More on the Lord Chancellor

UPDATED 11 September

Here are a few more thoughts on the subject of Chris Grayling’s appointment as Lord Chancellor. Much adverse comment on Mr Grayling’s suitability for the post has been aired on the blogosphere, but the letter I wrote was in response to an opinion by the constitutional law expert Francis Bennion. Mr Bennion (who was highly critical of the previous government's attempt to abolish the office of Lord Chancellor) argued that not only was the appointment unwise, it was actually unlawful, as Mr Grayling lacks the qualifications set out in s 2(1) of the Constitutional Reform Act 2005.

Section 2 provides:

2 Lord Chancellor to be qualified by experience

(1) A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.

(2) The Prime Minister may take into account any of these—

(a) experience as a Minister of the Crown;

(b) experience as a member of either House of Parliament;

(c) experience as a qualifying practitioner;

(d) experience as a teacher of law in a university;

(e) other experience that the Prime Minister considers relevant.

(3) In this section “qualifying practitioner” means any of these—

(a) a person who has a Senior Courts qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(b) an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary;

(c) a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland.

Two points are relevant. First, s 2(1) uses the word “may” in an obligatory sense; that is to say, “may not” in this context means “can not”. The need for experience is a requirement, not a guide or an option. Mr Grayling’s experience must therefore be scrutinised.

Second, however, what constitutes “experience” is fleshed out by s 2(2). By stating that the Prime Minister “may” take into account “any” of the points that follow, the discretion is very wide indeed, legally speaking. In Mr Grayling’s case, although he does not meet s 2(2)(c) or (d), not being a lawyer, he does have experience as an MP and a Minister of the Crown. Therefore, if challenged, Mr Cameron could point to s 2(2)(a) and (b), and indeed he could also rely on the almost intangible s 2(2)(e) point of “[any] other experience”.

On a technical interpretation, therefore, Mr Grayling does meet the statutory qualification for his post and so any legal challenge is likely not to succeed (not that one can imagine such a challenge - which would presumably have to be by way of judicial review - being brought). Needless to say, though, that does not put his appointment beyond question on wider grounds, such as those articulated by Joshua Rozenberg in the Guardian.

Mr Rozenberg’s points are well made. Law remains an expertise, and it should not be controversial to suggest that the person holding high legal office should be a leading member of the profession, or at least recognised as having some expertise. This Mr Grayling appears not to have and one is forced to conclude that his appointment does not meet the spirit of the 2005 Act irrespective of the letter.

Still, Mr Grayling may yet go on to distinguish himself in the post. At the least, one hopes he has a better time of it than his fictional predecessors in WS Gilbert’s Iolanthe or AA Milne’s King Hilary and the Beggarman ...

UPDATE: Alex Horne (@AlexanderHorne1), a constitutional lawyer, has pointed out that at the time the bill which became the 2005 Act was making its way through Parliament, the House of Lords Select Commmittee on Constitutional Reform considered the issue of the Lord Chancellor's qualifications.  Members disagreed on whether there should be a requirement for a legal qualification, and therefore no recommendation was made.  This passage in particular I find interesting:

"Lady Justice Arden (...) told the Committee that she sees a great advantage in the Minister being a senior lawyer. She expressed concern for maintaining an apolitical appointments process, "something of which this country can be extremely proud". She believes that it is better for the Minister receiving recommendations from the judicial appointments commissions, to be senior lawyer at the pinnacle of his career, "a person who is not in the throes of a political career""

One of the criticisms that has been made against Mr Grayling is that he is a relatively young minister on the ascendancy, and therefore may be tempted not to rock the governmental boat in the way a more senior person (and particularly a senior lawyer who had had a distinguished career outside politics and was therefore not in need of the party shilling) might. One hopes therefore that Mr Grayling will be well briefed on issues such as judicial independence and will be prepared to resist any attempted incursions by the executive.

The Commons Committee also considered the issue.  They noted that:

26. Two qualifications for holding the office of Lord Chancellor have been included in the Bill: that the Lord Chancellor should have been the holder of high judicial office or have been a practising lawyer for at least 15 years; and that "No person is qualified to be Lord Chancellor unless he is a member of the House of Lords".

They concluded:

The Lord Chancellor will have key roles in relation to the judiciary and in judicial independence, the rule of law, judicial appointments and discipline. The principal responsibility for judicial appointments will be with the Judicial Appointments Commission and for judicial discipline with the Lord Chief Justice. It may be an advantage for the holder of the post of Lord Chancellor to be a senior lawyer

With this I have to agree.  It did not come to pass, however, and instead we have s2 of the 2005 Act, which as I have said gives the Prime Minister very wide scope indeed.  The appointment of Mr Grayling may therefore not be challenged in law.  We should hereafter judge him on his performance rather than his qualifications.