Constitution
A new Lord Chancellor (and Justice Secretary)
Neil Parpworth discusses the appointment of Elizabeth Truss as the new Lord Chancellor and Secretary of State for Justice.
About the author
Neil Parpworth is principal lecturer in law at Leicester De Montfort Law School.
Among the many changes that the new prime minister, Theresa May, made to the cabinet which she inherited from David Cameron, one of the most notable was the sacking of Michael Gove as Lord Chancellor and Secretary of State for Justice (one of the leading voices in the ‘Leave’ campaign during the EU referendum debates) and his replacement by Elizabeth Truss. In recommending a new Lord Chancellor for appointment, Theresa May will have considered Constitutional Reform Act (CRA) 2005 s2, which requires that the relevant person must be ‘qualified by experience’ . Whereas in the past that experience would have been professional legal experience, it is now a rather broader concept. Thus, as an alternative to experience as a practitioner, a suitable candidate may have experience either as a minister of the Crown; as a member of either House of Parliament; or as a teacher of law in a university (CRA s2(2) (a),(b) and (d)) .
Of course, these qualifying forms of experience are by no means mutually exclusive. Thus, for example, since constitutional convention dictates that ministers must also be parliamentarians, it follows that if ministerial experience is key to a Lord Chancellor’s appointment, they must also have experience either as an MP or a peer; however, the reverse does not necessarily apply. It is possible, therefore, (though in practice it is not likely) that a Lord Chancellor may have had no previous ministerial experience before their appointment.
Things have certainly changed, therefore, since the days not so very long ago when lawyer Lord Chancellors, such as Lord Mackay or Lord Irvine, were recommended for appointment by Margaret Thatcher and Tony Blair respectively, despite neither having had previous ministerial experience. Should a Lord Chancellor ever be appointed in the future by reason of CRA s2(2)( e), which allows cognisance of ‘other experience that the prime minister considers relevant’ , it would be interesting to see if the premier of the day felt obliged to elaborate on the nature of the ‘other experience’ which, in their eyes, made the new Lord Chancellor appropriate for the role.
Having regard to CRA s2, Elizabeth Truss has at least two types of relevant experience. She has been an MP since 2010, and she has ministerial experience both as parliamentary under-secretary of state at the Department for Education and, between 2014 and 2016, as Secretary of State for Environment, Food and Rural Affairs. Indeed, at Elizabeth Truss’s swearing in as Lord Chancellor on 21 July 2016 at the Royal Courts of Justice, Lord Thomas, the Lord Chief Justice, commented that it was ‘readily apparent’ that she has ‘had to date a distinguished career which has demonstrated your great skills and wide experience’ . In addition to the experience already referred to, Lord Thomas also alluded to Elizabeth Truss’s ‘commercial roles in industry’ and her time as deputy director of the think-tank , Reform.
The appointment of Elizabeth Truss as Lord Chancellor is especially significant, indeed ‘historic’ , since she is the first woman to hold an office which ‘spans the history of our nation’ (per Lord Thomas). Much of Lord Thomas’s speech was, therefore, given over to what he referred to as the ‘long … overdue’ ending of a ‘longstanding monopoly’ . He did not resist the temptation to point out to the audience, however, that Eleanor of Provence, the wife of King Henry III, had been the keeper of the Great Seal, between 1253 and 1254, while her husband was dealing with a rebellion in Gascony. Neither did Lord Thomas refrain from nodding in the direction of the Blair government’s original plans to abolish the office , which were later watered-down in the face of eminent and concerted opposition. Thus, he observed that the office of Lord Chancellor:
… can be traced back to Anglo-Saxon times. It has survived civil war, restoration, 19th century industrialisation and, more recently, constitutional reform. It remains central to our constitution.
Although we still have a Lord Chancellor, the powers, duties and responsibilities of the office-holder are not what they were before the ‘constitutional reform’ to which Lord Thomas referred. As a consequence of the CRA, the Lord Chancellor is no longer head of the judiciary, that role having been transferred to the Lord Chief Justice. Neither is the Lord Chancellor able to sit as a judge in the final appeal court, nor have influence over the appointment of senior judges as was the case formerly. Also, the link between the Lord Chancellor and the House of Lords, as a legislature, has been ended now that the proceedings in the second chamber are presided over by the Lord Speaker. Indeed, like a number of her more immediate predecessors, the new Lord Chancellor is not a member of the House of Lords.
We can only speculate about what the future may hold for Elizabeth Truss in her new role. While, appropriately, Lord Thomas confined his remarks to the Lord Chancellorship at her swearing in, we should not forget that Elizabeth Truss has a dual role in that, by convention, she is also the Justice Secretary. It is in this role, therefore, rather than as Lord Chancellor, that Elizabeth Truss is most likely to be judged both during and after her period of office . Nevertheless, as Lord Thomas reminded her, the Lord Chancellor and Lord Chief Justice have ‘a shared constitutional responsibility to ensure justice is at the centre of our society’ and ‘to secure access to justice for all’.
In reply, the new Lord Chancellor expressed her delight at having been appointed. Unlike her predecessor but one, Chris Grayling, she did not proclaim that it had long been an ‘ambition … to be appointed Justice Secretary and Lord Chancellor’ . Indeed, whereas appointment as Lord Chancellor was once the zenith of a lawyer’s legal career, it may now be regarded for some as a stepping-stone to an even more prestigious cabinet post, such as Home Secretary or Foreign Secretary.
At her swearing in, Elizabeth Truss complied with Promissory Oaths Act 1868 s6A (as inserted by CRA s17(1)) by repeating the following words:
I, Elizabeth Truss, 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. So help me God.
In her subsequent speech, Elizabeth Truss contended that the rule of law ‘is the cornerstone of the British way of life’ and quoted approvingly from both Sir Edward Coke and Lord Bingham on the subject. She also noted that ‘the fundamentals of civilisation and liberty depend on the rule of law’ : it is the ‘basis of our prosperity’ ; it ‘shapes the fabric of our free society’ ; and is ‘our safeguard against extremism, oppression and dictatorship’ . These are lofty sentiments indeed.
They contrast with those expressed by Chris Grayling on his appointment as Lord Chancellor. Thus, while he expressed a belief in the rule of law, his speech contained none of the rhetorical flourishes employed by Elizabeth Truss: for him, the rule of law was ‘obviously vital for good government and prosperity’ .
It is also noteworthy that during her speech, Elizabeth Truss referred to the constitutional doctrine of the separation of powers which, she remarked, ‘keeps the executive in check’ . In the past, some academics considered that the existence of the office of Lord Chancellor helped to refute judicial claims that the UK’s constitution was based on a separation of powers. The fact that a single individual was able to exercise legislative, executive and judicial power made the doctrine a ‘constitutional myth’ .* Now, however, the doctrine has greater relevance to the UK’s constitutional arrangements as a result of several important developments ushered in by the CRA, in particular, the establishment of the Supreme Court and the Judicial Appointments Commission, and the reforms to role of the Lord Chancellor. Under the CRA, the Lord Chancellor (and other ministers) are obliged to ‘uphold the continued independence of the judiciary’ (CRA s3(1)) . The Lord Chancellor is also subject to additional obligations, including having regard to the need to defend judicial independence (CRA s3(6)( a)) . It remains to be seen whether in the weeks, months and, perhaps. years to come, Elizabeth Truss is called on to protect the judiciary against attempts by her ministerial colleagues to exert undue influence over it.
* See, for example, Professor Owen Hood Philips, ‘A constitutional myth: separation of powers’ , 1977 93 LQR 11