David Gauke is a former Justice Secretary, and was an independent candidate in South-West Hertfordshire at the 2019 general election.
I have already written one review of Ten Years to Save the West which is published elsewhere and I do not want to repeat the exercise here.
But, inevitably, my review – like the book – focused on Liz Truss’s time as prime minister; I only made a brief reference to her chapter on her time at the Ministry of Justice and it justifies a closer examination.
The chapter (entitled Rough Justice) concentrates on her relationship with the judiciary and, in particular, her views on the judicial appointment process. More on that in a moment.
She also tells of her time dealing with crises in the prisons system, “with prison violence on an upward trend and the system stretched to breaking point” and many prisons “dangerously understaffed”. She describes herself as “an instinctive hawk on spending” but being “determined to spend more in this area and reverse the cuts that my predecessors had made”.
At the time in question, I was Chief Secretary to the Treasury. As she acknowledges in her book, I was supportive of her cause. The fact that she was a “spending hawk” probably helped her credibility in the eyes of the Treasury, but the situation in 2016 was such that we needed to find the resources to recruit more prison officers or we were going to lose control completely of our prisons.
I highlight prison spending and Truss’s account because it is relevant to the current debate on prison spending: if we stick to current spending plans, this implies that the additional spending Truss won for prisons in 2016 will be reversed.
Taking into account the projected increase in demand for prisons, the Institute for Government anticipates cuts of 6.7 per cent a year for three years. That is only likely to be achieved by reducing the number of prison officers by approximately 4,000 – which is the number we agreed to recruit in 2016; when one reads Truss’s accurate account of the situation at that time, it is difficult to believe that this will happen.
(Incidentally, while we are on the subject of prisons, there is one area where, as Buckingham Palace might say, recollections may differ. Truss argues that there is not much leeway to reduce the prison population. My memory is that, after our roles had been reversed – she succeeded me as Chief Secretary and I subsequently became Justice Secretary – she was rather keen (perfectly reasonably) to press me to find ways of reducing the prison population.
This may just have been her articulating the Treasury’s instinctive scepticism about the value for money of high incarceration rates, but I always got the impression that she was relatively liberal on this issue. She is now more of a straight-down-the-line conservative than she was.)
As Truss acknowledges, any achievements she made on prisons was “completely obliterated” by the row over the Daily Mail’s “Enemies of People” headline. This was in response to the Court of Appeal’s decision that the triggering of Article 50 of the EU Treaty required a Parliamentary vote. Pictures of the three judges involved were placed on the front page under the incendiary headline.
To this day, Truss thinks she did nothing wrong. Her view was: that press freedom matters, the Mail was entitled to its opinion, judges should not be immune to criticism.
I think that still misunderstands the role of the Lord Chancellor in these circumstances. Anyone in that role swears an oath to defend the rule of law. The rule of law requires an independent judiciary to apply the law correctly, free from improper pressures. In other words, their conclusions should be based on legal arguments, not about responding to public opinion.
Framing the judges in this case as “enemies of the people” was a crude, populist attack that very obviously sought to undermine the authority of the judiciary and the legal process. The Lord Chancellor should have defended the judges from this attack.
As Truss notes, this episode deeply damaged her relationship with the judiciary but it had never been a happy one. By temperament, Truss has always been an anti-establishment figure. Collectively, the judiciary thought she lacked natural authority; Truss bristled at what she saw as the judges’ condescension.
The particular issue of contention identified in Truss’s account related to judicial appointments. She tells us that she had had no prior notice that she would be appointed as Lord Chancellor and “had limited time to think grand thoughts about the constitution” but “felt instinctively that major reform was needed” to take on a “self-perpetuating oligarchy” .
What she had in mind – she tells us – was reversing the Blair reforms that had weakened the role of Lord Chancellor, especially in the appointment of judges. She wanted to go back to the system whereby senior judges were appointed by the Lord Chancellor, not the Judicial Appointments Commission (JAC).
Truss tells us that her motivation was that she wanted a more diverse judiciary (more women, more solicitors) but also that she wanted to take on “an increasingly left-wing legal establishment”.
As her successor but one as Lord Chancellor, I was well aware of her desire to appoint more women and change what she perceived to be the “old boys’ club” feel of the judiciary. But a wider project to scrap the JAC and appoint more politically sympathetic judges comes as news to me (and, I suspect, those who worked with her at the time); her views appear to have been radicalised.
She also now advocates scrapping the Supreme Court and restoring the Appellate Committee of the House of Lords, although (as Lord Sumption has pointed out) that their powers are identical.
But let us return to the issue of judicial appointments. She argues that she merely wishes to restore the system that was “tried, tested and successful for centuries”: judges being appointed by the Lord Chancellor. Under this system, she believes, an independent judiciary was “subordinate to the executive in Parliament”.
This completely misunderstands our history. The pre-2005 Lord Chancellorship was a very different role to that which exists today. The post was filled by a senior lawyer sitting in the House of Lords, not by MPs in their forties with little or no legal background.
To put it another way, if we had gone back to the old system of a judicially powerful Lord Chancellor, it would have been inconceivable that Truss or, for that matter, me (even with a background as a solicitor) would have been appointed to the post.
As for appointments of judges, in reality the Lord Chancellor took advice from senior members of the judiciary. Truss says she looked enviously as the US system of elected judges and presidential appointments to the Supreme Court – but our system has never accepted that political considerations should play a part.
(Incidentally, one of the criticisms of the old system was that selection was from too narrow a pool. The creation of the JAC has gone some way to address that.)
Truss’s history is confused but some may still be persuaded by her argument that the judiciary is too left-wing and Conservative ministers should be able to appoint judges more ideologically sympathetic to the government.
But one only has to state this argument to see how radical – and I would argue dangerous – this would be. It is an agenda to politicise the judiciary that would undermine the rule of law. Proper British Conservatives should have nothing to do with it.
The post David Gauke: Conservatives should have nothing to do with Truss’ goal of Americanising our judiciary appeared first on Conservative Home.
Click this link for the original source of this article.
Author: David Gauke
This content is courtesy of, and owned and copyrighted by, http://www.conservativehome.com and its author. This content is made available by use of the public RSS feed offered by the host site and is used for educational purposes only. If you are the author or represent the host site and would like this content removed now and in the future, please contact USSANews.com using the email address in the Contact page found in the website menu.