In February 2019, I happened to have lunch with Gina Miller and her husband Alan near Berkeley Square. We talked about politics, of course, and I recall myself saying, “We’re about to find out where power resides in our system.” I didn’t know then that I was sitting opposite the person who would go on to stress-test that idea in such vivid terms, as Gina would with Miller II.
But I was thinking more generally about the referendum result and its ramifications – indeed, about politics in general. In the UK, does power reside in parliament or in the civil service? Or is it really to be found in the court system? Might it even – strange notion – be said to reside in us, the people?
That lunch came back to me as we began compiling our justice research – to be published this year as part of the Westminster Index – outlining the most influential people within this field. Who wields influence and to what degree? How did they acquire it? And what do we need to know about them in order to engage with them, and move our democracy in the direction it should go?
It’s an exciting time to be doing this, as rumours swirl around Whitehall about the nature of Dominic Cummings’ reforms. The very nature of justice in this country, and how it is administered, is now under debate. It seems possible that by 2021 Tony Blair’s 2005 constitutional reforms may have been reversed. How will this look? Reports suggest that we will see a new-look Ministry of Justice devoted only to crime, with the prison system hived off into a Home Office, which will in turn have surrendered its oversight of the borders and immigration departments.
Resistance is to be anticipated – especially when the transition towards Brexit will present simultaneous challenges. But it might be that we shall see different animals roaming Whitehall: a lord chancellor, for instance, who isn’t simultaneously a justice secretary. Or perhaps professional external chairs might replace the justice secretary on the department board.
Such is the fluidity of our politics. To take justice as an example: even when providing listings of a system where the judges of the land still have reference to common law principles dating back to 1066, contemporary events have impinged.
The volatility of Brexit has led to an almost amusing turnover in lord chancellors. Since 2010, we have seen no fewer than seven: Kenneth Clarke, Chris Grayling, Michael Gove, Liz Truss, David Lidington, David Gauke and Robert Buckland. It is not yet clear whether Buckland himself will survive the feared Valentine’s Day massacre.
Perhaps the ceremony that gives us the best indication as to where power currently lies in the justice system can be found in the swearing-in ceremony of the new lord chancellor. At Buckland’s swearing in, Baron Burnett of Maldon, the Lord Chief Justice, found much humour in Buckland’s Instagram account: “There is then a fetching photograph of our Lord Chancellor training to do the Swindon half-marathon in September 2019.” He added: “It is not clear whether it is a staged photograph or a real action shot.”
Here is found not only that Rumpole-ish humour of the law, but also the collision between the here-today-gone-tomorrow predicament of the professional politician and the longevity of the judge. Can we really call Buckland more powerful than Burnett if his sell-by date might prove short? Another revealing moment was the attorney-general Geoffrey Cox’s impassioned speech (“This is a dead parliament”) after parliament was recalled following the 11-0 Miller II judgment on 24 September 2019. Here, Cox was rebuked but defiant. Power was in flux – it was under dispute.
But, of course, there are few politicians so steeped in the law as Cox – he was the co-founder in 1992 of the Thomas More Chambers, no less. And the justices who had riled him are themselves subject to change. Lady Brenda Hale, who a few months ago might have topped this list, is now obligatorily retired, and replaced by her former deputy, Lord Reed. Again, power isn’t static.
Even while a given office might seem a continuum, the power of its holder will fluctuate according to the competence of that individual. Longevity is another factor.Permanent secretary Sir Richard Heaton has seen four lord chancellors come and go, and – who knows – he may see off more in this parliament. In addition, he oversees 70,000 staff, and an annual budget of £7 billion. Heaton represents the best of the civil service. Not one to be steamrollered by ministers, he has stated that he values “strong collaborative relationships with ministers” and aims to “hold them to account”.
But that budget figure turns out to be a measly sum with which to dispense justice to the nation in a complex time. In this special report, we explore issues such as legal aid (see pages 98-99), the fight for no-fault divorce (see page 111) and child sexual abuse (see page 112).
Following Gina Miller’s case, one might have said that the key judicial roles in the Supreme Court have greater power than ever before. In our interview with Miller (page 90), the campaigner gave unique insight into the judges on the case. Of Lord Reed, she said: “He is one that doesn’t get politically involved in anything, or even try to play nice. He will challenge everyone equally and he definitely did that.”
Now that Johnson has won his majority, attention has turned to page 48 of the manifesto on which the Conservatives have been elected. This spoke of the need to “look at the broader aspects of our constitution: the relationship between the government, parliament and the courts; the functioning of the royal prerogative”. Quite what this means remains to be seen – whether it be to limit the Court’s role, or to open the door to a US-style politicisation of judicial appointments. So we publish our preliminary findings here – reserving the right, as John Maynard Keynes once said, to change our mind should events prove us wrong.