 5
   The Human Rights Act 1998 balances adherence to the European Convention on Human Rights and... Conclusion · paragraph 70

See all 34 recommendations and conclusions

Sources

• 9th Report - The roles of the Lord Chancellor and the Law Officers ↗The committee's report, parliament.uk
• Government response to the Committee's report on The roles of the Lord Chancellor and the Law Officers (16 March 2023) ↗The government's response, 17 March 2023, parliament.uk

Recommendations and conclusions 34

1. 1
   It is fundamental to our constitution that the Government acts according to the rule of... Conclusion · paragraph 41 Conclusion (the committee's words)

   It is fundamental to our constitution that the Government acts according to the rule of law. While there is no concise, enduring and conclusive definition of the concept, its fundamental tenets are well understood and set out in Lord Bingham’s exposition. What is critical is that ministers are mindful of the concept, understand its key principles and act in accordance with them, and consider the rule of law to have primacy over political expediency. This is especially relevant to those with distinct rule of law functions such as the Lord Chancellor and the Law Officers.
2. 2
   The Government has now twice knowingly introduced legislation in Parliament which would breach the UK’s... Conclusion · paragraph 45 Conclusion (the committee's words)

   The Government has now twice knowingly introduced legislation in Parliament which would breach the UK’s international obligations, contravening Lord Bingham’s principle that “the rule of law requires compliance by the state with its obligations in international law.” In the case of Part 5 of the United Kingdom Internal Market Bill it admitted doing so. In the case of the Northern Ireland Protocol Bill, the Government has failed to produce a credible legal justification for doing so.
3. 3
   Parliamentary sovereignty means that Parliament can legislate contrary to the UK’s obligations under international law. Conclusion · paragraph 58 Conclusion (the committee's words)

   Parliamentary sovereignty means that Parliament can legislate contrary to the UK’s obligations under international law. It ensures that rights and obligations in domestic law are not created or altered through Government action in agreeing a treaty without parliamentary approval.
4. 4
   A treaty, once agreed, binds the state. Conclusion · paragraph 59 Conclusion (the committee's words)

   A treaty, once agreed, binds the state. It is the responsibility of the Government, as the state’s international representative, to ensure that agreements entered into internationally are respected. While it is conceivable that Parliament would decline to give effect to an attempt by the executive to apply a treaty, a Government commanding the confidence of the House of Commons should normally be able to ensure that any necessary domestic legislation is passed. Nonetheless the responsibility of the Government to honour the state’s international obligations requires it to refrain from inviting Parliament to legislate knowingly contrary to the UK’s international obligations.
5. 5
   The Human Rights Act 1998 balances adherence to the European Convention on Human Rights and... Conclusion · paragraph 70 Conclusion (the committee's words)

   The Human Rights Act 1998 balances adherence to the European Convention on Human Rights and parliamentary freedom to legislate (or not). While accommodating parliamentary sovereignty, the Act includes remedies for potential breaches. Section 3 of the Act requires the courts to interpret legislation compatibly with Convention rights so far as it is possible to do so. Section 4 enables the courts to make a declaration of incompatibility in cases where it is unable to interpret legislation as being compatible. Section 10 provides a procedure for a minister to make, and Parliament if it so wishes to approve, a remedial order rectifying the incompatibility. The Act does not justify the wilful introduction of legislation known to be in breach of international law.
6. 6
   The Ministerial Code elides the duties of individual ministers with the duties of the Government... Conclusion · paragraph 88 Conclusion (the committee's words)

   The Ministerial Code elides the duties of individual ministers with the duties of the Government as a whole. In most cases it would seem that the original (and implicitly current) duty to comply with “international law and treaty obligations” must apply collectively. Even so, the Government’s contention that the Code “does not prevent Ministers from introducing legislation for MPs and Peers to debate” appears to be shifting responsibility for any potential breach of international obligations to Parliament. While Parliament is ultimately responsible for the form of any legislation passed, the preparation and introduction of government legislation is an executive action for which ministers, collectively, are accountable. Parliamentarians and others can hold a Government to account for such action, under the terms of a Ministerial Code which distils, rather than prescribes, the duties of ministers under the rule of law.
7. 7
   The proper exercise by a minister of a power granted by Parliament would be lawful... Conclusion · paragraph 89 Conclusion (the committee's words)

   The proper exercise by a minister of a power granted by Parliament would be lawful under domestic law. But where domestic and international law diverge, the duty reflected in the Ministerial Code to comply with international law still applies. This presents ministers with a dilemma which they should not be expected to face, and this uncomfortable situation reaffirms our previously expressed disquiet about the constitutional desirability of Parliament legislating in violation of the UK’s international obligations.
8. 8
   The Lord Chancellor should fulfil a wider, cross-departmental, role in defending the rule of law... Conclusion · paragraph 102 Conclusion (the committee's words)

   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. Historically, the office has fulfilled that role, there is already a statutory duty and, unlike the Law Officers, the Lord Chancellor is a full member of the Cabinet. We note that none of the former Lord Chancellors we spoke to expressed any qualms about performing a wider role.
9. 9
   Defending the judiciary against unfair, personal or threatening abuse is a core part of the... Conclusion · paragraph 121 Conclusion (the committee's words)

   Defending the judiciary against unfair, personal or threatening abuse is a core part of the Lord Chancellor’s role. While criticism of the content of a judgment is acceptable, targeted personal criticism which unfairly impugns a judge’s impartiality or inflames public sentiment against the judiciary is not. In such cases, a Lord Chancellor must intervene promptly and publicly.
10. 10
    The ‘Enemies of the People’ incident, and the then Lord Chancellor’s response to it, at... Conclusion · paragraph 122 Conclusion (the committee's words)

    The ‘Enemies of the People’ incident, and the then Lord Chancellor’s response to it, at the very least caused alarm within the judiciary and damaged trust. For the judiciary to feel secure in its independence, and the performance of its duty to decide cases without fear or favour, it needs the support of a Lord Chancellor who is willing to defend it. This incident illustrates the importance of a Lord Chancellor having sufficient authority within the Government to perform their role.
11. 11
    The Lord Chief Justice and other senior members of the judiciary have a part to... Conclusion · paragraph 123 Conclusion (the committee's words)

    The Lord Chief Justice and other senior members of the judiciary have a part to play in explaining to the public, in general terms, their role and constitutional position. It would not be appropriate, however, for them directly to address criticism, made in the heat of political controversy, of their judgments on the application of the law. That is the Lord Chancellor’s responsibility.
12. 12
    All those in Government have a duty to defend the rule of law and should... Conclusion · paragraph 134 Conclusion (the committee's words)

    All those in Government have a duty to defend the rule of law and should be mindful of the fundamental tenets on which it rests, as described in paragraph 41. This applies especially to those with legal authority. In our view, the Law Officers have a wider role in defending the rule of law when issues arise, alongside the Lord Chancellor.
13. 13
    The existence of a “respectable legal argument” as set out in the guidance and elaborated... Conclusion · paragraph 147 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.
14. 14
    The validity of the “respectable legal argument” threshold itself depends on an uncertain threshold in... Conclusion · paragraph 148 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.
15. 15
    In the case of decisions to authorise armed conflict, greater certainty is required. Conclusion · paragraph 149 Conclusion (the committee's words)

    In the case of decisions to authorise armed conflict, greater certainty is required. The existence of a merely “respectable” argument in this context is a fig leaf, and risks undermining the trust of the public and the military.
16. 16
    On balance, we do not favour the routine publication of Law Officers’ advice. Recommendation · paragraph 156 Recommendation (the committee's words)

    On balance, we do not favour the routine publication of Law Officers’ advice. Doing so would infringe on legal professional privilege and risk undermining the Government’s position should a matter reach court. This is consistent with the rule of law as fairness in legal proceedings is a fundamental part of it. 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. Doing so would enhance Parliament’s ability to scrutinise the Government’s proposed actions and public trust in its adherence to the rule of law. It is difficult to codify the situations when there should be a presumption of publication but decisions to use armed force are perhaps the clearest area where publication is in the public interest. The Government should consider amending the Ministerial Code accordingly.
17. 17
    In the final analysis, character, intellect and a commitment to the rule of law are... Conclusion · paragraph 167 Conclusion (the committee's words)

    In the final analysis, character, intellect and a commitment to the rule of law are the most important attributes for a Lord Chancellor to possess. Whilst we do not consider it necessary to amend the criteria for appointment in section 2 of the Constitutional Reform Act 2005 so as to make it a specific requirement that Lord Chancellors should have a legal qualification, we would expect a Lord Chancellor normally 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.
18. 18
    In fulfilling their duties Lord Chancellors must be willing and able, where necessary, to stand... Conclusion · paragraph 168 Conclusion (the committee's words)

    In fulfilling their duties Lord Chancellors must be willing and able, where necessary, to stand up to Cabinet colleagues and the Prime Minister. We invite Prime Ministers, when appointing Lord Chancellors, to give weight to candidates with the authority and political clout necessary successfully to speak up for and defend the rule of law in Government, even where this may conflict with political priorities.
19. 19
    Tenure in office increases the legal and constitutional experience and knowledge of a Lord Chancellor. Recommendation · paragraph 171 Recommendation (the committee's words)

    Tenure in office increases the legal and constitutional experience and knowledge of a Lord Chancellor. The Lord Chancellor’s role is a unique appointment with specific responsibilities that are fundamental to the rule of law. We recommend that Prime Ministers, when undertaking Government reshuffles, consider the benefits of Lord Chancellors remaining in office for longer in order to maintain confidence in the status and effectiveness of the office.
20. 20
    As Secretary of State for Justice the Lord Chancellor has responsibility for a wide range... Conclusion · paragraph 185 Conclusion (the committee's words)

    As Secretary of State for Justice the Lord Chancellor has responsibility for a wide range of policy areas in addition to his or her duties as regards the rule of law and the independence of the judiciary. The arguments for and against the status quo are finely balanced. While we recognise the risk that a conflict of interest could arise between some of these functions, it is also reasonable to suggest that the Lord Chancellor’s budgetary responsibility for the Ministry of Justice, including the prison service, increases his or her status and authority in Government. Arguably, this better equips the office holder to make an effective bid for funding for all the policy areas falling within their remit.
21. 21
    Given that the advantages of separating the role of Lord Chancellor from that of Secretary... Conclusion · paragraph 186 Conclusion (the committee's words)

    Given that the advantages of separating the role of Lord Chancellor from that of Secretary of State for Justice are not clear, we are not in favour of doing so at this time , especially considering the burdens inherent in any major machinery of Government change. However, a new Prime Minister embarking on a reorganisation of government as a whole may wish to consider whether the role of Lord Chancellor should be separated from that of Secretary of State for Justice. Alternatively, a new Prime Minister may contemplate removing responsibility for prisons from the Lord Chancellor’s remit.
22. 22
    We have heard no compelling evidence to suggest that the role of Deputy Prime Minister... Recommendation · paragraph 190 Recommendation (the committee's words)

    We have heard no compelling evidence to suggest that the role of Deputy Prime Minister may pose a risk to the Lord Chancellor’s independence and willingness to defend the rule of law in Government. However, we reiterate that the Lord Chancellor’s duty in Cabinet to raise rule of law issues must not be diluted by his role as Deputy Prime Minister.
23. 23
    It is unclear whether there is currently a senior Cabinet minister in Government with overall... Conclusion · paragraph 194 Conclusion (the committee's words)

    It is unclear whether there is currently a senior Cabinet minister in Government with overall responsibility for and oversight of constitutional affairs, including responsibility for upholding the constitution. This is highly regrettable. We see clear benefits in having the Lord Chancellor, who already has statutory responsibilities regarding the rule of law, as the individual in Government fulfilling this role.
24. 24
    The Lord Chancellor’s limited role in judicial appointments has been settled since the enactment of... Conclusion · paragraph 207 Conclusion (the committee's words)

    The Lord Chancellor’s limited role in judicial appointments has been settled since the enactment of the CRA in 2005. The current system enables political oversight of the process through the Lord Chancellor’s ability to reject or request reconsideration of the candidate recommended to them. In our 2012 report Judicial Appointments we cautioned against the over-politicisation of the process. Nonetheless, since then arguments have been made for more accountability and transparency in the process. Any change to the current system would need very carefully to balance political accountability with the essential need to avoid political interference with judicial independence.
25. 25
    While the Lord Chancellor remains in charge of a major spending department the office is... Conclusion · paragraph 211 Conclusion (the committee's words)

    While the Lord Chancellor remains in charge of a major spending department the office is likely to be filled by an MP. However, if the office of Lord Chancellor were to be separated from that of Secretary of State for Justice then perhaps it could more frequently be filled by a member of the House of Lords.
26. 26
    There is great value in the Law Officers being politicians as it provides them with... Conclusion · paragraph 232 Conclusion (the committee's words)

    There is great value in the Law Officers being politicians as it provides them with a strong understanding of the political context in which they operate and bolsters the authority of their advice. As members of Parliament the Law Officers are accountable for their decisions, which is welcome.
27. 27
    It is nonetheless vital that Law Officers recognise that they are different from other ministers... Conclusion · paragraph 233 Conclusion (the committee's words)

    It is nonetheless vital that Law Officers recognise that they are different from other ministers in that key aspects of their role require independence from party politics and Government priorities. It is key to retaining public confidence in the Law Officers’ impartiality that they place their duty to the rule of law above party political considerations. Law Officers should refrain from making public statements which could damage public perception of their impartiality.
28. 28
    It is essential that those appointed to Law Officer roles continue to be legally qualified,... Recommendation · paragraph 238 Recommendation (the committee's words)

    It is essential that those appointed to Law Officer roles continue to be legally qualified, with relevant experience. Of equal importance to formal qualifications is the character and independence of mind of the Law Officers, which cannot be easily defined in statute. We recommend 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.
29. 29
    It is important that the Law Officers are members of a House of Parliament, so... Conclusion · paragraph 242 Conclusion (the committee's words)

    It is important that the Law Officers are members of a House of Parliament, so bringing an understanding of the political context in which they have to operate. There is a credible argument that they should be drawn, not only from the House of Commons, but from the House of Lords. If the best candidate is not already a member of either House we would support appointing individuals to the Lords for the purpose of their becoming Law Officers. Doing so would widen the pool of suitably qualified candidates.
30. 30
    Codification of the Law Officers’ duties would improve public understanding of the various aspects of... Conclusion · paragraph 247 Conclusion (the committee's words)

    Codification of the Law Officers’ duties would improve public understanding of the various aspects of their role, including which functions should be carried out independently of Government. The Ministerial Code and the Cabinet Manual should be amended to define clearly the duties of the Law Officers. This should include: commitment to the existing constitutional principle of the rule of law as the Law Officers’ principal duty; a definition of which of the Law Officers’ duties are ministerial in nature , and subject to collective responsibility, and which should be conducted independently of Government. Where there is overlap, this should be clearly stated; the principle of parliamentary accountability, which applies to the Law Officers by virtue of their membership of one of either House of Parliament.
31. 31
    Placing the Ministerial Code on a statutory footing would risk politicising the judiciary. Conclusion · paragraph 254 Conclusion (the committee's words)

    Placing the Ministerial Code on a statutory footing would risk politicising the judiciary. Breaches of the Ministerial Code are a matter for the Prime Minister. If the Prime Minister fails in his or her duty to uphold the Code, it is the responsibility of Parliament to hold the Prime Minster to account for that.
32. 32
    We do not have a strong view as to whether the Attorney General should be... Conclusion · paragraph 257 Conclusion (the committee's words)

    We do not have a strong view as to whether the Attorney General should be a member of Cabinet. What is important is that the office-holder prioritises adherence to the rule of law over Government priorities and is willing and able to operate independently of Government where required.
33. 33
    The Lord Chancellor’s oath is well-written and easily understood by a lay reader. Recommendation · paragraph 262 Recommendation (the committee's words)

    The Lord Chancellor’s oath is well-written and easily understood by a lay reader. We nonetheless reiterate this Committee’s earlier concern that the oath does not adequately reflect the Lord Chancellor’s role in overseeing respect for the rule of law in Government. We recommend the oath be amended to include the Lord Chancellor’s duty to uphold the rule of law.
34. 34
    The Law Officers’ oaths should be updated to make reference to the primacy of their... Conclusion · paragraph 268 Conclusion (the committee's words)

    The Law Officers’ oaths should be updated to make reference to the primacy of their duty to uphold the rule of law and fulfil public interest functions. Language used in the oath should be understood by the general public.