In response to the Constitution Committee's Call for evidence for the current inquiry into the cabinet office and the centre of government, written evidence was received from the following
In response to the Constitution Committee's Call for evidence for the current inquiry into the cabinet office and the centre of government, written evidence was received from the following
In response to the Constitution Committee's Call for evidence for the current inquiry into the cabinet office and the centre of government, written evidence was received from the following
HOUSE OF LORDS.
‘THE SELECT COMMITTEE ON THE CONSTITUTION,
CABINET OFFICE INQUIRY
PAPER FROM LORD IRVINE OF LAIRG.
1, When I ceased to be Lord Chancellor in June, 2003, I decided to make no
complaint, to maintain silence and to do nothing to embarrass the
government. That is the position I have maintained for over six years. I
have now decided that it is more important to ensure the accuracy of the
public record.
2. The reason for that is the evidence given to the Committee on I* July, 2009,
by Lord Tumbull. Lord Turnbull was the Secretary of the Cabinet from
2000 to 2005. He was therefore the Cabinet Secretary at the time of the
events in June, 2003, with which this paper is concerned.
3. When the Chairman asked at Q143 what consultation took place and with
whom before the decision was taken to abolish the role of Lord Chancellor,
he also asked specifically whether the Leader of the House of Lords and the
Lord Chancellor were consulted. Lord ‘Turnbull replied:
“The Lord Chancellor was consulted. ‘The trouble was that he disagreed
with it.”
4. AtQ158, Q159 and Q160 Lord Tumbull stated that there was no green
paper nor “the ‘conventional route’ of consultation because the Lord
Chancellor was unwilling to ‘act as the advocate of change’ because he
“disagreed with the proposal’ and ‘was not prepared to lead the|
consultation. ‘That is where the problem originated.”
5. Earlier in his evidence at Q142 Lord Tumbull said:
“On the day it was a complete mess up. There are various reasons for
this. First, it was very difficult to produce the change when the
incumbent Lord Chancellor was strongly against what was being done,
0 you got no co-operation from him.”
6. The Committee is addressing the role of the Cabinet Office at the centre of
the machinery of Government and in particular (a) its effectiveness in
advising the Prime Minister and (b) the quality of such advice. In that
context the evidence of Lord Turnbull set out above should be contrasted
with the material contained in this Paper.
. In early June 2003 there were press rumours that the office of Lord
Chancellor was to be abolished. I had had no intimation of this, but when
the Times and the Telegraph carried the rumour I determined to see the
Prime Minister. ‘That happened in the afternoon of Thursday, 5 June,
2003 in his office at No. 10. I asked him directly if there was any truth in
the press rumours that the office of Lord Chancellor was to be abolished
and transferred to a new Secretary of State in the Commons. He hesitated
and then said it was being considered, but nothing had as yet been decided.
Tasked him how a decision of this magnitude could be made without prior
consultation with me, with Hayden (ie, my Permanent Secretary, Sir
Hayden Phillips), within government, with the judiciary, with the
authorities of the House of Lords which would lose its Speaker and withthe Palace. The Prime Minister appeared mystified and said that these
machinery of government changes always had to be carried into effect in a
way that precluded such discussion because of the risk of leaks. We
agreed to meet the next Monday morning, 9" June 2003, to continue our
discussions.
. left our meeting of 5" June 2003 surprised (a) that the Prime Minister
thought the abolition of the office of Lord Chancellor was of the same
order as any machinery of government changes by which ministerial
responsibilities could be transferred from one department to another; and
(b) that the Prime Minister had no appreciation that the abolition of this
office of State, with a critical role in our unwritten constitution affecting a
House of Parliament, the judiciary, of which the Lord Chancellor was by
statute Head and by constitutional convention guarantor of its
independence, required extensive consultation, most careful preparation
and primary legislation. I determined when I next met the Prime Minister
‘on Monday morning, 9" June, 2003, to try to do better.
We started with my complaint that he had not discussed with me in
advance such far reaching plans for the abolition of the office. He
repeated that it was impossible to do so because if machinery of
government changes were discussed in that way they would leak all over
the press. It then strongly bore in on me that the Prime Minister had not
received any or any proper advice and was completely unaware that
complex primary legislation was required.10. We then tumed to the substance. What follows the Committee may think
is highly relevant to any prior advice which the Prime Minister may or may
not have had. He told me that the plan was to transfer the responsibilities
of the Lord Chancellor’s Department immediately to a Secretary of State in
the Commons, Peter Hain, and then abolish the office of Lord Chancellor
with the least delay. I explained that the office of Lord Chancellor is,
statutory and could only be removed by statute and until that happened
there were functions that could only be carried out by a Lord Chancellor.
He replied that in that case there would have to be some interim
arrangements in the shape of a transitional or residual Lord Chancellor
whom he envisaged would be a junior minister. There was no mention of
Lord Falconer. The new Secretary of State, who was to be a Secretary of
State for Constitutional Affairs, was to be Peter Hain in the Commons, I
said that the opportunity to create a Ministry of Justice was being lost. A
Ministry of Justice would at least have delivered some benefit instead of
the morass that was apparently about to be created. A Ministry of Justice
could not be created by transferring the Department of the Lord Chancellor
toa Secretary of State in the Commons, simply by a rebranding exercise,
because the Home Office was responsible for the criminal law; and a true
Ministry of Justice would have the whole of the law, both civil and
criminal, under its roof, together with responsibility for the courts and the
judges. I observed that whilst there was a respectable argument for the
creation of a true Ministry of Justice which would have in a considered wayto be weighed against the value of the office of Lord Chancellor, what was
being proposed was a botched job leaving the Home Office and its current
responsibilities in place without the benefit of securing a true Justice
Department and leaving the Home Office as a true Ministry of the Interior
confined to security of borders (immigration, asylum, passports, visas (and
internal security), police, security services, prisons, etc. We left off on the
basis, as the Prime Minister was always wont to say, that no final decision
had been taken, but I felt that in reality the die was cast, although it was
beginning to bear in on the Prime Minister that the abolition of the office of
Lord Chancellor was not as simple as he had imagined.
. We next met at 5 pm on Tuesday, 10" June, 2003. I had decided on that
occasion to hand over to the Prime Minister two typewritten pages so that
he could be in no doubt as to how I saw the situation, In the note I wrote:
“At present there are about 5,000 statutory references to the Lord
Chancellor in primary and secondary legislation requiring a huge
transfer of functions order before the new Secretary of State could
exercise the Lord Chancellor’s functions - a very large task. In the
immediate term administrative chaos is unavoidable because of the need
to decide what existing functions are judicial (je for a residual Lord
Chancellor) and what existing functions are for the new Secretary of
State.”
T also wrote:
“The whole process has been botched, with poor advice to you and noinvolvement of me or Hayden.”
("t's been treated as_ if it was an ordinary transfer of functions
whereas it is not because the LC, by statute is President of the Supreme
Court, and President of other courts as well as Presiding Chairman of the
House of Lords sitting judicially. Constitutionally the Lord Chancellor
is regarded as the guarantor of judicial independence. To proceed
without any consultation with the judiciary, and without any consultation
with the House authorities because of my role as Speaker, is high handed
and insensitive.”
(ii)“What is now proposed doesn’t achieve a true Ministry of Justice
because the Home Office remains responsible for criminal law and
procedure. ‘There is therefore no rationalisation of the functions of the
Departments: all that is happening is that the LCD is being handed over
to a Commons Minister with the office of Lord Chancellor abolished.”
(iii)The LC as head of the Judiciary is presently the central organizing
principle of the administration of justice in the country, and that is being
swept aside without any assessment of its value and without consultation
with the judiciary.”
(iv)"I personally am being cast aside whilst about to embark on a further
integrated programme of major reform which is fully worked up and
ready to go, and requires the most sensitive handling of the Judiciary and
the legal profession, where I know an incoming Secretary of State would
be at major disadvantage. Consultation papers on the QC system andon a Judicial Appointments Commission ate about to be published (with
a Consultation Paper on court dress already out) together with an
independent review of the entire regulatory framework for legal and
related services, under a prominent figure who will be neither a
practising lawyer nor a judge, planned to be announced at the end of
June - all of this I would have wished to have brought to a conclusion
myself. Also, I would like to bring House of Lords reform to a
conclusion: Andrew Adonis has had for a week my proposed response
to the Joint Committee’s Report which is my advice how to close this
down for a generation.”
(v)So, I am being ejected while this unfinished business which I should
be bringing to a conclusion remains - and all this for no proven benefit
arising out of the abolition of the office, leaving aside whatever value
you may put on my continued contribution to Government.”
(vi)"If this had been dealt with properly, Hayden and I would have been
brought into the loop from the outset and our brief would have been to
plan and bring forward a proper Ministry of Justice headed by a
Commons Minister in a measured and balanced way, via legislation
abolishing the office of Lord Chancellor (je a new Supreme Court Act)
setting up a Judicial Appointments Commission and with strong
provision for protection of the independence of the judiciary. Itis still
not too late to proceed in this way.”
(vii)“Although I personally would have regretted the demise of theoffice of Lord Chancellor I would have been willing to carry forward
this programme myself to implement Government policy to create a
Ministry of Justice; and bow out on its completion.”
(vili)“Since the political decision is to close down a great Office of State
with broad constitutional implications, then it should be done in a
seemly, measured and balanced way, instead of the incoherent,
unworked up and piecemeal approach currently likely to be adopted.”
12, On 11" June 2003 I submitted to the Prime Minister a formal Minute
headed as follows:
“REMOVING THE OFFICE OF LORD CHANCELLOR
Following our discussion last night I understand via Hayden that you
are considering proposals which would enable the transition to a new
Department to be managed while I remained nominally Lord
Chancellor. This would avoid residual Lord Chancellor
responsibilities having to be given to a Junior Minister or being put to
Commissioners.”
The Minute continued:
“I understand these proposals to be:
First, the creation of a Department for Constitutional Affairs with a
Secretary of State in the Commons including the responsibilities of the
Sceretary of State for Wales, the staff of the Scotland Office and ODPM’s
responsibilities for devolution.
Second, an early Transfer of Functions Order to give to the Secretary ofState the principal responsibilities of the Lord Chancellor, eg for running
the courts and for legal aid (other transfers could follow as and when
necessary),
Third, an amendment to the House of Commons Disqualification Act to
allow a Member of that House to hold the office of Lord Chancellor
(requiring a resolution of the House of Commons and an Order in Council).
He would then be appointed Lord Chancellor and the effect would be to
constitute the Secretary of State as Chairman of the Appellate Committee
of the House of Lords, President of the Supreme Court, a Judge of the
Court of Appeal, a Judge of the High Court and President of the High Court
(Chancery Division), and a Judge of the Crown Court and County Court.
He would by virtue of these offices become Head of the Judiciary.
This step would therefore have to be accompanied by a statement the
Secretary of State would never actually engage any of these judicial
functions since he was not qualified to do so, and would only proceed to
make or advise on judicial appointments with the agreement of the Lord
Chief Justice, until a Judicial Appointments Commission was created.
Fourth, in parallel I would continue to hold the office of Speaker of the
House of Lords until the House had revised its standing orders.
Fifth, the whole process would be completed before the Summer Recess.
Thave to tell you that I believe this approach would hold the Government.
up to ridicule, and make my continuing in office as Lord Chancellor a
transparent sham. I could not myself play any part in implementing such aproposal. I have an alternative proposal to put to you.
As I explained to you yesterday, to implement effectively the integrated
programme of major reforms which I have already announced and is ready
to go, requires the most sensitive handling of the Judiciary and the legal
profession. An incoming Secretary of State who is neither lawyer nor
Judge, and who holds an office he cannot exercise, would be at the severest
disadvantage in carrying through changes to the QC system, judicial
appointments, and the creation of a new Supreme Court which is necessary
when the office of Lord Chancellor is abolished, In view of the
relationships I have established over the past six years I believe I am best
placed to carry these changes into effect in a harmonious way without the
creation of a new Secretary of State post until they are completed.
If you agree to this I would be able to say that while I personally regret the
demise of the office of Lord Chancellor which has had huge value,
particularly in helping to maintain good relations between the executive
and judiciary, and in upholding the independence of the latter, a decision
has been taken within Government that the Department which now has had
added to it major constitutional and devolution responsibilities should.
necessarily be led by a Secretary of State in the elected House of Commons
and not a Lord Chancellor in the House of Lords.
We would then say that you have invited me as Lord Chancellor to carry
through, with the least delay, the processes signalled by the consultations I
have already announced.5
5
(Here [had in mind the consultations o which refered in sub-paragraph
(iv) within paragraph 11 above.)
“This would include the carly establishment, administratively, of a Judicial
Appointments Commission and piloting through the legislation necessary
to abolish the office of Lord Chancellor, to create a new Supreme Court
structure for the United Kingdom headed by a new office of Chief Justice,
and including strong statutory guarantees of judicial independence. We
would announce that I would leave the Government when Royal Assent
was achieved. If all the stops are pulled out, and legislative priority given,
this can all be completed before the Recess in 2004.”
. This passage from the Minute makes it clear that I was willing to carry such
legislation forward. My reason was so as to preserve so far as I could in
the new legislation the values the office of Lord Chancellor had originally
existed to protect.
. This “alternative proposition” was I understand rejected after Cabinet on
‘Thursday, 12" June, 2003. ‘That afternoon I returned the Great Seal to Her
Majesty and ceased to be a member of the government.
Seve phony
26 Orb. , 2ee4 -