Goodbye Liz Truss, Hello David Lidington – a brief look at the new Lord Chancellor

Liz Truss, we hardly knew ye. Three days short of eleven months since her appointment as Secretary of State for Justice and Lord Chancellor in Theresa May’s debut cabinet, Ms Truss bows out to a slow handclap. Her achievements can be shortly listed, for they are none. Liz Truss never asked for the job, and, as became clearer each day of her eleven months-less-three-days overstay in the Ministry of Justice, was woefully ill-equipped for each aspect of it. She did not understand the policy she was promulgating wearing her Justice Secretary’s hat – having to be embarrassingly corrected by the Lord Chief Justice when she misunderstood and announced a policy about live link evidence in criminal trials –  and lacked the resolve to carry out her constitutional functions in her Lord Chancellor’s robes.

At the time of her appointment, many people expressed concerns at Truss’ selection. They were accused by Truss’ supporters of rank sexism; in dispensing with Truss’ services after less than a year, Mrs May vindicates these critics. The painful truth is that, as suspected, Truss was never cut out for the role. Her appointment betrayed the Prime Minister’s shameful lack of understanding of the constitutional function of Lord Chancellor; indeed, it was painfully clear that May was blissfully unaware that, unlike any other cabinet position, there is a specific statutory requirement that a Lord Chancellor be “suitably qualified by experience”. This is because the Lord Chancellor has a specific constitutional role: they swear an oath which provides:

I do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.

A potted history of the role of Lord Chancellor is set out here, but in short, the position exists to ensure that someone in government is explicitly charged with acting as a watchdog for the rule of law and the justice system. The Lord Chancellor should be someone of sufficient gravitas and political clout to stand up to their colleagues and say: What you are proposing offends the rule of law/independence of the judiciary/efficient support of the courts, and is wrong. It is for this reason that the ideal job specification calls for someone of significant legal and political experience, usually in the twilight of their career, who is prepared to give a merry two fingers to the Prime Minister and Cabinet in the overriding interests of our constitution.

The apparent lack of experience and fortitude, and the whiff of a Graylingesque desire to treat the Ministry of Justice as a stepping stone to better things, founded the main objections to Truss. While many of us were disappointed that she was the third non-lawyer to be appointed in a row, Michael Gove’s relative success during his short spell tempered some of our self-regard. On the day of Truss’ appointment, I wrote:

“Yes, I would have preferred the role to go to someone whose profession has been chugging towards this last stop before retirement, unbeholden to the vagaries of political caprice, rather than a young MP with her eyes, one fears, on bigger, brighter things. I would, given a choice, opt for someone who has been in the trenches, who has sat in urine-stained cells with an addict smashing his face against a chair as you try to take instructions while a Crown Court judge loftily bellows for your attendance upstairs. Who knows what it is to be a partner in a legal aid firm one delayed LAA payment away from going under. Who has a lifetime’s worth of legal and constitutional wisdom to infuse into their political decisions.

But if Mr Gove has taught us anything, it is that it is only right and fair to  pause and see what Ms Truss has to offer. Whether she is going to, as was reported happened at Environment, offer her department as a sacrificial cow in the post-referendum austerity era, or whether she is going to stick on her ceremonial wig, take soundings from experts and tell Theresa May that enough is enough, the courts are crumbling, legal aid is cut through the bone, the CPS is starved and the rule of law and access to justice are becoming rhetorical shells, and that root-and-branch reform and replenishment of the criminal justice system – from police station through to release from prison – is something she is going to physically fight for at every cabinet meeting, even if the consequences are that she is politically blacklisted from the Party, and higher office, for the rest of her career.

Because if that’s the kind of Lord Chancellor Ms Truss is going to be, fearlessly faithful to her oath of office, immersing herself in the law, doing right and fearing no-one, I don’t think I’d mind that she doesn’t have a law degree. And I don’t think my colleagues would either.”

But it quickly became clear that Truss was not that kind of Lord Chancellor. She had indeed been appointed precisely because May knew that she would not startle the horses. When May’s cheerleaders in the tabloid press and tub thumping Brexiteers, inexplicably livid at the notion of British judges doing their jobs and ruling on cases lawfully put before them in British courts, turned on the judiciary with a viciousness as dangerous as it was unprecedented, the Bat Signal for the Lord Chancellor went up. Judges were Enemies of the People. They needed sacking, or at least bringing to heel. Their sexuality was fair game, those gay ex-Olympic fencers. Their motivations and integrity were impugned. They were forced to seek advice from the police on securing their personal protection. Nigel Farage whipped up hysteria with calls for a march on the Supreme Court.

And Truss said nothing. Not a peep. When she was eventually shoved out onto stage, she muttered a brief platitude about the rule of law existing, and went on to repeatedly refuse to condemn the press or her Parliamentary colleagues for blatant attempts to intimidate the judiciary. This, it can be safely inferred, would have been on direct instruction from the Prime Minister, who responded to requests for comment with the same cowardly line.

Truss should have resigned then. She didn’t. She stayed on. By the end of her tenure, she had lost the confidence of the entire legal profession and the judiciary; some achievement in 10 months. Her epitaph was written for her by the Lord Chief Justice, Lord Thomas, who in a stunning break from convention told the House of Lords Constitution Committee that Truss was “constitutionally absolutely wrong”.

But let’s look ahead to her replacement: David Lidington, a long-serving MP and former Leader of the House of Commons whose name nevertheless had many of us reaching for Wikipedia. The first thing to note is that he is a not a lawyer. Which, given the historically legal quality of the role, is not ideal. But, as I explained at the time of Truss’ appointment, the legal profession and the judiciary have over the past 5 years become accustomed to non-lawyers donning the Lord Chancellor’s robes. The question is no longer simply, Are they a lawyer? Rather, it’s a much broader, Are they up to the job?

Presently, lawyers and commentators will be scrabbling over the new Lord Chancellor’s voting record and poring through Hansard (and Wikipedia) for clues to his disposition. What we know about Mr Lidington is this. He is a historian. This is a good start, although Chris Grayling’s degree in the same discipline did not encumber him in his wanton destruction of the justice system. According to Wikipedia, Mr Lidington has a PhD in “The enforcement of the penal statutes at the court of the Exchequer c.1558-c.1576”. He has won University Challenge twice, once as a student and once in a reunion show. These are all, to varying degrees, positives.

He has held various briefs since his election as MP for Aylesbury in 1992, although has not been called to serve in the Ministry of Justice (however, he did enjoy two spells as a junior minster in the Home Office in the 1990s). He was the longest ever serving Minister for Europe from 2010 to 2016, when he was appointed Leader of the House of Commons and Lord President of the Council.

While at the Foreign Office, he spoke about the importance of international human rights and of access to justice. He was a Remain supporter, who was in the press when it emerged that he had informed Parliament, entirely correctly, that the EU referendum was, as a matter of law, only advisory. He has shown that he is prepared to stand up to his own party on matters of constitutional importance, as in last December when he slapped down a fellow MP’s call for the appointment of judges to be brought under Parliamentary control following the “Brexit ruling”, replying:

“I hope that we don’t go down the route in this country where political considerations play a part in the appointment of judges.

“And of course our current system does depend on a balance, embodied in numerous conventions over the years rather than written into law, that Parliament, Government, respect each other’s place in our constitutional settlement and I hope very much that that will always continue to be the case.”

Already, we see a politician with an appreciation of the separation of powers, judicial independence and rule of law, and a willingness to stand up to those seeking to undermine those values, both of which were notably absent from Truss’ tenure. These are encouraging signs. His Parliamentary experience – 25 years to Truss’ six (at appointment) – accords with what might be expected for the role. That his record does not betray an appearance of ruthless career advancement and manic department-hopping suggests that he may have genuine intent to stay the course. Bob Neill MP, most recently Chair of the Justice Select Committee and a stern critic of his party colleague Truss, reacted to Lidington’s appointment thus:

Not to be. But I have a very high regard for David Liddington – moderate, consensual and listens

— Bob Neill (@neill_bob) June 11, 2017

 There are however less pleasing aspects to Mr Lidington’s record. He has consistently voted with his party to restrict the scope of legal aid and to limit success fees in no-win no-fee cases. This does not sit easily with a professed commitment to access to justice. His record on gay rights, up to his eventual conversion in favour of equal marriage, has historically lined up squarely with the pro-section 28 wing of his party. He has voted to repeal the Human Rights Act. None of these, indeed I would venture nothing in his Parliamentary record, screams of a man prepared to torch the party whip on the altar of justice. That said, a conversion from poaching to gamekeeping is not unknown when collective responsibility is lifted. Bob Neill has been rehabilitated from Chris Grayling’s right-hand MoJ hatchet man to staunchly independent chair of the Justice Committee, dishing out the just and righteous scrutiny that the system requires. People can change.

I would suggest that there is cause for cautious optimism. This is a left-field appointment by Theresa May (and of course one which, depending on the fading vital signs of her premiership, may be brief), but there is evidence that Mr Lidington, if he will forgive being damned with faint praise, is an immediate improvement on his predecessor. How far this improvement extends, remains to be seen. For my part, I would respectfully urge  the new Lord Chancellor to start with a few visits to his local magistrates’ and Crown Courts, to see the legacy of his forebears in grim action. Once he has done so, I would urge him, as I did in futility to Liz Truss, to:

stick on his ceremonial wig, take soundings from experts and tell Theresa May that enough is enough, the courts are crumbling, legal aid is cut through the bone, the CPS is starved and the rule of law and access to justice are becoming rhetorical shells, and that root-and-branch reform and replenishment of the criminal justice system – from police station through to release from prison – is something he is going to physically fight for at every cabinet meeting, even if the consequences are that he is politically blacklisted from the Party, and higher office, for the rest of his career.

Because that is the kind of Lord Chancellor our justice system needs. And it’s the kind that millions of disenfranchised and vulnerable people deserve.