Sunday, 8 June 2014

The Lord Chancellor - a heap of anomalies

Once upon a time, the Lord Chancellorship - (full title - Lord High Chancellor of Great Britain) - was the prize position sought by able lawyer / politicians. Nothing so modern as "separation of powers" existed in this peculiarly British role: a product of centuries of evolution rather than rational thought.  The Lord Chancellor was Head of the Judiciary of England and Wales; presided over the Appellate Committee of the House of Lords; acted as speaker of the House of Lords and was a member of the executive.  Judge; Legislator; Minister all rolled into one.   It is interesting that, perhaps up to the 1990s, such "multi-tasking" appeared to work well due, it seems, to various "protocols" and "understandings"within government as to how the role should operate in practice.  Also, in recent times, the office was held by some very notable individuals such as Lords Hailsham, Elwyn-Jones and Mackay.   A good overview of the Lord Chancellorship is available on Wikipedia together with a list of holders of the office.

The fact that
the Lord Chancellor was a senior Minister gave the judiciary an important link to the executive and the Lord Chancellor was well able to present the view of the judges about matters of concern.

All of this changed.  The Lord Chancellor came to have an increased executive role.  The Lord Chancellor's Department (created 1885) eventually became the Department for Constitutional Affairs (June 2003-May 2007) and, from 9th May 2007, the Ministry of Justice was created and responsibility for prisons and criminal justice policy was transferred from the allegedly 'unfit for purpose' Home Office.  There were criticisms that the judicial appointments process lacked transparency ("secretive taps on the shoulder") and it was argued that an independent appointments body should be created.  Pressures to give the European Convention of Human Rights greater emphasis in English law led to serious criticism of the lack of separation of powers in the role - see, for example, the Resolution of the Parliamentary Assembly of the Council of Europe - Res 1342 (2003).  Not that such criticism was actually new.  Walter Bagehot in The English Constitution (1867) wrote:

“The whole office of the Lord Chancellor is a heap of anomalies. He is a judge, and it is contrary to obvious principle that any part of administration should be entrusted to a judge; it is of very grave moment that the administration of justice should be kept clear of any sinister temptations. Yet the Lord Chancellor, our chief judge, sits in the Cabinet, and makes party speeches in the Lords.”

When Lord Faulkner became Lord Chancellor in 2003, he opted not to sit as a judge.  Lord Irvine (Lord Chancellor 1997-2003) was the last to sit in a judicial capacity.

In June 2003, plans to abolish the office of Lord Chancellor were announced - see House of Commons - Standard Note - Role of the Lord Chancellor - where it is stated that:

'In early June 2003 the Prime Minister was widely expected to reshuffle his Government, and
an announcement was duly made on 11 June. The Prime Minister took the opportunity to
make fundamental machinery of government changes. These included the complete ‘abolition’ of the post of Lord Chancellor; a new role for the Law Lords under a future independent Supreme Court; an end to the separate posts of Secretary of State for Wales and Secretary of State for Scotland; and in place of the Lord Chancellor’s Department (LCD) a new Department for Constitutional Affairs.'

The plan to abolish the Lord Chancellor raised considerable concern not least within the judiciary and this led, in January 2004, to a "Concordat" between the Lord Chancellor and the Lord Chief Justice (then Lord Woolf).  This emphasised the need for co-operation and set down dividing lines between judicial business and the Lord Chancellor's responsibilities for provision of resources (financial, material or human).  [The Concordat may be read at Appendix 6 of the House of Lords Select Commitee Report on the Constitutional reform Bill).

Following a consultation, a bill was introduced which included abolition of the Lord Chancellorship but, in July 2004, the House of Lords voted against abolition with the result that the bill was amended to merely bring about modifications to the role.

Thus, it was not until the Constitutional Reform Act 2005 (CRA) that significant change came about.  The CRA modified the office of Lord Chancellor; created the Supreme Court of the United Kingdom (thereby replacing the Appellate Committee of the House of Lords) and reformed the processes for Judicial Appointments and Discipline.  So far as the Lord Chancellor is concerned, the modifications to the role are in CRA Part 2   The CRA was examined in detail in a report by the House of Lords Select Committee on the Constitution - Constitution Reform Act 2005, December 2005

Significantly, the amended Lord Chancellor duties continue to have involvement with appointments of certain members of the judiciary.  The arrangements are complex - CRA Part 4 and Crime and Courts Act 2013 - Schedule 13 - (see footnote).   The Lord Chancellor need not be a lawyer and the Prime Minister is empowered to appoint anyone who appears to be qualified by experience - CRA section 2.    The CRA section 3 places a duty on the Lord Chancellor and all Ministers to uphold the continued independence of the judiciary.  Under Section 7 , the Lord Chief Justice became President of the Courts of England and Wales and also Head of the Judiciary.   The complexity involved in modification of the office is demonstrated by the large number of statutes that required amendment in order to transfer functions (accrued over centuries) of the Lord Chancellor to other Ministers etc. - see Schedule 4.

Today, there remains a very much modified role which is combined with the Secretary of State for Justice with its considerable departmental responsibilities.  Should the Lord Chancellorship be finally abolished?   I submit that the answer should be YES.  The historic role is now shorn of most of its former glory but what remains continues to give a Secretary of State considerable influence in some  matters relating to the judiciary.  Since the "heap of anomalies" is no longer as large as it was, suitable new "homes" could be found for the remaining function.

An interesting article on the Lord Chancellorship is at Constitutional Law Group - Patrick O'Brien - Does the Lord Chancellor really exist

As Patrick O'Brien stated: 'There is something called ‘the Lord Chancellor’ but, shorn of the judicial functions and the speakership of the Lords that characterised the old office, the new office is a sort of vestigial organ attached to the Justice Secretary, to be exercised in wig and gown at state occasions but with little more substance than that ....'

The Lord Chancellorship survived, albeit in reduced form, the bungled reform process of 2003-2005.  I have often wondered whether it really survived because of the vanity of certain politicians.  Be that as it may, it is time that the abolition task was completed.


Should the Lord Chancellor have to be a Lawyer?

It has been argued by some that it was a mistake to permit the Lord Chancellorship to go to a non-lawyer.  On this point, see the well-reasoned article by David Allen Green writing in the Financial Times that there is no need for a lawyer  The axemanship of Mr Kenneth Clarke (a lawyer) was as skilled as that of Mr Chris Grayling (non-lawyer).  A possible argument FOR having a lawyer as Lord Chancellor might be that a lawyer would be more inclined to attend to reform of some very difficult areas of the law.  Sadly, with perhaps some exceptions, history does not offer much to support such an argument.

Update 31st July - Lord Judge stated his view that the Lord Chancellor should have some legal qualification - Legal Futures.

Footnote:

The Crime and Courts Act 2013 section 20 and Schedule 13 Part 4 amended the arrangements relating to various judicial appointments.


In relation to Schedule 13 Part 4, Section 20 states:


Part 4 - (a) makes provision about selection for certain judicial appointments, and (b) provides for the transfer, from the Lord Chancellor to the Lord Chief Justice or the Senior President of Tribunals, of functions in connection with selection for and appointment to judicial offices,

Part 4 was brought mostly in to force on 1st October 2013 - see Commencement Order No. 4

See also Judicial Appointments Commission - 30th October 2013 - Changes under the Crime and Courts Act 2013 start to come into effect


Further links:

Constitution Unit Blog - 20th June 2013 - John Crook: The abolition of the Lord Chancellor - ' ... the real change to the office of Lord Chancellor has not been that the office has ceased to be held by a judge or lawyer, but that it is no longer held by a senior politician at the end of his or her career. Because the role combines responsibility for prisons with that of the courts, new-style Lord Chancellors are increasingly likely to be ambitious mid-career politicians.'



In noting the passing of the Lord Chancellor's role as Speaker, Lord Strathclyde said:

"It would be wrong to allow the passing of the historic role of Lord Chancellor to go without comment. It was a unique office, a typically British anomaly that worked wonderfully well, one that protected the judiciary and lent grace and authority to this House. It was held by that remarkable succession of individuals whose Arms surround us in this Chamber. I will not list them all, but I confine myself to the names of Becket, More and Bacon, among Lord Chancellors of England, and Hardwicke, Halsbury, Birkenhead and Hailsham among chancellors of Great Britain. The roll-call of the centuries speaks for itself."

The Woolsack - formerly where the Lord Chancellor sat

The Lord Chancellor - A heap of anomalies - Part 2

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