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The Lord Chancellor – Should the United Kingdom’s most senior legal position be held by a lawyer?

19/09/2016 | Nick Leigh

Prior to 2012, the role of Lord Chancellor – traditionally the keeper of the sanctity of the rule of law – had been held by qualified lawyers for more than 400 years, albeit not always those practicing. Since then, three non-lawyers in a row have sat on the metaphoric woolsack. All inherited the post as part of the Ministry of Justice, with which it was combined in 2007. Chris Grayling was the first non-lawyer. His career prior to Westminster included stints as a television executive and management consultant. He was followed, in 2015, by the famous spoiler Michael Gove, also a media beast before hearing his call to public service. Mr Gove was replaced by Liz Truss who, before becoming an MP in 2010, was a commercial manager for Shell, an executive for Cable & Wireless, a management accountant and a deputy director of the think tank Reform. So, from 2012 to the present day: three Lord Chancellors and not a copy of Beale, Bishop and Furmston on Contract Law amongst them.

Does it matter? Or is owning a boxset of Suits enough to be the defender of the rule of law in the Twenty-First Century? After all, churchmen rather than lawyers held the office of Lord Chancellor for its first five hundred years. So, perhaps the role requires only a familiarity with authority generally rather than specifically a legal authority. Indeed, when New Labour carried out its reforms in 2005, it hammered the point home by removing the requirement of a legal background. Section 2(1) of the Constitutional Reform Act 2005 states that “A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.”

As cabinet ministers as well as MPs prior to assuming the role, Mr Grayling, Mr Gove and Ms Truss  all met this new qualification. But does someone without medical training or experience make an effective Health Secretary (Jeremy Hunt anyone?), or a journalist an effective Education Secretary (step forward again Mr Gove)? Or is the reverse true: that decades of involvement in a profession makes you partisan for its cause at the cost of much needed reform.

It was no accident that the clergy inhabited the role of Lord Chancellor for so long. All organised religions have at their basis a code of some sort, which must be observed in varying degrees of strictness if those subject to it are not to fall foul of penalties as draconian as eternal damnation. As the interpreters of that code, the role of a churchman was therefore not so far removed from that of a lawyer. Furthermore, as a member of the Royal Court, the Lord Chancellor advised the monarch in matters temporal as well spiritual – those of the realm as well as the religion. And, simply yet crucially, clergy were amongst the few medieval souls capable of reading and writing.

The Royal Court became Parliament, the Lord Chancellor the presiding officer of the House of Lords. The holder of this office eventually formed part of the legislature – as a peer, he (it was always “he” until the appointment of Ms Truss a mere one thousand years after the role was formed) could participate in debates regarding prospective new law and the votes for or against their passing; he sat as a member of the judiciary in the House of Lords, enabling him to preside over cases that had reached the highest appeal court in the land; and, as part of the Privy Council and Cabinet, the Lord Chancellor was a member of the nation’s executive, whose responsibilities included the administration of the courts and the appointment of judges, tasks of exceptional importance – it is the law and its observance that ensures states do not descend into tyranny and chaos. It was therefore no accident that once the mantle was passed from the clergy to the lawyers in the Sixteenth Century, the last holder of the office prior to Mr Grayling not to be a lawyer was the Earl of Shaftesbury, whose tenure ended in 1673.

The purpose of the Constitutional Reform Act 2005 was, in part, to prevent the concentration of the exercise of all key powers of state – the executive, legislative and judicial – in the hands of one person. Yet the holder of the office of Lord Chancellor retains a number of important legal functions. These include bearing an explicit duty to respect the rule of law, to defend the independence of and oversee the judiciary, to ensure an efficient and effective court system, to ensure the provision of legal aid, to regulate the legal profession as a whole and to take responsibility for the process of civil, family and administrative law. Lord Falconer, who guided the Constitutional Reform Act 2005 through Parliament, said that the reforms were intended to “… retain and entrench [the Lord Chancellor’s] role as being a defender of the rule of law and the justice system.” So it remains an office of huge importance in which – one would assume – legal experience would be of great help.

What then of our three latest incumbents?

It may have been true that Mr Grayling’s department was subject to heavy austerity cuts, but even so, he took a deliberately hard line approach, implementing measures that damaged access to justice, and therefore the rule of law. He slashed funding for legal aid for judicial review and the victims of domestic abuse, introduced mandatory charges to be paid by those convicted of crimes that incentivised guilty pleas, and significantly increased the costs of issuing claims. Other policies included banning books sent into prisons (on the basis that they were used as packages to smuggle in contraband goods). The Ministry of Justice under Mr Grayling was also embroiled in an ugly scheme to advise the prison service of Saudi Arabia on how to run its organisation – an organisation which executes dozens of prisoners each year.

The criticism Mr Grayling received during his tenure included a letter signed by 90 QCs savaging his “unjust” legal aid cuts, while Lord Pannick described his time as defender of the rule of law as “notable only for his attempts to restrict judicial reviews and human rights, his failure to protect the judiciary against criticism from his colleagues and the reduction of legal aid to a bare minimum”. But the question is, would a lawyer have done better?

Before answering this, it should be noted that Mr Grayling’s non-lawyer successor, Mr Gove, reversed much of what he did, scrapping the mandatory charges on conviction, the ban on books and the Saudi deal. However, Mr Gove’s time as Lord Chancellor was limited to little more than a year. Meanwhile, Ms Truss has been in the job for only two months, and yet her tenure has already got off to a rocky start: a minister in her new department, Edward Faulks, a QC, resigned following her appointment, saying, “I have nothing against Ms Truss personally, but … is she going to be able to stand up, come the moment, to the prime minister, for the rule of law and for the judiciary . . . without fear of damaging her career? It is a big ask.”

Which brings us to the crux of the matter. Once upon a time, the Lord Chancellor was a lawyer: independent minded, sharp as a tack and highly knowledgeable about their subject. Now, the role may be filled by just another machine politician. Is it unfair to say this? Let’s consider the evidence.

It is hard to conclude objectively that Mr Grayling defended the rule of law and the justice system during his tenure, whereas lawyers work their entire careers complying with – and thereby honouring – the very same rule of law. It is hard to believe that he considered the best interests of those who found themselves within the civil and criminal justice systems, whereas professional lawyers serve their clients with a passion and dedication. And it is hard to believe that the well-being of the judiciary was of great importance to him, whereas lawyers know how damaging it is to the conduct of justice if judges are so overloaded with work that cases can take many months and even years to be heard or for appeals to be considered. Instead, Mr Grayling behaved as an austerity apparatchik, and as Mr Faulks said of Ms Truss, did nothing to stand up against David Cameron and George Osborne on behalf of those who needed him to. It was clear he had no feel for what was truly important about the legal system and the rule of law, which would simply not have been the case with a lawyer, and which is why the job had stayed in lawyers’ hands for centuries.

Perhaps Mr Gove might have done better, given more time, and perhaps Ms Truss will exceed Mr Faulks’ expectations. But so far, the evidence is against it. For those who suspect the latest holders of the thousand-year title of Lord Chancellor believe the Clapham omnibus is a nightclub in South London, the rule of law might have to look out for itself for now.

If you require any legal advice please contact Simon Walton on 020 7955 1455.

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