Law Faculty Speech 15.3.22
It is a great pleasure to be back here for my second visit to Goodenough after last Autumn’s Alumni Dinner. I have been enjoying at least some of my liberty, having been released from the surly bonds of Ministerial office. I am able to enjoy Wordle (got it in 3 today), Worldle (got it in 2) and even Nerdle (no comment). We are assembled here, in the post social distancing era where we are able to enjoy each other’s company again, on the Ides of March. It is a date that history and literature has always characterised as a date of great portent, even danger. The fact that we have all made it here is eloquent demonstration of the steps we have taken to avert disaster. Let’s hope this will continue until this day ends! This is not the case for everyone today, however. At a time of strife, invasion and war right here in what Michail Gorbachev called “our common European home”, then it is right for us tonight to take this moment to reflect on the enormity of events and upon the fragility of our freedoms. Those who stewarded us through war and tumult and who then led efforts to create a new international framework are still owed a great debt of thanks. Their legacy has been profound. What, then, of our generation, and the task that has been handed to us?
I, for one, do not want to be found wanting. It appears that the West has been galvanised into collective action in defence, not just of physical borders, but of principles. Self-determination, democracy, a free economy delivering rising living standards and rising standards of behaviour towards each other. As the West reminds itself of these fundamental values, perhaps you will forgive me for casting my gaze inwards, as I reflect on my time in office and upon the system I had at least partial responsibilty for.
The British Constitution: is it a perfect, organic system or an inchoate, flawed mess? Is the very question itself missing a more fundamental point, namely: do we still have a “British” constitution? These questions are pertinent ones as I take this opportunity not merely to reflect but to look ahead as I attempt to chart the likely course that our system will take in its continuing journey of evolution.
Evolution. I think that is the right word to use. There is a high degree of consensus over it. That in itself is a victory. A system that is the product of revolution is one that should fill us with dread. The Whigs amongst you will argue that the changes of 1689, for example, were all part of the arc of progress, where change for the better was inevitable. In these dark days, where war and tyranny are returning to Europe and where large swathes of the globe are dominated by authoritarian dictatorships or oligarchies, should cure us of such misplaced faith.
Don’t mistake me for being a cynical pessimist, though. These days will pass, and the dictators will totter and fall. What will be left, I firmly believe, are the eternal principles of liberty, underpinned by Parliamentary democracy and the rule of law.
At the heart of this system lies the office of Lord Chancellor, embodying its strengths, weaknesses, contradictions and tensions. The LC is a key member of the Executive, helping to deliver the Government’s agenda. But that isn’t the only horse to ride. The role of Secretary of State for Justice has massive operational and delivery responsibilities, running prisons, probation and, in part, the courts system, with over 80k employees and an annual revenue budget of about £8b. The LC also has the vital duty of being the guardian of our judiciary. They take an oath to respect the Rule of Law, to defend the independence of the judiciary and to ensure sufficient resources for the courts. This, by the way, means judges throughout the UK, in all of its three jurisdictions.
The Public Service Pensions and Judicial Offices Act 2022 has UK wide applicability, which was in part ensured by the engagement work that I undertook with the devolved administrations and judges in each of our jurisdictions. As well as working internally with our judges, the LC has an external role. As LHC of Great Britain (why not the UK?), they are best-positioned to promote the value of our justice system at a global level.
As our system continues in its evolution, the delicate interaction between our institutions and the way in which they interact between the nations of the UK inevitably requires fine tuning. This is precisely what I had started to do in two key respects:
Firstly, the Independent Review of Administrative Law, which has given rise to legislation to refine and reform aspects of judicial review, and secondly the Independent Human Rights Act Review which was completed just as I left office and which contains a number of sensible proposals to update the HRA as the manifesto stated.
I won’t dwell too heavily on these matters now, but want instead to talk about the role of the Lord Chancellor in light of the Constitutional Reform Act 2005, and what I regard as a misconceived reform to the office that has hampered its effectiveness. The 2005 Act made sweeping reforms to the LC role, on the basis that the previous system, in which the LC was a member of the Executive, Legislature AND judiciary, was an anachronism. The LC had been described as the “lynchpin” of the constitution. Bagehot described this as a “heap of anomalies”, and my fellow Llanelliite LC Elwyn Jones described it as “an object of wonderment and perplexity.”
The 2005 Act sought to end all of this. It was brought home to me most starkly when I was asked to resign my post as a Crown Court Recorder by the LCJ, as part of an agreement that was reached in the spirit of these changes. Fine, some you might say, but the founding notion of all of this – that Separation of Powers was the overwhelming priority of constitutional reform, is wrong. It is a matter of fact, not opinion, to state that we are not a separation of powers constitution. Instead, we have a system of checks and balances. Imperfect, and not neatly defined. Amen to that.
That’s why I strongly feel that future Lord Chancellors should be Lawyers of standing, and that this will allow them to recover some of the powers and functions that have been lost or diluted. For example, it is clear to me that the administration of justice should be a matter for a lawyer LC, leaving the judicial function to be operated independently by our world class judiciary. I would not propose that the LC should take back control of the Chancery Division or indeed be Head of the Judiciary, which was a title only assumed by the LC in the 1870s anyway. Instead, we should reach a position that enhances not only the LCs position within the legal system, but their position in Cabinet too, fostering a greater understanding between the branches of our constitution and therefore that greater balance..
As for the Executive more generally, there is a common perception that like It’s default position is to seek to accrue more and more power. Having been inside it for over seven years, I think this is wrong. The assumption of more responsibility beings more questions of cost and capacity, and is more likely to be met with a weary shrug of the shoulders as opposed to the rubbing of hands and the licking of lips. You might be relieved to know that more often than not, the default question of Ministers and civil servants when faced with calls to take more power, is “why” rather than “why not”.
After a time of controversy and tension, my assessment of the position of the judiciary is that it is a strong one. Those who seek to conjour up dramatic and divisive images of unelected judges playing politics should be put firmly back in their box by the reality. Our judges are most definitely NOT “Enemies of the People”. The Prorogation case, putting aside any view as to the precise merits of the decision, was an example of the system actually working. Where government and legislature are clear and precise about their intentions, then the courts don’t have to intervene. And where there is ambiguity or uncertainty, the principle of comity between government and judges is well understood and underpins the decisions made. I am of the view that, in this respect, we have entered a calmer and less turbulent period.
What then, of the road ahead? My advice to those who have succeeded me is simple: if it ain’t broke, don’t fix it. Incremental and targeted reform is the most effective and durable kind, rather than the chasing of media headlines. This is what I believe the JR reforms embody. An end to a jurisdiction that has added very little to the process by means of a targeted ouster clause that I believe will withstand the most exacting scrutiny. My view about HRA reform is that the adoption of Sir Peter Gross’s panel recommendations is more or less the wisest course, coupled with a serious attempt to seek convention reform at international level, on issues such as Extra-territorial jurisdiction. Making things more complicated with a domestic Bill of rights doesn’t make sense to me. It is at best, window dressing, and at worst an invitation to view items of legislation as part of a hierarchy of importance with all the potential confusion that could cause.
To sum up, then. For all its flaws, contradictions and imperfections, our system is one that works and which does not need fundamental recasting with each generation. The one that we hand on to our children isn’t quite the one we inherited, but tweaks and adjustments are inevitable. What is not inevitable, however, is that the system will survive without vigilance. A vigilant democracy needs vigorous debate, and debate most certainly about our constitutional arrangements has to be part of that. But underpinning all of this has to be a common purpose-one that acts upon the shared belief that democracy and freedom under the law are values worth defending. As we witness the consequences of inaction, then I am pretty sure about what we need to do. Wherever you may be, whatever you do, be vigilant for justice. Be vigilant for freedom.
