Let’s knock one evolving conspiracy theory on the head before court starts. Since the new Prime Minister appointed Liz Truss as Lord Chancellor and Secretary of State for Justice in lieu of the defenestrated, and relatively popular, Michael Gove, a number of lawyers and politicians have suggested that Ms Truss – the third consecutive non-lawyer appointed to a specialist Cabinet role traditionally reserved for senior qualified lawyers – is a poor choice.
Former Labour Lord Chancellor Charlie Falconer thundered that the Prime Minister had failed to ensure that Truss was “qualified by experience” as required by section 2 of the Constitutional Reform Act 2005, which imposes a unique (although extremely loosely drafted) criterion upon prospective Lord Chancellors, and that Truss’ appointment was therefore “unlawful”. (For what it’s worth, I think he’s wrong in law on this point – section 2 affords the Prime Minister a discretion as to what “experience” means which is so broad as to be meaningless).
This was accompanied by the resignation of Lord Faulks from the Ministry of Justice, whereby he complained that Ms Truss lacks “clout” to fulfil her statutory and constitutional duties to uphold the rule of law and defend the independence of the judiciary, echoing Falconer’s suggestion that Truss’ relative juniority and presumed career ambitions marked her out as wholly unsuitable for the role. There followed unconfirmed reports that Anna Soubry, a fellow Conservative minister and qualified criminal barrister, had refused the offer of a junior ministerial position under Truss as “an insult”. Bob Neill, chair of the Justice Select Committee, of which Truss was briefly a member, piled in, asking whether her lack of legal knowledge, senior ministerial experience and – that word again – clout, would stymie her ability to stand up for the judiciary.
Immediately, the Truss spin machine whirred into action. How did it respond? Did she, like Gove, seek immediately to reassure the profession that she understood the validity of their concerns, that she understood and valued the magnitude of her position, and wanted to listen to and work with solicitors and the Bar to remedy what those on the inside know is a justice system in a state of collapse?
Sadly no. Instead, her people told the Guardian that what we were witnessing was simple, ingrained misogyny from a legal profession that couldn’t cope with being presided over by a woman.
“I don’t see the basis of [the criticisms]. This is coming from old, white, male judges and politicians. She [Liz] will of course be having a series of meetings with the relevant stakeholders. She will be doing those in to summer recess. But as far as I can see, this is thinly veiled misogyny,” the source said.
This narrative has now taken hold. In particular, people have been quick to leap on what they assume is a contrast in the reception afforded by lawyers to Truss and to her male predecessors, Messrs Grayling and Gove.
— Cathy Newman (@cathynewman) July 21, 2016
Why is new Lord Chancellor Liz Truss getting stick for not being lawyer. The last two in post, Chris Grayling & Michael Gove, weren’t either
— Michael Crick (@MichaelLCrick) July 21, 2016
These being but two among too-many-to-embed comments by people who, with respect, were presumably wearing particularly heavy duty ear muffs at the time of the appointment of Chris Grayling. Because when one indulges in a cursory google, it is obvious that the initial hostility towards Grayling – the first non-lawyer in the post – blows any criticism of Truss out of the water.
This selection of comments by lawyers reacting to Grayling’s appointment, compiled at the time by Legal Cheek, is of particular note. But that is the tip of the iceberg. While Grayling deserved every drop of criticism for his conduct while in post, it is fair to say that he was immediately up against it from a profession aghast at the notion that a non-lawyer with no ministerial experience in justice could be awarded such an historic role.
It wasn’t just lawyers, of course, giving Grayling a tough time. Political commentators remarked upon the wisdom of his appointment, although in light of the above tweet this was presumably a different Michael Crick decrying how Grayling’s arrival had resulted in a government with a “dangerous lack of legal experience”. Crick also referred in this piece to the broader lack of heavyweight legal talent in Cameron’s reshuffled cabinet, including the Attorney General Jeremy Wright, a junior barrister parachuted into the most senior legal position in government solely on the basis that, unlike his predecessor Dominic Grieve Q.C., he wouldn’t tell Mr Cameron the truth about the European Convention on Human Rights. The legal profession’s reaction to Mr Wright’s appointment is also worthy of remembrance. It is not just underqualified Justice Secretaries who incur the derision of Legal Twitter.
Such was the relief when Grayling was removed by the men in white coats from further experimenting his scorched earth policies on the justice system, that Gove, it is right to say, received a comparatively warm welcome. But that is the privilege of the person who turns up at the picnic with a tray of plain digestives after the shit-sandwich course. (Although the comments threads on legal websites demonstrate the number of lawyers hostile to Gove’s lack of legal bona fides.) That Truss’ welcome has fallen somewhere between these two stools is a result, partially, of her immediate predecessor having acquitted himself rather well as a listening, liberal reformist and having been rudely removed due to internal party politics rather than competence. Truss was also not helped by the thwarted anticipation that Dominic Grieve Q.C.’s support of Theresa May during the leadership elections might just propel him into the Lord Chancellor’s Office.
But, putting aside the airing of grievances from Parliamentary lawyers, my perception has been that the reaction among the profession, while inevitably of disappointment given the qualified alternatives open to May, has also been of cautious wait-and-see-ism. My blogpost on this very theme has received near-unanimous agreement from my fellow legal readers. From many quarters, she has been welcomed with open arms – such greetings often accompanied by favourable (if factually incorrect, according to Lord Pannick) comment on her becoming the first female Lord Chancellor. The Law Society, the Bar Council, the Lord Chief Justice, The Howard League, to name but a handful, all extended cheerful how-dos to the new incumbent. Where criticism has been expressed among lawyers, it has been related solely to qualification, and in terms no more strident than were directed towards her male forebears.
This is not, I should disclaim, to suggest that the legal profession does not have a problem with sexism. It does. I see it every day. I have written about it. But I don’t think that’s what we’re seeing here. At least not from the profession. We’re seeing resistance from a loud minority of politician lawyers, each with their own agenda. Charlie Falconer was, until a few weeks ago, Shadow Justice Secretary and Lord Chancellor, for example. Anna Soubry’s chagrin, if as reported, can safely be attributed to understandable indignation at being passed up for someone objectively far less qualified, rather than sexism.
At Faulks and Neill, however, I should pause. Because there is something else at play there. The credibility of Bob Neill’s professed concerns for justice is borne witness by how readily he surfed the airwaves to support Grayling’s insane proposal to forbid defendants from choosing their own lawyer – a policy so fundamentally stupid that even Grayling himself abandoned it. Lord Faulkes’ principles, allowing him to serve for 18 months under that despicable, dangerous, mendacious constitutional vandal Chris Grayling but prohibiting him from serving one day under the unproven Ms Truss, appear similarly transient. It would be nice if, instead of simply regurgitating their protestations of concern, the press had asked these two men why they felt able to wholeheartedly support the least-qualified, most incompetent Secretary of State of all time, yet not an equally under-qualified woman.
This – at politics – is where dark questions as to malign intent should be directed. Not at the professions. As Mr Gove would no doubt tell you, we can be quite nice sometimes.