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Government’s commitment to the rule of law has been brought into question in recent years, says Lords Committee

Wednesday 18 January 2023

In its report on the roles of the Lord Chancellor and the Law Officers, published today, the House of Lords Constitution Committee says that while all ministers have a responsibility to the rule of law, the Lord Chancellor and the Law Officers (the Attorney General, Solicitor General and Advocate General for Scotland) have special duties. The Committee has examined the development of, and interaction between, their roles since the constitutional changes of the mid-2000s.

The rule of law

It is fundamental to our constitution that the Government acts according to the rule of law and that ministers prioritise the rule of law over political expediency. This is especially relevant to those with distinct rule of law functions such as the Lord Chancellor and the Law Officers.

The Government has now twice knowingly introduced legislation in Parliament which would breach the UK’s international obligations and in doing so, undermined the rule of 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.

The Government’s responsibility to honour the state's international obligations requires it to refrain from inviting Parliament to legislate knowingly contrary to the UK’s international obligations.

Government actors

There are many within government with responsibility for the rule of law. This includes, all ministers, including the Prime Minister, as well as the Lord Chancellor and Law Officers.

The Committee calls for the Lord Chancellor to fulfil a wide, cross-departmental, role in defending the rule of law and educating his or her colleagues on its importance. This includes defending the judiciary against unfair, personal or threatening abuse.

The Law Officers have a particular role in defending the rule of law. This includes advising on the lawfulness of proposed government action. Government lawyers do this against a threshold of whether a ‘respectable legal argument’ defending the action could be put to a court. The Committee is concerned that this threshold, found in guidance to government lawyers on legal risk, could sometimes be used purely for the convenience of 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.

Though the Committee does not favour the routine publication of Law Officers’ advice, the report concludes that in exceptional cases of national importance, especially where litigation is unlikely, there is a stronger case for publishing advice.

Reform of the role of Lord Chancellor

The Lord Chancellor should normally be a senior legal figure with the necessary qualities, knowledge, authority and political clout to successfully uphold the rule of law and defend the independence of the judiciary in government. However, the Committee does not recommend amending the Constitutional Reform Act 2005 to require the Lord Chancellor to have a legal qualification.

Tenure in office increases the legal and constitutional experience and knowledge of a Lord Chancellor. The Committee proposes that Prime Ministers should consider the benefits of this when contemplating appointments. A new Prime Minister might also contemplate separating the role of Lord Chancellor from that of Secretary of State for Justice, or removing responsibility for prisons from the Lord Chancellor’s remit.

Reform of the role of the Law Officers

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. The report recommends 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.

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.

Codification, guidance and accountability

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 the principle of parliamentary accountability.

The Committee also recommends the Lord Chancellor’s oath be amended to include the duty to uphold, rather than merely respect, the rule of law.
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.
Baroness Drake, Chair of the Constitution Committee said:
“The Lord Chancellor and Law Officers are among the chief guardians of the rule of law in our constitution.

“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. This will help to ensure that the UK remains compliant with the rule of law, including its international obligations.

“The rule of law is vitally important to the health of our democracy. We urge the Government to renew and strengthen its commitment to this fundamental tenet of our constitution.”