So, as anticipated, our new prime minister has favoured punishing disloyalty over rewarding competence and sent Michael Gove and his ambitious, compassionate prison reforms to the naughty back benches. Yesterday morning (July 14) brought a transfer-deadline-day-style frenzy to Legal Twitter, anticipation and trepidation converging as rumours and supposition threw up name after name as possible new secretary of state for justice and Lord Chancellor.
All it needed was Theresa May leaning out of her Range Rover window teasing Sky Sports with a, ‘Well, we’ve got a little bit goin’ on ‘ere and there, but who knows?’
Stretching the analogy, perhaps the biggest disappointment is that established incompetent and gold-plated tit Grayling didn’t get to play the role of Peter Odemwingie, driving 300 miles all pumped up with a misplaced certainty of being hired only to be cruelly turned away at the door. But he has not been let back near the levers of justice, and for that, at least, we must all be grateful, although anyone reliant on a functioning public transport system should probably prepare for four years of taxi rides.
So not Grayling. Nor, to the despair of several (including me), the lawyers’ favoured choice of Dominic Grieve QC, a serious heavyweight silk whose defenestration as attorney general ranks among David Cameron’s most petty, stupid decisions. Anna Soubry, who has recently practised as a criminal barrister, would also, I’ve suggested, make a fine justice secretary, having the advantage over her three predecessors of actually having seen the inside of a criminal court in the past decade. But again, love unrequited.
Instead, May has opted for Liz Truss, an MP of six years with a background in management accountancy and particular political interests in education and free enterprise. She has no legal training, nor has she any ministerial experience in the Ministry of Justice, having instead bounced from junior minister at education to secretary of state for Environment, Food and Rural Affairs. It is right to note that from March 2011 to September 2012, she was a member of the Justice Select Committee, although Philip Davies’ continued presence confirms that membership is no proof of intelligence, reason or compassion, the three qualities required above all in the most underestimated and undervalued cabinet role.
My instinctive reaction to Truss’ appointment, therefore, was one, to put it politely, of disillusionment, as, for a third successive time, the historic office of Lord High Chancellor of Great Britain, charged with upholding the independence of the judiciary and ensuring the provision of resources for the efficient and effective support of the courts, has been entrusted to a politician who has, to my knowledge, no experience of the courts or judiciary in action. Similarly, when one considers the brief for the concurrent role of secretary of state for justice, there is little among Truss’ contributions in the House of Commons to suggest a zeal for prison reform or court modernisation. Indeed, as Twitter has been quick to point out, her most outspoken contribution on the subject of justice appears to be when she proudly announced that the milk in UK prisons would henceforth all be British, returning to a theme the subject of which inspired a performance which some cruel trolls suggested did not augur well for her advocacy skills.
But, having had the day to reflect, is that fair? Why does it matter that Truss is not a lawyer? Does it matter?
A brief history lesson, if I may. Lord Chancellor was, until the passage of the Constitutional Reform Act 2005, a multi-faceted office starting out in medieval times as secretary to the King, and gradually accumulating a weird and wonderful collection of executive, judicial, ecclesiastical and parliamentary functions. By 2003, the Lord Chancellor’s duties included being head of the judiciary, in which capacity he attended Cabinet, being responsible for appointing judges, acting as effective speaker in the House of Lords, and having responsibility for criminal legal aid. In the case of Lord Irvine, he also sat as a judge in the judicial House of Lords. Appointment to the role was therefore considered the pinnacle of a distinguished legal career, rather than the preserve of ambitious politicians. (see Gee, G. What are Lord Chancellors for? [2014] Public Law 11).
While there were plainly benefits to having the independence and interests of the judiciary upheld and represented in government, you have possibly spotted the rather startling contravention of the separation of powers inherent in the Lord Chancellor’s office, allowing him to sashay between sitting as a judge, attending cabinet and holding sway in the House of Lords. And so in 2003, the government abolished the Lord Chancellor’s department and installed the LC in the newly-created Department of Constitutional Affairs, with the intention of abolishing the post of LC altogether. Due to Blair having uncharacteristically taken this decision without any consultation whatsoever, people got quite cross and various committees were set up to consider the constitutional implications of doing away with such a role. The denouement was the Constitutional Reform Act 2005, whereby the LC’s role of head of the judiciary and House of Lords speaker were stripped and transferred to others, and the power to appoint judges was diluted by the establishment of a Judicial Appointments Commission. In 2007, the Ministry of Justice was created, with responsibility for prisons and other bits that the Home Office were keen to get rid of, and the role of Lord Chancellor was thereafter conjoined with Secretary of State for Justice.
Up until 2012, the role continued to be performed by senior, experienced lawyers. However the removal of the judicial function meant that, technically, legal knowledge was no longer strictly a requirement. Rather, section 2 of the Constitutional Reform Act 2005 merely requires that the Lord Chancellor be “qualified by experience”, defined as follows:
2 Lord Chancellor to be qualified by experience
(1) A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.
(2) The prime minister may take into account any of these-
(a) experience as a Minister of the Crown;
(b) experience as a member of either House of Parliament;
(c) experience as a qualifying practitioner;
(d) experience as a teacher of law in a university;
(e) other experience that the prime minister considers relevant.
(3) In this section “qualifying practitioner” means any of these-
(a) a person who has a senior courts qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);
(b) an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary;
(c) a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland
So, strictly speaking, the prime minister ‘may’ take into account the above, but also may not. S/he may in fact choose to appoint a block of stilton wearing a fez or, to even lesser benefit, Chris Grayling MP, the first non-lawyer in post since the 1600s. And this is where the problems began, because Grayling was, and I’m sure remains, an ambitious man. He is no lawyer, no jurist and no philosopher – he is very much the epitome of a career politician, who has bounced from portfolio to portfolio, having his knuckles rapped for untruthfulness and incompetence at almost every turn, and upon entering office, saw an opportunity to assume the role of renegade outsider boldly taking on the vested interests of the legal system. He slashed legal aid like nobody’s business – aided by entirely dishonest campaigns against publicly-funded lawyers – splurged public funds on defending his unlawful policies in court, and in so doing exposed the irreconcilable tension between his self-image as an Osborne-pleasing austerity advocate and his Lord Chancellor’s oath to ensure the provision of resources for the efficient and effective support of the courts.
It was against this background that in 2014, the House of Lords considered whether a grounding in law ought to be a prerequisite to the role. The House of Lords Constitution Committee concluded that, while it was not strictly necessary for the Lord Chancellor/Justice Secretary to be legally qualified, it would plainly be “a distinct advantage” for them to be so, and recommended that the government ensure that the permanent secretary at the Ministry of Justice is legally qualified. In a giant slap to the face to Grayling, whose policies were routinely held in judicial reviews to be unlawful – and whose solution to this problem was, rather than just acting lawfully, to try to stop the use of judicial reviews – the Lords further recommended that the Ministerial Code and Lord Chancellor’s oath be amended to remind all of the Lord Chancellor’s duty to uphold the rule of law. The government pretty much laughed in the face of the report, and here we are today.
And if that’s where the story ended, I’d unhesitatingly conclude that the experiment with a lay Lord Chancellor had been tested to destruction. But then enter Gove. Also a non-lawyer, but one who from the outset made clear that he was not merely seeking to mend bridges where Grayling had burned them, but to learn, respect and embrace the constitutional and societal gravitas of his twin roles. He stopped picking fights with professionals. He seized upon prisons – simply concrete punishment cubes to his predecessor – and resolved that their overdue reform, and the transformation of the prospects of those within, would be his legacy. He overturned policy after regressive policy – from book bans to the Criminal Courts Charge – set down by Grayling. He was by no means perfect – his failure to properly reform legal aid or employment tribunal fees stand as but two examples of enormous flashpoints that his early departure has allowed him to evade. But I, at least, while not agreeing always with everything he said or did, allowed myself to believe that he recognised his lack of firsthand knowledge of his new subject area, and rather than, as did Grayling, trumpeting his ignorance, listened carefully to professionals (experts, eh?) and treated his office not as a rung to better things, but as the career pinnacle it was for Lord Chancellors of yesteryear. As if it was – and indeed, it may transpire to be – his last, defining role in public life.
So yes, I would have preferred the role to go to someone whose profession has been chugging towards this last stop before retirement, unbeholden to the vagaries of political caprice, rather than a young MP with her eyes no doubt on bigger, brighter things. I would, given a choice, opt for someone who has been in the trenches, who has sat in urine-stained cells with an addict smashing his face against a chair as you try to take instructions while a Crown Court judge loftily bellows for your attendance upstairs. Who knows what it is to be a partner in a legal aid firm one delayed LAA payment away from going under. Who has a lifetime’s worth of legal and constitutional wisdom to infuse into their political decisions.
But if Gove has taught us anything, it is that it is only right and fair to pause and see what Truss has to offer. Whether she is going to, as was reported happened at Environment, offer her department as a sacrificial cow in the post-referendum austerity era, or whether she is going to stick on her ceremonial wig, take soundings from experts and tell May that enough is enough, the courts are crumbling, legal aid is cut through the bone, the CPS is starved and the rule of law and access to justice are becoming rhetorical shells, and that root-and-branch reform and replenishment of the criminal justice system – from police station through to release from prison – is something she is going to physically fight for at every cabinet meeting, even if the consequences are that she is politically blacklisted from the Party, and higher office, for the rest of her career.
Because if that’s the kind of Lord Chancellor Truss is going to be, fearlessly faithful to her oath of office, immersing herself in the law, doing right and fearing no-one, I don’t think I’d mind that she doesn’t have a law degree. And I don’t think my colleagues would either.
One final, tangential observation – Truss has already in Parliament fallen for the myth of the ‘most expensive criminal justice system in the world’. I would respectfully recommend that, if she wants to get off to the best possible start, educating herself as to the reality, and resolving to act upon it, would be among the best things she could do.
@BarristerSecret is an alias for a practising barrister. You can visit their blog here.
