Editorial: After another reshuffle, we once again have a legally-qualified lord chancellor. But he has a lot on his plate
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Marc Bloomfield
When the Conservatives lost power in 1997, it marked the end of Lord Mackay’s 10-year stint as lord chancellor. This is quite a contrast to the current administration, where David Gauke, who was appointed to the top job at the Ministry of Justice (MoJ) last month (see 'Three new ministers at the Ministry of Justice'), will be the fourth justice secretary since the Conservatives’ May 2015 general election victory. As with much of the current febrile state of politics, Brexit is one of the main causes of the ministerial revolving doors at the MoJ. This lack of stable political leadership is concerning, as the department faces multiple challenges.
The Constitutional Reform Act 2005 introduced greater separation of the arms of the state, most significantly creating the Supreme Court and ending the lord chancellor’s role as head of the judiciary. The then new joint secretary of state for justice/lord chancellor retained the role of defending the rule of law and the independence of the judiciary. This was something Liz Truss (who held the position from July 2016 to June 2017) lamentably failed to do, with her late and tepid response to media hostility towards High Court judges in November 2016 for their judgment that Brexit had to be triggered by a vote in parliament, in which they were branded, among other things, ‘Enemies of the people’ (by the Daily Mail).
Truss had been preceded by Michael Gove (May 2015–July 2016). To the delight of many in the legal world, including Legal Action, Gove’s time at the MoJ was mainly marked by a series of policy U-turns that unravelled the legacy of his predecessor, Chris Grayling. These included putting a stop to Grayling’s inept attempt to limit the availability of books to prisoners as well as abandoning two-tier contracts in criminal legal aid, which, if they had gone ahead, would have had a devastating impact on legal aid firms. Gove was also successful in persuading the Treasury to commit nearly £1bn to an ambitious programme of court reforms, but Theresa May dropped him after she took over as prime minister in the messy aftermath of the vote to leave the EU.
About as early as possible in his short tenure at the MoJ (June 2017–January 2018), David Lidington signalled that he fully understood his responsibilities to defend the rule of law and the independence of the judiciary (in his swearing-in speech he said these ‘safeguard us against tyranny and dictatorship’). As the new justice secretary is a solicitor, we can hope he will not need an extensive briefing on his constitutional responsibilities. His reputation as a capable government trouble-shooter, however, is likely to be tested by other priorities. The digital transformation programme in the courts that Gove initiated is supposed to produce £200m a year in budget savings by 2019/20. Gauke and his ministers will quickly need to get to grips with the oversight of this complex process if the target is going to be met. Legal Action would also argue that they need to realise the importance of expert advice and, where necessary, representation for court users, if the reforms are to be successful.
Waiting in his in-tray when Gauke took office was the case of the ‘taxi rapist’ John Worboys. After considering a possible judicial review (JR) of the Parole Board's decision to release him, Gauke climbed down on the issue (London mayor Sadiq Khan has now issued his own application for JR of the release decision). If such cases lead to a government rethink on sentencing policy, this would put further pressure on a prison system already at breaking point due to high numbers of prisoners and shrinking budgets. Last year (2016/17) saw a 24 per cent increase in prisoner self-harm and a 38 per cent leap in the number of assaults on prison staff.
Dominic Raab had been appointed justice minister at the same time as Lidington (June last year). He had been tipped to take over the top job at the MoJ, but was instead moved sideways to become housing minister in the revamped Ministry of Housing, Communities & Local Government. In recent months, Raab has enjoyed a high profile due to his work on the EU (Withdrawal) Bill. It’s rumoured that May decided to move him on before his stock became too high among the Brexiteers and he became a potential threat to her position.
Whatever the reason for the move, Legal Action believes that Raab’s focus on Brexit diverted his attention from his other responsibilities, including legal aid. His predecessor, Sir Oliver Heald QC, announced the already delayed post-legislative review of LASPO in January last year. It was not until October, though, that the Justice Committee received the memorandum to kick-start the process.
It would seem the review of the regulations on legal aid and domestic violence originally initiated by Truss (see 'Legal aid for domestic abuse survivors: at last the time limits have gone') was another policy that slipped down the pile of papers in the minister’s red box. Last summer, sources close to the review told Legal Action that the new regulations were in their ‘final stages’, but in October we learnt that they had been ‘delayed due to ministerial changes’.
Phillip Lee and Lord Keen remain in their posts, but the new justice secretary is joined by two other fresh faces, Lucy Frazer QC and Rory Stewart. Let’s hope that they have a relatively quick induction period and can stick around long enough to focus on the priorities discussed above. They also would be well advised to steer clear, if they can, of Brexit matters, as these could prove distracting and potentially damaging to their career prospects.

About the author(s)

Steve Hynes
Steve Hynes is director of LAG. He is a well-known commentator in the written and broadcast media on legal aid and access to justice issues.