The judges are in the firing line, and wonder whether Robert Buckland, the Lord Chancellor and Justice Secretary, will be strong enough to defend them.

Buckland says he would be “extremely worried” if American-style confirmation hearings were introduced for the judiciary – an idea canvassed as recently as last September by Boris Johnson, after the Government was defeated in the Supreme Court on the issue of prorogation.

Many Conservatives have long been furious with the judges for usurping, in unholy alliance with their European counterparts, powers which properly belong to the Westminster Parliament. Charles Moore expressed in his most stern, unbending tone the case against the judges:

“Seeing a vast European space (both EU and the European Court of Human Rights) – indeed, a global adventure playground – they are turning themselves into arbiters of politics, morality, religion (usually against it) and anything else that takes their fancy. The rule of law has become the same in their minds as the rule of lawyers, and it no longer respects tiresome, old-fashioned national boundaries or elected bodies. It denies, for example, the right of our troops, when fighting wars abroad, to take what action they need to win. Not since the medieval princes of the Catholic Church has such a powerful international class had such unanswerable power over us peasants.”

Suella Braverman declared in January, in a trenchant piece for ConservativeHome, that “we must take back control, not just from the EU, but from the judiciary”, and has since been appointed Attorney General.

For many leading Brexiteers, regaining political power from unelected judges is an unfinished part of the project.

The Conservative Manifesto for the general election of December 2019 promised to ensure that judicial review “is not abused to conduct politics by another means”, and announced that “a Constitution, Democracy & Rights Commission” will be set up to consider a wide range of issues, including “the relationship between the Government, Parliament and the courts”.

This is potentially explosive stuff, and Michael Gove will be put in charge of it. According to The Financial Times, “Dom [Mr Cummings] wants to get the judges sorted and he’s naturally asked Michael to sort it out. He is trusted to do it.”

So it is possible, if one wishes, to foresee a tremendous bust-up at the heart of government, between those who want to “get the judges sorted”, and those like Buckland who consider themselves bound by duty and conviction to defend the judiciary. As he recently said in the Commons at Justice Questions,

“I think I have made my position about the independence of the judiciary and the integrity of the appointments process very clear. It is nobody’s wish, I think on any side of this House, to see political influence being brought to bear on the appointment of judges. It is important to remember that we do not have a constitutional court, or a US-style system in this country and it is not something I would wish to see replicated here.”

Buckland is the first Lord Chancellor since Kenneth Clarke to have practised at the bar, a formation long thought essential for the occupant of that post.

And Buckland is the kind of High Tory who is repelled by ideology, while feeling a profound loyalty to existing institutions and the tradition of behaviour which enables them to function. He is a practising Anglican, has a beautiful singing voice and follows rugby and cricket.

When asked some years ago, in the course of an interview with ConservativeHome, who were his political heroes, living or dead, Buckland replied:

“Oh they’re all dead. Well you have to go back to Shaftesbury and Disraeli. I remember years ago watching a BBC dramatisation of Hard Times and being really annoyed at the end when they change Mr Gradgrind from being a Liberal candidate to being a Tory.  

“I was white with rage, because the whole point was it was a critique of laissez-faire Gladstonian liberalism, which I loathe with a passion. I am a romantic Tory. My Toryism is fundamentally, it’s not economic, it’s a romantic Toryism, it’s based upon a belief in tradition, the balance of the constitution, our obligations to help people who are in poverty, the fact that very often the free market is not enough to solve the problems of the country, and that whilst it is the least worst economic system yet found, it has its flaws which as Conservatives we are obliged to try to rectify.

“I’m a Tory and I love the word, I use the word advisedly, I don’t have a problem with it. I joined the party when I was 16, 17, my philosophy has not changed since then, it’s very much that philosophy shaped by those giants of the nineteenth century right through to Macmillan and Macleod. Those are the people that really move me emotionally when I remind myself why I’ve ended up first of all as a Tory and secondly as a Tory Member of Parliament.”

He was born in Llanelli in 1968, educated at St Michaels School, Bryn, and went to Hatfield College, Durham, where he gained a stellar reputation as a debater. He was called to the bar at the Inner Temple and practised as a criminal barrister on the Welsh circuit, acquiring a profound knowledge of how the law works, or on occasion fails to work. He married Sian – they met at Durham, and have two children – and was elected to Dyfed County Council.

Lord Lexden, who served from 1988-97 as Director of the Conservative Political Centre, remembers him from those days:

“I met him in Haverfordwest thirty years ago where he was a rising star, from whom words poured forth, in the Pembroke CPC which year by year won the trophy for the best CPC constituency group out of the 700 that loyally contributed to the organisation’s work.”

The rising star did not rise with any great rapidity. Again and again he stood and lost for the European and Westminster Parliaments, in the 2005 general election losing in South Swindon by 1,353 votes. He persisted and won there in 2010 with a majority of 3,544, which last December rose to 6,625.

In the Commons, Buckland’s energy, ability and amiability were soon recognised, and in 2014 he was appointed Solicitor General. He was a Remainer, for the European Union was one of the institutions he was inclined as a Tory to support, but he also supported Boris Johnson’s abortive leadership bid after Leave had won.

And in 2019 Buckland came out for Johnson again, saying of him that as Mayor of London he had “demonstrated that he was a moderate, that he was liberal in his instincts”.

Johnson values loyalty and ability, and is not averse to liberal Tories who can gain the confidence of some particular interest group, and who have the worldly wisdom, or Anglican prudence, to know when to compromise.

After Johnson won, he made Buckland Lord Chancellor and Justice Secretary. Buckland proceeded to win the confidence of the judiciary, and to embrace the ceremonies in which the Lord Chancellor continues to be obliged to take part, despite the best efforts of Tony Blair to abolish offices and rituals whose symbolic importance he and his New Labour followers were incapable of appreciating.

Here is Lord Lexden on Buckland as Lord Chancellor:

“I have been struck by the tremendous aplomb and sense of theatre with which he conducts himself when called upon to preside over Royal Commissions which represent the Sovereign when Parliament is prorogued or the Speaker presents himself for approval. Swathed in the Lord Chancellor’s robes with tricorn hat on top of full-bottom wig he recalls for a few moments what the Lords lost when Mr Blair betrayed our glorious traditions by demoting this great personage to the Commons. The other members of the Commission look awkward and embarrassed, as if they have been reluctantly to the dressing up cupboard for the necessary robes and hats. Lord Chancellor Buckland is resplendent as Halsbury, Birkenhead and others must have been in their day.”

A now retired senior member of the judiciary told ConHome:

“I like Robert Buckland and he was a welcome appointment as Lord Chancellor/SoS for Justice, being someone who has had a serious legal career as well as prior legal experience as a law officer and minister (and outside interests in autism and speech and language issues). I think that he has a firm understanding of the rule of law, of judicial independence and of the need to keep politics out of judicial appointment or advancement.”

But how will Buckland reconcile the judges to the end of the Blairite settlement, under which their superior wisdom received such emphatic endorsement?

The likelihood is that he will seek to reform by stealth, and with the acquiescence of the judges themselves. A Brexiteer minister points out that a number of the judges are themselves unhappy with the Blairite settlement.

Nor do they want to start being asked their political opinions. It is more than possible that not one of them voted to leave the European Union, and no increase in public confidence in the judiciary would be likely to result from that becoming known.

From them, a prudent willingness to interpret the law, and not to make it, is indicated. They may even reflect that under the old dispensation, judges possessed greater independence than in the Blairite era. Who thought to ask Lord Denning which party he voted for?

Jonathan Sumption, who retired in 2018 from the Supreme Court, recently observed in The Sunday Times:

“The problem the government has identified is the use of judicial review as ‘politics by another means’. The government has a point. The courts no longer consistently distinguish between cases where a minister has no power to act, or to act for his particular purpose, and cases where the court just does not like the underlying policy. This undermines the foundations of our democracy, which depends on an elected assembly being the ultimate judge of policy… There has been growing discomfort about these tendencies in public law for years. The difficult question is what to do about it.”

Sumption contends that “The problem is one of judicial attitudes. And you cannot change judicial attitudes by Act of Parliament.”

To change judicial attitudes, you require the support of the judges, and who better to obtain that support than Buckland?

So there will be a lot of huffing and puffing, with partisans on each side claiming the end of the world is nigh, and then there will be a deal.

Johnson’s maternal grandfather, Sir James Fawcett, was for 22 years, from 1962-1984, a member of the European Commission of Human Rights at Strasbourg, where among the principles he upheld, as his obituary in The Independent remarked, were

“the right to respect for family life of unmarried mothers and their children, the degrading nature of judicial corporal punishment, the right to free speech in a democratic society, the right to equal citizenship without racial discrimination, and the need for adequate safeguards against the misuse of necessary powers of clandestine surveillance.”

The Prime Minister is a hereditary liberal, who values the good opinion of liberals and has appointed a liberal Tory as Lord Chancellor. Cummings will fulminate, but the likelihood is that Johnson will call the shots, and will support Buckland as he upholds our ancient tradition of liberty.