Lord Falconer, the former Lord Chancellor, has condemned the “heart-breaking and disappointing” comments made about the role by its current incumbent, Chris Grayling.
Mr Grayling argued that there were “no disadvantages” in being a non-lawyer Lord Chancellor, upholding the rule of law was a job for all government ministers and “we don’t need a health secretary who’s a doctor”.
Lord Falconer, who was Labour’s Lord Chancellor from 2003 to 2007, said Mr Grayling had “absolutely no understanding that his role was a special one” in terms of the rule of law, which was “appalling”.
The Labour peer said Mr Grayling appeared to see himself as “no different from the health secretary or the education secretary in terms of the rule of law”.
Giving evidence to the House of Lords constitution committee, Lord Falconer said this seemed to “completely undermine” what the Constitutional Reform Act 2005 sought to do.
One of the architects of the Act, he said earlier that the Act made it clear that the Lord Chancellor was a “guardian” of the rule of law and had to swear an oath to protect it.
He described Mr Grayling’s evidence as “heart-breaking and disappointing”. Lord Falconer said it indicated that the prime minister had “unwittingly” failed to comply with the obligations placed on him by section 2 of the Act to appoint someone with special qualities suited to perform the role of Lord Chancellor.
Giving evidence with former Lord Chancellor Ken Clarke, Mr Grayling’s predecessor, Lord Falconer said he could think of “no more appropriate people” to occupy the second role than Mr Clarke or his own successor, Jack Straw.
Lord Falconer described how Mr Clarke had defended a judge criticised by the Home Secretary for not deporting someone because of fondness for their cats. “If there is not a cat in hell’s chance that the Lord Chancellor will defend the judges in the way that Ken did, then you have a problem,” the Labour peer said.
He said the judges were “in a sense the weakest part of the constitution”. “They can’t defend themselves. They are always vulnerable to the government being cross about them or rude about them. They need someone like Ken Clarke to defend them.
“I have real anxieties at the moment that there isn’t the sense that there is someone in the government big enough to defend the rule of law.”
In his evidence, Mr Clarke made it clear that legal aid or the Jackson reforms were not his priority as justice secretary, at a time of huge financial pressure. “It was the first time anyone had tried to take 30% out of anything to do with law and order,” Mr Clarke said.
He described how, together with the permanent secretary at the Ministry of Justice, they drew up a greatly reduced budget for the department, and arrived at the figure of 30% for cost savings themselves.
Mr Clarke said his priority was reform of the prison system, to make sure money for the justice system as a whole was not “swallowed up” by it.
He added that he had an “extremely high regard” for the rule of law and the independence of the judiciary, and had “excellent relationships” with everyone in the justice system.