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Robert Buckland

Robert Buckland discusses Brexit’s impact on the law officer role, the end of the Truss government, and managing the courts system in Covid.

Sir Robert Buckland, former justice secretary
Sir Robert Buckland, former justice secretary

Sir Robert Buckland KC has been Conservative MP for South Swindon since 2010. He served as solicitor general between 2014 and 2019, before being appointed as justice secretary in 2019 when Boris Johnson became prime minister. He served as Wales secretary between July and October 2022.

Tim Durrant (TD): You entered government as solicitor general in 2014. What was the conversation like with the prime minister when he asked you to join his government?

Robert Buckland (RB): Well, David Cameron. I can remember going into the room and not really knowing what on earth I was going to be offered because I had neither been a whip nor a PPS [parliamentary private secretary]. I’d been secretary of the ’22 [the 1922 Committee of backbench Conservative MPs], in fact, so I was coming straight in from the backbenches. It’s a bit of an unusual passage into government. But I can remember him saying to me, “You work very hard, you’re loyal and you’re popular,” which I thought was quite a good trio of things, and on that basis, he put me in the government. What I do remember him saying was that although legally I was senior to Jeremy Wright [then-attorney general], because Jeremy had been around more politically because he got elected before me, on that basis Jeremy became attorney general and I became solicitor general.

"When I came out of the meeting, I realised how senior a job it was."

When I came out of the meeting, I realised how senior a job it was. I had gone into government at quite a high level. Solicitor general was a bit sui generis, the equivalent of minister of state level, but actually he or she has a particular role across government. It was a quite a change for me to go into government and divest myself of all the all-party groups and committees that I’d accumulated, and then settle into work with a private office and with a team over the AGO [Attorney General’s Office].

TD: Tell us about entering the AGO. What was your first impression of the team and the department?

RB: We were over in Victoria Street in those days, 20 Victoria Street, and we were on the seventh and eighth floors above the OBR [Office for Budget Responsibility]. So, it was either a smooth lift ride or walking up, which was very good for you, but it made you feel absolutely knackered by the time you came up there. We used to worry about that lift because we were responsible for the repairs to the lift which would take a large part of our very small £5m budget.

It was a lovely and unusual scenario in that you have a joint private office, so one for both the law officers, so your private secretary is the attorney’s as well. It was James Gerard in those days and James is now down in the Welsh government doing great things. It’s very much a sought-after role, the AGO. There are only 39 civil servants, of which five or six are private secretaries, the rest would be some admin staff and mainly lawyers. It’s seen as a great post to have, so we always had a great supply of people and I thoroughly enjoyed working with all of them – both in the criminal team, which, of course, is my specialism, and in the civil/international team, which was more the attorney’s responsibility. The attorney tends to do more of the security-related work and the international law work. Occasionally I would do that, but I then tended to major much more on the domestic stuff, crime in particular, sentencing, and then civil work which is, of course, a large part of the functions of the law officers.

And what a rollercoaster ride it was! In those first few months, we had the Scottish independence referendum in September, and I’d been appointed in July, so within two months we had that. I can remember having the butterfly sensation in my stomach waiting for that result, because if it had gone against us, we’d have been having to talk urgently with the advocate general for Scotland about how we would run this, bearing in mind he was a UK law officer in Scotland and part of our team, although not technically in the AGO. Of course, the referendum went the other way, 55:45, which was a huge relief. It was a very different scenario to the Brexit referendum two years later.

But that time in office, during the coalition – I can remember committees of that government meeting in person, which of course very rarely happens now to the same extent. The Home Affairs Committee was chaired by Nick Clegg and we used to meet in the Cabinet Office, and it would be a huge gathering of people as diverse as Iain Duncan Smith [then work and pensions secretary] and Chris Grayling [then justice secretary] and Ed Davey [then energy secretary] and Vince Cable [then business secretary]. It brought the breadth of the coalition home to me.

The committee I had the most to deal with was PBL [the Parliamentary Business and Legislation Committee]. That’s the one I served on longer than virtually anybody, I think, because I was on it for nearly five years, and I did a lot of the lifting on legislation. The more I got into it, the more I used to intervene on non-law officer matters. I am a great believer that in cabinet committees you might come in wearing one hat, but you should feel free to intervene on all sorts of issues of policy and handling, which I’ve got a lot of experience of because of my legislative work that I did as solicitor general, which probably was the most interesting and high-profile part of the job that I did in those five years.

“What always was of concern to me was the lack of understanding by other ministers about the true role of the law officers.”

What always was of concern to me was the lack of understanding by other ministers about the true role of the law officers. It was a constant job of educating other ministers about what the limitations of our role were. I can remember speaking to one very upset and anxious secretary of state about some aspect of, I think, proceedings against the department, and I think there was a concern that it was a personal failure. I said, “Well, no, the corporate body of the department and the secretary of state are not the same,” and therefore be prepared to get legal action all the time, that’s the way it is. And then I remember being asked whether or not I could give some personal advice and, of course, I said, “Well, no, because of Westland.” And then having to explain what went wrong [in the Westland affair, when a prolonged cabinet dispute surrounding a defence contract was heightened by the then solicitor general advising an individual minister]. But I think that should be probably better understood by ministers and there’s a job of work to be done there. I think I might have alluded to that in the paper that we wrote together.

There are loads of examples, so forgive me for repeating myself, of not just looking at things from a legal point of view but looking at things from a solutions-based point of view, to try and help the government get to the right end in a sensible and lawful way. So, those five years were extremely eventful for me and prepared me pretty well for what then came next.

Jack Worlidge (JW): Do you think that’s the kind of role you can only fully understand once you’re doing the role? What was your perception of it from the outside versus what you found yourself doing?

RB: I think I learned a huge amount about it whilst doing the role, definitely. I remember asking my friend Lord Hunt of Wirral, who I worked for years and years ago, “What does a solicitor general do?” And he said, “Well, whatever you want.” So, I did. And there were a lot of things that I did in terms of public legal education and looking towards the professions that I thought were a very important part of the job. You are a lawyer of standing in the legal community, so you’ve got to own the space, and I was determined to flex to fill that job. I think that the work I did on the floor of the House in a number of bills, including the EU Withdrawal Act [2018], demonstrated that the solicitor general is a very useful person to deploy – and they’ve just done it now on the Retained EU Law Bill, with Michael Tomlinson [solicitor general] doing it, and I was there to remind him that this was déjà vu for me because I was the guy who helped create retained EU law in the first place. And reminding the House about Geoffrey Howe’s work as solicitor general when he did the European Communities Act and the National Industrial Relations Bill. So this isn’t an unprecedented use of the solicitor, but I think I probably did more in recent times on legislation than some of my predecessors. I did a lot more in court as well. I did a lot of cases. I felt it was very important that the law officers were visible in the Court of Appeal to give the judiciary maximum confidence that sensitive matters were getting close personal attention from the law officers.

"I’d hate to see them [the law officers] being denuded of the political element; I think it would be a big, big loss if that was the case."

I think that the roles are basically very sound roles. They really are. And if they’re done well and thoroughly, they are a huge adornment to government. I’d hate to see them being denuded of the political element; I think it would be a big, big loss if that was the case.

JW: On that subject, did you often find any confusion or misunderstanding among cabinet colleagues about what your role was – for example, in terms of pushing back from a legal perspective on things that were politically useful?

RB: I think there were times when there wasn’t that degree of understanding. I think that possibly getting a second opinion [from the law officers] sometimes was misunderstood. Each department has an excellent cadre of lawyers who give very sound advice. Most of them are part of the Government Legal Department, which was being created in my time by the then Treasury solicitor, Jonathan Jones.

Obviously, the Foreign Office is a separate entity, but over the years, having gone round the departments – and actually having done a case with the Foreign Office team when I did the Chagos Islands case and the ICJ [International Court of Justice] in 2018 [the dispute between the UK and Mauritius over the Chagos Islands] – you get to know the personalities and the characters of the lawyers and I mostly had great faith in their ability. My advice to departmental ministers was to trust your lawyers. Only if you need a second opinion, and there’s some particular issue of, perhaps, cross-governmental importance, or maybe a devolution issue that you need help with, then the law officers can be engaged. An example of that would be the trade union legislation that Wales decided to pass in the middle of the decade where the then BEIS department [the Department for Business, Energy and Industrial Strategy] was very exercised about it and they came to the law officers for advice and support, and that’s entirely sensible, it seemed to me, and appropriate. But using the law officers as a first port of call is in most cases not necessary, in my view.

JW: On a similar subject, you talk about the importance of visibility of the law officers, particularly in parliament – Geoffrey Cox being the most recent pertinent example of that, with the publication of the legal advice on Brexit. What do you think about the circumstances in which legal advice can or should be made public? And the use of the humble address procedure…

RB: That [the use of the humble address to request legal advice given to the government regarding the proposed EU Withdrawal Agreement] was wholly unprecedented and I thought was a massive hostage to fortune, and I warned Keir Starmer and the opposition that, if you do this now, you will be hoist by your own petard. And it did set, I think, a potentially damaging precedent.

There are some law officers who think the convention on the disclosure of advice is out of date. I disagree. I think it’s an entirely sensible safeguard. It’s over and above the normal privilege which applies to lawyer-client relations. It doesn’t stop the government from publishing a legal position, which it has done on a number of occasions, most notably in Libya [when the government published a note on the legal basis for the deployment of UK forces in Libya]. The Libyan situation, I thought, was a very good way of dealing with the situation by providing disclosure to the Commons, but not in a way that compromised the confidentiality of law officers’ advice. I think we were right to fight hard on the principle of the convention during the humble address debates. Ultimately, we lost. We knew we were a hung parliament, we weren’t going to win.

Talking about visibility, I think [former solicitor general] Edward Garnier has put it well in the past where he’s described the law officers as the submarines of government: when they appear on the surface, things aren’t usually going terribly well! And I think he has got a very good point. Looking back, my view is that I didn’t just want to be a submarine, I didn’t just want to be in the boiler room. I think sometimes there’s a virtue in knowing who the law officers are, what they do and the positive aspects they bring to government. But I think the realities of the situation are such that people don’t really want to hear the good news. It’s only when the bad news surfaces that we then, the law officers, have to rise to it.

“What was legal had become intensely political [during Brexit], and the two were very difficult to extricate. So the law officers were really put to their mettle”

When I look back at those days, I think they were a combination of extraordinary events that we’re unlikely to see again. What was legal had become intensely political, and the two were very difficult to extricate. So the law officers were really put to their mettle. But, again, I would say the institutions have emerged, I think, pretty well. They were resilient, mainly because the content of the advice was seen as being robustly independent. Ultimately, parliament had nothing to fear. This was not Iraq. This, in fact, was the opposite of that. It wasn’t a question of undue influence being brought to bear on the law officers to produce advice that would be in the government’s interest. On the contrary. Which I think emphasises the robustness of where we are, the lessons that were learned from Iraq, which, of course, are in a whole chapter of Chilcot [the report of the public inquiry into Britain’s role in the Iraq war] if anybody ever bothers to read it. It used to be on my shelf in the AGO, so…

TD: You were solicitor general for five years and then you moved as minister of state, at first, to the Ministry of Justice [MoJ]. And then you were promoted quite quickly, when Boris Johnson became prime minister. What was the move like, both from department to department, but also up to cabinet?  

RB: There was a pay cut. I noticed a dramatic pay cut [the law officers are paid more than other ministers of equivalent rank, with the attorney general paid more than the prime minister]. I thought, “This is interesting, being a minister of state is pro bono!” [Laughter]

Being more serious, I remember the interview with Theresa May, I think in the last reshuffle she did before her demise. It was occasioned by Rory [Stewart] moving from prisons to DfID [the Department for International Development], I think, and I didn’t get the call for quite a few days. I went in to see her and she said she wanted me to do justice and prisons and I remember saying, “It’s fine, prime minister. I’ve been in and out of prison for 30 years!” And then I said, “Shall I rephrase that by saying, I’ve visited many prisons for 30 years because I was a barrister for many, many of those years.” So, for me, it was very much like home fixture, in the sense that I knew quite a lot about the prisons system, about a lot of the problems besetting it, and about the huge task facing prison officers.

But I was also interested in the probation side of it, and I always emphasised that in the time that I was there that I was a minister for justice, I wasn’t just a prisons minister, I covered the whole system and therefore I did quite a lot with the probation service. We’d just announced a reform package – David Gauke [then justice secretary] announced it – which I was fully on board with and then further developed when I was secretary of state, and I wanted to make sure the probation officers didn’t feel forgotten. I did quite a lot of work on that. So my months in that role involved a hell of a lot of visits, actually. I remember visiting lots of prisons and probation offices and getting around. Again, getting stuck in.

I think the first week we had an opposition day debate, which was very unusual, on justice, where I responded on probation. David [Gauke] led, I responded. And then, of course, the weeks went by, and we had the resignation of the prime minister and then a leadership contest. So it was a very odd two months, but I did feel far more attuned with it than perhaps some of my predecessors.

The main challenge I kept on getting was, was I going to carry on Rory Stewart’s, “I will resign if the 10 prisons aren’t improved”? And I simply said, “Well, I’m going to do it my way.” I said, “I come to this job with a lot of experience of prisons,” and I was regularly in the war room looking at the progress on the 10 prisons project and then very keen to use best practice from that elsewhere. But very soon it was a new government and suddenly a significant increase in investment that I was facing, both on capital spending and on security and revenue for prisons, so we hit a very different period from the time of Boris coming to office. So it was a lively few months, but a good preparation for what then was to come.

TD: As you say, you then become secretary of state a few months later. As secretary of state for such a massive department, how do you go about setting of priorities and working out what you want to focus on?

RB: In those early months, the prime minister had sketched out his views about sentencing, so I had a number of priorities that I was going to deliver, together with my own ambitions. I was going to produce a review on sentencing within the first two months or so, which would bring in to force some of the ideas the prime minister had sketched out in his leadership campaign. We could do that via secondary legislation, so we did. Before the election I, for example, increased the amount of time that serious and violent offenders were to serve in prison from half to two thirds [of their sentence]. That was done for over seven years of imprisonment, as the first stage. I also extended the ULS, the Unduly Lenient Sentence Scheme, to cover more offences. So quite a lot of changes were brought in by me in that period from July to November of 2019 as a direct response to the fact that the prime minister wanted stuff to be done in his first 100 days. I think justice was really in the vanguard of getting stuff done and the civil service responded brilliantly. They produced a 110-page review in about a month, they worked to pace. And I remember giving them a drinks party to thank them for all the work they did – this was, of course, pre-Covid, so it was allowed! The atmosphere we had in the department was one of happy efficiency. I was a great believer in a lot of hard work, but with a smile. So I got lot more out of them than perhaps would have otherwise been the case.

We also had my priorities up on the board, in three different sections. We had the manifesto commitments; ongoing departmental commitments, so things like family law reform, that sort thing, which is very important to me. And we did the Divorce Bill, we got that through, thank God. And then I had RB [Robert Buckland] priorities, which were things like autism and neurodiversity. We were going to do a big call for evidence on that, which we did. I appointed Charlie Taylor as HM chief inspector of prisons, who came from an autism/SEN [special educational needs] background, precisely because I wanted somebody who understood neurodiversity to be in that job to ask the right questions. He’s proved, I think, to be a brilliant inspector. Justin [Russell], the chief inspector of probation is very good as well. So we had a very healthy arm’s-length relationship with the inspectorates.

“[The Ministry of Justice] had been curled up in the corner for years, in the foetal position, in the crouched position in the corner, especially viz-a-viz the Home Office.”

I just felt that I knew what I wanted from that department, and I said to them after the election, I said, “Now we’ve got a bigger majority, let’s have a bit of confidence.” We’d been curled up in the corner for years, in the foetal position, in the crouched position in the corner, especially vis-à-vis the Home Office. The relationship, I thought was frankly entirely dysfunctional. I thought the Home Office had got used to being the dominant partner – I’m not going to exaggerate here, it was almost like some sort of unequal relationship where one partner thought they could abuse the other and talk down to the MoJ [Ministry of Justice], and I thought, “I’m not having this. I’m not having this at all. It’s outrageous.” I expected a mutually respectful arrangement.

I think, to be fair, thanks to the help from the home secretary, who was particularly good, we established a much better equilibrium between the two departments. I think we institutionalised much more of a dialogue between the perm secs [permanent secretaries], which has carried on to this day between Antonia [Romeo, MoJ permanent secretary] and Matthew Rycroft [Home Office permanent secretary]. Because prior to that, I wasn’t sure that much of that was going on.

TD: And that home secretary was Priti Patel, is that right?

RB: So Priti came in with me, which was an advantage in that we were both coming in new to the job. So I can remember saying, “Look, I think we’re stronger if we co-operate Both departments are going to be stronger.” And she got it immediately and we did, I thought we worked together extremely well. Because we had to work not just on criminal justice, but on borders and immigration as well, which was a thorny issue to say the least.

In terms of relationships between ministers, private office and the department, I’m extremely proud that when I left the MoJ, it was a much happier and more efficient place than when I joined it. That’s no criticism of the people involved. I thought Richard Heaton was an excellent perm sec and I loved working with him, and I would’ve been happy for him to carry on, putting my cards on the table. But Antonia was somebody who I’d worked with and knew before, and therefore I was more than happy to work with her as well. I also had the excellent interim perm sec Mike Driver, who had been the CFO [chief financial officer] at MoJ. There’s a lot I could say about the appointments procedure. Mike didn’t fit the stereotype of a perm sec and I think the civil service needs to ask some questions about why somebody as good as him wasn’t seen to be over the line in terms of being a permanent secretary. I ask that question because I think that in everything he did, he excelled, both in terms of the management of a very tricky financial situation in the MoJ and then his work after he left in doing the quarantine hotels, which quickly slipped out of the news when he got hold of them. It’ll tell you a lot about the quality of the people who worked with me that I really don’t have criticism of any of them actually and I was well served.

TD: Just on the sentencing point – there’s been a bit of a trend, which you’ve outlined, towards longer sentences, perhaps against the capacity of the prison system. How do you think that’s worked, as the capacity of prisons today obviously hasn’t been able to keep up with the sentencing. Was that a misalignment as to how departments were talking to each other, or was it not fully thought through?

RB: No, I think actually our forecasting system was pretty good. I know things have gone a little bit concerningly awry in the last couple of months to the extent that we were going to have to use police stations, which filled me with huge alarm when I heard about that because I didn’t think we were near the buffer or going to risk that. What I think was a missed opportunity during these years was a chance to really reform community sentences as a direct alternative to short terms of imprisonment, and I wanted to use technology – tags, curfew technology and satellite technology – to, in effect, impose really stringent house arrest provisions on people who otherwise would go to prison. That would mean that these people, if they were in work, could carry on working and not lose their job or their home, but they would have significant deprivation of liberty. Using technology in an intelligent way to reduce the number of short-term prisoners, rather than banning or abolishing the short-term sentences, I thought that was a big mistake. My predecessor flirted with it, but I thought it [abolishing short sentences] was a bad idea, and in Scotland they’ve done it and there’s been no appreciable change in reoffending rates, which I thought was really interesting. Plus, the fact that I’d been a judge and sometimes you need that last option where everything else has failed. You’ve got to send them down, I’m afraid, having done it. But I think the combined use of smart technology to reduce the churn and the numbers coming in all the time, plus an acknowledgment that with, as you say, more serious and violent offenders filling the prisons, then I think we could have managed these next five to 10 years quite intelligently.

I think the prison building programme is superb. My frustration about it is, again, bloody MPs objecting, even though they’ve got prisons there. We wanted to build on MoJ land next door, I mean [HM Prison] Grendon is an example which drove me bats: they didn’t do at Grendon [plans to extend the prison were rejected by the local council], and the same with [HMP Prison] Gartree, and then the one in Lancashire, which seemed to me to be no brainers.

TD: Six months after you became secretary of state, the pandemic hit. That obviously changed the way the justice system worked in general. What was that like?

RB: Well, everything became operational. The old idea that the minister looks after the strategy – forget that. “What is happening in Brixton [prison]? We’ve got an outbreak in Long Lartin [prison], what’s going on there?” That became everything.

[During Covid], everything became operational. The old idea that the minister looks after the strategy – forget that.”

The weekdays melted into weekends. We had remote meetings with Public Health England, in particular, who we were very well served by.  The work we did with them gave us a very credible way of managing Covid in the prison estate: quarantining new arrivals, shielding of the vulnerable, whether they were asymptomatic or not, all of which minimised the spread of the disease through the prison system. The price, of course, was the lockup, which was very hard, and the regime was particularly harsh in some prisons. There was always the question about whether you needed such a uniform regime in some prisons where there was less churn. But unless you have one regime, I thought, it was going to be impossible to administer.

I found that, as an operational minister with direct responsibility for 120 prisons via HMPPS [HM Prison and Probation Service], you could pull the levers much more easily and get things done. So, at that time, having a command [and] control approach was by far the best way of managing what could have been an absolute disaster, not just in terms of illness but disorder. Staff absenteeism never rose significantly – it was around 10%, which was a miracle bearing in mind what was happening in HMCTS [HM Courts and Tribunals Service], where staff absences were topping 40–50% in the beginning, but which we cured by finding every bloody laptop we could buy in PC World and making sure that staff could work from home.

TD: How did you manage it in the courts?

RB: Courts are much more difficult because HMCTS is this odd hybrid body where the lord chief justice and the lord chancellor are normally in charge. There’s a CEO who was then Susan Acland-Hood – who was very good by the way, we had some disagreements, but I respect her hugely. I always had a sense there that I was one remove from being able to pull the levers, which I found very frustrating, I’ll be honest with you. And it sometimes did take me metaphorically banging my fists and saying, “No, no, we’ve got to do this,” particularly with Nightingale courts [temporary additional courts]. I was determined that we were going to get them open soon.

There was a lot of local work done in Cardiff, for example. The police and crime commissioner, Alun Michael, who I knew very well, rang me, and he said, “Look, we’ve got a solution” and I said, “I know what you’re talking about because I know the buildings and I think you’re right. So why don’t you go ahead and work with the local court service and the bar and come up with an idea.” And they did, and Cardiff and the [Old] Bailey were the first courts in Britain to reopen with jury trials during the crisis. From there, the concept of the Nightingale court was developed. To be fair, the senior judiciary did work very hard and did well, I think, in pulling that together, but I always felt it was a bit like dealing with golden syrup – is it ever going to come off the spoon? I had a lot of moments like that with the courts service. It led me to the conclusion that the lord chancellor needs to have more control.

So that’s what Covid taught me, that the two ends had to be handled very differently, which I thought was a very interesting exercise.

TD: With hindsight, having gone through all of those changes, what impact do you think that has had on the justice system now?

RB: A permanent impact and I think permanently for the good. I think that the more remote hearings are used, the better everybody will be with them. I can understand that they were clunky to begin with and sometimes would take longer, for technical issues and indeed other issues relating to the ability of the parties to speak privately. But with improved technology, the remote hearing is going to be an absolute no brainer for a lot of types of transactions that just need administrative input, which should’ve been done anyway. If we lose that, I think that’s a regressive step.

Having said that, there are limitations to it. Sometimes you need everybody in the room physically to do the negotiation and sort the case out. There’s no doubt that the ‘whites of your eyes’ argument is very strong and judges will be best placed to assess what cases need in-person hearings. But I think a blanket return either way would be the wrong approach, but at the same time, while individual listing matters [which cases are to be heard and when] for judges, I don’t see why the lord chancellor can’t set priorities and say, “We expect this type of case to be dealt with in a certain time limit. These cases have priority. We’ve got a particular problem with a backlog in this type of case, we need to get them through.” I think it’s entirely sensible bearing in mind the lord chancellor is the guy who pays for it all. Ultimately, it’s money that we have to be answerable for in the House of Commons.

So I was really keen to see changes there. I think the judiciary were possibly a bit nervous about that when I used to raise it with them, but that’s something I would have pushed had I been around for longer.

JW: I was just about to ask about that resistance. How would you go about that if you wanted to do that long term?

RB: The key thing is the personality and standing of the lord chancellor. If the lord chancellor is a lawyer of standing, who has been around – I’ve been a judge myself, I knew all of them personally, I knew how they worked, I respect the judiciary and I was of the profession. I think I could have gone a lot further in getting that back and I think whoever is in that position needs to be a lawyer of standing in order to make those changes.

"We’re stuck with this rather odd hybrid model of lord chancellor, which I don’t think does anybody any good."

Had I stayed then, I would have consulted on reforms to the ‘05 act [the Constitutional Reform Act 2005, which changed the powers of the lord chancellor] and I’d have wanted to bring back a lot of the power to the lord chancellor. I would have done a few other things with the Supreme Court, there were lots of important things that we could’ve done. But we might have missed the chance now. I rather think we have. Unless Labour wakes up and have a Damascene conversion and realise that what they did 15 years ago [in the Constitutional Reform Act] was a big mistake, then we’re stuck with this rather odd hybrid model of lord chancellor, which I don’t think does anybody any good. The judiciary don’t like it and I don’t blame them. I think that what we’ve done is leave the judiciary with a small judicial office that doesn’t have the resources to deal with the human resource issues that often beset it. And yet, we’ve paid lip service, more than lip service, to the independence of the judiciary and the fact that the lord chief [justice] is the head of the judiciary. I don’t have any issue with that, I don’t want to reverse that, I don’t want to bring back the chancellor of the High Court. But I do think that the lord chancellor is the politician, and his or her department is the source of the funding and the accountability, and he or she needs to have more responsibility or control – call it what you like – for the administration of justice.

At one time it was an argument about 15 years ago by, I think, Lord Phillips [former president of the Supreme Court] and others, who said that we should be devolving all of the control of the money to the judiciary and that the judges should be administering. I mean, no! Judges are there to do the cases. They are outstanding lawyers, who are there to do the big cases. They’re not there to worry about widgets in bloody Lincoln. That’s the job of the lord chancellor and of the ministers, not the judges. I don’t see how that impinges upon the independent function of the judiciary; I just don’t buy it. I know that some people will find that a difficult argument, but I don’t at all.

TD: As another example of that tension, did you see cases where it is difficult to tell an MP that you can’t do anything about, say, a court case for a particularly horrendous crime in their constituency being delayed, that it’s a matter for the judiciary. So were you thinking about it from that perspective as well?

RB: Frankly, I am. Though it’s not for ministers to intervene on individual cases. I’d be appalled if that happened. There was one case in my time when MPs did decide to write directly to the senior presiding judge about a case in Southwark, presided over by [then High Court judge] Philippa Whipple. And instead of writing to me about it, which is what they should have done, they wrote directly to the senior presiding judge. It was a very odd business, and of course they got reprimanded by the standards committee [the Commons Select Committee on Standards] because they’d failed to understand the fundamental independence of the judicial function. If the lord chancellor is asked to raise an issue, of course it’s alright, that can be raised. But at the same time, the lord chancellor is rather powerless in that instance to say, “Well, actually, there is a lot of public concern about rape cases. We need to work out ways in which we can prioritise certain cases.” Now, of course, the judges would say, “Well, that’s all very well, but are you going to give us the resources?”

There was a big argument at the beginning of my time about the limitation of sitting days [in courts]. Of course, Covid meant that I got rid of the limit – we just said, “fill your boots,” and then it went from one extreme to the other where we didn’t have enough barristers and judges, which I was desperately trying to sort out by getting people I knew who had become recorders [a type of senior judge] to convert to crime, which is what we did. So I managed to do quite a lot of that, and then we brought back retired judges quite quickly as well. Signing them off very, very quickly. But I gather that all things slowed down somewhat after I left. I don’t know why, but everything slowed down, which I couldn’t quite follow. Because it felt like a fairly simple task – I suppose for me, in knowing a lot of them, I was able to just say, “Well, yes, I remember them, we can sign them off and get them back in to court.”

"With Covid, we had to make decisions in hours, we didn’t have time to go away and do a long sub."

It seemed to me that time was of the essence in that department. Some of the decision making, I felt, was a bit slow. I did my best and I think we sped up a lot of the processes, mainly because I believe in quite a flat structure when it comes to the civil service. My view, is that DGs [directors general] and directors [both types of senior civil servant] are wonderful, but I’m not interested in titles. I want to know the people who know the subject, so if Bob in widgets is an HEO [higher executive officer, a mid-ranking civil servant] who has been there for 30 years, I want to talk to him. I don’t want to translate via a director – what a waste of time. The poor director or DG has got enough on their plate. They can come in and listen to Bob, and then we can turn to each other and go, “Did you understand that? Well, there we are, there’s your answer. Let’s do the sub [written submission to the minister] now and then we can get the decision made.” A flatter structure leads to quicker decision making and is much easier for the special advisors, for everybody. With Covid, we had to make decisions in hours, we didn’t have time to go away and do a long sub. It was all evidenced, but we were having to make decisions very, very quickly, and I really liked that. We got into a position where we were making decisions really at a really good pace.

If there were things I was genuinely concerned about, I never felt under pressure to make the decision. I would say, “Look, I don’t have enough here. I need to consider this more, we’ll have a meeting and talk this through.” What I used to do was, at the top of the meeting, say, “This is my preliminary view. Am I wrong?” And then we’d have a discussion about it which I know isn’t always the way. Some ministers like to sit there sphinx-like and then sum up, whereas I much prefer to come in at the top of the meeting and say, “I think this is wrong,” or, “You’ve given me four options here. Well, I think it’s option 7(b), which none of you thought about.” Or, I might have started the meeting in one position and actually been convinced that I was wrong, which is fine. I think it was a very good way of working and we certainly got through a hell of a lot of stuff in those two years.

TD: You did that job for over two years and then, as you’ve alluded to, you left government in September 2021. What was it like leaving?  

RB: It was very odd. I wasn’t prepared at all and there had been no indication that I was going to be leaving government, so I was rather shocked, to be honest, and not very happy about it, though I didn’t sort of publicly display bad feeling because I don’t believe in behaving like that. Though my letter of resignation was fairly frank, I think, and it revealed the things that I really cared about in justice. And I felt there was unfinished business – all ministers will feel that. You never come out of office at the time of your choosing.

"There had been no indication that I was going to be leaving government, so I was rather shocked, to be honest."

I remember thinking that summer when I was in Scotland on my holiday – we were touring Scotland, doing our bit for the British tourist industry and the union – thinking that I had had two years and I needed another two years in the department to get it absolutely where I thought it should be. I had plans. We were doing the Judicial Review [and Courts] Bill, which has been passed and I think proved that we can do ouster clauses [clauses in legislation which prevent the review of certain decisions by the courts] in this country which don’t get challenged – or do get challenged unsuccessfully – which is great. And I was going to do Human Rights Act [1998] reform – the review was going through, it was going to be ready by the end of the year, and I would’ve probably published it in November and then gone on with the bill. I wanted to do green papers on the Constitutional Reform Act as well, if there had been time – I would’ve argued for the time to get that through. I think that would have had a lot of support on my benches from Conservative MPs. Plus, tackling HMCTS, which was on my list among other things. So there was a load that I wanted to do and sadly was not given the chance, but there we are, it’s politics.

JW: So then you came back into government as secretary of state for Wales. What was it like being in a government that is effectively a caretaker? What could you do, what were the limitations?

RB: Yes, well, we were taking care weren’t we. It was very clear the beginning, I remember the first cabinet meeting, I was absolutely clear that we were not there to initiate new policy. I certainly spoke up about that and made it very clear that that was why I was there. Greg Clark [then levelling up secretary] was there on that basis as well. We’d both come back in as experienced former cabinet ministers to do that. I think the prime minister looked round and said, “This is the best cabinet I’ve ever had!”, which I thought was hilarious. We did laugh.

“There had been nerves about that funny Wednesday night where it didn’t seem he [Boris Johnson] wanted to resign, but he behaved well.”

Apart from the big announcement on Sizewell [the new nuclear plant], Boris did not have any last-minute tricks up his sleeve. He behaved extremely well, I think. There had been nerves about that funny Wednesday night where it didn’t seem he wanted to resign, but he behaved well, and actually we did a get a lot of stuff done. Greg [Clark] was at DLUHC [the Department for Levelling Up, Housing and Communities], I was at Wales, and we had a lot of levelling up stuff to do. We had the freeports prospectus to publish, which we did. We had the Shared Prosperity Fund to administer, which we carried on doing.

My job was really just to keep everything moving, and I think we did that well. My go-to perm sec was, of course, Sue Gray, who I’ve known for years through PET [Cabinet Office propriety and ethics team]. We had an excellent working relationship and I have huge respect for her. I think we got a lot done in those summer months when I was at Wales.

It’s a very different department, though. I’d gone from a massive department of state – one of the big, big ones – to a tiny, sort of, private office. That was quite an experience. But, again, I really enjoyed working with the civil servants. They seemed to be very pleased to have a secretary of state who had been in a big department. That was a novel and good experience for them, in that I’d come in with all that knowledge and they enjoyed that and, therefore, I think they found me calm. The work rate… I think they were pleased that I was making them work [laughter] because there were a lot of things that we needed to be doing in that department. One of the problems of the territorials [the territorial offices, which manage Whitehall’s relationship with Scotland, Wales and Northern Ireland] is that they sometimes have, almost, too meekly surrendered their authority. We were out of the phase of devolve and forget, and I was a very strong advocate against that. I was much more in the mood for being an assertive secretary of state who would want to work with the Welsh government, but who made it very clear that a large part of government activity in Wales is the UK government, a large part of the funding of government activity in Wales comes from the UK government, and we’re going to make it very clear that that’s the case, as unionists. So that was very much my approach to Wales in those few months that I had.

JW: Of course, the last prime minister you served under as secretary of state for Wales was Liz Truss. What was your experience of that government overall, and linked to that, how did the four prime ministers you worked under compare to each other?

RB: That government started with high hopes, and, I think, a refreshing attitude. It seemed to be well ordered. The senior political figures in No.10 were all responsive and hardworking. Ruth Porter [then deputy Downing Street chief of staff] was, I thought, particularly good. The appointment of SpAds [special advisers] was very smooth, it was quick, it was nicely done. I got a distinct impression from both the political leadership in No.10 and in the Treasury that it was going to be much more of a collegiate government, which I thought was good.

Therefore, the initial elements had been very promising. Then, of course, we had the death of the Queen [Elizabeth II]. The watershed moment for me was that day after the fiscal event [the September 2022 ‘mini budget’], when there had not been the fullest appropriate disclosure to members of the cabinet about what they were going to do. Now I know that it isn’t always the case that chancellors will tell the cabinet about tax cuts. I know that. But this was literally an hour before his statement. I think fuller disclosure would have been appropriate. It might have led to a more informed discussion at cabinet about the wisdom of rushing ahead with all those announcements at once, which, of course, we all know really sowed the seeds of the unravelling of the proposals, then the run on the pound and the problems in the markets with the bond yields, which ultimately undermined the whole government and led to a crisis of confidence which caused the collapse of the government. And I am very, very sad about it because a lot of what we were trying to do wasn’t wrong. In fact, a lot of it was right. And she’s been elected by the membership of the Conservative Party, so she deserved support.

“At the end of it all, they were the authors of their own misfortunes. I don’t think we can gild the lily any more than that. It was deeply, deeply upsetting to be involved in that, I can tell you.”

But, at the end of it all, they were the authors of their own misfortunes. I don’t think we can gild the lily any more than that. It was deeply, deeply upsetting to be involved in that, I can tell you.

JW: Is that partially a reflection on the style of Liz Truss as prime minister?

RB: I think there was a natural urgency – she wanted to get on with it. We’d had a long leadership contest. We’d had that difficult and sad time of the death of the Queen which lost, in effect, two weeks. I think haste was confused with speed. That’s what ultimately felled her.

She had great ambition, and I don’t think anybody should criticise that. She wanted to do, I think, sensible things on growth, but ultimately the execution was not right, and No.10 had been cleared out of virtually everybody, in fact everybody I think, apart from the permanent staff. There was therefore a complete lack of any institutional memory whatsoever. So it had gone from one extreme to the other, and I’m not sure, therefore, that they were in the best position to make such big decisions on some of these fiscal matters. On the face of it, it looks small, the planned abolition of the 45p rate of tax was only £2bn, but the cumulative effect of this was to panic the markets. You can’t buck the market, as Margaret Thatcher said. That was, I’m afraid, the old adage coming back to bite the government.

“[Truss] had great ambition and I don’t think anybody should criticise that… but ultimately the execution was not right, and No. 10 had been cleared out of virtually everybody.”

JW: So, we have a few closing questions that we ask everyone. The first of which is, what achievement you are most proud of in your record in office?

RB: Oh goodness. Wow. Actually, I’m proud of loads of things. I’m proud of having helped take through coercive control as a criminal offence onto the statute book. I’m proud of reforming the law of child neglect to include psychological harm, which I did as SG [solicitor general]. I’m actually very proud, although I voted Remain and would still vote Remain tomorrow, I’m very proud of the fact that I helped steward through one of the most difficult pieces of legislation on to the statute book without a majority, the [EU] Withdrawal Act.

I’m particularly proud of several things as lord chancellor. The way in which we handled Covid in prisons. The way in which we brought jury trials back as the first jurisdiction in the world, I think, apart from Montana. Montana and us, I think, were on the same day. We came back with jury trials, though we do more jury trials than Montana, as there’s only a population of a million! And I’m particularly proud of the legislative reform I made to sentencing, the codification of sentencing, the reforms to sentencing I made both before and after the election in the PCSC [the Police, Crime, Sentencing and Court Bill 2022]. Divorce law reform, which I did, which we managed to complete. And the work on neurodiversity, which is happening now and is being rolled out in our prisons. So I look back and I think I achieved a hell of a lot of things in only a few short years. And I wish I could have done more because I had lots more to do, but there we are, that’s politics.

JW: And what advice would you give to a new minister about effectiveness in office?

RB: The first thing to do is learn how to be a minister. Spend the first few weeks just getting into the rhythm and learning about what makes a private office work, what you can do, what you can’t do, what you shouldn’t do. And then once you’ve established that, if you’re a junior minister, work out one or two things you really want to do and can do within a year and get them done. If you’re a cabinet minister, it is a step change from being a junior minister, there’s no doubt about it, it’s a different planet. You then have to be very, very ruthless about your priorities. Be ambitious though, don’t be timid. You’ve got the privilege of sitting in charge of a great department of state, especially if you’ve got a majority in parliament. I used to say there’s no limit of what we can do if we’ve got the ambition and the will and the energy to do it. I still believe that. Yes, you’ve got to be realistic, but you apply your realism in choosing your priorities and, once you’ve done that, go for it. You’ll find the civil service will help you if you’ve got a very clear mind. If you don’t know your own mind, don’t blame the civil service, because they will try and interpret what you’re saying and no doubt they’ll get it wrong because you haven’t thought it through. So be clear and be consistent. And be kind as well, because I think you can get the job done with a high degree of kindness, which is what we did in the department.

“If you’re a junior minister, work out one or two things you really want to do and can do within a year and get them done.”

JW: Is there anything we haven’t covered that you would like to add?

RB: The one thing I didn’t mention to you is, I did Oxford Business School training on project management, which I found really good. Because I did my training and then I went back to the perm sec and said, “I want to know who the SROs [senior responsible owners of major government projects] are.” And as a result of that, we changed some of them, because I said, “These SROs aren’t taking up most of their time on the project.” And we did challenge. I thought that was a really good example of training that I think ministers could benefit from. I enjoyed the course, and I would recommend that we do more of that. Because this [prison building] was one of the biggest projects in government. You saw it. We spent a lot of time really understanding what worked on it, and trying to stop them reinventing the wheel, which was my big mantra to them. “Don’t reinvent the wheel, it worked in Wellingborough [prison]. Build it the same, don’t waste time, just get it done.” Anyway, I don’t know where they are now. I’m not sure they’re going hit their target.

"I always felt that each day was my last and I don’t think I wasted an hour."

And just to say it was a tremendous privilege to serve in government for nearly seven and a half years, which is longer than a lot of modern ministers get, and to serve at the highest levels of government as well. And whilst I would have loved to have done more, I perhaps shouldn’t beat myself up about it too much, and I think I did quite a lot in the time that I was allocated. I always felt that each day was my last and I don’t think I wasted an hour.

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