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Speaking justice to power

JeremyBeecham.jpgJeremy Beecham on the government’s poor response to the Constitution Committee report on the Lord Chancellor 

Newcastle, in its time, has contributed significantly to our judicial system. Two of its sons, Peter Taylor and Lord Woolf, have recently held the position of Lord Chief Justice. Today in the Lords, we are debating the Constitution Committee report on the role of the Lord Chancellor, and what passes for the government’s response to it.

We no longer have Chris Grayling as Lord Chancellor – somebody whose period of office exemplified the problems the Committee sought to address. His replacement Michael Gove has the opportunity to review the approach to the position, and the duties which he has inherited – something which I understand he has started to do, by engaging personally with key players in the legal world.

The report seems to be a balanced review of changes wrought between 2003 and 2007. The government’s response, as expressed in Mr Grayling’s letter back in February, is disappointing. The Committee made 19 statements, observations and recommendations but Ministers only responded to ten – with some of the replies giving cause for concern.

Disturbingly, the government rejects the invitation to agree that the rule of law extends beyond judicial independence and compliance with domestic and international law. It does not agree that it includes the tenet that government should seek to govern in accordance with constitutional principles, as well as the letter of the law. Similarly, it rejects the recommendation that the Lord Chancellor’s oath should include a promise to respect and uphold the law.

Strikingly, Lord Judge, Lord Woolf, and Sir Hayden Phillips raised concerns, about the level and legal expertise of support for the post. At the very least, we might have hoped that the department should have a highly qualified lawyer at, or very near, the top of its staffing structure. The government also airily dismisses concerns that “the person appointed to the position of Lord Chancellor should have a clear understanding of his or her duties in relation to the rule of law, and a willingness to speak up for that principle in dealings with other colleagues including the Prime Minister”.

Mr Grayling was allegedly ‘qualified by experience’, as prescribed by the Constitutional Reform Act. When questioned, the government responded: “there is a range of evidence that the Prime Minister can take into account when reaching such a conclusion”. The letter to Lord Lang was signed by Mr Grayling himself!

What is clear reading the Committee’s report is the very limited perspective of the former Lord Chancellor in respect of the role. Indeed, the report states that he “does not believe that he has a wider guardian relationship in Government beyond upholding the independence of the judiciary and the integrity of the justice system … It is regrettable that the Ministerial Code and the Cabinet Manual do not address the role in respect of the rule of law, beyond judicial independence”.

Since 2010, Lord Chancellors have not been members of the Parliamentary Business and Legislation Committee, which clears all legislation. The Committee noted that this “represented an important route through which Lord Chancellors were kept informed about the Government’s legislative and policy agenda.”

To none of these points did the government condescend to reply. This is a reprehensible omission, particularly over the Committee references to the Lord Chancellor’s role in respect of the rule of law.

Some 60 years ago Bayard Rustin, one of the leaders of the American Civil Rights movement, coined the phrase “speaking truth to power”.  It is surely the duty of the Lord Chancellor to speak justice to power, especially if he himself is an integral component of the system of power. I trust that the new Lord Chancellor will seek to emulate the record of some of his most distinguished predecessors in this respect.

Lord Jeremy Beecham is a Labour Peer and a member of the Shadow Justice team. He tweets @JeremyBeecham

Published 7th July 2015

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