David Lidington can learn from Liz Truss’ mistakes
I hope you won’t mind me addressing you by your first name. You may not remember but we were last in touch 30 years ago, when I was covering home affairs for BBC radio news and you were special adviser to the reforming Home Secretary Douglas Hurd.
I’m a bit older than you and I have known all your predecessors since Lord Hailsham of St Marylebone, whose sacking in 1987 I also covered. So I hope you will not be too offended if I offer you a word or two of friendly advice.
This afternoon you will take your judicial seat in the Lord Chief Justice’s court and swear your oath of office. You will be familiar with men in tights from your 11 months as leader of the House of Commons and Lord President of the Privy Council. But this ceremony is rather different. You are sitting there today because Elizabeth Truss, your predecessor, failed to understand its true significance when she was sworn in as Lord Chancellor less than a year ago.
After you have taken the bible in your hand, you will swear to “respect the rule of law, defend the independence of the judiciary and… ensure the provision of resources for the efficient and effective support of the courts”. If you are in any doubt as to what these oaths mean you should have a word with the Lord Chief Justice, who will be sitting alongside you. Lord Thomas has been the most senior judge in England and Wales for less than four years but you will be the fourth Lord Chancellor he has worked with.
Last Thursday, Lord Thomas delivered the second of two major lectures on the governance of the judiciary and its relationship with the executive. In it, he said that you, as Lord Chancellor, were “not simply a Secretary of State with a separate title resonant of our long history”, such as the Chancellor of the Exchequer. Your job is “manifestly different from that of any other minister”.
Explaining your statutory duty to defend the independence of the judiciary, he referred to the Daily Mail headline last November that described him and two of his senior judicial colleagues as “enemies of the people” (pictured below). This, he said, was “language used most commonly by totalitarian dictators”. The Lord Chancellor had been “under an obligation to speak out firmly” against such abuse, he said, because judges like Lord Thomas himself “were not able to do so”.
And why hadn’t Liz Truss spoken out? Lord Thomas offered two thoughts. First, the Lord Chancellor needed to be a person of special quality and ability. And, secondly, the Lord Chancellor needed to be the sort of person who could stand up to the Prime Minister. He seemed to be suggesting that she had failed on both counts.
Parliament has not tried to specify the qualities required of a Lord Chancellor. All it has said is that a candidate for appointment must appear to the Prime Minister to be qualified by experience. The Constitutional Reform Act 2005 adds that the Prime Minister may take into account a candidate’s experience as a minster or as an MP. Surely all your predecessors since 2005 have satisfied that requirement?
Not according to Lord Thomas. He implied that David Cameron had treated the need for experience as “ineffective” in 2012 when he appointed Chris Grayling, who had not previously held Cabinet office.
And what about Liz Truss? Lord Thomas was more circumspect about her last week than he has been in the past. It’s widely believed her response to the Daily Mail headline last year was too little and too late because she had not received clearance from Downing Street to say anything. We are now told that communications from Cabinet ministers to the Prime Minister were filtered through — and sometimes blocked by — her chiefs of staff, Nick Timothy and Fiona Hill, who resigned after the election result this month.
But you are in a much stronger position than Liz Truss — and not just because Theresa May is so much weaker than she was before the election. You have been an MP for 25 years. Before becoming leader of the Commons, you managed to clock up six years as Minister of State for Europe. So you should have no trouble following the blueprint set out for you by Lord Thomas last week.
The Lord Chancellor’s duties “may require the holder of the office to act against the wishes of other members of the Cabinet or the Prime Minister,” he said. “The duties are an essential part of the proper interdependence inherent in the operation of our constitution and an essential safeguard to the independence of the judiciary which is fundamental to the maintenance of the rule of law, our democracy and the prosperity and good order of our state.”
And what in particular do those duties demand of you? First, you might like to have a word with your fellow MPs. Lord Thomas disclosed that some of your colleagues have been writing to judges on behalf of constituents involved in proceedings. “There has been a suggestion, no doubt inadvertent, that the letters should or could be taken account of by the judge dealing with the proceedings,” he said. It must have been inadvertent, he said with studied irony, because he was “sure that no member of parliament would deliberately seek to influence a judicial decision”.
Secondly, you might remind your ministerial colleagues that judges cannot give them legal advice. In particular, they cannot tell ministers in advance whether particular proposals (such as planned counter-terrorism measures) would be consistent with human rights. Charles Clarke, Labour Home Secretary from 2004 to 2006, could never understand this.
But what the judges can do is give ministers practical and technical advice. “A current example of this is the advice being given in relation to the technical issues that will arise in relation to legislation consequent on Brexit,” Lord Thomas disclosed. But political choices remain firmly with the government and parliament.
Even senior judges sometimes find it difficult to draw the line, though. There had been some recent occasions when judges had overstepped the mark and entered the realm of political comment, he observed. Unsurprisingly, the Lord Chief Justice didn’t name names.
As Justice Secretary you will face many other challenges. I hope you have been given Cabinet authority to reintroduce the Prisons and Courts Bill, which lapsed at the election. Most of the bill is regarded as uncontroversial although lawyers fear — wrongly, I believe — that it will take the bread out of their mouths.
The bill sets out, for the first time, what prison is for. But do not make the mistake of thinking it will make prisons easier to run. For that, you will have to persuade colleagues that the prison population should be reduced. You will find that the bill also paves the way for so-called online courts. Again, though, the legislation will do little by itself. Provided you can maintain the existing Treasury funding for court modernisation, though, you will begin to reap the benefits and discover that courts can be run much more efficiently and effectively than they have been in the past.
But your biggest challenge is to win over the judiciary. They can see that you’re quite a brainy fellow, which is an excellent starting point when dealing with a group of people who set great store by intellect. What they will be waiting to see now is whether you have the sort of empathy that your boss so clearly lacks.
Nobody is expecting you to put your arms round the judges you will be meeting this afternoon — at least, not literally. But what they do expect you to understand is how undervalued they feel and how worried they are that you will not be able to fill some 25 vacancies in the High Court, leading to a dangerous drop in standards.
It’s not just that Chris Grayling cut the judges’ benefits to the point at which, for some new recruits, judicial pensions were effectively worthless. It is not just that judges sitting in crime face an unremitting diet of child abuse and sexual assault. It is not just that in an increasingly egalitarian age the honours and distinctions that arrive with the rations seem less attractive than they once were. And it is not just the lack of resources — seen just as much in the shortage of court ushers as in the demand from Lord Thomas last month that the judiciary should have a “clear and effective governance structure”. It is all of the above.
In just over two weeks’ time you will have to address senior judges at their annual work outing: a dinner at Mansion House hosted by the City of London. You will find the judges courteous, anxious — and disappointed to find that you are another non-lawyer.
I don’t suggest you shatter their illusions by telling them that the Lord Chancellor is not — and never was — their champion in Cabinet. But you have ten minutes or so to win them over, to demonstrate your commitment to the rule of law and to the independence of the judiciary, to persuade them that you understand your responsibilities and will do your best for them.
You will be judged by your words, your tone and your credibility — that, after all, is what judges do for a living. They will be listening carefully, hoping that you will be able to rescue and revive the judiciary of England and Wales, along with the entire system of justice that depends on it.
So do we all.
Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. You can read his previous Legal Cheek articles here.