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The new Lord Chancellor and the rule of law

Richard Harwood QC of 39 Essex Chambers gives his views on Liz Truss' appointment.

Anthony Baggett

The appointment of Liz Truss as Lord Chancellor and Secretary of State for Justice was praised in most quarters. On 14 July, Lord Falconer, the former Labour Lord Chancellor, tweeted: ‘Congratulations to Liz Truss in her new role as Justice Secretary. Labour will work constructively with her on a bold prison reform agenda.’

However, by 19 July, Lord Falconer had penned an article for The Times asserting that Ms Truss was entirely unsuited to the job and, indeed, that the Prime Minister had acted unlawfully in appointing her. I suggested in a little-read blog that this criticism did not stack up.

Lord Falconer then returned to the fray in The Guardian on 25 July, saying: ‘This row over Liz Truss as Lord Chancellor isn’t about gender. It’s about the law.’

The seeds for the current debate were sown when Tony Blair’s administration secured the passing of the Constitutional Reform Act 2005. Previously, the Lord Chancellor had been simultaneously the Cabinet minister responsible for the legal system and the courts, a judge who was the head of the judiciary and the nearest the House of Lords had to a speaker. Whilst this seemed to work, it did so in defiance of constitutional theory. The judicial and House of Lords roles were taken away. The Lord Chancellor retained responsibility for the courts as part of a new Ministry of Justice that included prisons and was also the Secretary of State for Justice. As Lord Chancellor, he or she was specifically charged by the legislation with respect for the rule of law, maintaining judicial independence and ensuring that the courts had sufficient resources. The creation of the Ministry of Justice and the inclusion of prisons did give the role a far greater budgetary and political responsibility, making it more likely to be filled by someone from the House of Commons.  

As Lord Chancellor, Lord Falconer persuaded the House of Lords to give way on amendments – as it happens pressed by the Conservative Shadow Lord Chancellor Lord Kingsland – that would have required the Lord Chancellor to be an experienced lawyer, sitting in the Lords. He said ‘such provision can only hinder our efforts to ensure that the best person for the job is appointed to fulfil the role’ (Hansard, 15 March 2005) and compared the abilities required to make impartial decisions in the role to being the Secretary of State responsible for making town planning or benefits decisions.

Some criteria for the Lord Chancellorship were laid down. By section 2 of the Constitutional Reform Act 2005, the Prime Minister needs to consider an appointee to be ‘qualified by experience’, which explicitly includes ministerial and parliamentary experience as well as practising or teaching law. Although not a lawyer, Ms Truss has been a Parliamentarian for six years – the same period of time as Lord Falconer when he was appointed Lord Chancellor. She also has the advantage over several previous Lord Chancellors, including Lord Falconer, of having already served in the Cabinet.

Of course, all politicians get criticised for their performance at some time and Lord Falconer points out in The Guardian that in 2014 he was critical of Chris Grayling’s abilities as Lord Chancellor.  However, as Baroness Kennedy QC has pointed out, that was after Mr Grayling had been in post for two years. What is remarkable about the criticism of Ms Truss’s abilities is that it has arisen before she has been able to do anything.

Lord Falconer’s complaint in his original Times article was that Ms Truss ‘has displayed no obvious sign of independence as a minister, backed Mrs May right from the off in the leadership election and so far shows every sign of being more interested in promotion than the rule of law.’ It is worth looking at each of those objections.

The House of Lords Constitution Committee, which looked at the role of the Lord Chancellor very carefully in 2014, rejected the notion that he or she must be a person without any further political ambition. It cannot be an objection to a ministerial appointment that the MP or peer had supported the Prime Minister – party leaders are usually backed by a majority of their MPs. Relationships in politics can go back a long way and it is perfectly possible for a minister to be an old personal friend of the Prime Minister and still be a suitable, independent Lord Chancellor. Lord Falconer does not say what ‘obvious sign of independence as a minister’ he would expect to see. Government acts collectively and seeks to resolve issues in private. Few politicians have ever resigned on a point of principle and even fewer have returned to office, so that cannot be the test. Ken Clarke is the only Lord Chancellor in living memory who has cultivated a reputation of saying what he thinks regardless of the personal political consequences. Ms Truss has shown independence of thought, in policy work and in her contributions to books, since becoming an MP.

As for independence as a minister and ability to uphold the rule of law, neither Lord Falconer nor myself claim to have any personal knowledge of Ms Truss prior to her appointment which bears on those qualities. As a ministerial and Cabinet colleague, Theresa May is much better placed to do that. Time will tell whether the Prime Minister was right and whether Ms Truss has performed her duties with distinction. But there is no basis for asserting that she is not up to the job.

There is, though, one telling and important piece of evidence – the new Lord Chancellor’s speech at her swearing in ceremony. Lord Falconer refers to the Lord Chief Justice’s comments at the same ceremony in his Guardian article, yet he makes no mention of Ms Truss’s remarks. There are two possible reasons for a barrister not to mention a major piece of evidence: either it is obviously irrelevant; or it is highly relevant and he has simply no answer to it.

In that speech, Ms Truss set out clearly and concisely her views on the rule of law and the role of the judiciary. After quoting Lord Bingham, she said:

              ‘The fundamentals of civilisation and liberty depend on the rule of law.

It is our safeguard against extremism, oppression and dictatorship – the separation of powers keeps the executive in check.

It is the basis of our prosperity, which is sustained by secure contracts and free trade.

And it shapes the fabric of our free society – the order, the stability, the equality and the individual freedom that we all love and respect.’

She described judges as ‘the human face of the administration of justice’ and said that without them, ‘the rule of law would be nothing more than an empty slogan.’ She drew on her own experience of the rule of law as a Parliamentarian and when negotiating agreements in commerce.  She described the inspiring experience of going to Leeds Crown Court, as a young woman, to see criminal cases. The Lord Chancellor concluded that the rule of law ‘shaped society in the past, does so now, and will do so in the future.’

If Ms Truss had made clear that she did not understand the rule of law nor had an interest in defending it, the critics might have something to criticise. But not a whisper. The speech seemed to go down well in Court 4 of the Royal Courts of Justice (I was sitting at the back). Her critics have had ample opportunity to dissect it, to find some failure in what she was saying, but have chosen to say nothing about it.

The obvious reason is that the speech was right and was on target; Ms Truss showed that she understood the rule of law and judicial independence. As with all of her predecessors, she now has to meet those challenges in practice.

It might be better to agree with Baroness Kennedy of the Shaws, QC, who objects ‘to people feeling that Ms Truss is somehow short of the substance necessary for the role.’ As Lord Lester QC put it, ‘the new Lord Chancellor should in fairness be given time to be judged by her actions in office’.

Richard Harwood QC of 39 Essex Chambers is a barrister specialising in planning, environmental, public and heritage law. 

Posted by:

Harwood QC

01 August 2016

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