As part of its inquiry into the office of Lord Chancellor, the Constitution Committee asks whether “new” (i.e. post-2003) Lord Chancellors have actually defended judicial independence in line with their customary and now statutory duty to do so. I was asked for examples earlier this summer when appearing before the Committee (with Andrew Le Sueur and Patrick O’Brien). I tried to identify some, but rather garbled my answer. Earlier in the year I also sketched some thoughts about Lord Chancellors in Public Law, but struggled to find clear-cut examples. One reason is that collective cabinet responsibility and the confidentiality of exchanges between Lord Chancellors and judges mean that outsiders will seldom have a full picture of what has occurred behind closed doors. This is unfortunate since my impression is that many lawyers assume—mistakenly, I think—that new Lord Chancellors are neither willing nor able to defend judicial independence. This post is hopefully third time lucky in correcting this assumption. By drawing on press reports, public statements and interviews that Robert Hazell, Kate Malleson, Patrick O’Brien and I conducted between 2011-2013, I want to piece together evidence that suggests that new Lord Chancellors can and do defend judicial independence.
An important part of the Lord Chancellor’s role is to encourage colleagues to respect the convention that ministers should not criticize judicial decisions or the judges who deliver them. One way Straw sought to “repair fences with the judiciary” (p498) after the tensions of the Blair era was by clamping down on breaches of the convention, as obliquely acknowledged in 2010 by the LCJ (Q13). Few ministers, if any, broke the convention during Straw’s tenure as Lord Chancellor. According to a senior official we interviewed, officials in Straw’s private office would contact counterparts in other departments in advance of judgments in politically contentious cases to remind them that ministers must not criticize judicial decisions in public. The contact was between officials, but reflected the tone set by Straw.
Not all Lord Chancellors will be as successful as Straw in promoting respect for the convention: from time to time ministers will vent their frustration. The question that then arises is whether the Lord Chancellor will fulfill his or her duty by, for example, speaking with the ministers, rebuking them and eliciting an undertaking that their outbursts will not be repeated. In 2006, the Home Secretary, John Reid, criticized the sentence handed down to Craig Sweeney, a sex offender. Further criticism followed from the PM’s spokesman in a press briefing and Vera Baird, a junior minister at the Department of Constitutional Affairs. This episode is commonly cited as one where Lord Falconer, “did not fulfill [the Lord Chancellor’s duty] in a satisfactory manner”. But, as I see it, this should be read as an example of a Lord Chancellor energetically —and, if a long view is taken, rather successfully—enforcing his duty.
No doubt this whole episode was unedifying. But it is difficult to imagine what more Falconer could have done. According to our interviews, the Lord Chancellor spoke with the Home Secretary on the day of his comments. During a tense conversation, Reid indicated that he would not repeat the criticism. When on the next day the PM’s spokesman endorsed Reid’s criticism, Lord Falconer spoke with Blair to explain why Reid’s comments were inappropriate. Like Reid, the PM indicated that the criticism would not be repeated. At the end of the week Vera Baird said on the radio that the judge had got the sentence wrong. Falconer spoke with her and procured a written apology, which was published on the department’s website. Falconer also appeared that week on the BBC’s Question Time programme, stressing that judges should not be treated “as whipping boys”. Deciding how to respond to a ministerial outburst is always a question of judgment. It seems reasonable for Falconer to have concluded that discreet action behind closed doors would be more effective than more public steps. And arguably he was proven correct: so far as I can recall, Reid did not breach the convention during the rest of his time as Home Secretary, at least not as brazenly, with Blair also muted in his public comments on the courts during his final year as PM. Viewed in this light, Falconer could be said to have fulfilled his duty effectively.
Much ultimately depends on the lead set by the PM. This in turn raises the question of whether new Lord Chancellors can effectively rebuke the PM, on whose patronage they will depend to a greater extent than their predecessors who were usually at the end of an eminent legal career and not ambitious for promotion. A recent example suggests that new Lord Chancellors will take senior colleagues, and even the PM, to task. In 2011, the PM and Home Secretary criticized the Supreme Court’s decision in Re (F) on the notification requirements for sexual offenders. Ken Clarke wrote to the Home Secretary, with the letter copied to No. 10 in an indirect rebuke to the PM. As reported on The Spectator’s blog, Clarke reminded Theresa May, and by extension David Cameron, that they were “constitutionally obliged to accept the independence of the judiciary”. I suspect that this incident was one that Lord Phillips had in mind when he referred to “one or two occasions” where Lord Chancellors have “made it plain” to ministers and even the PM that public criticism was not acceptable. (As an aside: Clarke himself received a letter from Phillips objecting to the comments and encouraging him to take action. But as one judge remarked, Clarke would likely have done so with or without judicial encouragement).
Responding to Legitimate Judicial Concerns
A second way that Lord Chancellors can defend judicial independence is by listening to legitimate judicial concerns and articulating them inside government. An example is Lord Falconer’s battle over proposed changes to judicial pensions. In late 2004, The Daily Telegraph reported that a row erupted in cabinet over Falconer’s proposal to exempt judges from rules in that year’s budget that would cap tax relief on pension contributions at £1.5m. The Lord Chancellor had promised an exemption to judges before clearing this with his colleagues. In his memoirs Jonathan Powell relates how the matter, quite unusually, came to the cabinet, where Gordon Brown “and others raised strong objections” (63). No decision was taken for several months, but the Lord Chancellor continued arguing for a judicial exemption. Despite opposition from Labour backbenchers, Falconer announced in late 2005 that judicial pensions would be de-registered from the Finance Act 2004, and hence not subject to the cap. In other words, the judges won their exemption with the Lord Chancellor’s help.
Arguably, this episode was less about judicial independence and more about judicial self-interest. But the judges themselves presented the issue as one impinging on their independence—and for present purposes I’ll assume that they were correct. Threats of judicial resignations and judicial review were important alongside Lord Falconer’s efforts. And it is true that in a different financial climate in 2013 the Treasury clawed back the exemption. On its own terms, however, this furore saw the Lord Chancellor resist pressure from powerful colleagues and backbench opposition to successfully represent judicial interests.
Evaluating Lord Chancellors
My point is that there is evidence that Lord Chancellors can and do defend judicial independence. I’m not suggesting that everything in the garden is rosy. Relations between the government and the judges are at times strained, and Lord Chancellors and judges will disagree about how best to manage, organize and fund the courts, and may have serious disagreements about important issues relating to legal aid and judicial review. There will also be times when Lord Chancellors are slow to defend judicial independence, if they do anything at all. All of this is true and yet much, and possibly most of the time, Lord Chancellors still take seriously their duty to defend judicial independence. Over and above this basic insight, four further points must be kept in mind.
First, it is unrealistic to expect new Lord Chancellors to be preeminent guardians of judicial independence in the same way as was said to be true of pre-03 officeholders. One consequence of twinning the office with the role of Secretary of State for Justice is that Lord Chancellors spend much less time on judiciary-related issues. This likely makes it more difficult to respond as swiftly to judicial concerns. But even if the post-2003 Lord Chancellors are less reliable and less proactive guardians, and even if they not a systematic defender of judicial independence, this does not mean that their role is without value.
Second, the fact that Lord Chancellors might not be the preeminent guardian is off-set by the many other actors who contribute to judicial independence. Some have a clear responsibility to do so (e.g. the LCJ; the JAC; the JCIO, the Constitution Committee); others do so indirectly via their day-to-day work (e.g. the clerks in the Table Office). Other actors within government help foster judicial independence (e.g. the Attorney General; the Treasury Solicitor; other government lawyers). The Lord Chancellor is only one part—albeit, as the examples above demonstrate, a very important part—of the way judicial independence is secured.
Third, politicians without the legal pedigree of old-style Lord Chancellors, or who are not even lawyers at all, can grasp the importance of judicial independence. Several of our judicial interviewees commended recent Lord Chancellors, albeit acknowledging that they had not always seen eye-to-eye with them. One senior judge, for example, said that Straw and Clarke clearly understood judicial independence, and another judge said that he had been “quite impressed” by Grayling despite his lack of legal training, a view echoed by a third judge. New-style Lord Chancellors will not sound like their predecessors, and often this grates on lawyers’ ears (e.g. when Ken Clarke could not recall how many women were on the Supreme Court). But lawyers should be less precious about this, and recognize instead that the new Lord Chancellors can potentially bring something of value to policy discussions (e.g. by adding political impetus to the judicial diversity debate or encouraging judges in leadership roles to “succession plan”).
Finally, Le Sueur and O’Brien have each argued that the office should be abolished, with its functions easily subsumed within the twinned role of Secretary of State for Justice. (See Patrick O’Brien’s posts here and here). I disagree. There is still value in ascribing certain important constitutional functions to the office of Lord Chancellor as distinct from, even if occupied by the same person as, the Secretary of State. This can assist officials who brief new ministers about the office’s special responsibility to defend judicial independence, especially important if the new minister is not legally qualified. It presumably also helps a Lord Chancellor when reprimanding colleagues if he or she can point to their customary duty as Lord Chancellor. And as Lord Hope has suggested, “we would lose something intangible” if the office was scrapped. In a constitution such as ours, symbols such as the office of Lord Chancellor matter. But, above all, now is not the time to inject more uncertainty into the judicial system by scrapping the role. Judicial-executive relations have changed considerably since 2003, and will do so for some time yet as the full implications of recent reforms become clear. What is required now is a period of relative stability to allow new practices to solidify, leadership roles to become clearly defined and relationships to mature.
Graham Gee is a lecturer at the University of Birmingham. Between 2011-13, he worked with Robert Hazell, Kate Malleson and Patrick O’Brien on an AHRC project exploring, amongst other things, the office of Lord Chancellor. Their book on The Politics of Judicial Independence in the UK’s Changing Constitution is published by CUP in 2015.
Suggested citation: G. Gee, ‘Do Lord Chancellors defend judicial independence?’ U.K. Const. L. Blog (18th August 2014) (available at http://ukconstitutionallaw.org).