The shock departure of the former Lord Chancellor, Lord Irvine of Lairg has paved the way for one of the biggest shake-ups of the legal system in decades.
When Tony Blair announced a cabinet reshuffle on 12 June, he also unveiled radical reforms to modernise the judicial system, including plans to abolish the ancient office of the Lord Chancellor and to transfer most of its powers to a new Department for Constitutional Affairs, headed by Lord Falconer of Thoroton, the new Secretary of State for Constitutional Affairs.
Opponents of the Lord Chancellor’s office argue that it undermines the separation of powers doctrine because the Lord Chancellor is a member of the legislature, the executive and the judiciary.
Robert Hazell, professor of government and constitution at University College London, welcomes the reforms. “No one should shed any tears for the office of the Lord Chancellor,” he says. “It was a constitutional anachronism, and it’s high time to drop his separate hats as judge and speaker in the Lords.”
The new department incorporates most of the responsibilities of the former Lord Chancellor’s Department (LCD) and will facilitate an end to the Lord Chancellor’s multiple roles as a member of both the cabinet and the legislature and as head of the judiciary. Until the reforms are fully effected, Lord Falconer retains the title and many of the responsibilities of the former Lord Chancellor.
The department’s principal responsibility is to promote the fair, efficient and effective administration of justice in England and Wales. These are split into four categories:
appointing or advising on the appointment of judges.
the administration of the courts and some tribunals.
the supply of legal aid and legal services.
the promotion of legal reform.
Hazell also supports the creation of the new Department for Constitutional Affairs. “Creating a Department for Constitutional Affairs should help to underpin the new constitutional settlement and start to tidy up loose ends,” he says.
Unlike his predecessor Lord Irvine, the new Secretary of State for Constitutional Affairs does not sit as a judge in the House of Lords. Lord Falconer has also relinquished his powers as the speaker in the upper house. A new speaker, who will not be a Government minister, will be appointed in due course using a method chosen by peers.
The Prime Minister also announced proposals to create an independent commission responsible for recommending candidates to be appointed as judges in England and Wales. Following his appointment, Lord Falconer said at a press conference: “We’re clear that we need an independent appointments commission. The purpose of that is to insulate more the appointment of judges from the politicians.”
The Government is also forging ahead with its plans to establish a new supreme court to replace the House of Lords’ Appellate Committee, which is the highest court in the country.
“A supreme court won’t be like the American supreme court. It simply involves creating an independent court separate from the House of Lords. This is a long overdue reform, which the senior Law Lords and lawyers have long been campaigning for,” says Hazell.
Lord Lester of Herne Hill QC also favours the Government’s reforms. On 8 September he told the House of Lords: “We support the Government’s proposals to create a judicial appointments commission; to replace the Law Lords with a supreme court of the entire United Kingdom; to create a more diverse judiciary; and to end Government patronage in the appointment of senior counsel. We’ve campaigned for these reforms for many years and we welcome the Government’s recent conversation.”
Baroness Kennedy of The Shaws also welcomes the proposals. On 8 September, she told the House of Lords: “The press have suggested that these reforms have come from left field. In legal circles it’s generally become accepted that the traditional role of the Lord Chancellor had become untenable and that the time had come to create a supreme court.
“I was forcefully struck by the anomaly when the President of the Supreme Court of Russia came to London to visit our courts. He explained how hard it was to persuade the Russian public, after years of political control, that the judges were really independent and that they could be trusted. But he then, with a twinkle, asked me to explain how our system works, with our Lord Chancellor wearing three hats. I have to say that I rather wickedly in return suggested that he ask the Lord Chancellor.”
On 14 July, Lord Falconer published a consultation paper on the supreme court and the judicial appointments commission. The consultation will run until November.
Justice, the independent UK-based legal and human rights organisation, welcomes the consultation paper and favours the fundamental elements of the Government’s proposals. In its response to the consultation paper, Justice “commends the core elements”, including severance of the supreme court from the House of Lords and the transfer of the initial membership of the court of the existing Lords of Appeal in Ordinary.
But Lord Lester of Blackstone Chambers has called on the Government to explain how its plans to create a supreme court and a judicial appointments commission will secure the independence of the judiciary. Last month he told the House of Lords that, although he supported the Government’s proposals, he shared Lord Woolf’s concerns that a commission might be unduly influenced by politicians (The Lawyer, 15 September).
“It may be desirable for reasons of political legitimacy and parliamentary accountability for a parliamentary select committee to be involved in some way, and for the Prime Minister to recommend the sovereign appointments to the senior judiciary,” said Lord Lester.
He added that the commission should only be responsible for making direct appointments at junior level and for making recommendations at a more senior level. “The commission need not be chaired by a judge and it must not be dominated by judges, since that would lead to a form of judicial corporatism,” he added.
The Lord Chancellor: consigned to history
The office of the Lord Chancellor has existed for many centuries, with the first, Andmendus, appointed in 605AD. Originally, Lord Chancellors were responsible for keeping the Great Seal of England and were typically a member of the clergy.
Modern Lord Chancellors have occupied a unique position in the UK political arena in that they are a member of all three branches of government – the legislature, the judiciary and the executive.
Lord Chancellors head up the judiciary and the presidency of the chancery division of the High Court. They are also responsible for determining which members of the appellate committee of the House of Lords or the judicial committee of the Privy Council can hear cases. And since they are a member of both, they may select themselves.
Lord Chancellors are also the speakers in the House of Lords and sit on the famous Woolsack. But unlike the speakers in the House of Commons, they can participate in debates and even introduce bills. Lord Irvine, for instance, ushered in the Human Rights Act (HRA), which incorporated the European Convention on Human rights into UK law.
Lord Chancellors are also members of the executive as they are cabinet ministers. They head up the LCD, which until its abolition earlier this year was responsible for appointing judges.
Lord Falconer is the 259th Lord Chancellor. Previous incumbents include Thomas Beckett, Archdeacon of Canterbury (1155-1163), Queen Eleanour (1253-1254), Cardinal Thomas Wolsley (1515-1529) and Sir Thomas More (1529-1532). More recently, Lord Hailsham of St Marylebone (1979-1987) and Lord Mackay of Clashfern (1987-1997) have held the post.
But it was Lord Irvine (1997-2003) who has the attracted most criticism from all sides, notably in connection with stories that he spent more than 600,000 redecorating the Lord Chancellor’s apartment in the House of Lords, including 59,000 on new wallpaper at 350 per roll.
Lord Irvine also came under fire from Labour MPs after he gave himself a 22,000 pay rise last February. The 12.6 per cent pay rise was calculated as part of an ancient pay structure, which means that the Lord Chancellor always receives an annual salary higher than the Lord Chief Justice.
But after a number of complaints, the LCD promptly announced that the controversial pay rise was being abandoned and that Lord Irvine’s salary would be increased by 2.25 per cent – a rise equal to those of other cabinet members.
Earlier in the same month, Lord Irvine faced criticism after it was discovered that his pension package will be worth 2m when he retires.
Although Lord Irvine attracted a hefty amount of criticism, his achievements – notably the HRA – should not be overlooked.
Lord Falconer’s appointment also attracted controversy after it emerged that he shared a flat with Tony Blair during pupillage.