Government actions undermining the rule of law do not justify immediate changes to the role of the lord chancellor and government law officers, a House of Lords inquiry has concluded.
In an 87-page report published today, the House of Lords Constitution Committee states that the government has 'twice knowingly introduced legislation in parliament which would breach the UK’s international obligations and in doing so, undermined the rule of law'. However after taking evidence from former lord chancellors chief justices, it shies away from proposing amendments to the 2005 Constitutional Reform Act.
Rejecting suggestions that the post of lord chancellor must invariably be held by a lawyer, the committee states: 'In the final analysis, character, intellect and a commitment to the rule of law' are the essential qualities for the role. And, while attorney generals and solicitor generals should continue to be legally qualified, 'there is great value' in office holders being politicians as it 'bolsters the authority of their advice'.
The committee, chaired by Baroness Drake (trade unionist Jeannie Drake) also rejects calls for the routine publication of law officers’ advice. However in ‘exceptional cases of national importance’ there is a case for doing so. 'Decisions to use armed forces are perhaps the clearest area where publication is in the public interest,' it concludes.
Overall, the committee states that while all ministers, including the prime minister, have a constitutional duty to uphold the law, the lord chancellor has a special responsibility. 'The defence of the judiciary remains fundamental,' it says, citing the Daily Mail’s 2016 'enemies of the people' headline. It recommends that the lord chancellor’s oath be amended to include the duty to uphold, rather than merely respect, the rule of law.
Writing in the Gazette today, Drake says: 'It is 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.'
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