The criticism stemming from the appointment of Liz Truss has been both surprising, and misplaced. “The Prime Minister had failed to comply with her constitutional obligation to appoint as Lord Chancellor someone who appeared qualified to defend the rule of law” complained Lord Falconer, one of many keen to attack Liz Truss before she has even had a chance to settle into the role. Some saw the criticism of the new Lord Chancellor as sexism dressed up as constitutional concern, but it seems more likely that it is just the latest expression of the legal profession’s closed shop mentality.
Many lawyers bemoaned the appointment of Chris Grayling as the first non-lawyer to become Lord Chancellor for over 400 years. The Conservatives are now on their third lay Lord Chancellor in a row, with Liz Truss replacing Michael Gove. The legal profession's hostility to Grayling was in response to the changes he brought about, but it did not necessarily require him to be a lawyer to see what the effects of reforms would be. For all Grayling's critics, it was obvious that the legal profession was going to have to bear its fair share of austerity. It is possible to disagree with Grayling's changes, but it is equally possible to imagine that in some circumstances it may be easier for a dispassionate politician to institute reform when they are not so inextricably enmeshed both professionally and socially within the legal system.
There is really no reason to believe the Liz Truss will be like Chris Grayling just because she is not a lawyer. It does not follow that because somebody is not a trained legal professional, that they cannot see how the justice system could be improved. Experience as a barrister or solicitor does not guarantee competence at a ministerial level; spending a career within a system will of course generate some insights, but it can also lead to myopia. Working within a system can lead to eccentric views about how it should operate, or leave practitioners blind to shortcomings experienced by the people for whom the justice system must operate. The courts must work for judges and for lawyers, but their first function is to work for society as a whole. Most lawyers would be honest enough to admit that it is possible to lose sight of that greater picture, and to be caught up in concern about how the justice system works for their career, or for their particular patch. Liz Truss must take the time to listen to the extremely important concerns of legal practitioners, but it can be an advantage that she comes to the role with fresh eyes.
Like any system, the law can only bear so much change. Over the last six years there has been much upheaval, with Ms Truss’s two immediate predecessors instituting and in some cases then repealing often unpopular changes. It is fundamentally important that the new Lord Chancellor defends a legal system which must sometimes be unpopular as a function of its effectiveness. A proper legal system will always spend adequate resources defending the presumption of innocence even when that presumption is overturned. Rehabilitation must never be lost in the search for justice. The state is duty-bound to resist the superficial appeal of simple retribution. Satisfying headlines should not come at the expense of real and significant improvement. Law and order is an area in which it is easy to wade in with modifications that comfort preconceptions and simplify complex problems. While there will always be some who fear that a non-lawyer presents more of a risk, the values of the justice system are the values of society, and are readily comprehensible.
When our new Lord Chancellor has spent time listening to the profession, she will develop still further her undoubted respect for the system. She will also look at it anew in a manner that few practitioners could ever hope to replicate, even with the most open of minds. Justice is an area in which ephemeral headlines often compete directly with the more challenging and more rewarding task of preserving our long-protected values and the necessary expenditure that funds their promulgation.
Britain's vote to leave the European Union presents an opportunity for legal dynamism. A new Lord Chancellor presents the opportunity to reset the clock on the Government's relationship with the profession. If the legal profession is to get the best out of their Lord Chancellor, then they should have the same optimism and open-mindedness about Ms Truss that they trust she will extend to them.
Rupert Myers is an Associate Fellow at Bright Blue