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The role of the Lord Chancellor: are further reforms necessary?

Posted on 1 April 2022

"I, Dominic Raab, do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible."

This was the oath taken by the current Lord Chancellor on 23 September 2021 as he was sworn into office. A recent call for evidence, issued by the House of Lord Constitution Committee, sought evidence as to the extent to which a modern Lord Chancellor is able to remain impartial given their position in Government and whether the partially-political nature of their role impacts on their ability to uphold the Rule of Law and to defend the independence of the judiciary.

The Lord Chancellor's recent handling of fines issued by the Metropolitan Police in relation to parties that took place at 10 Downing Street in 2020 provides an interesting window through which to watch the apparent dichotomy of duties at play. In December last year, Mr Raab was called upon to defend the Prime Minister against allegations. He assured MPs that "all guidance was followed completely in No.10" in an apparent effort to dispel the fog of rumours that parties had taken place while the country was under strict lockdown rules. It has since become apparent that parties did take place and Mr Raab has since asserted that he "[doesn't] think there was an intention to mislead. The Prime Minister in good faith updated Parliament on what he knows." With the recent slew of Fixed Penalty Notices issued in relation to parties that took place at No.10 it may be argued that the Lord Chancellor has been put in a difficult position balancing a political obligation to defend his Party from attack and his oath to uphold the Rule of Law.

This conflict is, arguably, inevitable. Since the Constitutional Reform Act 2004 (the "CRA '04"), the titles (and roles) of Lord Chancellor and Secretary of State for Justice have been interchangeable. One term has clearly political connotations, affording the title-holder a position in Cabinet whilst the other signifies the office bearer's role as the judiciary's representative in Government. The CRA '04 also brought with it the introduction of the Ministry of Justice; merging responsibilities that formerly belonged to the Home Office and the mandate of the Lord Chancellor in relation to court services and legal aid. Lord Judge, a former Lord Chief Justice of England and Wales, expressed his concern in relation to the expansion of the Ministry of Justice's remit, characterising it as "detrimental to institutional independence. It is not a tidal wave, but rather a consistent steady drip."

Over the course of the past year, the steady drip described by Lord Judge could appear to be gathering pace. Perhaps the most recent example of this is Mr Raab's announcement this week that he will be intervening in the Parole Board's decision to release Tracey Connelly after she was jailed for a minimum of five years, in 2009, for "causing or allowing the death" of her son, Peter (commonly known as "Baby P"). On Wednesday this week, Mr Raab announced a package of reforms providing for "ministerial scrutiny" over the Parole Board's decisions in relation to "dangerous offenders". On the one hand the reforms acknowledge that the Parole Board is a key component of the justice system whilst at the same time conferring power on the Government to override its decisions in circumstances where it disagrees with the terms of a prisoner's release. There appears to be a clear conflict between the Lord Chancellor's role in protecting the independence of the judiciary and the Minister of Justice's desire to fulfil a manifesto promise to be 'tough on crime'.

Mishcon de Reya has previously expressed concern regarding the current Government's direction as it seeks to limit the powers of the judiciary and row back from legislation enshrined to protect the Rule of Law. We are particularly concerned that any reforms to the role of Lord Chancellor, heralded by Robert Buckland when he was in the role – for example, the politicisation of the appointments process for Supreme Court Judges – would further diminish institutional independence, as foreshadowed by Lord Judge.

Please see also our article regarding the Judicial Review and Courts Bill here and our Response to the Government's latest consultation regarding a new Bill of Rights here.

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