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

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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.