The report also calls on the Government to agree formally that the rule of law goes beyond judicial independence and compliance with domestic and international law and that it includes the tenet that Government should seek to govern in accordance with constitutional principles.
The Lord Chancellor should also be identified as the Cabinet Minister responsible for oversight of the constitution. The Committee heard no evidence to suggest that any other minister currently carries out this role. It points out that neither the Deputy Prime Minister nor the Lord Chancellor are members of the Devolution Committee looking at further devolution of powers within the United Kingdom—an issue with clear constitutional implications.
The Committee recognises that the combination of the office of Lord Chancellor with that of the Secretary of State for Justice could create the risk of a conflict of interest, but heard that the conflicting priorities could be managed. The Committee states that the combination of the roles also gives the Lord Chancellor additional authority with which to uphold the rule of law in Government.
The Committee concludes that on balance it is not essential for the Lord Chancellor to be a qualified lawyer; but that a legal or constitutional background is a distinct advantage. Given that neither the Lord Chancellor nor the Permanent Secretary in the Ministry of Justice are currently required to be legally qualified, the Committee recommends that either the Permanent Secretary at the Ministry of Justice should be legally qualified or the department’s top legal adviser be appointed at permanent secretary level.
The Committee also considered the increasingly important role of the Law Officers in upholding the rule of law in Government. It recommends that the Law Officers should receive the necessary resources to perform this role and that the Attorney General should continue to attend all Cabinet meetings.
Commenting Lord Lang of Monkton, Chairman of the Lords Constitution Committee, said:
“The principle of the rule of law is a cornerstone of the United Kingdom constitution. As regards the Government, this means governing in a way that goes beyond simple adherence to the letter of the law—particularly in the UK where the Government of the day can, through Parliament, generally change the law as they judge appropriate. The Lord Chancellor has a key duty to ensure that we are governed according to the rule of law and in accordance with certain established and fundamental principles.
“We are concerned that there is currently no one in Government tasked with a clear responsibility for overseeing the operation of the constitution. We feel that a senior Cabinet Minister should have this responsibility; in our view most appropriately the Lord Chancellor. We were surprised that neither the Deputy Prime Minister, who has had responsibility for specific constitutional reforms, nor the Lord Chancellor sit on the new Devolution Committee, which considers matters relating to the devolution of powers within the United Kingdom.
“The Committee recognised concerns that the combination of the office of Lord Chancellor with that of the Secretary of State for Justice could create the risk of a conflict of interest. We concluded, however, that this should not present an insuperable problem. Upholding the rule of law remains a central aspect of the Lord Chancellor’s role and in practice the office is given additional authority by its combination with a significant department of state.”