A former master of the rolls has told peers of the consequences of having a lord chancellor who is 'first and foremost' a politician rather than a lawyer.
Giving evidence to the House of Lords Constitution Committee today, Lord Phillips of Worth Matravers (pictured) said it does not matter whether the holder of the office is a lawyer.
But, responding to a question from Lady Dean, he said if the lord chancellor is not a lawyer, but first and foremost a 'politician hoping for further political advancement' there is no way to ensure the office-holder has sufficient 'clout' with cabinet colleagues when raising legal and constitutional issues.
Phillips said the appointment is up to the prime minister and 'one has to hope' he appoints someone with sufficient standing to be a guardian of the rule of the law.
Phillips and former lord chancellor Lord Mackay of Clashfern, who was also giving evidence, said they saw no conflict in the role being held by the secretary of state for justice, although Mackay observed that a prime ministerial 'reshuffle tendency' may kick in if the appointee suggested a government matter might need to be run by the law officers.
In performing the day-to-day functions of justice secretary, which 'keeps him [the lord chancellor] busy', Phillips said the LC has an overarching obligation to uphold the rule of law. 'I don't see a conflict between them, although upholding the rule of law may require expenditure he'd rather not make,' he said.
Having a separate role of lord chancellor solely responsible for upholding the rule of law, he suggested, would mean the position did not carry much weight.
Putting aside the statutory functions of the lord chancellor, Phillips also suggested it was no longer necessary for the justice secretary also to bear the additional title lord chancellor, so long as a minister carried the responsibilities to uphold the rule of law and independence of the judiciary.
Mackay, however, thought it 'important' that the title of lord chancellor be retained by someone who takes an oath to uphold the rule of law and independence of the judiciary.
The committee launched its inquiry into the role of the lord chancellor at the start of the month to investigate the post's functions, whether the incumbent should be a lawyer and whether it is appropriate for the role to be combined with that of secretary of state for justice, as at present.
Chris Grayling, the current holder of the ancient office, is the first lord chancellor for 500 years with no legal background.
He is a former television producer and has faced criticism from lawyers for his reforms to legal aid and judicial review, which are seen as weakening access to justice and undermining the rule of law.