No, the Justice Secretary does not need to be a lawyer

21st July 2026

Why it is far more important to have an effective politician as Lord Chancellor, rather than somebody who happens to be legally qualified.

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From time to time, and from cabinet reshuffle to cabinet reshuffle, some politician is appointed to the combined role of Justice Secretary and Lord Chancellor who is not a lawyer.

It happened again yesterday.

And each time this happens, and it has happened a few times now, there is an adverse reaction, a groaning of some lawyers.

This post sets out why it really does not matter it the Justice Secretary and Lord Chancellor is not a lawyer, and why it is far more important that they are an effective politician within cabinet.

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Back in 2007, nearly 20 years ago, a huge and horrible policy and administrative mistake was committed.

This huge and horrible mistake was the creation of a “Ministry of Justice” – created by bolting together the old Lord Chancellor’s Department (at that point called the Department of Constitutional Affairs, which ran the courts, with the prisons and probation parts of the Home Office.

Thereby a small “spending” department came into being, but with out he heft of the Home Office in Whitehall spending rounds.

(The old Lord Chancellor’s Department was not big enough to be a “spending” department, as such.)

So in Whitehall this new Ministry of Justice joined the back of the spending queue, behind health and education and defence and indeed behind the now security-and-immigration dominated Home Office.

And within the Ministry of Justice, courts – and legal aid – joined the back of the spending queue, behind over-crowded prisons and under-resourced probation.

The supposed justification for this move was to heave a more “Holistic” justice system, from courts to probation and punishments.

But, as is usually the case, the word “Holistic” signified woolly thinking.

And since 2007, almost every problem faced by our court system and legail aid budget has been caused by this folly of the then Prime Minister Tony Blair and the then Lord Chancellor (and first Justice Secretary) Lord Falconer.

It was a structural fault from the beginning, and one which gets worse over time.

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The creation of this Ministry of Justice also meant that it would be a department no longer necessarily headed by some eminent lawyer.

Until then it was always a former judge – or a QC/KC usually appointed to the House of Lords as a peer, if not already a lord for other other reasons.

The old Lord Chancellor could sit on the House of Lords appellate committee (and did so until the days of Lord Irvine as Tony Blair’s first Lord Chancellor); they also presided over the House of Lords and sat in the cabinet.

They were a one-person rebuttal of the notion of a separation of powers.

But by 2005-7, this constitutional oddity was no longer sustainable, at least in the face of European Convention of Human Rights caselaw on a fair trial: legislators and members of the executive really should not also be judges.

And so the practical judicial role of the Lord Chancellor came to an end (though some ornamental aspects remain). The Lord Chancellor was also replaced in presiding over the House of Lords by the new role of Lord Speaker.

As an ancient office, however, the office of Lord Chancellor itself could not simply be abolished by prime ministerial direction. It would require an immense legislative exercise, and the Blair government ducked this.

And so they combined the office of Lord Chancellor and Justice Secretary, as a work-around.

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Here we get to one of the daftest and least useful provisions on the constitutional statute book, section 2 of the Constitutional Reform Act 2005.

 

This is the provision which some lawyers groan about whenever a non-lawyer is appointed as Lord Chancellor and Justice Secretary.

Section 2 provides:

Lord Chancellor to be qualified by experience

(1) A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.

(2) The Prime Minister may take into account any of these—

(a) experience as a Minister of the Crown;

(b) experience as a member of either House of Parliament;

(c) experience as a qualifying practitioner;

(d) experience as a teacher of law in a university;

(e) other experience that the Prime Minister considers relevant.

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You will see that section 2(2) is not limited to lawyers. If that had been the intention of parliament, then it would have said so. But it expressly provides other possible bases for the appointment.

Section 2 is also only a weak “may take into account” provision – the list that follows is not binding.

And section 2(2)(e) then renders even that provision moot, as it all rests on the subjective view of the Prime Minister. Theoretically, this may prevent a Prime Minister in some appointments if “Wednesbury” unreasonable, but it is difficult to imagine a court intervening in reality to quash any appointment.

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So we have had various non-lawyers as Justice Secretary: including Chris Grayling, Michael Gove, Elizabeth Truss.

And here, as they were former ministers of the crown, the Prime Minister did not even need to resort to section 2(2)(e) with those appointments.

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The lawyers who have been Lord Chancellor and Justice Secretary have often been less than impressive.

Kenneth Clarke, an experienced QC, pushed through severe legal aid cuts.

Few would commend the periods in office of Dominic Raab, a solicitor, and David Lammy, a barrister.

A Lord Chancellor and Justice Secretary having a legal qualification or legal experience has not helped one iota.

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There is nothing about running prisons and probation that requires a Justice Secretary to be a lawyer.

Indeed, there is nothing in running the court system which requires a Justice Secretary to be a lawyer – indeed many of those that keep our court systems running are not themselves lawyers.

There is also nothing in fighting and winning Whitehall battles for funding that requires a Justice Secretary to be a lawyer.

And there is nothing in managing a small, back-of-the-queue spending department that requires a Justice Secretary to be a lawyer.

The Justice Secretary does not give legal advice, neither do they act in court.

The ornamental aspects of the job can be done (and have been done) by a non-lawyer.

Attorneys General and Solicitors General, with their quasi-legal roles, should be lawyers.

But there is no good reason for a Justice Secretary to be a lawyer, and we have not been well served by some of those who have been.

It is far more important that they are an effective politician within cabinet.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Another new Prime Minister…and another new former Prime Minister

20th July 2026

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Regular readers of this blog will recall that there is nothing unusual and indeed nothing wrong with our political system’s capacity to eject Prime Ministers from office.

As set out in a previous post, it is that we keep appointing poor Prime Ministers that is the problem, not that we are deft at getting rid of them: an input issue not an output issue.

In essence – our body politic retains an admirably efficient discharge system for getting rid of poor PMs, it is the diet which is at fault.

And regular readers will also recall that changing Prime Ministers mid-term is pretty much the norm and not the exception.

Every Prime Minister since 1974 has either gained office or left office mid-term (and sometimes both).

It is important to remember that we have a parliamentary system and not a presidential system.

And so what is happening today, with the appointment of Andrew Burnham to replace Keir Starmer is not even a constitutional drama, let alone a constitutional crisis.

That said, one remarkable feature is that, notwithstanding 650 members of parliament were elected at the last general election, the new Prime Minister had to be shipped in from outside parliament. One would hope that, in a parliamentary system, at least one elected member of parliament would be up to the job of having the confidence of a majority of the House of Commons (the constitutional test).

But, no.

The new Prime Minister appears to have a genuine belief in devolution and perhaps also electoral reform. This is, of course, welcome, though it is unlikely that substantive constitutional reforms can be enacted this side of a general election, especially if not in the manifesto.

On the other hand, not all constitutional reform needs primary legislation and endless parliamentary time. Let’s see what, if anything gets done to repair our constitutional arrangements before the next general election.

Looming behind all this, is that there is still a realistic prospect of an radically illiberal government being returned at the next election and, as this blog has previously averred, our constitution is in poor shape to withstand any radical illiberal assault.

Parliament really should be fixing the constitutional roof while the sun shines, especially in terms of delegated legislation.

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Otherwise, today’s news means another former Prime Minister is now added to the pile.

A judgment for the ages, and my Prospect article

17th July 2026

Do read this judgment – and my Prospect comment

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Yesterday this blog published a post, but it had a borked link to the judgment mentioned. Although this was quickly corrected online, it meant those who only read emails would not have the link.

That judgment of the ages is here – and you really should read it in full.

And my Weekly Constitutional article at Prospect on the case is here.

I should be publishing a fuller post on here on the case soon.

Trump’s most extraordinary abuse of court comes to an end

16th July 2026

A judge has made a splendid Order, which should be read in full.

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There has never been a case like this one.

That is not just the view of some passing legal blogger, but of the judge herself. As Judge Kathleen M. Williams said in her latest, highly significant order:

“But perhaps the most startling misstatement advanced by Plaintiffs is their characterization of this case as “ordinary.” […] There is nothing “ordinary” about this case; it is the very definition of sui generis.”

“Sui generis” is a legal phrase, meaning a thing is unique.

As a biologist would say, a thing has a genus all of its own.

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The case is, of course, the (supposed) litigation between President Trump and his own government, which was (supposedly) settled in a way so as to lead to a huge slush fund for political allies and wide ranging tax immunities for Trump.

And that has come to a halt, with this wonderful piece of legal writing, which you should read in full.

 

I will do a longer piece on here when I have fully recovered from an irksome illness, and thank you for your patience in the meantime.

Suppose They Held a By-election and Nobody Came

9th July 2026

The Farage stunt by-election in constitutional context

 

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“Suppose They Gave a War and Nobody Came”

– a 1960s slogan and a title of a 1970 film

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The current leader of the Reform Party has resigned his parliamentary seat so as to force a by-election in his Clacton constituency, in which he will stand for re-election.

This is, of course, a stunt.

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For a few wonderful hours yesterday it seemed we might have had the constitutional excitement of this by-election either being delayed or denied.

This is because – somewhat oddly – a Member of Parliament cannot directly resign their seat.

This is a constitutional fiction – a daft piece of political-legal make-believe.

The notion is that – like, say, with jury service – being summoned to attend parliament is a civic duty. Indeed, in the past it was a onerous duty which the knights of the shires and the burgers from the boroughs would often not like to do – and would get out from doing if they could.

And so if you were selected for attendance at the Commons then you had to go – at your own expense, in lodgings in that London (well, Westminster), and without payment: a chore not a privilege.

Once a Member of Parliament is returned, the expectation is that they serve out their term.

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But.

There were – and are – means of a Member of Parliament rendering themself (or being rendered) as disqualified.

The old joke was that lords, lunatics or bankrupts that were exempt.

(Or all three, ho, ho, ho.)

And also exempt were those who were appointed to offices of profit under the Crown.

In fact there is now an entire schedule of exempt offices – a long, long list.

And to maintain the daft fiction, two historic offices were included on the schedule just so Members of Parliament could pretend that they are not actually resigning.

It really is very silly.

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But what this means is that it is not within the sole power of a Member of Parliament to resign.

Unless they are appointed to a genuine exempt outside job (like being a judge) they have to apply to the Chancellor of the Exchequer (and thereby a government minister) for appointment to one of the make-believe offices.

The convention is that such applications for the Chiltern Hundreds or the Manor of Northstead are accepted.

But that is a mere convention: if the Chancellor of the Exchequer said no, then that decision could not be easily gainsaid.

According to the House of Commons library there have been (at least) two instances of the application being refused:

(Note the almost early appearance there for Nathan Barley.)

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But even if the application is granted, there is then the distinct and separate question of moving the writ for a by-election, which is a matter for the House of Commons. And, again, it is only by convention that this is usually done promptly.

And so, an MP like Nigel Farage who resigns to fight a by-election can be denied or delayed in two ways: by the government, and by Parliament.

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Alas, however, the Chancellor of the Exchequer denied us any constitutional fun.

The bin, of course, is joke candidate Count Binface, for all the other main parties said they would not contest this pointless by-election.

This morning the writ was moved – a by-election is likely in August.

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Farage should be careful: the Brexit referendum of 2016 was itself an election which those who called thought would go one way, but the voters did not vote they way they were “supposed” to.

Also in 2016, there was the example of Boaty McBoatface.

Constituents and voters, like tribunals, do not like being taken for granted.

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Farage appears to have been adopting political tactics that might have come from S. Baldrick.

Farage has created an embarrassing situation for himself, entirely by himself.

And he will gain no advantage in the the face of the current House of Commons investigation, which can simply resume even if he is re-elected with a “mandate” against a sentient rubbish bin.

In a news interview today, the muddled thinking can be indicated by his party saying the Commons committee is a “kangaroo court” but him also complaining about committee delays that may drag on until October.

That is a mighty slow kangaroo.

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Of course, complaints of “kangaroo courts” and “witch hunts” by politicians like Farage, Boris Johnson and Donald Trump are often of painfully elaborate but procedurally fair processes, from which they know there is no easy escape or evasion.

That is why the processes have to be rubbished in the most colourful way, in the hope that the easily bored will nod-along.

“Kangaroo court!”

“Witch hunt!”

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The (lack of) thinking here is also that Farage could somehow head off a further by-election caused by an adverse Commons investigation report (in which the main parties would compete), with this by-election.

But he did not think things through, nor take account of foreseeable risks.

Like other insurgent politicians, he can only think about one chess move ahead.

Now, even if if he wins, he has lost any advantage and instead gained ridicule and discredit.

And he is left to reflect on what could have bin.

(Sorry.)

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By-elections can have great power in our political system.

The two recent by-elections in the north of England have altered the course of the politics of the United Kingdom.

But this year looks as if there will be a third by-election, if not of great power but of equally great lack-of-power.

For Farage has somehow called a by-election, and nobody came.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

On FIFA overturning the Balogun suspension

7th July 2026

A parable of a clever lawyer and a wise lawyer

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Scene: the legal department at FIFA headquarters.

A room with two desks. At the desk nearest the door is the CLEVER LAWYER. At the desk by the window is the WISE LAWYER drinking her tea.

Suddenly a FIFA FIXER comes in.

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FIFA FIXER:

Guys, we have a problem. We need to overturn the Balogun suspension. Orders from upstairs. You need to find us a solution.

CLEVER LAWYER:

Tough one. It was a direct red card? One match automatic suspension. Look here, see what it says.

And see that word “automatically”? That is there for a reason. The provision would also make sense without it, and so it is there for a reason. it is not just that “they will be suspended” but that they “will automatically be suspended”. No hearing, no investigation, no review, no appeal. Nothing more is needed. One thing shall follow the other.

For example, look at this other provision:

Just as the USA automatically qualified as being a host, a player with a direct red card is automatically suspended. “Automatically” is a strong word. We cannot pretend it is not there.

FIFA FIXER:

There has to be a way round it?

CLEVER LAWYER:

Well, there is another provision.

FIFA FIXER:

Go on…

CLEVER LAWYER:

…it is another code, see here. It says that a suspension may itself be suspended.

FIFA FIXER:

Brilliant! Let’s suspend the suspension.

CLEVER LAWYER:

You may face a challenge. So you will need to make it water tight – evidence, a process, published reasons, that sort of thing. Especially as you are interfering with an “automatic” process. It is not a get-out-of-jail card of general application.

FIFA FIXER:

Does it actually say there needs to be a process or reasons?

CLEVER LAWYER:

Well, no…

FIFA FIXER:

…then we can just assert we invoke it, and we have a solution.

CLEVER LAWYER:

Belgium may complain.

FIFA FIXER:

We can give them something to keep them quiet, keep their silence. [Pause.] What about a peace prize?

[Long pause.]

CLEVER LAWYER:

Ahem, if a Belgian challenge is successful, then the default is that the United States may itself face sanctions for fielding an ineligible player.

FIFA FIXER:

Ha ha, we can just suspend that sanction too, and so on. All the way down. Brilliant guys – so we can suspend the suspension?

CLEVER LAWYER:

Well, technically, perhaps but…

FIFA FIXER:

And should we suspend the suspension?

WISE LAWYER [puts down her tea]:

No.

 

 

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Epilogue:

Constitutional change and a new Prime Minister

6th July 2026

Why fundamental reform is more likely than before, but still unlikely

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The United Kingdom is about to have a new Prime Minister.

As this blog has pointed out many times, changing Prime Minister mid-term is the norm in British politics. Since 1974 every Prime Minister has either entered office or left office between general elections, sometimes both. And there is nothing wrong or unusual with this, for we have a parliamentary and not a presidential system.

But the one thing a new, mid-term Prime Minister cannot point to is a fresh mandate, with a manifesto endorsed by a general election result. They are pretty much stuck with the same mandate.

Sometimes a new Prime Minister will break with the mandate they inherited. In 1990 John Major dumped the community charge (poll tax) notwithstanding it having been detailed in the 1987 Conservative manifesto. No sensible person doubted that was the right thing for him to do.

Generally, however, any proposed big change will be put off to the next election. There is often too much to do which is more urgent.

The new Prime Minister is likely to be Andrew Burnham, who has been open about supporting constitutional change and even now is expressing support for devolution and electoral reform.

But the eternal problem about constitutional reform is that it means those with power giving some of that power away.

Burnham has nice intentions about giving real power away, and maybe he will actually do something in office. And so on that basis it is more likely than before, but one suspects there is more than enough for a new Prime Minister to do, with the economy and taxation and defence and foreign affairs and so on. So constituional reform is still, on balance, unlikely before an election.

Over at Prospect a couple of weeks ago, I set out more thoughts on this.

Let’s see what happens.

For those of you interested in lore and culture – an alternative to the earnest law and policy drivel on this blog

6th July 2026

Independence day

4th July 2026

A republic, if they can keep it – as Franklin said

The worst Prime Minister vs the worst mistake by a Prime Minister

25th June 2026

This is a short post occasioned by this piece in the Guardian ranking the worst Prime Ministers we have had since 2016.

The worst at being Prime Minister was, of course, Elizabeth Truss. But she is second. And that is actually, counter-intuitively, the correct placing.

As it is possible to have been the worst Prime Minister since 2016 without being the worst at being Prime Minister.

For David Cameron made the worst mistake as Prime Minister – of risking the future of the United Kingdom on one turn of pitch-and-toss, and losing. In other words, of having a needless Brexit referendum which the government did not enough to win and which the government made no preparations for if it lost.

And as such, Cameron’s one big mistake is worse than Truss’s calamitous few weeks.

That the worst politician of the six – that is, the person whose approach to politics was the most cynical – should only be the third worst on the list is indicative of just how bad the top two were.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.