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The Last Lord Chancellor?
England is on the verge of stripping its most hallowed legal official of his power to sit as a judge, appoint judges, and be speaker of the House of Lords, but it may let him keep his title.
WE BRITISH LIKE TO KEEP SYMBOLS OF THE PAST even when they no longer represent reality. This means, for example, that our highest court is, in theory, not a court at all, but rather a committee ("the appellate committee") of the House of Lords, the upper house of Parliament. The judgments of the committee members, who are known as "law lords," are described as "speeches," and if the law lords disagree among themselves, they call a vote of the house. In theory, any member of the house can take part in the vote. The last time that was tried, however, was in the 1880s, and the presence of the member who wasn't a law lord was ignored and his vote wasn't counted.
And then there is the lord chancellor. Readers who are familiar with the comic operas of Gilbert and Sullivan will remember that one of them, "Iolanthe," includes a lord chancellor who sings the immortal lines:
"The law is the true embodimentA joke, of course, but a joke with a great deal of truth in it. Many lord chancellors have agreed with Gilbert's characterization, both regarding the excellence of the law and their own embodiment of it.
The office of lord chancellor is officially called a great office of state, appointed by the queen, endowed with status behind only the royal family and the archbishop of Canterbury, and with a history of nearly a thousand years. The holder is the antithesis of the separation of powers. He (there has as yet been no lady chancellor) is the head of the judiciary in England and Wales. He can, and from time to time until very recently did, sit as the presiding judge of the appellate committee of the House of Lords. He has the sole power to select judges for appointment to all but the two highest courts (the House of Lords and the court of appeal). He is a member of the cabinet and head of what is now a government department with a budget of $5.4 billion, with responsibilities that go beyond the justice system to include such matters as election law and freedom of information. And he is speaker of the House of Lords, although that is an office with no powers of any significance and he is speaker not because of a statute but because he's been so since time immemorial. The office of lord chancellor, then, combines in one person a senior position in the executive, the judiciary, and the legislaturenot to mention in the Church of England, since he helps manage the church's assets and appoints many clergymen.
By American standards, this sounds pretty weird. Judges of the Supreme Court sitting as members of the Senate? Almost all judicial appointments being made by the attorney general, who also sits as chief justice? And to some of us in Britain, this sounds pretty weird too. My colleagues and I in the Liberal Democrat Party have long been campaigning for the creation of a proper Supreme Court, the replacement of the lord chancellor by a minister of justice who is not a judge, and an independent system for appointing judges. Our argument is straightforward. Until 40 years ago, the potential for conflicts of interest in this idiosyncratic British system was rarely realized. Judges hardly interfered with decisions of the executive, and the judiciary and the government had a cozy relationship. In the phrase of Sir Francis Bacon, himself once a lord chancellor, judges were "lions under the throne." That started to change in the 1960s, and by now judges regularly challenge the executive branch. Judges' review of government decisions is an important remedy in public law.
While my colleagues and I rest assured that, to a large degree, men and women of integrity, intellectual power, and independence of mind serve on the country's judiciary, we have become convinced that Britain would be unwise to assume that the present system will always produce the judges we need, and that there is a real danger it will not. And since the passage of Britain's Human Rights Act of 1998, which empowers judges to overrule executive decisions and to declare acts of Parliament incompatible with the human rights law, it has been plain that Britain can't have the lord chancellor, who is the ranking cabinet minister, sitting as a judge, let alone as the presiding judge among the law lords.
We didn't have much hope of success with our lobbying for the creation of a Supreme Court. But suddenly, in June 2003, a press release from the Blair government announced that the law lords would be moved out of the House of Lords into a Supreme Court. The office of lord chancellor would be abolished, and the lord chancellor's department would become the Department for Constitutional Affairs. A Judicial Appointments Commission would be set up to choose who is to be appointed to the bench. And Lord Irvine of Lairg, then lord chancellor, who had been appointed by Tony Blair in 1997, was sacked, even though he was known to be a friend of Blair's and had once served as his pupil-master, the barrister responsible for the prime minister's courtroom training. Lord Irvine was replaced by Lord Falconer of Thoroton, who would hold office not as lord chancellor but rather as Secretary of State for Constitutional Affairs (SSCA). All of these changes were to be enacted within less than 18 months.
Instant constitutional reform by press release is not a good idea. Even those who, like my colleagues and myself, favor these reforms and have been campaigning for them for years were taken aback. The announcement came with no prior warning or consultation. It remains a mystery why the Blair government made its proposal then, and why it decided to introduce such a fundamental change in British justice and governance so clumsily. The government initially announced that the office of lord chancellor had been abolished, only to withdraw this announcement when it was pointed out that the office was entrenched in British statute law and could be abolished only by a new act of Parliament.
Some of the proposed reforms have proved to be uncontroversial. In particular it has been accepted by members of Parliament that the lord chancellor (or SSCA) can no longer sit as a judge or act as head of the judiciary, and that most of his powers over judicial appointments should be transferred to a Judicial Appointments Commission.
Opposition to the creation of a Supreme Court comes mainly from some members of the House of Lords itselfmembers who are judicial and members who are political. Some, led by the senior law lord, Lord Bingham of Cornhill, believe that the judicial functions of the House of Lords are an anomaly and a cause of confusion, which should be corrected by creating a new court. But other law lords claim that membership in the house is of value to them in their judicial role (although some of us suspect that this is no more than a liking for the pleasant club facilities provided by the house). Outside the Lords, there appears to be wide support for a new Supreme Court. If it does come into existence, there is agreement that its membership, size, and jurisdiction will be much the same as that of the present appellate committee.
Perhaps surprisingly, the most controversial issue has been the proposal to abolish the office of lord chancellor. This appears to be no more than an argument about the title of the position, since all agree that the lord chancellor's functions must change substantially, with the focus now on running a government department.
There is, however, more to the argument. Historically, one of the duties of the lord chancellor has been to stand up for the rule of law when other ministers are proposing legislation or action that is incompatible with it. This duty requires a person of standing and authority. It is said that retaining the historic title will maintain and even increase the standing of the office. Further, it is said that future holders of the office should continue to be trained and qualified as lawyers, which has been, up to now, a necessity because of the lord chancellor's judicial functions. The office holders should also continue to be members of the House of Lords.
My response is that, while holders of the office should have a duty to defend the rule of law, their ability to do so will depend on their personal qualities and not on the title of their office. A prime minister who wants to appoint a compliant lord chancellor will find one. A requirement that the office holder should have legal qualifications or be a member of the House of Lords may exclude someone who would be the best person to do the job. If the office holder is stripped of his power to sit as a judge, appoint judges, and be speaker of the house, his role will be utterly changed and he should no longer be called lord chancellor.
The Constitutional Reform Bill, which would put these major reforms into effect, is now on its way through the House of Lords, and will move on to the House of Commons in early 2005. As leader of the Liberal Democrat legal and constitutional team in the House of Lords, I have been deeply involved in the debates on the bill, supporting the government on the major issues and disagreeing on some of the minor ones. But we and the government do not have a clear majority in the House of Lords, and the bill may yet fail. There may have to be a deal of some kind, with the government getting its way on setting up a Supreme Court, yet also agreeing to retain the office of lord chancellor, albeit with a much altered job description.
Lord Falconer, who calls himself Charlie, is a fine commercial lawyer, a much-liked man, and a close friend of Tony Blair. He recently said that his current duties as minister take precedence over his not yet formally ended obligations as judge, and that he "fully and enthusiastically" accepts his singular role as lord chancellor. If it is retained as a post in government, he will not be the last.