Lord chancellors come and go, while problems with our justice system keep on getting bigger
There has been regular comment, whenever we have a new lord chancellor, about the frequent changes in that role. Sometimes, the articles also cover how many junior ministers have come and gone.
Lord Mackay was in post for 10 years (1987–97), Lord Irvine for six (1997–2003) and Lord Falconer and Jack Straw lasted four and three years respectively. In 23 years, there were four lord chancellors. There have been seven since 2010. The current lord chancellor and justice secretary is Robert Buckland QC, who was minister of state at the Ministry of Justice (MoJ) from May to July 2019, and before that solicitor general. Since 2010, there have also been many junior ministers with responsibility for courts and legal aid: Jonathan Djanogly, Shailesh Vara, Sir Oliver Heald QC, Lucy Frazer QC and Paul Maynard have all occupied the post that covers the legal aid brief, which is currently held by parliamentary under secretary of state, Wendy Morton.
Does it matter that the people in these roles change so often? Much of the comment has centred on how the role was once seen as a great office of state and a lifetime achievement for a lawyer/politician, whereas now it is looked on as a stepping stone. The suggestion is that instead of a lawyer (we will come back to that) fiercely standing up for British justice, we now have politicians seeking to curry favour with the Treasury by making cuts.
Some of our readers may remember the Lord Chancellor’s Department. It had limited functions and one of those was funding a number of law centres, including the one I worked at in the 1980s. If you look it up on GOV.UK, there is a stark message
: ‘The Department was responsible for the judicial system in England and Wales. It was merged with the then Department for Constitutional Affairs (now Ministry of Justice) in 2003.’
If we fast forward to the Constitutional Reform Act 2005, this reformed the post of lord chancellor
(in 2006) as well as setting up the Supreme Court and increasing the powers of the lord chief justice. It was the Labour Party that brought in legislation which means that the post does not have to be held by a lawyer (a change that was not fully thought through). As the MoJ website says
, the department is now responsible for courts, prisons, probation services and attendance centres. Subsuming prisons and probation into the MoJ was always problematic as there is so much scope for uncontrollable budget growth.
It can be argued that the test now for any politician who is a secretary of state should be: can they run a government department? You do not have to be a lawyer to do that. David Gauke (a solicitor) and Michael Gove have very different politics but both appeared to be on top of the MoJ. Liz Truss floundered in the post, failing to stand up for the independence of the judiciary. Some perceived that David Lidington and Dominic Raab focused on Brexit, not justice.
If Truss’s performance supports the argument that putting a career politician and non-lawyer in the role is problematic, this is countered by Ken Clarke’s time in the post. Newly appointed, he swiftly agreed budget reductions that set a precedent for future cuts. It can be argued that this continued a line of attack, particularly on the legal aid budget, that had begun with Labour. Recently,1Legal Aid and Right to Justice event at the LSE on 30 May, organised by the Labour Campaign for Human Rights.
Lord Falconer said he regretted the way the Labour Party handled the cuts as it unleashed a respectability that enabled successive governments to cut further.
With the crisis in legal aid and the courts service, it could be argued that the junior ministers who deal with the detail matter as much, if not more, as the secretary of state. Raab was in post when there was a long delay in bringing in minor changes that would assist those who had suffered domestic abuse. Frazer, however, applied herself to the post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and steered that to its publication in February 2019.
There were many able civil servants who worked on that review. Some have moved on since, but once again there are very able people working on the Legal Support Action Plan
. However, there is no doubt that the ability of the civil service to function effectively has been impaired by Brexit. Enormous numbers have been taken from their everyday jobs and are working on its implications.
A note of optimism has been sounded by James Sandbach, director of policy and external affairs at LawWorks, who points out that the attorney general and solicitor general roles have been more stable, and that they have all been taken by respected senior lawyers. He hopes that ‘the two most recent incumbent solicitor generals who have now moved to the MoJ will help to bolster how important access to justice is to maintaining the rule of law’.
Legal aid, the courts service and prison reform may be the areas that are of most immediate concern to many Legal Action readers. It always looks as though the problems in the prison service take up most of the energy of the department, but the problems in the other areas are also at a critical stage. MoJ ministers need to step up and advocate for access to justice rather than for budget cuts.