Wednesday, November 30, 2016

Appointment of new Lord Chancellor and Secretary of State for Justice

A full list of government appointments has been issued.  The new Lord Chancellor and Secretary of State for Justice is Elizabeth Truss MP - see Parliament (Elizabeth Truss).   Here is the list of those appointed to the Ministry of Justice:
  • Lord Chancellor, and Secretary of State for Justice – Rt Hon Elizabeth Truss MP
  • Minister of State – Sir Oliver Heald QC MP
  • Parliamentary Under Secretary of State – Sam Gyimah MP
  • Parliamentary Under Secretary of State – Phillip Lee MP
  • Lord Keen of Elie QC - see Ministry of Justice and Law Society Gazette 21st July
It is yet to be revealed whether the new justice team will lead to changes from the policies of the previous Lord Chancellor and Secretary of State (Michael Gove MP).  Much will have been done by the Ministry during his tenure and this will include work on matters such as prison reform and the British Bill of Rights.  We await developments.

The point is continually made that Elizabeth Truss

is not a lawyer.  Historically, the Lord Chancellorship came to be held by a lawyer and many experienced and able men held the post - here is a list.  Until the Constitutional Reform Act 2005 (CRA) the Lord Chancellor was a member of all three branches of government - the Judiciary, the Executive and the Legislature.  For example, in a judicial capacity, the Lord Chancellor presided over the Appellate Committee of the House of Lords though the last to do so was Lord Irvine of Lairg.  The old arrangement and the changes made by the CRA are discussed in some detail in this report on the Role of the Lord Chancellor,

The CRA section 2 states:

(1) A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.

(2) The Prime Minister may take into account any of these—

(a) experience as a Minister of the Crown;

(b) experience as a member of either House of Parliament;

(c) experience as a qualifying practitioner;    (this is further defined in subsection 3)

(d) experience as a teacher of law in a university;

(e) other experience that the Prime Minister considers relevant.

Section 2 does not require that the Lord Chancellor be a lawyer though it might be thought that there is a bias toward either legal knowledge or qualification.  Fully analysed, the criteria are essentially meaningless.  As noted in The Office of Lord Chancellor (Graham Gee - Birmingham University July 2014) - section 2(2) provides that the PM may take into account ministerial and parliamentary experience, which in effect gives the PM a freehand in making the appointment. If this was in doubt, it is removed by s2(2)(e) which permits the PM to take into account “any other experience that [he or she] considers relevant”

The CRA Section 3 is concerned with judicial independence.  The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.

Section 3(6) requires the Lord Chancellor to have regard to - (a) the need to defend that independence; (b) the need for the judiciary to have the support necessary to enable them to exercise their functions; (c) the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters.

In December 2014 the House of Lords Constitution Committee published its Report on the Office of Lord Chancellor and concluded that on balance it was not essential for the Lord Chancellor to be a qualified lawyer; but that a legal or constitutional background is a distinct advantage.

The appointment of Elizabeth Truss has come in for criticism from Lord Falconer of Thoroton who was the last Lord Chancellor to be appointed under the pre-Constitutional Reform Act process.  Bob Neill MP - Chair of the Justice Committee - has joined in with Falconer's criticisms.  Yet more criticism came from Lord Faulks QC who resigned his position in the government.  The criticism from Falconer appeared in a letter to The Times 19th July 2016 where he says:-

"The new prime minister’s reshuffle could not have revealed more clearly her indifference to the rule of law. In any government the lord chancellor has a duty to ensure that judges are properly protected from political attack and are able to act independently — and that the government itself always acts in accordance with the law.  The lord chancellor has to be someone with the weight and stature to stand up to the prime minister or the home secretary when, for instance, they want to compromise on complying with the law in an attempt to placate the public ....."

It may be that Elizabeth Truss is not the established heavyweight politician (elder statesman?) that some might like to see in the LC role but there can be no doubt that she meets the statutory criteria for appointment - Parliament - Elizabeth Truss.  Any suggestion that Theresa May has acted unlawfully in appointing Truss is risible.  The true test will be in her ability to manage a large department, to work well with the judiciary (especially the Lord Chief Justice) and whether she gains the respect of other Ministers so that she is able, if needs be, to defend judicial independence and to remind other Ministers of their own duty to do so.  This seems to require the skills needed for any Minister - ability to master a complex brief, willingness to seek and take fully into account advice, an ability to delegate tasks to others and the ability to gain the confidence of Ministers, the House of Commons, civil servants and other stakeholders.

On all of that, only time will tell.  Meanwhile, for my part, I hope that her appointment works out well for justice and, as with her predecessors, she will be judged by her policies and her deeds.  This blog and many other bloggers and commentators will be watching how things go!

: Swearing in : 

The new Lord Chancellor was sworn in on 21st July before the Lord Chief Justice.  In her speech she said that - "the rule of law is the cornerstone of the British way of life" and that "the fundamentals of civilisation and liberty depend on the rule of law."  Read also the speech by the Lord Chief Justice.

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