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An open letter to the new Lord Chancellor from Joshua Rozenberg

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David Lidington can learn from Liz Truss’ mistakes

Dear David,

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.

Yours ever,

Joshua

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.

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19 Comments

Liz Truss

Oh to heck with all that. Just offer them some cheese! 🙂

Anonymous

If only the PM understood the issues like Joshua. Or indeed, cared about them at all.

Anonymous

Theresa May has proven herself to be pretty vacant when it comes to intellectual analysis, and unable make a deicsion without consulting special advisers. I doubt that’s going to be good for the law, Brexit or the country.

Anonymous

As a person who has been a victim of judges decisions at the RCJ in judgments that can’t withstand scrutiny when all relevant submissions considered by the said judges are examined by an informed person: I can’t see what Liz Truss could have said on the criticism of the judges concerned without being accused of trying to silence freedom of speech. Judges criticise persons in their judgments and I was labelled “manipulative” by a very senior judge (note I pray the said judge will pick up my next case because there can be no doubt he will be held to account) at the RCJ: That’s democracy.

Gladiatrix

I take it that you do know that you can complain to the presiding judge in each division and to the JCIO about the members of the judiciary?

Anonymous

Well, where do I begin. You clearly feel bruised by the words of a judge or judges; can’t really comment on that. The tone of your email give me the distinct impression you may not be wholly balanced though, so perhaps that may be relevant. Ditto the fact that. if I understand you correctly, this has happened more than once by more than one judge. They could all be wrong, but…..

What could Truss have done? See the multiple articles on this, available readily. She could (and constitutionally should), have issued statement condemning the personal attacks made by these abhorrent rags which were personal and irrelevant to the judgments they issued, in carrying out (quite properly) the function they were fulfilling. Nothing wrong with making comments about the judgments themselves, but her duty was to say the personal attacks were wrong, and to defend the judges against whom they were made. Instead she went running to no. 10 where the politicos tied her hands, assuming it even occurred to her she should be doing something.

but why am I bothering; you are clearly always right; everyone else always wrong.

Anonymous

Did you appeal? Surely if an “informed person” could see that the judgment couldn’t withstand scrutiny, an appeal court would too and overturn the decision?

Mike

And when they used the ‘ without merit ‘ line but can not tell you why and it’s covering their arse or liking to keep their jobs

Anonymous

Joshua Rozenberg

Ian Brady

I shall be posthumously pardoned

Hailsham's mate

Alas Lord Hailsham. I knew him well. Did you know he spoke fluent Latin?
When he met the Bishop of Bulgaria behind the Iron Curtain, they were guarded by Ruskis. They spoke in Latin , which rather flumaxed the Ruski guards.
Hailsham was always nice to me.

Anonymous

Exclect anecdote.

Smiles all round

He was nice. He gave me biscuits.

Hailsham's mate

I got lemonade too

Anonymous

Many thanks, Joshua, for a brilliant letter reminding the LC of his vital constitutional duty to stay independent of the executive, uphold the rule of law and ensure the judges have the resources and space to do their job without fear or favour. It would be good if you could arrange an interview with him where you could investigate what Chinese Walls have been put up between himself and the Cabinet to guarantee that independence.

Anonymous

Thanks. I’ll put in a request to interview him on next week’s Law in Action. But that may be too soon for him.

Joshua Rozenberg

Sorry, meant to sign last post.

Anonymous

I liked the tone of Joshua’s letter overall. There is a sacred cow, though, and that is that it is difficult to criticise a judge (they are fallible, like the rest of us). Unfortunately, due process isn’t always delivered; the rule of law isn’t always observed and, under the TCEA, appeal is less likely to be granted. The odds are stacked against the increasing number of LIP’s in these situations, undermining public confidence in the independence and impartiality of the justice system. One of the roles of the Lord Chancellor, surely, is not just to butter-up the judges; but to challenge when they occassionally fall short of their own admirable standards, albeit with an understanding of the very real strain the justice system is under and the difficult context of low morale. The public perception that Justice is scrupulously delivered is central to societal stability. It didn’t happen for me and I cannot adequately describe the shock and loss of trust.

Deed U No

Discuss – the last great Lord Chancellor was – Lord Falcolner ?

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