The speech which follows was drafted for delivery in a debate on 20 July on a recent report from the Constitution Committee of the House of Lords. In the event it went undelivered. Important business elsewhere in the House coincided with it, and took precedence.
Until it actually happened, no one, I think, could readily have imagined that the great and ancient office of Lord High Chancellor of Great Britain would be bundled into a newly created government department, and banished to the House of Commons.
Over the years before 2005, Lord Chancellors opposed the very idea of creating a Ministry of Justice. Speaking amidst laughter and cheers at the Lord Mayor’s banquet in November 1921, the brilliant F.E. Smith, Lord Birkenhead, said: “A Ministry of Justice in this country will be brought into being over my official corpse. I am in this country the Minister of Justice, and having cast my eye, with, I hope, impartial vision, over the aspirants to that office, I am unable to discern one who, I think, is likely to discharge the duties better.”
Rather less colourfully, Viscount Simon, Lord Chancellor during Churchill’s war-time coalition, writing over thirty years later, declared that a Justice Ministry should be avoided because it would involve “a constitutional change which, I believe, would be very much against the public interest in this country. For a Ministry of Justice could never be one of the great offices of state.”
These Lord Chancellors saw no reason to feel unduly troubled. The case for a Ministry of Justice was advocated by no more than a small number of individuals, of whom Jeremy Bentham was the first and most famous.
No crowds ever assembled, demanding that a Ministry of Justice be brought into being. No election manifesto ever foreshadowed its establishment.
The major constitutional change, when it finally arrived, came as a bolt from the blue. Instead of being abolished as Bentham and his acolytes wanted—for they had no time for this medieval relic—the great office of Lord Chancellor was subsumed in a Ministry of Justice, suddenly conjured into existence by Tony Blair’s Government.
It is hard to believe that when former Lord Chancellors gather in that portion of paradise which is reserved for them, they will ever find it possible to reconcile themselves to the current dispensation.
Nor should these venerable spectres fall into repose. Their great office cannot be held successfully with another, subject to sudden reassignment when Prime Ministers decide that they want a new Justice Secretary.
Effective Lord Chancellors must be figures of authority: people to whom every knee shall bow, or at least people who command attention and respect.
Authority in this role is earned and enhanced through years of service. Yet in the eighteen years that have passed since 2005, there have been 12 Lord Chancellors, thanks to the harness that yokes them to the Justice Department.
In the eighteen years before 2005, the great office, held in solitary splendour, had just three incumbents.
Tragically, during recent years when some Lord Chancellors have been little more than transient and embarrassed phantoms, figures of real authority were needed as never before.
What would Lord Hailsham or Lord Elwyn-Jones have done if a newspaper had attacked some of our most distinguished judges as enemies of the people?
They would have thundered their rebukes. In November 2016, the hapless Ms Truss made a muted statement—belatedly.
In your Lordships’ House on 15 November 2016, answering a question from me, my noble friend, Lord Keen of Elie, claimed that, in Ms Truss’s view, “an independent judiciary was the cornerstone of the rule of law and that she would defend that independence to the hilt.”
The noble lord, Lord Beecham, on the Labour front bench, captured the mood of the House in congratulating my noble friend Lord Keen “on his forthright criticism of media and other attacks on the judiciary” while expressing “disappointment at the Lord Chancellor’s failure to be anywhere nearly as explicit.” Lord Beecham added: “will he offer her a short course on the proper discharge of her responsibilities” ?
As the Constitution Committee’s valuable report reminds us, the Government again faced severe questions over its attitude to the rule of law in connection with its Internal Market Bill and its Northern Ireland Protocol Bill.
Those who looked to the Lord Chancellor for firm and emphatic statements setting out the legal position clearly were disappointed. They ducked and weaved.
And where was the Lord Chancellor when the Home Secretary made the extraordinary claim recently that our country has “ a legal framework which is rigged against the British people”?
Paragraph 123 of the Constitution Committee’s report underlines “the importance of a Lord Chancellor having sufficient authority within the Government to perform their role.” The likelihood that this requirement will be met satisfactorily is diminished while the great office occupies its present position in the twilight of the Justice Ministry.
Room should be made round the cabinet table for a separate Lord Chancellor by clearing away the motley array of ministers who do not belong to it, but have been given the right to attend it in order to flatter their vanity. The case for bringing together the territorial ministries in one Office for the Union might also be usefully reconsidered.
In paragraph 176 of its report, the Constitution Commission quotes the view of Mr Jack Straw, a Lord Chancellor under the current dispensation, that, unshackled from the Justice Department, the great office would be a mere “shell”.
I strongly disagree. The Lord Chancellor would never lack for work if, in addition to legal duties, responsibility for the constitution were to be vested in the office.
How often in our debates have we bewailed the Government’s addiction to ad hoc, hastily contrived constitutional measures. As minister for the constitution, the Lord Chancellor could break that addiction.
I end with an obvious political point. A recent occupant of Number 10 showed contempt for constitutional rules, conventions and proprieties. Our constitution needs a powerful watchdog. It is a role that the office of Lord Chancellor, restored to its former glory, should fulfil.
