Robin de Wilde QC
”I [NAME] 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 Lord Chancellor’s Oath (Section 6A, Constitutional Reform Act 2005)
It is now a little over eleven years since the Office of Lord Chancellor was awarded in conjunction with the newly created post of Secretary of State for Justice, meaning enough time has now passed for a sober look at the consequences of this reform.
The Constitutional Reform Act 2005 received Royal Assent on 24 March of that year. Then on June 2007, Jack Straw MP was appointed Lord Chancellor and Secretary of State for Justice. This made him the first Lord Chancellor to be a member of the Commons since Christopher Hatton, a favourite of the last Queen Elizabeth, in 1578 .
Precedents continued to be broken in 2012 when Chris Grayling MP became the first non-lawyer to be made Lord Chancellor, a trend which has continued with Michael Gove MP, Liz Truss MP and David Lidington MP.
This was provided for in section 2 the Act which states “A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.” This is stated to include ministerial experience and experience in either House of Commons, as well as experience as a qualifying practitioner, teaching law in a university or “other experience that the Prime Minister considers relevant”. It is unclear what this section is intended to achieve.
If it were not for the fact that Tony Blair, a former barrister, was the one to initiate the changes it would be hard to see how anyone with a legal background could not see the importance of such experience in carrying out the role of Lord Chancellor . The key aspects of the Lord Chancellor’s Oath, responsibility for the rule of law, defending the independence of the judiciary and support for the courts, require a greater understanding of the law itself. It is this oath that separates the Lord Chancellor’s role from other Cabinet posts. We do not require Health Secretaries to swear the Hippocratic Oath and civilian control of the military is an important doctrine in democratic societies. The law is unusual in this respect.
Separation of powers is an important principle in modern government. However moving the role of Lord Chancellor to the Commons has not solved this problem and has in fact exacerbated it. The Lord Chancellor has become increasingly politicised.
Without a legal background in law a Lord Chancellor cannot have a full appreciation of the important qualities that need to be considered in making judicial appointments. While much of the legwork in these decisions is carried out by the Judicial Appointments Commission it is concerning that the final decision is made by an individual without the background to properly weigh this decision.
This trend has also lined up with increasingly shorter tenures. Prior to the Blair Government, Baron Mackay of Clashfern served from 1987 to 1997 in a tenure spanning the Thatcher and Major Governments. Jack Straw, Ken Clarke and Chris Grayling lasted a few years, but since then the tenure of Lord Chancellors have been measured in months rather than years.
All this has contributed to the role of Lord Chancellor, which historically was one of the Great Offices of State, nominally outranking even the Prime Minister. Now, however, the office is being treated more and more like a mid-ranking Cabinet post, either given to a veteran ‘big beast’ winding down their career like Straw or Clarke, or more recently to a perceived ‘up and comer’ like Grayling or Truss.
The past ten years have not been good to the judiciary and the legal profession as a whole. Judicial salaries have continued to fall behind what appointees could expect to earn in private practice and even against comparable positions in public life such as senior NHS consultants. This has happened at the same time that workloads have increased at the same time as facilities and work atmosphere are deteriorating . The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (also known as the LASPO) has been one of the most heavily criticised pieces of legislation in recent memory. Morale across the profession is at a historic low, most notably in the criminal bar, which narrowly avoided strike action earlier in the year driven by cuts to legal aid made in the LASPO that have made it near impossible for young criminal barristers to make a living.
It would be wrong to claim all this is as a result of the Lord Chancellor’s diminished role. However, the reduced prominence and independence of the law’s primary representative in government has not helped.
A low point occurred in late 2016 when, following the decision in R (Miller) v Secretary of State for Exiting the European Union the Daily Mail front page carried a story under the headline about the three high court judges in the case – the Lord Chief Justice, Lord Thomas, Master of the Rolls Sir Terence Etherton, and Lord Justice Sales. The Mail's website also initially described Etherton as "openly-gay", although this detail was changed after widespread criticism.
The then-Justice Secretary and Lord Chancellor Liz Truss took several days to respond and then issued a three line response defending the independence of the judiciary but failing to condemn the headline in a response that many felt lacking. She would later say it was wrong for a minister to say what was an acceptable headline.
This led to the incredibly unusual situation of the lord chief justice openly criticising the sitting Lord Chancellor, telling the House of Lords constitution select committee Truss was “completely and utterly wrong” to say she could not criticise the media.
While I would not dispute the importance of the independence of the press, in a society governed by the rule of law, the independence of the judiciary is of equal importance. It is also that independence that the Lord Chancellor is sworn to depend. Unfortunately, there are fewer votes and career opportunities in defending the independence of the judiciary than there are in keeping the tabloid press onside.
A Lord Chancellor with a background in law would have a greater appreciation for the importance of standing up for judicial independence. A Lord Chancellor based in the House of Lords, without one eye on their next cabinet posting, would have less incentive to not defend that independence in the face of political pressure.
A change of this type would not need to be a significant disruption or administrative burden. The role of Justice Secretary and Lord Chancellor have never been formally merged and the process of separating the two out is unlikely to be nearly as complicated as the process of combining them.
In many ways the appointment of David Gauke, a lawyer and veteran MP who has handled a range of challenging portfolios, represents a return to the earlier days of the Department for Justice, and a tacit admission that the experiment of the last few years has been a failure. In order to protect the vital independence of the judiciary this process should come full circle and the role of Lord Chancellor be returned to the upper house.
Robin de Wilde QC is a retired barrister and was the Conservative Parliamentary Candidate Merthyr Tydfil in the 1979 General Election
The Society of Conservative Lawyers is an association of lawyers who support or are sympathetic to the aims of the Conservative Party. Members hold a range of different views within those parameters. In common with other publications by the Society, this paper reflects only the personal opinion of the author. It does not represent a corporate view of the Society.
1. https://web.archive.org/web/20090313034740/http://www.justice.gov.uk/new... 2. Ironically Blair trained in the Chambers of Derry Irvine, who would go on to serve as his first Lord Chancellor. Kevin Martin, a former President of the Law Society, would in a letter to the Telegraph dated 8 April 2018 speculate that the main purpose of the change was to dispense with the services of the then Lord Chancellor. 3. https://www.theguardian.com/law/2015/feb/11/uk-judges-disillusioned-drop... 4. https://www.theguardian.com/law/2018/jun/12/barristers-in-england-and-wa... v 5. https://www.dailymail.co.uk/news/article-3903436/Enemies-people-Fury-tou... 6. https://www.theguardian.com/politics/2016/nov/04/enemies-of-the-people-b... 7. https://www.theguardian.com/politics/2017/mar/22/lord-chief-justice-cast...