In the most recent Cabinet reshuffle, the Prime Minister yet again appointed a new Lord Chancellor and Secretary of State for Justice, David Gauke. He replaces David Lidington just six months after he took up the role. Prior to that Liz Truss held the position for less than a year. Gauke is now the sixth Justice Secretary since 2010, and Theresa May’s third since she became Prime Minister. This quick succession of Justice Secretaries has seen the UK have 4 different Lord Chancellors in a little over 18 months. But why does this matter?
The History and Constitutional Significance of the Lord Chancellor
The post of Lord Chancellor dates back to the medieval kings of England, where the individual was responsible for the supervision, preparation and dispatch of the King’s letters, which entailed the use of the Sovereign’s Seal. The office later gained increasing administrative and judicial functions on behalf of the Crown, in order to dispense justice in the name of the King. The Lord Chancellor was historically viewed as so significant that it was described as the “keeper of the royal conscience.”
Prior to the Constitutional Reform Act 2005, the Lord Chancellor had a ‘hybrid trinity’ of roles in all three arms of the State: a senior judge and formerly Head of the Judiciary in England, Wales and Northern Ireland (judicial function); a member of Cabinet (executive function); whilst also holding responsibility for presiding over the House of Lords (legislative function). Lord Irvine, the last Lord Chancellor to hold the office prior to the modern day reforms, defended the office claiming that “it allowed for a natural conduit for communication between the judiciary and the executive, so that each fully understand the legitimate objectives of the other.”
Following reforms in 2005, and attempts to improve separation of powers, the Lord Chancellor no longer has a judicial function (instead such was transferred to the office of the Lord Chief Justice). The Lord Chancellor is also now no longer the Presiding Officer in the House of Lords (instead such function is now fulfilled by the Lord Speaker).
Instead, today, the title is translatable to a position of senior membership of the Cabinet, as head of the Ministry of Justice. The Justice Secretary today carries responsibility for policies and administration relating to the efficient functioning and independence of the courts, amongst other important constitutional roles.
Today the Lord Chancellor’s ministerial department, the Ministry of Justice, is considered a major governmental department. Supported by 32 agencies and public bodies, it works to protect and advance the principles of justice, by “deliver(ing) a world-class justice system that works for everyone” whilst upholding the rule of law.
Five Reasons Why the Lord Chancellor Matters?
So given modern day reforms to the role of the Lord Chancellor, why does it matter that the position has constantly changed hands in recent years?
There are five pressing reasons why today, in 2018, strong and stable leadership within the Ministry of Justice is more important than ever.
First: Concerns About the Rule of Law
In 2017 senior members of the judiciary petitioned Parliament regarding their concerns that the rule of law was under threat in the UK. Nowhere more can the need for a ‘strong and stable’ Justice Secretary and Lord Chancellor be seen than when some sections of the media branded judges ‘enemies of the people.’ Amidst this worrying debate was a failure by the then Lord Chancellor, Liz Truss, to respond in a timely fashion to defend judicial independence. Whilst this ignited debate as to how Lord Chancellors should defend judicial independence, the constant changes to ministerial office, coupled with these recent criticisms, do little to establish the Justice Secretary as a strong constitutional guardian for the rule of law and justice within England and Wales.
Second: Coherent Leadership and Direction
In a year where there has been increasing pressure to address issues of the direction of justice policy and administration within England and Wales, the Ministry now needs a coherent voice from a leader that can establish clear objectives. For example, over the course of the last 12 months, issues of judicial diversity have been receiving increasing attention. Yet, despite these criticisms, only last month the outgoing David Lidington said that judicial diversity targets ‘were not the answer’ and instead needed to be re-looked at. Whilst the Judicial Appointments Commission has oversight of selecting candidates for judicial office the Ministry of Justice now needs stable leadership to coherently establish its position on these unaddressed issues.
Third: Legal Aid and the Cost of Justice
A Lord Chancellor with longevity needs to take responsibility for leading the audit into the consequences of the £450 million a year legal aid cuts, and the impact of such on the cost of justice. A stable Secretary of State for Justice is needed to review the policy direction and impact of previous decisions dating back to the coalition government. It should be recognised that within the Ministry there is a Permanent Secretary, who is a senior civil servant and permanent adviser to the Secretary of State. Nonetheless whilst this individual is intended to ensure that the different levels of the Ministry work as a coherent and effective whole, it is still the Lord Chancellor who ultimately leads and determines the overall direction the Ministry of Justice is to follow.
Fourth: Addressing Access to Justice
Coupled with the above, is the further issue of the impact of the extensive programme of court closures. Consistency in ministerial leadership is needed to ensure adequate responsibility for the decisions that are being taken, not least in terms of access to justice within the England and Wales.
Five: A Secretary of State Who Understands the Legal Profession
Finally, a Lord Chancellor with an understanding of the wider profession is needed in light of the reshaping and ‘ominous challenges’ facing the legal profession going forward. It is reticent of the office’s judicial past that Lord Chancellors in recent years have not even had legal backgrounds. The appointment of Gauke, a former solicitor, has broken this recent trend and could see his policy direction being led by a more intricate understanding of the law.
The justice systems with the UK are ‘the envy of the world’. An ‘outstanding independent judiciary’ with ‘global lawyers’, the brand is recognised as outstanding.
Yet moving forward there are real challenges for our justice system and legal profession ahead. The constant changes in leadership within the Ministry of Justice now need to be curtailed, so as to ensure consistency in leadership, stability, responsibility for policy, and a clear narrative so as to uphold the ‘British justice’ brand.