Lord Chancellor, fit for purpose?

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The current cabinet reshuffle has seen the Lord Chancellor, Chris Grayling, remain in post. To state that the legal profession regard this as disappointing may be considered as an understatement by many. But why exactly? This article will explore the role of the Lord Chancellor and the controversial decisions made by the current occupier. In doing so, it will be considered as to what extent the Lord Chancellor himself is unfit for purpose or, in light of the recently announced inquiry into the role of Lord Chancellor, whether it is the role which is unfit for purpose.

Background

While the role of Lord Chancellor is one of the oldest, being understood to date back to the 7th Century, the role was completely overhauled by the Constitutional Reform Act 2005, which came into force in April 2006. Before 2006, the Lord Chancellor was the speaker of the House of Lords, performing a legislative function; a member of the cabinet, performing an executive function; and, head of the judiciary responsible for judicial appointments, therefore performing a judicial function.

The Constitutional Reform Act 2005 changed this. The Lord Chancellor was replaced by the Lord Speaker, therefore no longer performing a legislative function; the Lord Chancellor remains a member of the cabinet performing an executive function; however, the Lord Chancellor was replaced as head of the judiciary by the Lord Chief Justice, therefore no longer performing a judicial function. Judicial appointments are now made by the Judicial Appointments Committee. Furthermore, the Lord Chancellor now preforms a dual role, also being the Justice Secretary.

The changes to the role were argued as necessary to ensure an adequate separation of powers which was considered in a previous blog article here. With the new Lord Chancellor role now being nearly 10 years old, what must be asked is whether it is the current occupier of the role or the role itself which is unfit for purpose.

The current occupier or the role?

Chris Grayling is the first Lord Chancellor in history to have no formal legal qualifications. This has been a source of criticism and severe frustration from within the legal profession. Mr Grayling has in his time as Lord Chancellor made some controversial decisions including the staggering cuts to legal aid and reform (privatisation) of the probation service. These decisions have caused Mr Grayling to come under immense attack; the legal aid cuts have attracted several large petitions with one alone reaching over 100,000 signatories as well as many protests.

With the legal aid cuts being seen as a severe restriction on access to justice, they have been argued by many to be incompatible with the rule of law. This was specifically considered in a previous blog article here. Although the Lord Chancellor under the post 2006 regime is no longer head of the judiciary or presiding officer of the House of Lords, he has statutory duties to uphold judicial independence and the rule of law. As his policies have been argued to defy the rule of law it logically follows that many argue Mr Grayling to be unfit for purpose. However, and rather surprisingly, in defence of Mr Grayling what has recently come to light is that it may not in fact be him who is unfit for purpose but the role itself.

Last week The House of Lords constitution committee launched an inquiry into the Lord Chancellor’s role, asking whether it is sufficiently independent of government and whether it should be held by somebody with legal qualifications. The decision to launch an inquiry has resulted from recent findings in relation to the Lord Chancellor’s plans to restrict Judicial Review in which the committee stated “risk undermining the rule of law”. The committee have stated they will specifically consider what the Lord Chancellor does to “uphold the rule of law and judicial independence”.

It has been repeatedly propounded by many in the legal profession that the policies and decisions of Mr Grayling do not respect the rule of law. Many take this further and argue that as Mr Grayling has no legal qualifications he does not even understand the rule of law. It logically follows that in order to uphold the rule of law, one must have an exceptional working knowledge of it. Can this be achieved by a person without any legal qualifications? This may well be the crux of the matter in which the committee may need to examine and address.

Therefore, it can be seen that a tenable argument exists whereby Mr Grayling is, himself, unfit for purpose. However, the result of this may well have highlighted key shortfalls in his actual role which may well lead to its downfall, at least as far as it currently exists. Of course this could all be a cunning guise to shift the attention away from Mr Grayling. Blaming a role is, of course, easier than blaming a man. Accountability still appears to be at the bottom of the government’s list of priorities and this inquiry could be the necessary proponent to ensure a shake-up of the Lord Chancellor’s role, leading to a role more focussed on upholding the rule of law rather than working against it. Any such recommendations would surely be welcomed by the legal profession. It would then be a question of what, if anything become of them.

Further reading

More information can be found on the upcoming inquiry can be found on the House of Lords Select Committee website here: http://www.parliament.uk/business/committees/committees-a-z/lords-select/constitution-committee/news/launch-lord-chancellor-inquiry/

The constitution committee will begin oral hearings this month, before resuming in October. Interested parties should submit written evidence by 29 August 2014.

More on the importance of the rule of law can be found in a previous blog post here, and more on the importance of Judicial Review can be found in a further previous blog post here.

15/07/2014

Dale Timson

LLB (Honours) Student & Aspiring Barrister

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