Westminster Watch

The rule of law is seen by Michael Gove as “the most precious asset” of any civilised society. Mark Hatcher reports on the new Lord Chancellor’s first weeks in office

Chancellor of the Exchequer George Osborne’s Budget Statement was the last big set piece parliamentary event at Westminster before the start of the Summer Recess. 

It was the first Conservative budget in almost 20 years since the budget delivered by Ken Clark in 1996. Osborne unveiled just under half of the £37bn in cuts he said were needed to clear the deficit by 2018. Welfare cuts of £12bn announced in the Tory Manifesto are being spread over three years instead of two. The remainder of the savings will come from cuts to Government departments’ spending plans to be announced in the Autumn, following the Public Spending Review.

The budget thus fulfils the Tories’ stated aims of cutting spending, cutting welfare and cutting tax while still claiming to be the “workers’ party”, pursuing a One Nation “we’re all in it together” philosophy.

So what does a One Nation justice policy look like?

The day before the Budget Statement, in an oak-panelled room at Church House, overlooking the cloistered and peaceful Dean’s Yard at Westminster, Michael Gove addressed an invited group of lawyers and parliamentarians about the justice portfolio. Barely three months into the job as Lord Chancellor and Secretary of State for Justice, Michael Gove was clear about his message. The institutions which sustain and uphold the rule of law need to be defended and strengthened. The Bar, he said, played an essential role in providing high quality advocacy which underpinned the special virtues of the adversarial system. It was essential, Gove said, to preserve and strengthen the Bar’s independence.

These remarks echoed the themes of his first big speech on justice, delivered to the Legatum Institute a few weeks earlier. Entitled “What does a one nation justice policy look like?” Michael Gove saw his mission to make the rule of law as an institution which safeguards progressive values. The role of the Lord Chancellor was distinctive and different from other Cabinet posts. The most important thing he needed to defend in his new job was the rule of law. He had evidently reflected on the words of the oath that he made on taking office to “respect the rule of law, defend the independence of the judiciary” and, it is to be hoped, “to discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.”

Drawing on the language of the Bar Council-led Manifesto for Justice, the rule of law was seen by Gove as “the most precious asset” of any civilised society. As a progressive Tory he sees the independent Bar and an independent judiciary as key institutions. Their virtues and values should not merely be conserved but strengthened and promoted, as a matter of deep democratic principle as well as enlightened economic self-interest.

To ensure that the justice system works for everyone, Gove argues that changes need to happen to address what he sees as a dangerous inequality at the heart of the justice system. A two tier system, one for a wealthy international class settling cases in London with a gold standard of British justice, the other creaking at the seams with which everyone else has to deal. IT-enabled reform of the civil and criminal courts to deliver value for money for taxpayers and fair treatment for all citizens is a clear priority, on which the Treasury will be looking to the Ministry of Justice to demonstrate progress over the lifetime of the Parliament.

The Commons Justice Committee will also be keen to track progress against plan. The newly elected Chairman of the committee, Bob Neill, has indicated he is determined that the committee works on a genuinely cross-party basis rigorously to scrutinise Ministry of Justice policy and service delivery. The committee will also continue to take an interest in the performance of the MoJ’s related public bodies like HM Courts and Tribunals Service, as well as the Attorney General’s Office, the Government Legal Department (formerly Treasury Solicitor’s Department), the Crown Prosecution Service and the Serious Fraud Office.

The 10 other members of the Justice Committee (who were elected by secret ballot within their own party) were recently nominated by the House of Commons. The number of members each party gets on Commons select committees is in proportion to their representation in the House of Commons as a whole. The six Conservative members of the committee include former employed barrister, Victoria Prentis (ex-Government Legal Service). The four Labour members include academic and Chancery and commercial barrister, Nick Thomas-Symonds. The Liberal Democrats are no longer represented on the committee, unlike the SNP which is represented by Richard Arkless, the Member for Dumfries and Galloway who has practised as a Scottish solicitor.

Helping the new Lord Chancellor to deliver on his promises will be the new Permanent Secretary at the Ministry of Justice, Richard Heaton. He takes over from Dame Ursula Brennan who retires from the Civil Service after 40 years’ service. Heaton was Permanent Secretary at the Cabinet Office (responsible for leadership and governance) and, as First Parliamentary Counsel, was in charge of overseeing the preparation and delivery of the Government’s legislative programme. He started his career as a barrister before joining the Home Office as a legal adviser in 1991. He also worked at the Department for Work and Pensions.

Heaton’s appointment is an interesting one for Whitehall observers. The MoJ’s Permanent Secretary (who is also the Clerk of the Crown in Chancery and responsible for the Crown Office which has custody of the Great Seal and issues writs to Parliament) has been a non-lawyer since 1998. Formerly the holders of this office, which was created by Lord Selbourne in 1885, were barristers with considerable experience not only of the law and administration of justice but also of the constitution. The dearth of legal expertise at the top of the Ministry of Justice was seen by some commentators to be a cause for some concern when the Lord Chancellor himself was no longer legally qualified. In its evidence to the Lords Constitution Committee inquiry into the Office of Lord Chancellor in the last Parliament, the Bar Council commented on this issue which it saw as a weakness following the changes introduced by the Constitutional Reform Act 2005. Although the Coalition Government did not see this as a problem, the Constitution Committee did share the Bar Council’s concern. So Richard Heaton’s appointment remedies a deficiency which had been identified and it will be tested as the remainder of the Ministry’s Transforming Justice agenda unfolds and the Government’s proposals for major constitutional changes, on devolution, human rights and relations with the EU, are developed.

Parliament now stands adjourned for the Summer Recess. Both Houses return on 7 September for a short period of business before rising on 17 September for the annual party conferences.

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Mark Hatcher

Mark Hatcher is Special Adviser to the Chairman of the Bar. After working at the Law Commission and in the House of Lords, he became Head of Global Public Affairs at PwC. He is a Bencher of Middle Temple, as well as being a priest. He is Reader of the Temple.