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Pressure grows on ‘blunder-prone’ Truss and Ministry of Justice

Cabinet members argue for hiving off Lord Chancellor and justice secretary roles, says report

6 April 2017

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Cabinet ministers have reportedly been urging the prime minister to remove Liz Truss from the role of Lord Chancellor and, potentially, break up the Ministry of Justice due to ‘a series of blunders’.

Senior government sources have told the Daily Telegraph that a number of embarrassing mistakes have prompted ‘concerns at the very top that a major overhaul is needed’. This may involve stripping Truss of the Lord Chancellorship, therefore removing the conflict of interest with her other position as secretary of state for justice, and breaking up of the MoJ itself amid concerns the department is ‘not fit for purpose’.

‘Recent cock ups go deeper than simply weak ministerial oversight,’ a Whitehall source said, adding that ‘splitting’ the ministry up is ‘being looked at’. A government spokesperson has denied any such plans are under discussion.

Since taking over the dual roles of Lord Chancellor and justice secretary from Michael Gove in July 2016, Truss has faced criticism for her handling of prison riots, bafflement over claims that barking dogs could stop drones bringing drugs to prisoners, disapproval from lawyers for failing to engage with them, and accusations of misunderstanding the practicalities of pre-recorded cross-examination.

Truss’ lowering of the personal injury discount rate to -0.75 per cent, which she described as ‘the only legally acceptable rate’, and the subsequent consultation on farming out her responsibility for the rate to an independent body, has also reignited the debate over the conflict of interest between her cabinet roles.

Just this week the Joint Committee on Statutory Instruments suggested that the Lord Chancellor may be acting beyond her powers by introducing controversial new £20,000 probate fees designed to help fund the court system. The committee’s report says the fees amount to an inheritance tax by the back door. But more damning has been senior judges’ recent criticism of Truss over her failure to defend the judiciary from press attacks during the article 50 litigation.

Giving evidence to the House of Lords Constitution Committee, the Lord Chief Justice, Lord Thomas of Cwmgiedd, said Truss was ‘completely and utterly wrong’ in her understanding of the Lord Chancellor’s constitutional duty to uphold the independence of the judiciary and shield it from attack. Thomas, who is retiring later this year, was backed up in his analysis by the president of the Supreme Court, Lord Neuberger, who told peers last week that Truss has ‘a duty to speak up’ for the judiciary.

Solicitors Journal has long questioned the wisdom of the Constitutional Reform Act 2005 modifying the office of Lord Chancellor. The reforms allowed the last three incumbents – Chris Grayling, Michael Gove, and Liz Truss – to be non-lawyers; varying degrees of success and failure for the justice system have followed. Yet speaking to the journal in 2016, Labour’s Lord Falconer QC said that, even in hindsight, the reforms were ‘the right thing to do’ and that government ‘should have the widest range possible from whom to pick for Lord Chancellor’.

Nevertheless, a return to a time when the cabinet benefitted from an independent Lord Chancellor, free from ministerial responsibility and who understands the rule of law, would be undoubtedly welcomed by a majority of the legal profession and judiciary. Likewise, lawyers will hardly grieve the loss of the MoJ should it be broken up and sold for parts around Whitehall.

It seems unlikely, however, that Theresa May, who has long operated without a legally trained cabinet member obstructing government policy by defending the rule of law, would be willing to amend the Lord Chancellor’s role as it now stands. The best the profession may hope for will be a legally trained MP, still shackled with the burden of wearing two hats, taking over the MoJ come the next reshuffle. Who that would be, and where that would leave Truss, is anybody’s guess.

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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Wills, Trusts & Probate Personal injury Police & Prisons Courts & Judiciary

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Liz Truss Lord Chancellor justice secretary Ministry of Justice Constitutional Reform Act 2005 Article 50