Reforming the constitution

But are Raab and Braverman willing to reform their own posts?

Should the roles of the lord chancellor and the attorney general be reformed? That’s what the House of Lords constitution committee is currently thinking about. I support calls for reform in a piece for The Critic magazine, which you can now read online.

That piece was first published at the end of March, when the April edition hit the news stands and was posted to subscribers. Print deadlines meant it had to be written five weeks ago. What has changed since then?

The House of Lords grand committee, sitting in the Moses Room (see below). Photograph by Roger Harris © House of Lords 2022

The committee has received written evidence from a number of academics. There have been two sessions at which some of these academics were questioned by peers.

More interestingly, the committee took oral evidence from Sir Jonathan Jones KCB QC (hon), who resigned as Treasury Solicitor at the end of 2020, and Sir Richard Heaton KCB, who retired as permanent secretary of the Ministry of Justice in the same year.

Officials from the Ministry of Justice and the Attorney General’s Office provided written evidence. The latter includes some useful information about the attorney general’s “superintendence” of prosecutors and government lawyers, some of it developed quite recently. Neither paper advocates reform.

On 27 April, the committee will take oral evidence from Lord Keen of Elie QC, who resigned as advocate general for Scotland in 2020. As I wrote a couple of weeks later, Keen declined all interview requests at the time. This may be his first opportunity to explain why he told the prime minister:

Over the past week, I have found it increasingly difficult to reconcile what I consider to be my obligations as a law officer with your policy intentions with respect to the UK internal market bill.

What we don’t know yet is when — or, indeed, whether — Dominic Raab and Suella Braverman will give oral evidence to the Lords committee. It will be very interesting if they do and even more interesting if they don’t.

Moses bringing down the tables of the law to the Israelites, fresco by John Rogers Herbert, completed 1864, detail from photograph above

As Tom Fleming and Petra Schleiter remind us in a piece for the UCL Constitution Unit today, the present government was elected on a manifesto commitment to appoint a constitution, democracy and rights commission, with the aim of producing proposals “to restore trust in our institutions and in how our democracy operates”.

That promise has been broken. All we have had are are two unconnected independent inquiries: a review of judicial review that has led to relatively minor, albeit controversial, legislative changes and a review of human rights law that has been largely ignored by the government. Instead, Raab has dusted off proposals of his own which he is now trying to promote within government.

Fleming and Schleiter are understandably cynical:

Given that the substantive objective of many of the proposed reforms is to shift power to the executive by weakening judicial and parliamentary checks, a fragmented process based on multiple separate reviews may benefit the government by obscuring the combined effect of any changes and fragmenting opposition to them.

If the lord chancellor and the attorney general are serious in their commitment to constitutional reform, the very least they should do now is to seize the opportunity presented by the House of Lords constitution committee and engage with its inquiry.