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Robert Buckland- The UK Constitution

UK Constitution

Sir Robert Buckland QC MP

Former Secretary of State for Justice and MP for South Swindon

Below are Sir Robert Buckland’s remarks at Aberystwyth University in late May 2022
Carwyn, guests, it is a pleasure to be back here with you at Aberystwyth after a gap of far too many years.  Whilst it was not my chosen place of study, it was the destination of choice for very many of my friends and colleagues at the Bar, many of whom, including today’s Chair, have gone on to serve with distinction in public life.  That, inevitably, resulted in a number of visits here, but I had better not say too much about my social escapades, save to say that I have a passable working knowledge of its public houses.

As I pointed out in my swearing-in speech when I became Lord Chancellor (LC) just under three years ago, I was not the first in that Office to hail from Wales, and indeed not the first to come from Llanelli.  My esteemed predecessor and fellow Sosbanite, the former Attorney-General Lord Elwyn-Jones, served from 1974 to 1979.   In the ensuing forty years between his departure and my arrival, it can safely be said that much has changed in the British Constitution, and the change to the office of Lord Chancellor itself is an illuminating illustration of this fact.

In some ways, it is only the title that Lord Elwyn-Jones and I held in common.  It is true that I was, as he was, the Guardian of the Judiciary in Cabinet, with the important role of taking steps to remind colleagues in Government of judicial independence if the need ever arose (which it did).  There were, however, fundamental changes to the office that has changed its character.  The oaths taken by Lord Elwyn Jones were the Oath of Allegiance and then the Judicial Oath, as he was a member of the Judiciary and specifically presided over the House of Lords Judicial Committee of the Privy Council.  By the time I came to take the oaths (in Welsh and English for the very first time), the first oath was the same but the second had been replaced by a specific Lord Chancellor’s Oath, which binds the office-holder to respecting the rule of law, defending judicial independence and providing resources for efficient and effective support for the courts.

This change had been brought about by the Constitutional Reform Act 2005 and the political changes that had started in 2003 when an abortive attempt to abolish the office in the aftermath of the removal of Lord Irvine of Lairg was thwarted by the uncomfortable reality (to the then Government) that because that office is referred to in hundreds of places in legislation, the task would not be one of moments.  The Department of Constitutional Affairs was then created, with the Lord Chancellor at its head.   The 2005 Act formally ended the LC’s role as Head of the Judiciary and removed his functions as Head of the Chancery Division of the High Court.   Famously, or infamously, the Act set out criteria for the appointment of LC that did not stipulate, as was the convention, that he or she be a lawyer of standing.  Running alongside this was the new Concordat, agreed prior to the enactment of the CRA 05, which was notable for ending the role of the LC as a member of the judiciary.  This was brought home to me directly when, on the day of my appointment, I was reminded by the LCJ that I had to resign as a Recorder of the Crown Court.   It did give me pause for thought, but I adopted the maxim of Henry of Navarre, that Paris was worth a Mass.

Also within the 05 Act reforms was an end to the LC’s role as Speaker of the House of Lords, and the creation of the UK Supreme Court, ending the historic role of the Judicial Committee of the House of Lords as the final Appeal Court of the UK.   In 2007, the Lord Chancellor moved to the Commons and took another title, that of Secretary of State for Justice.  The prisons and probation service of England and Wales moved from the Home Office to the new department, with the LC retaining their Courts and constitution role.  With the dawn of the Coalition Government in 2010, the new Deputy Prime Minister who is now an apologist for Facebook took responsibility for much of the constitutional affairs brief into the Cabinet Office, where it has stayed.  The latest incumbent of the ancient office of LC prefers to be called Deputy Prime Minister, in homage to Nick Clegg, I must presume.  I preferred to invoke Becket and More.

I chart this history because I think it is an example of the road to hell being paved with good intentions.  I don’t quibble with the change to the Chancery Division, or indeed with the transfer of the Headship of the Judiciary to the LCJ, as this wasn’t the LCs role before the 1873 Judicature Act.  I do, however, take issue with much of the rest of it, as it is based upon the false premise that the British constitution is a Separation of Powers model.  It is a matter of fact, not opinion, that it is a checks and balances model, which depends on a mix of prerogative, statute and convention.   The well-established principle of comity between the judiciary and the legislature, with each knowing and respecting the other’s role, is not best-served by a distancing of relations.   This has created tensions, but in my judgment, however,  we have entered a calmer phase, as the Supreme Court moves away from a more expansive definition of its interpretative role when it comes to policy intentions, as I set out in recent lectures to the Society of Conservative Lawyers and to the UK in a Changing Europe conference just under two months ago. 

My aim as LC was to help create the conditions in which the unintended consequences of the rationalist approach to constitutional reform of the judiciary and its position vis a vis the executive could be dealt with, by incremental legislative reform and by the provision of a clear political message from the Government as to its view of the constitution and the role of the executive and legislature within it.  The recent Judicial Review reforms, which have now become law, were a prime example.

The reforms had a twofold aim: 1. To provide the judiciary with more discretion when it came to the type of remedy it can order in cases of judicial review.  The creation of prospective-only orders and suspended orders will, I believe, remove the danger of taking a sledgehammer to crack a nut, for example, the quoshing of an entire decision because one minor element of it was wrong in law.  The use of an ouster clause to end the supervisory “Cart” jurisdiction was not only about steamlining appeal procedures in immigration cases, but was about the creation of an ouster clause that could withstand intense judicial scrutiny, bearing in mind the fate of some other ouster clauses from Anisminic onwards.   This approach was based upon my strong belief that it is for Government and Parliament to get its legislation right, to avoid ambiguity and to seek to avoid putting our courts in a difficult position.

My next set of reforms was in train when my term of office was ended.  We now await a Bill of Rights, of which I have spoken elsewhere, not uncritically.  My approach was to adopt the recommendations of the Gross Review and to embed some of the recent caselaw set out by the Supreme Court, as I outlined in the UK in a Changing Europe speech.  I am suspicious of the potential development of a body of domestic “rights” that will have an existence independent of the ECHR.  The place for reform is at an international level, I believe, with domestic legislation that implements the Gross recommendations and which consolidates recent caselaw in the Supreme Court into statute.  One of the reasons that I am not favourable towards a Bill of Rights is my concern for the devolution dimension, and the impact in particular on the law of Scotland and Northern Ireland, bearing in mind the importance of the Convention in the Good Friday/Belfast Agreement, for example.

The Lord Chancellor’s full title is the Lord High Chancellor of Great Britain.  The role has a reach into all three of our UK jurisdictions.  A more precise title should be LHC of the UK, bearing in mind the reserved powers on human rights and judicial terms and pensions, which were recently the subject of new legislation.  My plan had been to change the LC’s full title to refer to the UK.    A diligent LC will foster active and close relations with the judiciary across all the UK.  My last official event was to attend the Opening of the Legal Year in Belfast last September, which was a particular pleasure and most importantly a useful opportunity for discussions about the concerns and priorities of the judiciary in Northern Ireland. 

Thanks to the Chair, who was still a Senedd member then, I was able to give remote evidence to the Legislation, Justice and Constitution Committee of the Senedd.  My view is that as a UK Government Minister of seniority and with a wide legal and constitutional remit across the UK, the Lord Chancellor should appear regularly before Committees of the Scottish and Welsh Parliaments and  NI Assembly.  I was particularly pleased to have appeared before the constitutional affairs committee of the Senedd, and would have liked a similar opportunity at Holyrood and Stormont.  

I am conscious that my remarks so far have been reflections by a former office holder about a particular role.  I am in danger of making random musings, but the specific issues I have dwelt on are, I believe, an interesting facet of the challenge facing our institutions more generally in our multi-dimensional United Kingdom.  Each corner of the UK has a distinct arrangement.  Focussing on Wales, contrary to the crude binary debate that we so often hear, Westminster governments of different hues have, in the case of Wales in particular, legislated to create more power for Welsh institutions and changed the very basis upon which powers are conferred.  The 1997 referendum was followed by another on increased legislative powers in 2011, let’s not forget.   The current settlement is, I believe, one that is entirely compatible with the need for a government that is closer to the people but with a strong and deep commitment to our Union.   After some years where this seemed to provide the basis for sensible agreement, the plates are moving again.

At the time of the last Senedd election, there were commitments made by some of parties to further devolution in the field of justice, and indeed the creation of a separate jurisidiction.  I now see that as a result of a pact between Labour and Plaid Cymru, support for an enlarged Senedd elected by a new voting system has crystallised into definitive proposals.  You can guess that I am deeply sceptical, indeed hostile to both ideas, and certainly think that if such changes are to be made, then a referendum should be held.  These are issues that go beyond any five year mandate that a political party might claim in a Senedd election.  At the same time, I am struck by the complete absence of any debate as to whether a bicameral legislative structure, rather than a unicameral one, would serve the legislative interests of the people of Wales better.   My aim today is not to focus on these arguments, but to make the point that conversations about constitutional reform should involve all of us, not just the devolved institutions. 

When I hear devolved politicians criticise “Westminster”  or “Whitehall” rather than the political party currently in power, this seems to me only to serve the interests of nationalism.

The last six years of Brexit and Covid have not only given us unprecedented constitutional and governmental challenges, but they have seen the growth of an increasingly confrontational political debate, where often small, even tiny minorities in the case of anti vaxxers, have been amplified by the megaphone of social media.  Nuanced debate has been drowned out by the imperative of the immediate and definitive statement.  You are either Scottish, Welsh or British, Leave or Remain, with us or against us.

When it comes to the constitutional debate, I was particularly struck in the 2019 General Election to see that both the Brexit Party and the Liberal Democrats, polar opposites on Brexit, both supported a written constitution for the UK – in other words, a definitive break with our conventions and traditions.   This, I strongly believe, is to fall yet again into the trap that it is through constitutional reform that we create a fairer, more levelled up country.   For those who believe that a truly Federal Britain will open the door to this future, think again.  Unlike countries such as Germany, we don’t have the sort of population distribution that encourages balance.  It would be as if California, Utah, Idaho and Oregon were one federated state.  And for those who say the answer lies in the creation of amorphous English regions, for all the reasons of identity and culture that are usually the province of we Celts, such solutions will not work.  I take some reassurance for the fact that if we think that this work is difficult, this is the shared experience of other European countries such as France, with competing loyalties between Paris, the newer Regions and the Napoleonic Departements, not to mention the smaller municipalities and the Mayoral system.  

It is time, I believe, for the way in which we think about constitutional matters to change.  For too long, we have focussed on the theoretical, on the process, rather than the real outcomes that people want.  The mere creation of an institution can lead to inertia, or, dare I say, a new centralism that risks the further alienation of regions or areas of the country in question.  Tensions between the North East of Scotland and the Central Belt are well-evidenced, just as the tensions that exists between the different parts of Wales and their view of Cardiff.   If levelling up is to truly succeed, then we need to look beyond the institutions and into our communities themselves.

Since I left office, I have been able to devote a little more time to constitutional questions, and am delighted to be part of a Constitutional Review Panel set up by the Institute for Government and the Bennett Institute for Public Policy at the University of Cambridge.  I am also working with fellow Conservatives at local and national level on a Levelling Up Commission, which is specifically examining how the national aspirations of the White Paper can actually be translated into local action.  Both are at their fairly early stages, but the common aim is for practical suggestions to be made.  In the case of Levelling Up, the need for longer term plans with clear objectives and measurable data that can allow for greater accountability has been clearly set out, so local mechanisms in order for this to be done will be the focus of our work.

What continues to strike me is that the days of “devolve and forget” have to end if we are to have a successful and enduring Union.  Taking a strong interest in, and having debate about, issues that may have been devolved, does not mean the resumption of a binary struggle for power.  Instead, it should represent the normal activity of a mature democracy, proud of its past and confident in its future.  A conversation about local structures in England should be of as much interest to Wales, Scotland and NI as vice versa.   We must never forget that ultimately, the future of the Union might not be determined by nationalist fervour in its constituent parts, but by English indifference.

But ultimately, it is the ties that bind that really matter.  Family, educational experience, work opportunity.  The indelible links between our constituent parts are brought home to me in my conversations on the doorsteps of South Swindon, that great melting pot of our country and the wider world.  Our focus should now be relentlessly on those communities, not forgetting that whatever our view of judicial devolution for example, we risk being arrogant elites that clash by night, rather than practical politicians engaged in real life problem-solving.

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