A lively debate is taking place over the appointment of successive Lord Chancellors and the need, or wisdom, of having an incumbent who is legally qualified. This lively debate reflects the recent decision of the Prime Minister, whoever that might be at any given time, to appoint laypersons to the office, and we have been treated in equal measure to Chris Grayling, Oiky Gove, Liz Truss, or is it Lynne Truss, I can never tell them apart, and finally to the present incumbent David Lidington, otherwise known as David Who. They come and go with monotonous regularity, poor players who strut and fret their hour upon the stage and then are heard no more.
The historians amongst you will remember Thomas à Becket, back in 1172, who as the Archbishop of Canterbury was dispatched to his Maker with those oft quoted words uttered by King Henry: “Will nobody rid me of this meddlesome priest?” Four knights did, and precious little thanks did they get for their grisly work.
But I digress. Before taking holy orders, Becket also served as Lord Chancellor. He had no legal qualifications, indeed in 1170 legal qualifications were as rare as hens teeth, far more important was a well turned ankle and a winning smile, both of which Becket had in abundance, so he got the job. Surprisingly, he made quite a fist of it, introducing the Court of Chancery modestly named after him, and his shoe size became the universally accepted measurement of one foot.
He also erected a barrier, or bar, between him and the great unwashed, to keep them at arms’ length when the court was sitting, to reduce the threat of a bunch of fives from disgruntled litigants as well as keeping the overpowering smell of body odour to manageable proportions. Again for the historians amongst you, litigants who addressed the Lord Chancellor from the bar became known as barristers, and the rest, as they say, is history.
But back to the plot. Do we need a Lord Chancellor who is legally qualified, or who has at least some legal experience and knowledge? The clue is in the text of section 2 of the Constitutional Reform Act 2005, my favourite bedside reading. It is as instructive for what it doesn’t say as for what it does, and make of it what you will:
“A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.
The Prime Minister may take into account any of these—
(a) experience as a Minister of the Crown;
(b) experience as a member of either House of Parliament;
(c) experience as a qualifying practitioner;
(d) experience as a teacher of law in a university;
(e) other experience that the Prime Minister considers relevant.”
In other words, anything goes, so legal qualifications are an irrelevance. On one view, nothing has changed since Thomas à Becket, so if it works, don’t fix it. In some cases it didn’t work, the most obvious being the unfortunate Liz or Lynne Truss, who was appointed solely on the strength of a well turned ankle and little else. The fact that she was a woman helped, but not enough to save her from the cull.
Speaking entirely for the thousands of barristers washing around the courts, it is the perception as much as the qualifications of the incumbent, or not as the case may be, where the rule of law now inserts itself into every corner of our lives, and the Lord Chancellor needs the authority and the gravitas of his office as never before. Downgrading the qualifications downgrades the institution at the very time when respect for the law is at its lowest.
David Osborne is the author of three humorous books on the Law. His latest, entitled Order in Court, is now available on Amazon and in all reputable bookstores.