The fall of the lord chancellor

The state opening of parliament is a typically British affair. The day begins with a ceremonial searching of the cellars, supervised by the Lord Great Chamberlain providing glasses of port, marking the gunpowder plot. Accompanied by mischievous laughter on the green benches, there is then a delivery of a parliamentary hostage whereby a current member of parliament is held “prisoner” for the duration of the Queen’s speech, in an apparent homage to the beheading of Charles I in 1649. After the frivolous nods to the past, the Queen, with her crown adorned, finally addresses parliament with a speech written by her political cabinet—the emblem of our constitutional monarchy.

In the midst of the proceedings, wry smiles can be seen from the assorted journalists at the sight of the justice secretary, usually a mid-ranking cabinet member with political ambitions for higher office, dressed in black silk stockings, a velvet tailcoat and buckled patent court shoes kneeling before the monarch. The role of lord chancellor is now an afterthought, a title from a bygone era attached to the justice secretary as a constitutional quirk.

The belittling of the role reflects a dangerous development in our political culture. There is a reason why the mild-mannered Robert Buckland sits above the prime minister in the order of precedence, below only the royal family and the Archbishop of Canterbury. The ceremonial pomp reflects the significance of the role in our history, but more importantly the unique traditional function of the lord chancellor as a constitutional guardian in government.

The decline of the once powerful role removes a necessary protective force. Successive officeholders have failed to appreciate the importance of their function as a representative of different branches of the constitution in government, weakening the position considerably. Forthcoming clashes between the executive and the courts—on issues from human rights to bio surveillance and the use of technology in the administration of justice—will strain relations, already battered by the Brexit process, further. There is a need for a reforming lord chancellor—a considerable political figure—who understands the history and their duties while embracing modern methods. Sadly, this currently seems a distant prospect.

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Historically, the lord chancellor, a role dating back to 1068, was the alter rex—all powerful in the monarch’s court as the administrator of state affairs. This put him at the centre of legal and political events, reaching the pinnacle during the Tudor period, with the likes of Cardinal Wolsey—documented so vividly by Hilary Mantel—and Thomas Langley to a large degree running the country. As a modern democracy emerged, their executive role became less pronounced but remained intertwined with the administration of justice, the courts, the government and the legislature—the “kingpin of the constitution.” 

By the end of the 20th century, the role of the lord chancellor was remarkably extensive across all three constitutional branches. A lord chancellor was entitled to preside as chairman of the law lords (the equivalent of the Supreme Court). He was head of the judiciary, responsible for judicial appointments and discipline. The lord chancellor had an executive role in the cabinet and led a government department, responsible for legal aid, the administration of justice and constitutional affairs. He was an important parliamentarian as speaker of the House of Lords, who would also vote on legislation.

It does not take a constitutional lawyer to note the potential minefields. As Ken Clarke, holder of the office in the coalition government, admitted, the role was so offensive to the principle of the separation of powers that “you could not defend it to the outside world.” By the cusp of the 21st century, the role of lord chancellor was a culmination of 900 years of history, developing features through convention to become, in the words of Viscount Hailsham, a “most anomalous creature” as a member of the judiciary and the government—the defender of judicial independence, the very principle the role so directly offended. It was a very British story.

With the creation of the Human Rights Act 1998, the implementation of devolution and the tensions between the executive and the courts caused by Tony Blair’s anti-terror legislation, the New Labour government recognised it was untenable for one individual to play these different roles. While originally aiming to scrap it entirely, the Constitutional Reform Act 2005 was an admirable attempt to secure the unique role of the lord chancellor as a constitutional custodian, while clipping its wings to ensure propriety.

The act asserted that the officeholder would no longer act as head of the judiciary, nor have such an integral role in the appointment of judges. He or she would no longer act as speaker in the House of Lords. However, Lord Charlie Falconer, taking the bill through parliament, was alive to the need to safeguard the unique role as the guardian of key constitutional principles in government. The act is the only piece of legislation that explicitly guides a prime minister in appointing a member of his or her cabinet. Section two states that the prime minister must choose a lord chancellor to be qualified by experience as a minister, member of parliament, a practising lawyer, or academic, with a broader assertion of any “other experience that the prime minister considers relevant.” The provision attempts to promote the appointment of a senior political figure, without ambition, with legal experience and an understanding of the justice system and their traditional role. 

Section three attempts to define the lord chancellor’s priorities: the need to defend the independence of the judiciary, to ensure the judiciary has the support to exercise its functions and to stand up for the public interest relating to judicial independence in government. The act requires the lord chancellor to take an oath, confirming their commitment to existing constitutional principles for which no definitions are provided—a consequence of our unwritten constitution. 

However, it is undeniable that the act led to the diminishment of the role of lord chancellor. The creation of the role of justice secretary in 2007, although understandable, further belittled the position. It is now merely an additional title for another member of the cabinet. As Simon Brown, former Supreme Court Justice says, “the whole role has unravelled. The lord chancellor used to be at the heart of the constitution—it was always somebody towards the end of their political career, they were not ambitious for any further elevation and they were the conscience of the government, sitting at the heart of the government and keeping government at all times alert to the rule of law and the independence of the judiciary.”

Since 2005, successive officeholders have shown at best ignorance and at worst contempt for their duties. The blatant disregard for the constitutional importance of the role was perhaps best illustrated by Chris Grayling—who was repeatedly deemed to be acting unlawfully on issues such as access to justice and the human rights of prisoners. Grayling, who proudly proclaimed his lack of legal training, was open about his ignorance, telling a House of Lords committee that during his tenure the “constitutional role the lord chancellor once performed, in a very practical sense, is not currently there.” He did not reveal in what sense it was.

At the height of Brexit tensions, the Daily Mail ran the headline “Enemies of the People,” with the pictures of three High Court judges who had the audacity to rule that parliament must approve any triggering of the Article 50 process (a judgment later approved by the Supreme Court). As set out in Joshua Rozenberg’s latest book, the headline and the lack of action from the then lord chancellor, Liz Truss, had an impact, with judges fearing for their safety and recruitment and retention in the judiciary becoming far harder. These were the precise circumstances under which a robust champion of judicial independence in government was required. Truss, perhaps eager for approval from the Daily Mail, only belatedly broke her silence to offer reluctant and insufficient reassurances.

More recently, during the Covid-19 pandemic, the Home Office wrote a wholly inappropriate letter to a senior immigration judge stating that “the Home Office is somewhat surprised at the level of grants of bail in recent weeks.” This letter was sent despite the fact that the Home Secretary is represented at bail hearings and has the chance to make its case against the bail both in writing and in oral argument to the judge. The letter appeared to be a thinly-veiled threat, attempting to make broad submissions on a point of law with the weight of executive office to influence individual cases. Robert Buckland was silent on the issue and it is difficult to envisage any private rebuke from the softly-spoken justice secretary towards the extreme and powerful home secretary or her officials.

More broadly, our justice system is teetering on the brink. The Ministry of Justice has seen a 30 per cent cut in budgets over the last decade. Our prisons are over-crowded, the probation service devastated, our courts in disrepair, and the morale of the judiciary at a low ebb. There is a sense across the justice system that nobody in government appreciates the importance of a functioning system or is on their side.

The 20th-century lord chancellors were, unlike Grayling and Truss, alive to their very particular role as protector of the constitution. Lord Mackay stated that “the office of lord chancellor provides a link between the judiciary, the executive and the legislature that is broken at our peril.” Lord Hailsham felt the responsibility for judicial independence was his “paramount duty.” Indeed, he argued that a lord chancellor would be judged upon his ability to defend the principle: “If he does it well, he is a good lord chancellor whatever his other defects.” 

It is easy for day-to-day observers in Westminster to overlook the historical influence of the lord chancellor because they were often not prominent political figures. Their power was soft but potent, as the austere, elder statesman representative of the judiciary around the cabinet table. For example, when Anthony Eden resigned on grounds of ill health, there was no mechanism by which to advise the Queen as to whether to appoint Harold Macmillan or Rab Butler as prime minister. It was the lord chancellor, Lord Kilmuir, who acted as the sounding board for cabinet colleagues, and who deftly determined which candidate held the most support. If there was a dispute in cabinet between warring departments, the lord chancellor would often act as an adjudicator. John Lyndhurst, a lord chancellor under Gladstone, was described as “the great solvent,” resolving disputes. Lord Gardiner was told, upon entering office, that ministers who disagreed, but did not want to trouble Harold Wilson, would put the issue before the lord chancellor. The lofty, detached role is perhaps best illustrated by the fact that when Queen Elizabeth has been unavailable to make the Queen’s speech in parliament, it was the lord chancellor who would make the pronouncement, as in 1959 and 1963. With these figures at the heart of government, there was a level of respect and reverence to the judiciary and the justice system that is now lacking.

A return to the old system would be difficult to implement legally, nor would it be desirable. Lord Falconer was right to recognise that the old system needed reform. In the modern era the notion that a member of the cabinet could sit as a judge is simply not viable. Clarke argued that the old system “worked well… because of the personal qualities of the people who had held the post.” A chummy, old boys' club attitude to such a position is not befitting of a modern democracy.

Further, Clarke is reminiscing with rose-tinted glasses. The old system could also lead to highly unsatisfactory examples of government pressure on the judiciary. In 1994, Lord Mackay was criticised for correspondence with Mr Justice Wood which appeared to put pressure on the courts to adopt a procedure that they had deemed to be unfair. Margaret Thatcher, when prime minister, is reported to have asked her lord chancellor for “an appropriately severe member of the judiciary to be on hand” to hear the case against Clive Ponting, who was charged with offences under the Official Secrets Act after the Falklands war. It is generally considered that she got her way, despite Ponting’s acquittal.

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The emerging themes of the era mean that a voice defending the independence of the judiciary and protecting a functioning justice system is more important than ever. Figures in Boris Johnson’s government have reportedly stated that they want to “get the judges sorted” and, after gaining a majority, Johnson appointed an attorney general who has written about taking power back from the courts. The attempted constitutional vandalism requires confronting, but there is a lack of any formidable counter-attacking voice.

The spectre of Brexit, a perfect storm for constitutional crises, still looms large. Implications for the operation of case law from the European Court of Justice are unclear. Certain members of the government now desire reform of the Human Rights Act, without much thought given to the rights-based jurisprudence that has already developed in our common law.

The outbreak of Covid-19 also brings an array of issues which may cause tensions between the courts and the executive. The government is, understandably, eager to build contact tracing apps, but the implications for privacy rights are significant. The inevitable use of bio surveillance as a response to coronavirus and future pandemics may lead to further exploitation of individual liberties. The rise of a new, more interventionist state will lead to further litigation involving the state, across areas from planning to employment to healthcare. The use of technology in courts during the lockdown will lead to temptations to close court buildings permanently, making “efficiencies” to the system, when any changes must be undertaken with great care to ensure fairness. At times, decisions of the court will frustrate Whitehall. It is imperative there is an understanding within government that the courts are merely fulfilling their function.

There is a role for a great reforming lord chancellor to re-emphasise the role of the courts and the judiciary in a modern context. It will require a supportive prime minister and the political space to reimagine the administration of justice, dragging the courts, the judiciary and the profession into the 21st century by embracing appropriate technology, reforming the criminal justice sector, ensuring representation and bolstering the judiciary. The paralysis caused by lockdown should be a catalyst for such a vision, with a radical zeal rooted in the principles of the rule of law, fairness and access to justice. The best means by which to preserve the separation of powers and the independence of the judiciary is to make the system relevant to a modern society and economy. Buckland lacks the imagination or political power to even confront this proposition. 

It may be that the future guardians of our constitution will also be spread across our political landscape. The soft power once embodied in one individual will have to be exercised through different mediums. The press, not renowned for an eagerness to understand constitutional intricacies, must play a role. Parliamentarians, and the speaker of the Commons in particular, will also have to be stronger in their critique of a government acting thoughtlessly on such matters. Lawyers will have to be strategic in their lobbying of parliamentarians, not merely shout from the side lines.

The lord chancellor may always be mocked for their outfit as they approach the Queen with a scroll containing the government’s legislative agenda. But it is what the agenda contains that is most important. At the heart of any new programme should be a renewed constitutional settlement, led by the lord chancellor, with the courts’ and the judiciary’s position secure.