An inquiry carried out by Britain’s House of Lords has rejected suggestions that the post of Lord Chancellor should always be held by a lawyer.
The body’s constitution committee today (18 January) published a report on the roles of the Lord Chancellor and British Government law officers.
Referring to the United Kingdom Internal Market Bill and the Northern Ireland Protocol Bill, it stated that the British Government had “twice knowingly introduced legislation in parliament that would breach the UK’s international obligations and, in doing so, undermined the rule of law”.
Despite these comments, the committee did not recommend changing 2005 legislation to require the Lord Chancellor to be a lawyer.
It stated, however, that holders of the post should possess “character, intellect, and a commitment to the rule of law”.
“The Lord Chancellor should have the political authority to stand up to his or her colleagues – including the Prime Minister – and we invite prime ministers to give weight to this consideration in their appointment,” the report said.
On the role of law officers, such as the Attorney General and Solicitor General, the report said that, while they should be legally qualified, they should also continue to be members of one of the houses of parliament.
Holders of these posts, it said, were "at the same time politicians and lawyers, acting on the one hand as political members of the government and on the other as impartial lawyers, giving advice and acting in the public interest".
'Low threshold' risk
The committee argued that their positions as politicians gave them an understanding of the political context in which their legal roles took place, and bolstered their clout with ministers.
The report said that British Government lawyers currently operated on the basis that action might be justified if a “respectable legal argument” could be found that it was lawful.
“While there will be times that the government has to pursue policies of genuine legal uncertainty – which can normally ultimately be tested in the courts – we find the concept troubling,” it stated.
"The risk is that, in some circumstances, it might set such a low threshold that it could be used purely for the convenience of the government, undermining public confidence in its commitment to the rule of law."
The committee, however, rejected calls for the routine publication of law officers' advice, except in "exceptional cases of national importance".
"Decisions to use armed forces are perhaps the clearest area where publication is in the public interest," it concluded.