The roles of the office of lord chancellor have always involved a tricky balancing act. Thomas More famously lost his head for misjudging the relative powers of the laws of God and his sovereign. The revision of the postholder’s roles in the Constitutional Reform Act (CRA) 2005 invokes no such sanction for getting it wrong, but leaves a tangled and uneasy web of responsibilities. The House of Lords Constitution Committee has just published a second report expressing its unease at the competing strains on the post.

The lord chancellor has the departmental responsibilities of any minister of the Crown. Performance is not assisted by the rather arbitrary selection of roles assigned to make the Ministry of Justice (MoJ) coherent in expenditure terms. Leadership on prisons, courts and the judiciary, legal aid and assorted constitutional issues makes an odd ragbag. No wonder, perhaps, that little leadership has come from ministers other than implementation of the cuts ordered by Ken Clarke from 2010. Rather too large a number of politicians have passed through the revolving doors of the ministry since. Six lasted barely a year: Michael Gove, Liz Truss, David Lidington, David Gauke, Dominic Raab (the first time) and Brandon Lewis. The Constitution Committee was not impressed:

Policies on legal aid and access to justice have, unsurprisingly, drifted under the rapid succession of the MoJ’s top leadership. Elsewhere in this issue, Nic Madge and I raise a challenge to policymaking in one of the lord chancellor’s major responsibilities: legal aid. Digitalisation of the courts has seemingly been devolved as an administrative matter to HM Courts and Tribunals Service with somewhat mixed results. The National Audit Office has been consistently sceptical of claimed progress and critical of the lack of sufficient research into the access to justice consequences: ‘Delivering change on this scale at pace means that HMCTS risks making decisions before it understands the system-wide consequences.’

Where lord chancellors have, rarely, taken a policy initiative, all has not been happiness and joy. Chris Grayling privatised the probation service. The results were major resignations, total chaos and a service meltdown. The Conservative government lasted long enough to regret his gung-ho market reforms. They lasted from 2014 until 2021, after which they were reversed. The chief inspector of probation in 2019, Dame Glenys Stacey, called the Grayling reforms ‘fundamentally flawed’. The justice system proved more complex than simplistic market politics suggested.

But the Constitution Committee’s main concerns were over the rule of law responsibilities of the lord chancellor. Here, it detected a major problem. This was well illustrated by Liz Truss’s infamous silence over the Daily Mail’s attack on the Supreme Court’s justices as ‘enemies of the people’. Ministers joined the subsequent pile-on. Sajid Javid’s comment on the offending Supreme Court decision was: ‘This is an attempt to frustrate the will of the British people and it is unacceptable.’

The CRA 2005 meant that the lord chancellor no longer had to swear an oath to ‘do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will’. This was replaced (at s17 of the Act) by the arguably broader obligation to ‘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. So help me God.’ The Constitution Committee was unimpressed by Liz Truss’s initial silence and then subsequent articulation to it, in 2017, of the right to freedom of expression: ‘I think it is dangerous for a government minister to say this is an acceptable headline and this is not.’ Her permanent secretary at the time of the incident told the committee in 2022 that when judges are abused, they need to be 'properly defended and looked after’ by the lord chancellor and the MoJ, and that ‘the perceived failure to act was damaging’.

The Constitution Committee made various detailed recommendations in its report. It wanted, for example, the lord chancellor’s oath to be amended by pledging that the postholder would both respect and uphold the rule of law. But, overall, it called for a change of basic culture:

Such a pity, then, that the next big event on the radar of the current lord chancellor, Dominic Raab, is the outcome of the inquiry into bullying allegations against him.