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The Role of the Lord Chancellor: The Law of Unintended Consequences


The Law of Unintended Consequences 2022”

The Lord Chancellor has announced the intention of the Government to carry out a review of the 2005 Constitutional Reform Act, an Act that removed the Lord Chancellor’s role as head of the judiciary and led, in some people’s view, to a politicisation of the role.

It will be debated whether the origin of this policy review has anything to do with the challenges the Government faced when wishing to prorogue Parliament, a policy fatally holed below the water line by the Supreme Court, but this for now is no more than wild speculation…..

However, any such review - let alone reform - could have a profound impact on catastrophic injury claims if the role of the Lord Chancellor is re-examined. The Damages Act places a statutory duty on the Lord Chancellor to review the Discount Rate on a five yearly basis. The position held by the Lord Chancellor when undertaking this exercise could be of critical importance to any review. The current Act places the holder under an obligation to consult with the Treasury, one assumes to maintain the issue of affordability, as part and parcel of the review given the impact of any change on the public purse, be it local authorities, the Army or the NHS.

This may be no more than idle speculation and an over-reading of the tea leaves, but the Lord Chancellor’s role in the Discount Rate review means that any attempt to refresh or change their role must be watched with caution and concern. It is our view that the Government and Treasury should be held to account for the rate and the cost to the UK economy is a valid factor that should be properly reflected by the rate. The latter of course remains work in progress!

Watch this space or perhaps through the looking glass.


Andrew Underwood

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