The next prime minister “may wish to consider” separating the roles of Lord Chancellor and justice secretary, or at least removing the responsibility for prisons from the Lord Chancellor, peers have said.
The House of Lords constitution committee said it would expect the Lord Chancellor “normally to be a senior legal figure” but did not recommend amending the Constitutional Reform Act 2005 to require a legal qualification.
“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.”
As justice secretary, the Lord Chancellor “had responsibility for a wide range of policy areas” in addition to duties regarding the rule of law and 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.”
Given that the advantages of separation were “not clear”, peers were “not in favour of doing so at this time”, but “a new prime minister embarking on a reorganisation of government as a whole may wish to consider” the question.
“Alternatively, a new prime minister may contemplate removing responsibility for prisons from the Lord Chancellor’s remit.”
Prisons were a “distracting and perhaps conflicting responsibility”, and moving it would mean the Ministry of Justice was no longer a major spending department. There would then be “a less compelling argument” for the Lord Chancellor’s appointment from the House of Commons.
“We also see clear benefits in the Lord Chancellor becoming the senior individual in the Government with responsibility for the constitution.”
In their report, The roles of the Lord Chancellor and the law officers, peers recommended that the Lord Chancellor’s oath of office be amended so he or she was under a duty to “uphold” and not just “respect” the rule of law.
There was no “compelling evidence” to suggest that the role of deputy prime minister, which Dominic Raab combines with Lord Chancellor and justice secretary, “may pose a risk to the Lord Chancellor’s independence and willingness to defend the rule of law in government”.
However, it was “unclear” whether there was a senior cabinet minister with responsibility for and oversight of constitutional affairs, including the constitution, which was “highly regrettable”.
Peers said there was “great value” in the law officers – the Attorney General, Solicitor General and Advocate General for Scotland – being politicians as it provided them with “a strong understanding of the political context in which they operate and bolsters the authority of their advice”.
It was “essential” that law officers continued to be legally qualified, with the “independence of mind, autonomy and strength of character to deliver impartial legal advice to the government, even where it is unwelcome”.
Codification of their duties “would improve public understanding”, and the ministerial code and cabinet manual should be amended to define their duties clearly.
“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”.
Baroness Drake, chair of the committee, commented: “In a world in which authoritarianism and populism have challenged a rules-based global order in which democracy is sacrosanct, the protection of the rule of law in the UK – and in its interactions with the world – is ever more important.
“It is therefore essential that we have a Lord Chancellor who is willing and able, where necessary, to stand up to cabinet colleagues and the prime minister, and law officers with the autonomy and strength of character to deliver impartial legal advice to the government, even where it is unwelcome.”