The significance of the appointment of Dominic Raab as Lord Chancellor and Secretary of State for Justice

16th September 2021

Yesterday one politician replaced another as lord chancellor and secretary of state for justice – one of a number of ministerial changes in a reshuffle.

So what?

What, if anything, does this change signify?

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The outgoing lord chancellor was Robert Buckland, a conservative member of parliament, former solicitor general, and experienced criminal barrister and former ‘recorder’ (a part-time judge) in the crown court.

He had been in office for just over two years – and there are good, bad and ugly aspects to his term.

The good was that, in large part, the justice system was not dragged into the government’s infantile ‘culture wars’.

A fundamental political assault on judicial review fizzled down to almost nothing (see here).

To the extent to which this was down to his political interventions and tactics, all sensible people should be grateful.

The bad was that the wider justice system is in a bad state, with some parts – especially criminal justice – almost in chaos, with delays of years for basic matters.

This predicament was admitted by Buckland in his resignation letter:

You will see he expressly says that there have been ‘years of underfunding’ – and here it should be remembered that the conservatives have been in office for eleven years.

The ugly is his failure to check the explicit attempt by the government to break the law with the internal markets bill.

Others resigned: the advocate general Lord Keen resigned, as did the treasury solicitor Jonathan Jones.

It was an issue on which a lord chancellor of any integrity should have resigned too.

This is because the lord chancellor has an obligation, reflected in statute, to uphold the rule of law.

The moment the bill was published, the lord chancellor should have resigned.

There was no good reason not to do so.

But Buckland chose to stay on, in breach of his constitutional duty, and – in effect – gave cover to a government explicitly committed to breaking the law.

And his reward for this misplaced political loyalty?

He was casually sacked just to create a vacancy for a minister who had failed in another department.

Buckland will now spend the rest of his political and legal career justifying why he did not resign on the spot.

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Buckland’s replacement is Dominic Raab, another conservative member of parliament.

Raab has already served as a minister at the ministry of justice and has a legal background.

Yesterday, political sources told the political editor of the BBC that Raab was ‘a senior lawyer’, which the political editor then repeated as a fact without checking.

Raab is, in no meaningful sense, ‘a senior lawyer’.

This is not to make a political or partisan point, just a statement of fact.

He left the legal profession after a handful of years to go into politics.

There is certainly nothing wrong with that – and ceasing to be a practising solicitor can be a wise thing to do.

And Raab does have good legal credentials – prizes, a higher degree, and experience at a well-regarded city law firm and at the foreign office.

But he was only ever a junior lawyer.

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A case can be made for Raab’s appointment being a good thing.

He is a qualified lawyer – and many have complained when the lord chancellor has not been a qualified lawyer – with a good academic and professional background.

He is also deputy prime minister – which means that he will perhaps be in a stronger position in negotiations with the treasury so as to correct the historic underfunding described by his predecessor.

And he has a sincere (if haphazard) belief in rights, as shown by his 2010 book and his emphasis as foreign secretary on human rights for those under other regimes.

Sudan:

Syria:

Sri Lanka:

Belarus:

China:

And Russia:

There are many others.

Raab has tweeted about human rights dozens of times as foreign secretary.

And only, it seems, three times about Brexit – even though he was a strong Brexit campaigner and former Brexit secretary.

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So what can possibly be wrong about this appointment?

Legal background, qualified lawyer, influential within cabinet, genuine interest in human rights (at least for foreigners).

Why was a legal journalist able to (correctly) tweet this?

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Part of the answer is that – notwithstanding his interest in human rights abroad – Raab has a fixation with repealing the human rights act in the United Kingdom.

And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.

If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.

Raab may also be tempted to re-open the judicial review question, disregarding Buckland’s more conciliatory approach.

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The real opposition to Raab’s, however, is more political than legal – his brash and confrontational political approach tied to a sense that there is little substance.

And so on.

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But.

Every new lord chancellor and justice secretary should be given a fair chance.

For example Michael Gove was a surprisingly good lord chancellor and justice secretary – and not just because he was not Chris Grayling.

Perhaps Raab will also turn out to be a surprisingly good lord chancellor and justice secretary.

Perhaps.

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But.

The real significance of the appointment is not about personalities.

It is about the office of lord chancellor.

This office used to be occupied usually by a senior lawyer-politician, with no further political ambitions.

But since the creation of the ministry of justice under Tony Blair and Charles Falconer – which combined the old lord chancellor’s department with parts of the home office – the department has generally been under politicians on the rise.

And now it is being given to politicians on their fall.

Here, a consolation prize for being sacked as foreign secretary.

Just another spending department with just another politician in charge.

Yet: the lord chancellorship is special – or should be.

The lord chancellor has a duty to protect the rule of law in government and the independence of the judiciary.

And here there will be a tension with Raab’s appointment.

For as deputy prime minister, Raab will be answerable in parliament for the government as a whole (in the prime minister’s absence).

He will also, if he wishes, have a dominant position on any cabinet committees he choses to attend.

He will, in essence, be part of the thing that that lord chancellor is there, in part, to protect against.

No other deputy prime minister has also been lord chancellor.

This tension means potential problems ahead.

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After the creation of the ministry of justice it was perhaps only a matter of time before it became just another political department.

And to this extent, the appointment of a politician such as Raab to the office in these circumstances was also just a matter of time.

But this does not take away from some of the tensions – perhaps contradictions – set out above.

The appointment is certainly good for law and policy commentators.

There will be a lot to commentate on.

It may not turn out so well for law and policy.

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13 thoughts on “The significance of the appointment of Dominic Raab as Lord Chancellor and Secretary of State for Justice”

  2. For what little it is worth, Raab may well have been a senior lawyer if one employs the current terminology used in government. Grade 6 lawyers in GLD all have the title ‘senior lawyer’, myself included. I make no particular claim to seniority but that is certainly my job title.

    It is perfectly normal to become a ‘senior lawyer’ with less than 6 years PQE. I did so. Many of my colleagues, including those roughly contemporaneous with Raab, did so.

    To confuse things slightly, FCDO use different job titles. Their equivalent lawyers have job title “Assistant Legal Adviser”. I’m not aware they have ever used the term ‘senior lawyer’.

    It seems perfectly possible that Raab was a grade 6. And in government it would be absolutely normal to refer to him as a senior lawyer on that basis.

    The tweet may be misleading to those outside government (who may reasonably expect a senior lawyer to be a rather more impressive figure than me) but not necessarily wrong.

    Reply

    1. Disagree, as a former government lawyer.

      A grade 6 may make you a senior civil servant, but it does not meaningfully make you a senior lawyer.

      Would a grade 6 lawyer with 0-1 pqe be a ‘senior’ lawyer? Of course not.

      There is more to being ‘senior’ than a job title.

      And it was because of (obvious) counterpoints like this, I used the word ‘meaningfully’!

      Reply

  3. However well or ill Raab does the job, the job has changed, the seeds of decline having been, as you point out, sown by Blair & Falconer. Such serious changes, which make it easier for politicians to do whatever they can get away with, don’t easily get reversed.

    Am I right to read ‘just a matter of time’ as synonymous with ‘inevitable’ …?

    Reply

    1. Thank you, Emma, for your link.

      In spite of the fool’s gold (‘cutting edge technology’, ‘major boost’, ‘unleash the UK’s potential as a world leader’, ‘modernising outdated EU vehicle standards’, etc), Lord Frost does not fail to hide how the UK is heading towards isolationism: besides the horrid intention of hearing individual proposals to speed up processes and reduce costs (‘hanging them high’ and that’s over with…), I find that the proposed return to imperial measures is really enlightening.

      Reply

    2. Nothing would surprise me…
      We already have witch-hunts – convictions on the uncorroborated word of accusing individuals. And, to all intents and purposes, the removal of a usable system of appeal.

      Reply

  5. Surely the Ministry of Justice was “just another political department” from its inception?

    It is hard to see what special, judicial, characteristic either Chris Grayling or Michael Gove brought.

    On the other hand, the office of Lord Chancellor was highly political. Before 1558, it was frequently held by an archbishop or bishop – Simon Sudbury, who was beheaded during the Peasant’s Revolt, John Morton under Henry VII, Gardiner of Winchester and Heath of York under Mary were all examples of politicians holding the office. Both Thomas More and his betrayer Richard Rich were politicians through and through.

    Lyndhurst – Disraeli’s patron to whom the Vindication of the English constitution was addressed – was a powerful opponent of reform as well as a notorious womaniser. Birkenhead – F E Smith – although regarded by the end of his term as a great judge – was a political appointee who was to later to take cabinet office under Baldwin.

    Some of these politicians – notably Birkenhead – proved to be truly great jurists but that was not why they were appointed.

    Until well into the twentieth century, MPs would step down to become judges. And the office of Lord Chief Justice became vacant it would often go to the Attorney General.

    May not the problem be a diminished respect for the rule of law leading to political misconduct rather than the appointment of politicians?

    Reply

  7. Had to chortle at this and now l am left with the thought that Dominic Rabb got rewarded for taking a holiday in the sun, kept a Ministerial postion after Kabul fell and used the argument the ‘Sea was closed’ for his defence. Some defence!

    Therefore I conclude that Dominic Rabb will make a good Lord Chancellor because he’s not Nadine Dorries

    Reply

  8. Can’t say I care much about Raab’s McJob, a sop to stop him throwing toys.

    Something else happened yesterday – called a reshuffle – but I can’t see any difference in the composition of the pack. Just the same useless faces doing the same useless things. Maybe by colour supplement time some sort of rational may emerge – but I doubt it. Plus ca change….

    Therein lies my concern, Boris has shuffled but nothing has changed. As the man said ‘insanity consists in doing the same thing over and over expecting a different result’.

    Reply

  9. The underlying problem seems to be the way that the Lord Chancellorship was originally lined up for abolition in 2003 and then got reprieved in a reduced format but politically it’s seen as little more than an additional historical title that comes with a particular department, not too dissimilar to “President of the Board of Trade”. Is Raab the Secretary of State for Justice who happens to also be Lord Chancellor or is he the Lord Chancellor was sits in Cabinet as Secretary of State for Justice and what happens when the demands of the two roles conflict?

    Reply
  10. Pingback: Democratic backsliding under Johnson - Sceptical Scot

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