He is the second person who is not legally qualified to hold the office of Lord Chancellor. In December 2014, Parliament's Constitution Committee published a report about the Lord Chancellor and stated that:
' ... the Lord Chancellor’s duty to the rule of law requires him or her to seek to uphold judicial independence and the rule of law across Government.'
The report
also concluded that - ' ... on balance it is not essential for the Lord Chancellor to be a qualified lawyer; but that a legal or constitutional background is a distinct advantage. Given that neither the Lord Chancellor nor the Permanent Secretary in the Ministry of Justice are currently required to be legally qualified, the Committee recommends that either the Permanent Secretary at the Ministry of Justice should be legally qualified or the department’s top legal adviser be appointed at permanent secretary level.'
It remains to be seen whether the new government will take any notice of this report but the Lord Chancellor's duty with respect to the rule of law is enshrined in the Constitutional Reform Act 2007 where the Lord Chancellor's oath is set out:
“I, , 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. So help me God.”
The Rule of Law is a vital concept. Importantly, it requires that Government respects the law and the position of the citizen vis-a-vis the State. Mr Gove is obviously now tasked with delivering on the Conservative manifesto commitment to "scrap" the Human Rights Act and to introduce a British Bill of Rights. The present fear is that this policy is aimed at reducing the rights protection currently enjoyed by the citizen or, conversely, making the State more powerful against the individual. We know that Conservative Ministers have previously been highly annoyed at how human rights arguments have stood in their way. Examples of that include extradition of individuals where there is risk of torture or ill-treatment and prisoner voting.
The fact that there is now devolution (in various forms) to Scotland, Wales and Northern Ireland will also make human rights reform difficult to achieve. An interesting article* on the UK Constitutional Law Association website points out that:
' ... changing existing UK human rights law is not an easy task. Even if one leaves to one side the external diplomatic factors that may limit the UK’s freedom of action in this field, there are internal legal and political factors in play which make tampering with the HRA a more problematic project than the media headlines suggest. In particular, complex issues arise with respect to devolution and the various ways in which Convention rights have become embedded in the constitutional framework of the UK'
and concludes by saying:
' ... the UK constitutional system is now complex, variegated and pluralist in nature. Tampering with the status of Convention rights in UK law may appease some Europhobic voters, but it risks open up some serious constitutional fractures.'
Some legal commentators have already published their views about the new appointment of Mr Gove and I recommend reading:
Joshua Rozenberg - The Guardian 11th May - Why human rights reform could trip up Michael Gove
JackofKent - A new Secretary of State for Justice and Lord Chancellor
and from the Law Society there is Gove is Lord Chancellor as Cameron squares up for a fight (11th May).
Let us not judge Mr Gove from the outset but also let us keep a close eye on what he gets up to in his new role. I hope that he is listening!
* C. O’Cinneide ‘Human Rights, Devolution and the Constrained Authority of the Westminster Parliament’ UK Const. L. Blog (4th March 2013) (available at http://ukconstitutionallaw.org)
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