Ministers and the public servants they oversee often disagree. Sometimes they do so very strongly – after all, it’s part of the job of a minister to communicate what the elected government wants, even when that means challenging or over-riding what the civil service, or the various specialists in different arms of the state, want.
Those disagreements happen all the time, particularly under Governments which rein in public spending and which seek to challenge vested interests in the public sector. Since 2010, the Conservatives have done both to some degree, first under David Cameron and now under Theresa May.
Normally, the real barney happens behind closed doors, face to face. Those who are unhappy with what the Minister is up to will express their concerns, either calmly or angrily. The Minister or their advisers will try to explain, and some way will be sought to either smooth things over, reach a compromise or defeat the opposition. Sometimes details of these disputes leak out anonymously – as happened when education officials disliked Dominic Cummings’s approach in Michaek Gove’s war on The Blob, for example.
What almost never happens is for the public servants involved to publicly challenge and denounce a Minister. But this week that has happened – and the unhappy party aren’t your standard civil servants, they’re the judiciary.
On Monday, Lord Thomas, the Lord Chief Justice, wrote to his colleagues to correct what he called a “misleading impression” of reforms to court evidence rules. That impression had arisen from interviews in the Sunday Times and Financial Times with Liz Truss, the Secretary of State for Justice and Lord Chancellor. Two days later, he gave evidence to a House of Lords committee, where he said the Ministry of Justice had “misunderstood…completely” the reforms under discussion.
The detail of this issue is important in itself – it relates to how (or if) the use of pre-recorded evidence will be extended in rape cases. But that this dispute has boken out now is a symptom of a wider problem. What it represents is a severe breakdown of relations between the judiciary and Truss, the Lord Chancellor – described, accurately, by Sir Paul Jenkins, former Head of the Government Legal Department, as “unprecedented“and “quite extraordinary“. The Ministry of Justice hasn’t retreated from her comments earlier in the week, but other critics have joined the fray, including Lord Falconer, and today’s Times suggests she should “take a good look at herself and ask whether she is up to it”. Regardless of the rights and wrongs of the dispute, her situation is grim and getting worse.
How did it happen?
Despite the suddenness of this flare-up, Truss’s trouble didn’t develop overnight. Rather, it seems that this row is the product of a series of problems, leading the Lord Chief Justice and his colleagues to feel that this “misleading impression” was the final straw.
When Truss was first appointed, much was made of her not being a lawyer. That criticism was unfair in itself – she wasn’t the first non-lawyer to hold the post, and as The Times puts it, “Her lack of legal experience was not necessarily an impediment to being capable in the post, just as military service is not a requirement for an effective defence secretary.” Lawyers might want one of their own as Lord Chancellor, but the job was merged with that of Justice Secretary in 2005, and thus the occupant has to combine political and constitutional responsibilities in one person. Sometimes that person will be a lawyer by profession, but they shouldn’t always have to be one. Nonetheless, those in wigs were unhappy about the appointment from the off.
Truss then ran into trouble in the aftermath of the High Court decision on Gina Miller’s Article 50 case. Protesters and newspapers accused the judges of being “enemies of the people” – something which was their right, whether you like their view or not – and the judiciary was understandably furious. They looked to the Lord Chancellor for a public defence of their role in interpreting the law. The Justice Secretary looked back, and paused, fatally. She was caught on the horns of the job Blair created for her, a politician with a political side to her job also faced with an impartial constitutional role. In the eyes of the judges, she had failed them and her office.
It’s notable that Lord Thomas reserved his most severe criticism of her this week for that decision, not for the recent dispute:
“I regret to have to criticise her as severely as I have, but to my mind she is completely and absolutely wrong about this, as I have said, and I am very disappointed. I understand what the pressures were in November, but she has taken a position that is constitutionally absolutely wrong.”
Lord Judge, a former Lord Chief Justice, went even further, saying at the time that Truss had caused “constitutional breakdown” by seeking the Prime Minister’s views on the issue before commenting.
That is powerful stuff, particularly in the often reserved and dry world of judging. If readers will pardon the pun, it seems a severe and rather final judgement was passed on Truss as long ago as November.
At the same time, other, wider issues played their part in the breakdown of relations. The new Prime Minister’s rather stricter approach to Special Advisers had reduced the Justice team to two, limiting the advice and backing available to the Justice Secretary. And while before the judiciary had maintained back channels in Downing Street, by which they could take concerns directly to the Prime Minister, the new broom had swept their contacts out in the summer of 2016, leaving them with fewer lobbying options short of going public.
Having started on difficult terms, and lost a great deal of goodwill in the “enemies of the people” dispute, the rumbling of other concerns such as those expressed over the video evidence reform was inherently more hazardous than it might be in normal circumstances. While it grew, the prisons crisis boomed into the headlines – forcing Truss and her team to fight fires, including a court case against the Prison Officers’ Association, while trying to find a way ahead that might solve the issues. Inevitably, that will have further limited the capacity of her office to be fully on top of what was happening on court reform and to try to satisfy judicial concerns.
Between the lines of all this also runs a personal and political thread. One of Truss’s responsibilities is the appointment of senior judges, and the competition recently opened for the next Lord Chief Justice. Most of the judiciary assumed that Lord Leveson was the next person on the escalator, and the rightful inheritor of the job. However, when the criteria were announced last month, they were shocked to read that the successful applicant would have to be 65 or younger. That ruled Leveson out – instantly inspiring annoyance at the disruption of what is meant to be a fairly reliable structure of advancement, and suspicion that political sensitivities about Leveson’s poor standing with the press had been brought to bear on the decision. Embattled, untrusted and over-run with other troubles, Truss’s stock among the judiciary fell even further.
Looked at in the round, it isn’t so surprising that things have boiled over in the way that they have. If it wasn’t this issue then it would have been another – though the suggestion that her comments on video evidence were a sign that she didn’t know enough about the courts had the harmful effect of harking back to the original objections to her appointment. Truss herself has undoubtedly been severely wounded by the week’s events, and the judges show little sign of wanting to repair relations.
More fundamentally, though, the saga should raise questions about the combination of Secretary of State for Justice and Lord Chancellor into one job. Truss’s candidacy wasn’t universally popular from the outset, and circumstances have combined into a particularly difficult climate for her, but the structure of the post has only made things more difficult. Twelve years ago, Blair was able to meddle with a constitutional role which had stood for a thousand years. Today, we can see some of the reasons why no-one had taken that approach earlier in the preceding millennium – the politician inhabiting the job has her troubles, but the job itself evidently needs a rethink.