Peter Rawlinson’s memoirs: (1) two bulwarks for the protection of justice

Peter Rawlinson (Lord Rawlinson of Ewell QC) was in his time Solicitor-General, Attorney-General, Chairman of the Bar, President of the Senate of the Inns of Court and the Bar, Treasurer of the Inner Temple, and a formidable jury advocate, both in libel trials and in the criminal courts.  Under a different party leader, he might have been Lord Chancellor (if the rule which prohibited a Roman Catholic to hold that office had been repealed in time).

He called his autobiography “A Price Too High”, meaning that there came a time in his mid-fifties when to continue in public life to the total exclusion of family life was for him a price not worth paying.   I read the book soon after it was published in 1989.  I have recently re-read it.  There were two features of it in particular that caught my eye, in the light of recent events.

The first was in the book’s Prologue.  As a 43-year old Tory MP he had been invited to go and see Harold Macmillan very soon after the “Night of the Long Knives”[1] in July 1962.  After the Prime Minister had told him that he wished him to join his administration as Solicitor-General, he did not allow him to answer.  Instead, he embarked on a long homily about the special position of the Law Officers:

“I swallowed back my words of acceptance and was honoured by a scholarly review of medieval office holders, a review which flowed into the sixteenth and seventeenth centuries, embraced approvingly the career of Samuel Pepys, and concluded with the admonition that the loyalties of a Law Officer must be first to the Crown, second to parliament, and only thirdly, and almost incidentally, to the administration. And now, concluded the Prime Minister, would I do him the honour of joining his administration as Solicitor General?”

How much has changed!  The penultimate chapter of the book is called “The Decline of the Law Officers”.  In it the author describes how even in his own time the status of the Government’s Law Officers had been changing.  He believed that in due course the Westland Affair[2] showed that at heart what a modern administration really wanted was

“tame ‘in-house’ legal advisers, creatures of the government more in the style of the retained family or company solicitor than of independent officers of the Crown.”

Peter Rawlinson would have been saddened, but not at all surprised, by the sacking of Dominic Grieve as Attorney-General and his replacement by a junior member of the criminal Bar, when his only offence had been to give the Government correct legal advice which the Prime Minister of the day found to be unpalatable.

The second matter that caught my eye was what he wrote about the office of Lord Chancellor.  Before the law was changed to accommodate the appointment of Lord Mackay, a Scottish lawyer, the Lord Chancellor (being “the minister charged with the administration of the English civil law, the management of the English courts and the selection of the English judiciary”) had been required to possess the qualification of having been trained in the English law, called to the Bar of England and Wales, and to have practised in the English courts.  While not impugning Lord Mackay’s appointment (“that he was personally well fitted for the post, none had any doubt”) Peter warned that the effect of the changes needed to be understood.  He believed they had led to the creation of a situation in which the office of Lord Chancellor was of little actual importance,

“save as the ceremonial representative of an ancient but irrelevant tradition”:

“That all this has gone unchallenged must have been greeted with immense satisfaction in Whitehall.  Quietly and without fanfare, there has been brought about not so much a reform as a revolution in the role of the traditional Law Officers of the Crown.  For Whitehall has at last succeeded in clearing the way to transform them into ministerial legal servants, government eunuchs.  The post of Lord Chancellor has become that of just another political bureaucrat in the Cabinet which is open in the future to any minister with some knowledge of the law, while those of the Attorney and Solicitor Generals have been transformed into that of tame legal consultants to their master or mistress the Prime Minister.”

Looked at in this way, what happened in 2003-5 was merely the logical follow-up of a change that took place rather earlier.  Peter did not foresee – any more than I foresaw it in 1998, when I wrote for Sweet & Maxwell’s bicentenary volume about what I thought would happen in the next 25 years – that in due course it would no longer be necessary for the Lord Chancellor to have any legal qualifications at all.  If he had lived to see it, he would have been suitably aghast to see the minister responsible for the whole of our civil law and our criminal law taking up very precious parliamentary time by promoting his fairly pointless Social Action, Responsibility and Heroism Act 2015.

The reason why I was intrigued when I revisited his thoughts was that as the work of the new Commission on Access to Justice gathers steam, it has become increasingly obvious that there has been nobody in any of our recent Governments strong enough to protect Justice, in the way that Health and Education, the other two hallmarks of a mature democracy, have been protected.   Step by step the boundary marks of our civil non-family legal aid system have been dug up and moved inwards until the stage was reached when they were almost all carted away – and this against a background of increasing research evidence to the effect that many people’s physical and psychological health often become seriously impaired through the way they allow themselves to be treated when they do not know their rights and are in any event increasingly unable to access skilled advice and representation even if they are aware of them.

It is perhaps unrealistic to suppose that an old-style Lord Chancellor, along with two old-style Law Officers of the Crown, like Frederick Barbarossa and his knights, could ever come galloping back to save our justice system from everything that has befallen it since Peter Rawlinson was last in office.  But it would be nice if our political masters could bestir themselves to fashion a worthwhile substitute.

One final word. Today the recently retired Permanent Secretary to the Ministry of Justice is reported as saying:

“One of the things that has changed in the way we advise ministers is that we used to say: ‘You can do that, you can’t do that.’ Now we more often say: ‘If you do that, there will be a legal challenge, and it’s quite likely we’ll lose.’ And some ministers in those circumstances will give up, and others will say: ‘No, actually, if there’s a chance we might win, I want to try.’ And as democratically elected politicians that is their prerogative. But of course it does make it difficult if you’re trying to plan: because you have to factor in that if you’re doing something controversial, it’ll be judicially reviewed and then you don’t know how long the process will take, what changes you might be forced to make. That’s a part of life.”

This ministerial cast of mind would have been unthinkable in the days when the Lord Chancellor recognised that his primary duty was to uphold the law.

 

[1] So-called to mark the fact that the ageing Prime Minister suddenly sacked one third of his Cabinet.

[2] When Leon Brittan felt constrained to resign from office following the authorised leak of a letter from the then Solicitor-General.

2 thoughts on “Peter Rawlinson’s memoirs: (1) two bulwarks for the protection of justice

  1. Pingback: Peter Rawlinson’s memoirs (2): Mr Macmillan, my father and Stephen Ward – Henry Brooke

  2. Pingback: The office of the Attorney-General: Then and Now – Henry Brooke

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