Yesterday’s Government reshuffle is important (although perhaps not as important as media coverage might imply) for all sorts of reasons. For lawyers, one of the most significant aspects is the […]
Yesterday’s Government reshuffle is important (although perhaps not as important as media coverage might imply) for all sorts of reasons. For lawyers, one of the most significant aspects is the change at the top of the Ministry of Justice, Kenneth Clark having been replaced by Chris Grayling. The change is significant because the Ministry of Justice is responsible for key aspects of the justice system, including courts, tribunals and prisons; in that sense, the leadership and strategic direction of the department is of obvious relevance to how the legal system works and develops. But the replacement of Clarke by Grayling is important for more specific reasons, too.
The full title of the position concerned is rather a mouthful: “Lord Chancellor and Secretary of State for Justice”. Prior to the Constitutional Reform Act 2005, the office of Lord Chancellor involved far more than simply heading up the Government department responsible for the justice system. The Lord Chancellor was also a judge – indeed, the head of the judiciary – as well as speaker (presiding officer) of the House of Lords. As such, the role of Lord Chancellor was highly unusual, because it straddled the three main institutions of the state – judicial, legislative and executive branches of Government. This, it was felt by many people, was a breach of the “separation of powers” principle, according to which the three parts of Government should be distinct, to avoid the overconcentration (and so the risk of the abuse) of power.
Others, however, argued that the role of Lord Chancellor was a perfectly valid – and very useful – one, not least because the office-holder, as both a senior member of the executive Government and as a senior judge, could manage relations between the two parts of the Government, including by upholding the crucial principle of judicial independence. On this view, the Lord Chancellor – provided that he was a sufficiently authoritative figure capable of rising above the maelstrom of party politics where necessary – could ensure that his political colleagues behaved in a way that respected the need for courts to be left to get on with their job, free from interference or criticism by politicians. And so, the argument went, the fact that the Lord Chancellor was both a member of the executive Government and a judge could (depending on the personal qualities of the office-holder) actually enhance judicial independence.
This is not to suggest that the old system was perfect. There were very strong arguments for stripping the Lord Chancellor, as a Government Minister, of his judicial role – including the importance of demonstrating a clear commitment to separation of powers, so as to convince the public that the courts truly are independent. But it was also felt by many people to be necessary to preserve something of the old system. To that end, section 3 of the Constitutional Reform Act requires the Lord Chancellor, in particular, to uphold judicial independence, while section 2 – uniquely for a Cabinet Minister – legally requires the Prime Minister, before appointing someone as Lord Chancellor, to be satisfied that the person concerned is “qualified by experience”. To date, Lord Chancellors have always been qualified by legal experience: Lord Faulkner (2005-7), Jack Straw (2007-10) and Kenneth Clarke (2010-12) were all barristers. Grayling, however, is not a lawyer (instead, Cameron presumably believes he is “qualified” by his experience as an Employment Minister).
In an interesting recent piece, Joshua Rozenberg argues that this “matters very much”. Even though the Lord Chancellor no longer sits as a judge, he heads a department that is responsible for the running of the courts and tribunals system – a system which must be constitutionally separate from the executive Government and which has a special duty to uphold the rule of law. Until now, Lord Chancellors, appointed at least in part on the strength of their legal experience, have clearly taken on the role of curator of that system – a role that, in some respects at least, transcends that of a regular, “political” Cabinet Minister. In that sense, the appointment of Grayling – an “on the up” politician, as Rozenberg puts it – represents an important break with tradition.
This does not mean that non-lawyers in general or Grayling in particular are necessarily incapable of properly discharging the functions of Lord Chancellor. But Grayling’s appointment certainly suggests that within Government, the perceived role of Lord Chancellor has shifted substantially over recent years, such that it is now not much different from that of any other Cabinet Minister. The extent, if any, to which this will make a practical difference remains to be seen – but one possibility is that a non-lawyer Lord Chancellor may have a less instinctive understanding of the legal system and of the courts’ role in it. This possibility is hinted at in Grayling’s reported remarks – prior to his appointment as Justice Secretary and Lord Chancellor – on the Human Rights Act. Those remarks will be the subject of a separate blog post later this week.
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This collection of essays, edited by Mark Elliott and Kirsty Hughes, examines the extent to which the common law protects, and is capable of protecting, constitutional rights, taking recent UK Supreme Court jurisprudence on this matter as a point of departure. Common Law Constitutional Rights was published by Hart Publishing in 2020.
Administrative Law is a leading text on English administrative law. The fifth edition, written by Mark Elliott and Jason Varuhas, was published by Oxford University Press in 2017. The book combines carefully selected excerpts from key cases and other materials with detailed commentary and analysis.