A lord chancellor does not need to be legally qualified – but future governments should give ‘due consideration’ to candidates with a ‘legal or constitutional background’, a high-power committee of the House of Lords recommends today.
Reporting on its investigation into the office of the lord chancellor, the House of Lords Constitution Committee, chaired by Lord Lang of Monkton, recommends the retention of the office despite the changes in its responsibilities since the Constitutional Reform Act 2005.
The office retains ‘duties and responsibilities that go beyond those of other ministers’ – in particular to uphold the rule of law across the government.
However a conclusion that will disappoint witnesses who said that such a duty can be performed only by chancellor who, unlike current incumbent Chris Grayling, is a qualified lawyer, the committee said: ‘While some submissions went so far as to say it should be mandatory for the lord chancellor to have a legal background, the majority view was put succinctly by Mr [Dominic] Grieve who noted that “there are advantages of having a lord chancellor who is a lawyer… but it is not essential”.’
The main qualities required are ‘a clear understanding of his or her duties in relation to the rule of law and a willingness to stand up for that principle in dealings with ministerial colleagues, including the prime minister’. In this respect, the practice since reform of combining the office with that of secretary of state for justice ‘confers additional authority which assists the lord chancellor in his or her vital duties in the rule of law’.
On the other hand, the committee recommends that the government ensure that either the permanent secretary at the Ministry of Justice is legally qualified, or appoints the top legal adviser in that department to permanent-secretary level.
It also proposes that the ministerial code and Cabinet Manual be amended to spell out the lord chancellor’s duty to ensure that the rule of law is upheld within the cabinet and across the government.
While not overtly criticising Grayling, the committee calls attention to apparent weaknesses in the current lord chancellor’s understanding of the rule of law. Noting that, in his evidence Grayling defined the rule of law as judicial independence and compliance with existing law, the committee says these two elements alone make up ‘too narrow’ a definition.
‘The rule of law goes beyond judicial independence and compliance with extant law, particularly as regards the government which can, through parliament, change the law.’