New Lord Chancellor gives lawyers cause for concern and hope

Elizabeth Truss, the first woman Lord Chancellor in history and staunch defender of the British cheese industry, has been given her marching orders by the prime minister. Sweeping her broom over the weekend in a highly anticipated cabinet reshuffle, Theresa May demoted Truss to chief secretary to the Treasury following last week’s shock general election result which resulted in a hung parliament. The move led to much speculation over who Truss’ replacement at 102 Petty France would be.

Barristers Anna Soubry, Bob Neill, and Dominic Grieve QC may have been the legal profession’s preferred candidates for the job (indeed, the return of Michael Gove was endorsed by many legal commentators if it blocked Chris Grayling ruling the roost at the Ministry of Justice once more), but instead Downing Street revealed that David Lidington is the new Lord Chancellor and secretary of state for justice.

An almost audible ‘Who?’ could be heard across the land as lawyers, anxious to know whether the new boss is the same as the old boss, quickly began googling ‘David Lidington’. So, who is the new head of the UK justice system?

First off, Lidington is not legally trained, making him the fourth consecutive non-lawyer Lord Chancellor in five years. A historian with a PhD in Elizabethan history (his thesis was entitled ‘The enforcement of the penal statutes at the court of the Exchequer c.1558-c.1576’) and captain of the Sidney Sussex College, Cambridge team that won the 1978 series of University Challenge, Lidington spent three years as special adviser to Douglas Hurd in the Home Office and Foreign Office, respectively, before becoming the member of parliament for Aylesbury in 1992; a seat he has held ever since.

Lidington has held several Tory front bench and cabinet positions in his 25 years at Westminster. But like many of his colleagues, he did not escape 2009’s parliamentary expenses scandal. As reported by the Telegraph, he charged the taxpayer almost £1,300 for dry cleaning, along with claims for toothpaste, shower gel, body spray, and vitamin supplements, which he admitted seemed ‘over-generous’ as legitimate expenses before referring himself to his party’s scrutiny committee. He paid back the toiletries claim within ten days.

And what of his voting record? According to TheyWorkForYou, Lidington toed his party’s line and generally voted for restricting the scope of legal aid. This included voting against its availability in social welfare decisions, for children in a wider range of cases, and for welfare appeals and international child benefit recovery cases. Also of note, he almost always voted for limits on success fees in no-win, no-fee cases and consistently voted for allowing national security sensitive evidence to be put before courts in secret sessions as well as the mass retention of communications data.

A social conservative, the new justice secretary generally voted against gay rights and laws promoting equality and human rights. For example, he voted against making it illegal to discriminate on the basis of caste. And, last May, he voted in favour of a raft of measures in the Queen’s speech, which included repealing the Human Rights Act. However, this particular vote jars against his stated position on the importance of promoting human rights internationally and a suggestion that he is committed to keeping Britain in the European Convention on Human Rights.

Writing on the Foreign and Commonwealth Office blog in December 2015, the then minister for Europe said he cared ‘strongly’ about access to justice for all and that one of the FCO’s top priorities was to campaign against the death penalty. Lidington cited recent executions in Belarus, the ‘worrying trend’ of targeting human rights defenders in Azerbaijan, and called on Russia to meet its international commitments to respect the rule of law.

Those worried by the prime minister’s recent statement in the aftermath of the London Bridge attack on 3 June may be encouraged by Lidington’s belief that while governments ‘have a right and a responsibility to protect their people from threats and crime’ how they go about it determines ‘their real success in providing security for their citizens’. And although May spoke of restricting the freedom and the movements of terrorist suspects and ripping up human rights laws should they act as an impediment in the fight against extremism, Lidington previously wrote: ‘A state which respects the rights of its citizens and fosters an independent judiciary and equality before the law, will be safer, more orderly, and more prosperous.’

His respect for the independence of the judiciary – something sadly lacking from his predecessor – was also on display when, as Leader of the Commons, he shot down a fellow Conservative’s call for future Supreme Court justices to be vetted by MPs as there was ‘a lack of parliamentary accountability’ in judicial appointments. Replying to Carlisle MP John Stevenson, Lidington said: ‘I hope that we don’t go down the route in this country where political considerations play a part in the appointment of judges.’

Lidington’s response, coming after the High Court’s article 50 ruling, was in stark contrast to the then Lord Chancellor, who had refused to defend the independence of the judiciary from right-wing tabloid headlines claiming three eminent judges were ‘enemies of the people’.

In a statement following his appointment yesterday, he said: ‘Democracy and freedom are built on the rule of law, and are protected by a strong and independent judiciary. I look forward to taking my oath as Lord Chancellor, and to working with the Lord Chief Justice and his fellow judges in the months ahead, to ensure that justice is fairly administered and robustly defended.’

The new Lord Chancellor is far from a household name but one who now wields a big stick over a justice system in urgent need of reform and investment. His voting record suggests he may not be the best friend to legal aid practitioners, and with the urging of No. 10 he may – like his predecessors – be asked to raise a ‘British Bill of Rights’ from the dead.

Many will rightly point out that the new MoJ chief is yet another middle-aged white Oxbridge graduate and suggest we have taken a backwards step on the road to greater diversity at the top of the justice system. But while Truss’ tenure was a watershed moment in legal history, she was woefully ill-equipped for the role and far from lived up to her responsibilities.

His lack of legal background will be a cause of concern to some; the profession is nothing if not twice bitten, thrice shy following Grayling and Truss’ periods in office. Still, the profession will be hoping Lidington understands the solemn oath he is soon to take and that he upholds it in the difficult months ahead. That would at least be an improvement on what has gone before him. Anything beyond that would be a bonus.

Image: © Foreign & Commonwealth Affairs. 14 May 2010.  

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

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