27 February 2017

In recent months, tensions between the Government and the judiciary have ramped up on both sides of the pond. Nicola Hughes looks at the relationship between ministers and the legal world, based on our Ministers Reflect interviews.

No one will have missed President Trump’s tweets about the judiciary in America. Meanwhile, here in the UK, former Justice Secretary Michael Gove has been airing his nervousness about the “trend towards greater judicial assertiveness” and the impact this may have on parliamentary authority.  

Tension between government and the judiciary are not new, and are likely to be intensified by Brexit – as reaction to the Supreme Court’s ruling on Article 50 shows. Our Ministers Reflect interviews with former ministers show that beyond those with a legal background or who work directly with the sector, politicians tend to see the judiciary as more of a frustration than a help, if they mention it at all.

Ministers and legal advice

How much ministers from other departments interact with the judiciary depends on their brief. Damian Green reflected that legal considerations loomed large in his life as Immigration Minister: “…trying to devise the laws, SIs [Statutory Instruments] and so on, and stop the will of the Government being frustrated by judges, trying to make legislation, and not just primary legislation but secondary legislation, watertight so it can’t be over-interpreted by judges.” However, hardly any of the ministers we interviewed cited unfettered judges reversing their policies as a frustration of the job, suggesting that if Gove’s concerns are founded, they have yet to have real impact on government ministers.

Ministers are perhaps more likely to notice lawyers when something goes wrong, especially in the dreaded case of judicial review, a key mechanism by which the legality of government decisions can be challenged. George Young found that “the chiefs or legal chap in a department will tell you are 100% certain of winning this judicial review and then, blow me down, you have lost – statement in the House, emergency legislation, egg all over the face. And now we have a more judicially active society. Losing a judicial review was quite… that was quite difficult.” Ministers also interact with government lawyers when drafting legislation, and can find them to be pretty risk averse: “…my goodness, civil service lawyers sometimes really would have you do nothing”, explains Jo Swinson.

Legal skills

A number of ministers we interviewed – including Alistair Darling, Ken Clarke, Jonathan Djanogly, Bob Neill and Jack Straw – had practiced law before entering Parliament. They found that the knowledge and skills they’d picked up, such as an ability to digest briefs and make logical arguments, were useful for being a minister in any department, while subject knowledge was clearly useful for those in the Ministry of Justice (MoJ).  

A legal background and good networks in the sector can also give ministers more confidence and credibility when dealing with lawyers or judges, who can be worthy opponents. Ministers who’d been lawyers were keen to see constructive relations between both parties. Lord Faulks – a barrister for some 40 years before becoming Minister of State for Justice – felt that on his arrival in 2014 “there was general disillusionment amongst the lawyers and others about the MoJ”, but that by the mid-2016 “we had created a great deal more confidence in the fact that we were under control and it is disappointing that that has now rather disappeared, under the new regime.”  

The last three Lord Chancellors (a role that prior to 2005 had to be performed by a senior lawyer) and Justice Secretaries – Chris Grayling, Michael Gove and incumbent Liz Truss – do not have any legal training. Each of these appointments prompted criticism from the legal sector, certainly more than we see when non-specialist ministers are appointed to almost any other department (doctors do not expect health secretaries to have medical experience). The Lord Chancellor does have a role, sworn in oath, to defend the independence of the judiciary, which is perhaps one reason why many lawyers prefer to see one of their own in the job.

Law officers

The Attorney General and Solicitor General are the chief legal advisers to the Government (technically to the Queen) and as such must have a professional background in the law, and ideally a good reputation on the circuit. Indeed, current Attorney General Jeremy Wright raised a few eyebrows in the profession as he hadn’t taken silk (been appointed Queen’s Counsel) prior to his appointment. Ex-Solicitor General Oliver Heald explains that “if you’ve been a barrister for many years, and then you go into politics, the chance to do that job where you do both things is just fantastic”.

Law officers don’t usually make policy. They do little parliamentary business and their departmental staff in the tiny Attorney General’s Office are mainly lawyers, so their role is very different to other ministers, and much more reactive: “you’ve just got to take what comes up”, says Lord Wallace, former Advocate General for Scotland. They can often be forgotten and have to push to be kept in the loop. “I used to describe our role as being like the lawyer in the cupboard”, explains former Solicitor General Edward Garnier, “the Government opens the cupboard and says ‘What’s the answer to this? Thank you’ and puts you back in the cupboard and shuts the door.”

Dominic Grieve, former Attorney General, considered whether the Attorney should act “as a bridge between the judicial and the political world” and concluded that the Attorney can create valuable opportunities for exchange of views and feedback between government and the judiciary. He advised that this bridge-building role “is not required of the job” and that “if I had kept my head lower under the parapet, on a number of issues, then I might have been in office longer.”

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