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Blurred Boundaries: have politics become an unwelcome influence upon the Lord Chancellor?

About The Author

Chris Sykes (Writer)

Chris holds a BA in History from the University of Oxford, and subsequently completed the GDL in 2012. Chris is an Inner Temple Princess Royal Scholar, and will commence the BPTC in September 2014. Chris is a passionate opponent of capital punishment and a strong supporter of legal aid.

Spare a little sympathy for our Lord Chancellor, Chris Grayling. Besides dealing with striking barristers and outraged authors, he must occupy a famously tricky office that is ‘an institutional expression of the blurred boundaries between law and politics’ (see Graham Gee, ‘What are Lord Chancellors For?' [2014] Public Law 11). He now faces mounting criticism for allegedly prioritising his political interests over his constitutional duties. This criticism is likely to have at least partly motivated the House of Lords Constitution Committee to launch a new inquiry into the nature of the Lord Chancellor’s office.

The Committee called for evidence on July 3rd and will report by the end of autumn. Broadly speaking, it has three objectives: to investigate the responsibilities of the combined role of Lord Chancellor and Justice Secretary; to consider the criteria for appointment to the office; and to assess the need for further reforms to it. One area of interest is whether the combined nature of the role is ‘appropriate’ and, if not, should ‘the Lord Chancellor be a more independent voice?’ In other words the Committee will, among much else, assess whether the political concerns of the Justice Secretary have become an undue influence upon the duties of the Lord Chancellor. This article will consider some of the main points that relate to this question.

It is tempting but incorrect to blame the politicisation of the Lord Chancellor’s office upon Grayling alone. Rather, its politicisation is the result of administrative and legislative changes that have seen the office swell in size and importance over the course of decades. To name but a few recent additions to the office: it gained authority for the administration of the courts in 1972, of criminal legal aid in 1988, and of human rights in 2001. Under Blair’s tenure as Prime Minister, a range of important functions that had previously fallen to the Home Office were reallocated to the Lord Chancellor (for example, responsibility for prisons and probation). In the words of Professor Graham Gee, these changes caused the Lord Chancellor to evolve ‘from a small private office somewhat apart from Whitehall orthodoxies to a large, resource-intensive department subject to the same public management regime of accountability, efficiency and value for money as any other government department.’

Legislative changes reinforced this process of politicisation. The Constitutional Reform Act 2005 narrowed the office’s powers by terminating its authority as head of the judiciary and as presiding officer of the House of Lords. This development has been credited with making the office a more overtly political one, and reducing its function as a defender of the rule of law. The subsequent decision in 2007 to merge the Lord Chancellor’s role with that of the Justice Secretary has been described as ‘seismic’ in its constitutional importance. The merger caused the office-holder to be responsible for juggling the Lord Chancellor’s constitutional duties with the Justice Secretary’s political concerns.

The effect of these changes has been to make the combined role more akin to any other conventional ministerial office. As a result, the office-holder has become a political appointee rather than the supposedly more apolitical figure of yesteryear. Although not responsible for this development, Grayling appears to epitomise it by his tendency to interpret justice policy through a politically partisan lens. For example, he justified his restriction of judicial review by claiming that it had become a ‘promotional tool for countless left-wing campaigners’. Similarly, he blamed ‘left-wing pressure groups’ for the outcry over his restrictions on the sending of books to prisoners. This partisanship is predictable for a politician described as an ‘attack dog’ by The Spectator, but it becomes more novel when it comes from the Lord Chancellor.

Grayling’s partisanship has by now attracted critical remark from across both Houses of Parliament. Lord Woolf stated in a strongly-worded critique that the intensity of Grayling’s partisanship prejudiced his ability to uphold the rule of law. The Joint Committee on Human Rights (‘JCHR’), a cross-party committee made up of MPs and Lords, similarly concluded that his ‘politically partisan reasons for restricting access to judicial review... do not qualify as a legitimate aim... nor are they easy to reconcile with the Lord Chancellor’s statutory duties in relation to the rule of law.’ Baroness Helena Kennedy added to the JCHR’s conclusions that the ‘politicised premise’ on which Grayling had limited judicial review was ‘rejected entirely’.

The politicised premise on which Grayling has based his justice policies has received further criticism from beyond Westminster. Senior members of the Bar have expressed misgivings about Grayling’s political approach to justice policy. Lord Lester QC criticised Grayling for conducting himself according to an ‘insular ideology fuelled by right wing sections of the media and Europhobic politicians’. More prosaically, some argue that Grayling’s political agenda prevents him from finding practical solutions to immediate problems. Jenny McCartney of The Telegraph criticised his response to the strike by criminal barristers as expressive of little more than a ‘desire for control and the flailing avoidance of political embarrassment by any and all means necessary.’

Many critics seem to assume that the Lord Chancellor should not be a political figure, but this opinion is not universally held. Professor Graham Gee of University of Birminghamargues in his article ‘What are Lord Chancellors For?' that it is preferable for the Lord Chancellor to be a political appointee with closer links to Westminster. The office-holder has the benefit of the outsider’s eye when it comes to managing the justice system, along with the political power necessary to reform it. In short, what the office-holder loses in political independence they gain in the potency needed to enact meaningful reform.

Gee’s argument is, however, overwhelmed by the more numerous critics who see the Lord Chancellor’s politicisation as problematic. There seems to be greater support for the JCHR’s view that the ‘conflict inherent in the combined roles’ compromises the office-holder’s independence by turning them into a ‘political minister in a government which has collective responsibility for its political views.’ This in turn prevents the office-holder from ‘standing up within government for the interests of the justice system.’ Put differently, the Lord Chancellor cannot effectively defend the rule of law if they are beholden to the same political forces that might have an interest in its curtailment. This conflict of interest is all the more likely since, as John Crook of the Constitution Unit observes, new-style Lord Chancellors ‘are increasingly likely to be ambitious mid-career politicians’ rather than those enjoying the independence that comes during the twilight of a political career.

The Committee will address the above points when assessing whether the combined role has become excessively political. It will also engage with the range of other unresolved issues that have caused the office to be characterised as a ‘heap of anomalies’ since as long ago as 1867 (see Walter Bagehot, The English Constitution, 1867). Hopefully, its proposals will do more than past reforms which often merely exchanged one anomalous heap for another. Achieving this will rely upon the successful balancing of the office’s political concerns with its obligations to the rule of law. This may require yet more amendments to the office, or perhaps a more iconoclastic approach that might, for example, reallocate its constitutional duties elsewhere. At any rate, one objective of the Committee must be to clarify what constitutes appropriate behaviour from a politician in Grayling’s sensitive position. Achieving this end would allow whoever succeeds him to avoid at least some of the rancorous controversy that dogged their embattled predecessor.

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Tagged: Constitution, Courts, Justice, Legal Aid, Rule of Law

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