Patrick O’Brien: Does the Lord Chancellor really exist?

patrick-obrienOn 12 June 2003 a minor constitutional revolution began with the resignation of Lord Irvine as Lord Chancellor and the announcement of a package of reforms including the abolition of his office and the creation of a Supreme Court, later to become the Constitutional Reform Act 2005 (CRA). To commemorate the tenth anniversary of these events, the Judicial Independence Project held a private seminar on 12 June 2013 at which some of those directly involved in the changes spoke about the experience and the effects it has had on constitutional change. A note of the seminar is available here. In part the seminar brought out the drama and the comedy of the day itself. An old friendship ended in acrimony: Irvine had been the Prime Minister’s pupil master and had introduced him to his wife. At the same time the senior judiciary, at an away day with civil servants, were taken by surprise by the announcement and had to have the details explained to them whilst they huddled, increasingly angry, around a single phone in a country pub.

The judiciary and lawyers have always seen the constitutional changes that ultimately became the CRA as being about them: about judicial independence and the courts. In fact for the government they were primarily about policy delivery and changes to the machinery of government. The Prime Minister wanted to replace the Lord Chancellor’s Department, which was perceived to be poorly managed, with a normal government department led from the Commons and capable of delivering the New Labour agenda of reform.

The reforms of 2003-2005 were also intended (at least in part) to make the judiciary more independent, but by removing the voice of the Lord Chancellor in Cabinet the judiciary felt that they would be left less independent. The perception remained – and largely remains – that the old Lord Chancellor was a staunch defender of the judiciary and their independence. Yet many of Lord Chancellors of recent decades had fallen out badly with the judiciary over reforms of one kind or another. Lord Mackay was highly respected as a judge and as Lord Chancellor but his reforms to pensions and the legal profession enraged the judiciary. Lord Elwyn-Jones’ refusal to promote Sir John Donaldson in the 1970s for fear of the political reaction amongst back bench Labour MPs is remembered bitterly as a low point for judicial independence.

The plan to abolish the Lord Chancellor was not followed through following pressure from the House of Lords and recognition that abolition would be an extremely complex matter. The title of Lord Chancellor was retained. But what is it that remains? Speakers at the seminar suggested that post-CRA the office no longer exists. 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 (and the current incumbent appears to have foresworn the wig). The two remaining functions of significance to the judiciary that the Lord Chancellor retains are the protection of judicial independence and the appointment and discipline of judges (and the passage of the Crime and Courts Act has made his involvement in appointments less significant). The CRA says that a Lord Chancellor must be ‘qualified by experience’ but defines this so loosely (a person may have experience as a Minister, MP, lawyer or any ‘other experience the Prime Minister considers relevant’) as to render the requirement redundant: effectively, anyone can be Lord Chancellor if the Prime Minister agrees. In early interviews for the Judicial Independence Project, judges repeatedly emphasised that the major change to the office of Lord Chancellor would occur not when it was given to a non-lawyer but when the profile of the incumbent changed: when it moved from a big political beast at the end of his or her career to a politician on the way up. We crossed that Rubicon in September 2012 when the office moved from Ken Clarke to Chris Grayling and arguably the judges’ instincts have been borne out. Naturally sympathetic to the hawkish Home Office position rather than the traditionally dovish Lord Chancellor’s position on law and order, Grayling has not been slow to make his mark on issues from the rather severe cuts to Legal Aid to the restriction of judicial review and the eye-opening proposal to privatise part or all of the courts service. This is perhaps not surprising for a minister whose brief includes a large chunk of the former Home Office – the law-and-order-ish prisons and probation – and was picked for his experience as shadow Home Secretary.

Which brings us to a conclusion: if the Lord Chancellor does not really exist anymore should we not face this fact and get rid of the title and the legacy functions associated with it? This need not be considered a bad thing. The duty to uphold the independence of the judiciary in the CRA is given not just to the Lord Chancellor but to all ministers of the Crown and the Attorney General, Dominic Grieve, appears on occasion to speak to these kinds of issues (he has, for example, spoken to Grayling on the Legal Aid proposals in response to a letter written to him by a group of Treasury counsel). And there are others in government, Parliament and the civil service who work hard to maintain and support the courts and the rule of law. But perhaps the point is broader than that. Does the existence of the title ‘Lord Chancellor’ and its loose commitment in the CRA to the principle of judicial independence conceal the need for these others to step into the breach more frequently and more publicly? Do we need less personalised and more stable protections than the CRA provides?

Patrick O’Brien is a Research Associate at the Constitution Unit, University College London. 

Suggested citation: P. O’Brien, ‘Does the Lord Chancellor really exist?’, UK Const. L. Blog (26th June 2013) (available at http://ukconstitutionallaw.org).

9 Comments

Filed under Constitutional reform, Judiciary

9 responses to “Patrick O’Brien: Does the Lord Chancellor really exist?

  1. Jack Simson Caird

    Great Post Patrick!

  2. A couple of preliminary points. (1) Chris Grayling is not a lawyer and surely the wig is indicative of that qualification. (2) Clarke culled legal aid – he, and not Grayling, was responsible for LASPO 2012 and so I am not convinced by the Rubicon point.

    The posts of Secretary of State for Justice – (under Treasury pressure to save money but, at the same time, rushing to be among the first to agree to savings) – is not compatible with even what is left of the LC role. I think the present LCJ made this point when talking to the Justice Committee.

    The CRA 2005 made the LCJ Head of the Judiciary but, in practice, it often looks to the outside world as if little has really changed. One problem is that the LCJ really ought to be doing more of the Court of Appeal and other judicial work and not devoting his time to so many tasks of a managerial / administrative nature. Furthermore, the LCJ is not head of the Supreme Court.

    This leads me to think that a different solution to simple abolition of the LC role would be its reincarnation in some form distinctly separate from the Secretary of State for Justice. The new LC should have to be professionally qualified in the law and have considerable experience in actual practice. The functions would be all those currently allocated by statute to the LC together with administrative functions currently undertaken by the LCJ.

    The old LC was, of course, a very British development and alien to those schooled in rigid separation of powers; a doctrine which did not hold as much sway here as in some continental systems.

    The alternative to reincarnation is abolition as suggested in this post.

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  5. Toby McKinnon

    I agree entirely with ObiterJ. It may be true that there is a “need for… others to step into the breach more frequently and more publicly” – but who are those others? Certainly, within the current constitutional framework, not government ministers, who have, let’s face it, little interest in furthering judicial independence. That coupled with the admission that the LC was a very idiosyncratically British institution may lead to the conclusion that the role of LC should be reconceptualised and separated from that of an ordinary minister of the Crown, ie. the Secretary of State for Justice. At the same time, a return to the ‘old days’ is unlikely, particularly due to – still outstanding – reforms to the House of Lords (no LC will ever again be ex officio Speaker); and there is Art. 6 of the ECHR, which does not permit a member of the executive to concurrently hold judicial office (see McGonnell v UK (2000)). That said, there is no reason why the LC’s role should not be enhanced in line with s 1(b) CRA; indeed, his current institutional position may be regarded as constitutionally inappropriate. But nobody says that the LC should hold executive and judicial and legislative tasks.

  6. Patrick O'Brien

    Thanks all for the comments. I agree that the restoration of the old Lord Chancellor is very unlikely. It was a unique role that existed and worked in part because of the weight of history behind it. Now that it has been abolished the understandings that were there will have wilted away, and the Article 6 arguments would loom much larger on the way back up than they did on the way down.

    But it’s also unlikely for political reasons. If courts and the judiciary are spun back out of the MoJ to become the preserve of a ‘new New Lord Chancellor’ you end up with two heavyweight ministers from the Home Office and MoJ making law and order arguments against one fairly junior minister without much Cabinet clout. The old Lord Chancellors could draw on their standing as head of the judiciary. That can’t and won’t come back and so the new replacement would be just another minister; or worse, a minister with a Cassandra-like brief to irritate colleagues and be ignored about threats to the rule of law.

    In terms of who replaces the Lord Chancellor – as I suggested above, the law officers and the Attorney General in particular seem like obvious choices. But fixing on a specific individual risks creating the problem anew and I think the general responsibility imposed on all ministers by Section 3(1) of the CRA requires greater emphasis. There is also a sense in which the judiciary can be their own Lord Chancellor, speaking to points of principle publicly and loudly when the need arises (as did Lord Neuberger in a TV interview recently). They carry a great deal of weight and respect and shouldn’t be afraid to draw on it.

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