‘Government and the Rule of Law’ is also available in an audio format here.
This talk is going to be half-way between a memoir and a treatise. Most of my working life was spent at the triple frontier between the judiciary, the executive and Parliament. I am going to try to tell you something of this career, relating it as best I can to the wider theme of Government and the Rule of Law. I dedicate it as a homage to the seven Lord Chancellors whom I had the honour to serve over the years.
I joined the old Lord Chancellor’s Department in September 1962, at the age of 27, after military service and university, and a couple of years at the Bar. My main motives were a wish to work on law reform, and on joining Europe. But soon after I joined, General de Gaulle vetoed our first application to join the Common Market, so that work had to wait another 10 years.
I served in the LCD for 36 years, including nine as Permanent Secretary, until 1998, when I retired from the Civil Service. The whole period was one of increasing ‘legalisation’ of government, and of increasing growth in the size and responsibilities of our Department.
After that, I served another 14 years, until around 2012, doing various enquiries, commissions, boards etc., making a total of 50 years in the public service. During that time, Government and the Judiciary have changed a lot, though underlying foundations have remained.
Turning to my wider theme, my executive summary goes something like this. Over all this last half-century, the judiciary have made new inroads into the world of government. This is entirely beneficial, provided the Judges handle it carefully. We have a top-class Judiciary, who are a major national asset.
But the more the Judges develop public law, the more visible and controversial, and therefore vulnerable, they become. At the same time, the political class and the legal class have moved even further apart.
To help protect the senior Judges against the political storms which sooner or later may blow even harder, I believe their appointment should involve other branches of Government, so that they will share responsibility for the Judicial branch.
For its part, and to improve its link with the Judiciary, and to ensure proper support for the administration of justice, the Government should cut back the functions of the Ministry of Justice to the essential core, returning penal matters to the Home Office.
The Lord Chancellor should normally be a senior lawyer, and she or he should be recognized and tasked as the guardian, not only of the independence of the Judiciary, but also of the Rule of Law within Government.
The world in 1962
Lord Chancellor’s Office: Now back to the beginning. The Lord Chancellor’s Department that I joined in September 1962, nearly 55 years ago, was a now-remote world. As Hartley said, “the past is a foreign country; they do things differently there”.
The office (we called it an ‘office’ then) consisted of 12 white male barristers, all dressed in black jackets, striped trousers, and stiff white collars. With a small supporting staff, we were all housed in the House of Lords, near the Lord Chancellor. Most days, we all had lunch together in the Lords Dining Room. Every Monday, we all met around the same table in the Permanent Secretary’s room (which many years later became my room). We were a close and friendly group; really only an extended private office, not a true ministry. Like medieval serfs, we junior members often didn’t know today what tomorrow’s work would be. But that could be fun.
Role of the Lord Chancellor: At this time, and for many years afterwards, the Lord Chancellor still had a three-fold job: he was Speaker of the House of Lords, head of the Judiciary, and a very senior Cabinet Minister.
He was always a senior barrister or judge, fully part of the legal culture, and expected to represent it at the highest levels of government. He still sat judicially regularly, though not all the time. I arrived soon after MacMillan’s ‘Night of the Long Knives’, when Lord Chancellor Kilmuir had been replaced by Lord Dilhorne, previously Attorney-General.
The culture of Government
In the culture of Government at this period, there was, on the one hand, a lot more overlap of legal and political personnel than nowadays. It was more normal than now for many Members of Parliament to carry on other jobs and professions. The House of Commons still contained many senior practising barristers, so there was no shortage of heavyweight candidates for the posts of Law Officer and Lord Chancellor.
On the other hand, the role of the Judiciary in government was minimal. The judges were respected but not seen as having much immediate relevance. Our small office was seen as peripheral, a little outhouse to the great mansion of the executive government.
Our own working links were more with the judges and legal offices than with other Government Departments – with one notable exception: the Home Office, which loomed alongside our little frigate like a towering man of war. With them we always had close linkages, and occasional turf disputes. But in passing, I pay my tribute to the Home Office as I knew it all through my time: a great Department of State.
The wider culture of that time is often described as deferential, and maybe it was. But, more important, I see now more clearly that both society and government were still semi-militarised. I and virtually everybody else in our office had served in the armed forces, many in the War, and in this we only mirrored society as a whole. In our little office, like the officer’s mess of a good regiment, it also went with a good deal of informality and debate on equal terms. But, however unconsciously, compared to today, the military values of hierarchy, duty and discipline still permeated.
The British system of Government always includes a strong executive, but it was especially powerful at that time. Parliamentary discipline was normally very strong, and the courts had little role. The Government could and did pretty much what it wanted; and it relied on Civil Service advice for most of what it did. The only restraints were party politics and the media. But the intrusion of party politics into government was much more limited than now; and the media were usually a lot more respectful.
The age of change from 1964
At the time I arrived, the LCD was a bit stranded on the beach of time. This was ironical in light of Gladstone’s hopes when establishing the post of Lord Chancellor’s Permanent Secretary in 1880; he foresaw an active reforming Ministry of Justice. But the age of the mighty Victorian reformers had petered out by the early 20th century. By 1962, though very busy, the LCD had an air of ossified tradition and limited horizons. However, massive change was about to come and I was lucky that it came in my time.
As the 1960s wore on, our whole society was to change. So too was the role of the judiciary, with the beginnings of judicial review, which steadily took the judges further into the realm of government than had been known before.
The General Election of October 1964 brought in a new Labour Government, and with it Lord (Gerald) Gardiner as Lord Chancellor. He had been king of the Bar, starring (inter alia) in the Lady Chatterley Case. He was not a politician but he was a strong reformer. I served as his Private Secretary for four years. Among his achievements were the abolition of capital punishment, the creation of the Law Commission, and the ending of the rule that the House of Lords was bound by its own decisions.
In 1966, Gerald held a competition within the office for the best idea for the next major law reform. My senior colleague and great friend Derek Oulton and I won joint first prize (and bottles of champagne), he for proposing a reorganization of the courts, I for proposing a Ministry of Justice.
My own idea had to wait over 40 years, but Derek’s was put into effect very soon. Gerald set up a Royal Commission on the Courts, which led to the Courts Act 1972. This abolished the old Assizes and Quarter Sessions, and set up the Crown Courts in their place. It put the Lord Chancellor in charge of all the courts in England and Wales, except for the magistrates’ courts and certain tribunals, which had to wait until later. The 1972 Act also established the centralized Court Service, across the country, also under the LCD.
Overnight we became a true Ministry, with around 25,000 people at the time I retired. The old clubbable little office faded and a new organisation emerged, with other buildings outside the House of Lords, and thus more like other Whitehall Departments.
My own career thereafter
My own spell in Private Office ended in 1968. A couple of years later, at last I got my joining wish and was posted to our tiny European and International section. I was just in time to work (at a very junior level) on the negotiations for our entry to the Common Market, and especially on the Bill team for the European Communities Act 1972. This too was an exceptionally interesting piece of work, which will now presumably be undone by the Government’s proposed ‘Great Repeal Bill’. Back in the 1970s, I enjoyed my frequent visits to Brussels and other Ministries of Justice across Europe. We had many tasks, among which was the complex negotiations for British adherence to the EU Convention on Jurisdiction and the Enforcement of Civil Judgments – one part of the acquis which I hope will survive. It was always very congenial to me to work with colleagues from other legal traditions.
Then I had some years on legal aid, and then some more on courts administration. In 1981, at the age of 46, I was promoted to what is now called Director-General and handed responsibility for appointment of judges and QCs. This was a world of its own, with some wider implications, to which I will return a bit later.
Eight years after that, I was promoted to Permanent Secretary, where in a sense you have to be concerned with everything in the Department, and that by now was a wide span – though in those days, the key task was still close involvement in the personal relationship of the Lord Chancellor and the senior judges.
Development of the Judiciary
On the wider stage, during these years, and since, how fared the Rule of Law? This needs a look at the development, first of the Judiciary and then of the Government and Parliament. Overall, there was useful progress, but also a rising stress level.
Judicial Review: The main change for the Judges was the growth of public law, and especially of Judicial Review. But there were also two other factors, both connected with Europe.
The European Union: One was the Common Market, as we called the EU then. The 1972 Act was a game-changer. It went a long, though not the whole, way towards giving the courts power to declare an Act of Parliament unconstitutional, as was later confirmed in the Factortame litigation. The Great Repeal Bill will now presumably remove that, but in its time it created an era of greater judicial power.
Human Rights: The other factor was Human Rights. The European Convention of 1951 was largely a British-inspired attempt to prevent any resurgence of dictatorial regimes in Europe. The UK allowed the right of personal application, and accepted the jurisdiction of the Strasbourg Court, from 1966. But the Court took on a life, and made an empire, of its own; and the later addition of judges from Eastern European countries brought different cultures into the mix.
As you will know, the decisions of the Strasbourg Court, and of our own courts under the Convention, made widening impacts in the politically sensitive areas of immigration and terrorism. These created new tensions and led in turn to hitherto unheard-of public recrimination by Ministers against Judges.
Through this route also the British Judges had an increasing impact on the processes of government. And the Human Rights Act 1998 furthered this by giving the Judges powers that they had not had before. It looks as if this Act, and our membership of the Convention, will still stand after Brexit. But we shall see.
Composition and culture of the Judiciary
Politics: During these years, while the Judges’ work took them further into government, a paradoxical evolution simultaneously took their own culture further away from that very field.
In former times, as I mentioned, and especially before the Second World War, there had always been plenty of barristers in Parliament, and it was also common practice for some of the Judges to be appointed from among their ranks.
Indeed, Lord Salisbury, one of our most intellectual Prime Ministers, proclaimed at the dawn of the 20th century that it was part of the British Constitution that “party claims should always weigh very heavily in the disposal of the highest legal appointments”. And he added privately to his daughter Gwendolyn that, after all, “within certain limits… one man would make as good a judge as another, and a Tory mentality was ipso facto more trustworthy than a Liberal one”.
Certainly the senior levels of the Judiciary before the Second War included a good slice of Judges who had served as MPs and even Ministers. And even after that, it was generally understood that the serving Attorney-General had at least a claim to the post of Lord Chief Justice. Barrister MPs were understood to have virtually a right to Silk on demand.
All this was already changing when I joined the LCD in 1962. In that very year, Sir John Simon, the Solicitor-General’s, appointment as a High Court Judge and soon as President of the Family Division (as we didn’t call it then) was among the last politicians to come over to the Bench. (Sir Ross Cranston, who retired this March, was a rare and outstanding contemporary exception.) Successive Lord Chancellors after that supervised a progressive divorce between politics and the judiciary. Barrister MPs were no longer given Silk on demand. In a small way, I helped in this process.
But a deeper cause was that it was becoming, and has become, progressively more difficult to combine a career as a barrister with membership of the House of Commons. Both jobs became more and more demanding of time. George Osborn’s recent attempt at multi-tasking might lead to further restrictions on MPs in this regard – though I hope it won’t.
The political class has accordingly come to include fewer senior lawyers, thus reducing the pool of political candidates for judicial office, and for the posts of Law Officers and the Lord Chancellorship. It is no personal criticism of the present Attorney-General to mention that I understand he had only seven years experience of mainly criminal practice on the Midland Circuit, and had to be given Silk on his appointment as Attorney. That would not have happened in former times.
Thus the legal and political worlds have drifted further apart, just in a period when the Judiciary has impinged more and more on the Governmental. It seemed right at the time for us to wring the politics out of the judiciary. But we now have a judiciary with greater power over public administration but with less personal experience of it, and a Government with less heavyweight legal knowledge.
In the Judiciary, the main remaining thread of governmental experience, narrow but important, has been the influential role of former Treasury Juniors, most of them coming on the senior Bench, because they have experience of government by representing it. But they are necessarily few.
We get great advantages in drawing our Judges from a separate professional culture, and not from an official class, and I would not want to see that change. But it would be better if some of them had more background kniowledge of government. I know that the present, and the previous, Lord Chief Justices have made commendable efforts to foster internal links, and I hope that will continue. However, comparisons with (for example) the Conseil d’Etat and the US Supreme Court remain slightly discouraging in this respect. Both of those courts, in very different ways, embody rather more of such knowledge and experience than ours.
Inquiries: An additional tendency which has caused friction over the years has been the Government’s use – I rather think over-use – of senior Judges to conduct public inquiries. It has been my task on many occasions to invite Judges to take on such commissions, and their sense of duty was such that they virtually never refused.
I do not say that we should never have judge-led inquiries, but I do think that they carry risks to the position and reputation of the Judiciary which are not fully recognized. Other Common Law countries are far more sparing – I think wisely. Fortunately, there are some signs that this lesson has been learned. The present Lord Chief Justice has taken a firmer line, which I respectfully approve, and I hope this trend continues.
Supreme Court: Lastly on the Judges, and since my own time, has been the establishment of the Supreme Court. This at last carried out the intentions of the great Victorian reformers: Gladstone again. When they set up the Supreme Court of Judicature in 1872-75, they intended it to take over the final appellate role of the House of Lords. But Disraeli came to power at the wrong moment and frustrated this part of the plan. The result was the compromise of the Appellate Jurisdiction Act 1876, under which we lived until 2009. I had long hoped that we would get a proper Supreme Court and I regard it as a thoroughly good development. It has brought the flagship of the legal system out more into the light of day. That has brought risks of its own, but overall it is surely a good thing.
Development of Government
The Ministry of Justice: Meanwhile, the culture of Government has been increasingly influenced by the growth of judicial power. Ministers and civil servants have become aware that they must keep an eye out for legal implications both in policy and process.
At the same time, the size and role of the Lord Chancellor’s Department grew and grew. The Lord Chancellor’s three-fold job, and his place in the House of Lords, began to become an issue.
So it stood when I left in 1998. Five years later, Tony Blair’s coup removed Lord Irvine and ended the centuries-old post of Lord Chancellor as we had known it. We still have a Lord Chancellor to hold the Great Seal, but the post is now little more than a formal adjunct to the office of Secretary of State for Justice. (In the result, by the way, she is remarkably similar to her French counterpart, who since 1791 is Ministre de la Justice et Garde des Sceaux.)
The House of Lords was given a new specialized Lord Speaker, who incidentally occupies my old room, and the Lord Chief Justice became the head of the Judiciary. The short-lived Department of Constitutional Affairs was replaced in 2007 by the Ministry of Justice, and so at last my champagne-winning project of 1966 was realized. However, in some respects I think these changes went too far. I have three particular concerns about them.
Responsibilities of the Ministry: The first is the responsibilities of the new Ministry. I welcome the centralization of justice and constitutional responsibilities. But I think it was a mistake to include with them the Prison and Probation Services.
This seems to me inappropriate, both in principle and practice. In principle, because these penal functions are core to the executive and, like the police, are unconnected in a liberal democracy with the judicial branch of government. They should not be brigaded with the courts and the Judiciary. They are properly within the scope of the Ministry of the Interior, which with us is the Home Office.
And it is inappropriate in practice, because prisons are highly sensitive politically. They therefore drain the attention of Justice Ministers away from what I think should be their central concern, which is the Judiciary and the courts, the law, and connected constitutional matters. It is largely because of this, as I think mistaken, arrangement that the office of 12 lawyers which I joined all those years ago is now a Ministry of (I believe) nearly 80,000. That seems rather too many.
The Ministry’s currently-stated priorities are (in this order): “to reduce re-offending and protect the public, to provide access to justice, to increase confidence in the justice system, and to uphold people’s civil liberties”. Nothing wrong with any of those by themselves, but they say nothing (directly anyway) about the quality of justice or the rule of law, and seem to rank the reduction of re-offending above the judicial branch of government.
Qualifications of the Lord Chancellor: My second concern is the qualifications of the Lord Chancellor. With such responsibilities and such a large department, it is inevitable that she or he should be a minister in the House of Commons. And in Elisabeth Truss we welcome the first female Lord Chancellor for many centuries. It is less welcome that, like her predecessors Chris Grayling and Michael Gove, she is not a lawyer: another first since the 16th Century. This is partly offset, at least for the moment, by the fact that her Permanent Secretary is a lawyer. However, it gives me some foreboding.
The present arrangement is already leading to some worrying results. As you will know, the first instance Judges in the recent Brexit Case were virulently abused by certain newspapers. In words disturbingly reminiscent of those used by the Nazi Party in the 1930’s, the Judges were described as ‘enemies of the people’.
This clearly invoked the Lord Chancellor’s duty to defend the independence of the Judiciary. I’m afraid I share the view that her response was pretty disappointing, to say the least, and appeared to see the freedom of the press as licensing not just criticism but abuse of the Judiciary.
So it was hardly surprising that the Lord Chief Justice openly criticized her on this ground in his evidence on 22 March to the House of Lords Constitutional Committee. Of course, the present Lord Chancellor may well do a better job on any future occasion, and I hope she will. However, it seems likely that a Lord Chancellor who was a senior lawyer would have put up a stronger performance.
This is relevant to another gap which the new arrangements may have opened up. Who is to be guardian of the Rule of Law within Government? The old Lord Chancellor was broadly understood to have this role and did on occasion perform it, although it is important not to exaggerate the frequency or depth of such occasions. But when he did perform that role, his high legal standing and seniority in Cabinet gave him considerable power.
It is not so easy for an ordinary Cabinet member who is not even a lawyer to play such a part; and it is therefore not surprising that Lord Chancellor Grayling testified to the House of Lords Constitution Committee a couple of years ago that (in effect) he didn’t see it as part of his job. The Committee disagreed and recommended that the Lord Chancellor should be recognized as the guardian of the Rule of Law. My understanding is that the Government has not yet accepted this recommendation.
The resulting position seems unsatisfactory. Of course, in a wider sense the true and proper guardians of the Rule of Law are the courts. But it would be reassuring if it were clear that we had such a guardian within the Government. At present, it doesn’t look as though we have. The Attorney-General isn’t really in a position to perform this role, at least on his own. Again, there is no guarantee that a Lord Chancellor who was a senior lawyer would perform this role better than a layman. But again, it seems a lot more likely.
If we returned prisons and probation to the Home Office, where I believe they belong anyway, it would (I submit) be feasible to return the Lord Chancellor to the House of Lords, with of course a Minister of State in the Commons. This would make it much easier to recruit again senior lawyers to the Lord Chancellorship, of the high calibre of Lord Gardiner, Lord Mackay or Lord Irvine. My own belief is that this would improve the quality of Government.
Until such changes are made, I hope that Prime Ministers will at least do their best to appoint qualified lawyers. Although their ranks are thinner, there remains a pool of possible candidates; and that pool might be enlarged if it were demonstrated that lawyers could at least hope for high office.
Judicial Appointments: My third concern is about the appointment of Judges. This function has now been hived off to the independent Judicial Appointments Commission, now chaired by Lord Kakkar, an eminent Professor of Surgery. The Commission recently celebrated its 10th birthday and as far as I can see it has done a good job.
It was thought desirable to have an independent commission to avoid any hint of political involvement in judicial appointments. I can testify that, in my time anyway, we had already eradicated all taint of any party political element. Lord Chancellors of course consulted the senior judges extensively; and occasionally the Law Officers. But never any other politicians, Ministers or otherwise. I recall that a Home Secretary once volunteered his view on who should be the next Lord Chief Justice, and was politely but firmly told to get lost.
I would not seek to put the clock back, and I support the work of the Appointments Commission. But what I would like to see the Commission do is go back to consulting about the actual work of the candidates. I used to spend a lot of my own time on this, as do many appointments commissions in the Common Law world.
However, our own Commission has turned its face against what are pejoratively called ‘secret soundings’, on grounds which I respectfully believe amount to political correctness. This is a pity, because such consultations are really the only effective way to discover the true qualifications for an office from which, once appointed, it is extremely difficult to remove the appointee. There isn’t much room for mistakes. And interviews and references alone are notoriously fallible.
I further believe that, for very senior judicial appointments, we ought to restore a greater political component. The OED defines the word ‘political’ as “of or relating to the government or public affairs of a country”. In this sense, much of the work of the Judges is now inescapably political, and their appointment is also inescapably a political act. In my view, it is important for their independence that the Judges should have as much political legitimacy as possible. Government and Parliament would be more likely to support the Judiciary, and less tempted to undermine them, if they bore a measure of responsibility for the appointment of its leading members.
To this end, I believe that, at least for the High Court and above, the Lord Chancellor, lawyer or not, should play a real, and not just a formal, part in appointments, choosing from a short list and meeting the candidates. In doing so, she should be advised by a senior member of her staff whose business it is to know the field of candidates.
For the highest appointments, that is the Supreme Court, the Lord Chief Justice and perhaps the Master of the Rolls, I believe we should consider going further, and requiring recommended candidates to be interviewed in public, and approved (or not) by a joint committee of both Houses of Parliament. I would attach importance to it being a joint committee, half from the Lords and half from the Commons.
I am well aware that this approach is unfashionable with both the Judicial and the political classes. But conversations with Judges of the US Supreme Court long ago convinced me of the value of approval of senior judges by the legislative branch. I know all the problems and risks and arguments the other way, including the recent travails of Mr. (now Justice) Neil Gorsuch. However, I believe they are outweighed by the added legitimacy and strength of tenure, and therefore independence, of judges so appointed, in an age when they are increasingly visible and vulnerable.
Of course I don’t pretend that these measures would solve every problem. But given the over-riding need, as I see it, to protect the Judiciary, and my belief that such measures would help towards that end, I believe they would be a clear step in the right direction.
Independence of the Judiciary
This brings me, finally, to the independence of the Judiciary. Throughout my official career, I regarded protecting this independence as my cardinal duty, and more importantly, so did the Lord Chancellors whom I served. I hope that present and future Lord Chancellors, and other Ministers too, will do the same – although I am concerned about the Brexit Case incident that I mentioned earlier.
Luckily for our country, judicial independence is well-established by an array of legal, cultural and conventional defences. But it is not absolutely guaranteed, and it rests on political pillars which are more slender than I think is generally recognized.
We have no codified constitution, power is centralized in Parliament, especially the House of Commons, which is normally ruled by the Government. The collective attitude of the House of Commons and the Government towards the Judiciary is therefore important.
Although I had worked in the Palace of Westminster for most of my career, and been an Officer of both Houses, I hadn’t really had all that much to do with the House of Commons until around 2000, when I went on its Audit Committee (chaired for part of the time by Theresa May), and then did an inquiry in 2009-10 into the use of expenses by MPs.
From these experiences, and one or two brushes in previous years, I learned that the culture of the House of Commons, though normally respectful, is not steadfastly supportive of the judicial branch of government. They sense in the Judges, as they do in the House of Lords, a potential rival for power. The House of Commons is a jealous god, and I don’t regard it, at all times and for all purposes, as a completely reliable bulwark of judicial independence.
The same is true for the Executive, and with brass knobs on. I don’t at all impugn Ministers’ motives, but the pressures on them are very great, not least from the media. The more the judges come into what Ministers see as their territory – as again we saw the other day in the Brexit Case – the greater the potential danger to judicial independence. That is why I would like to see all available reinforcements to that independence built up and fortified.
I have already mentioned my belief that one way of doing this would be, as far as possible, to reserve the post of Lord Chancellor to senior lawyers, and to increase the political component in the appointment of senior Judges. This last would help to bind both Parliament and Ministers into supporting Judicial independence.
As a member of the Constitution Society, I can’t resist adding that a further defence we could build would be a codified constitution which would define and entrench the role and protection of the judges. But that is another and even greater matter for another day.
How far we go down these roads will depend, among many other things, on the political results of our withdrawal from the EU, on their effects on the structure and constitution of the United Kingdom, and on the twists and turns and accidents of politics and government in the years to come. That will be for others to carry forward. However, while the past may be a foreign country, as William Faulkner also said, “the past is never dead; it’s not even past”. So I hope my own experiences may be a modest help for the future. Thank you.
This publication presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.