From 1 October 2023, England and Wales will have its first female Lord Chief Justice (‘LCJ’), with the recent news that His Majesty The King was ‘pleased to approve’ Dame Sue Carr’s appointment to the office. Her appointment follows the announcement of the retirement of current Lord Chief Justice The Rt Hon. Lord Burnett at the end of September. In light of the news of change to England and Wales’ highest judicial office, questions will inevitably be asked about the role and its power within the judiciary and in the constitution as a whole. With this in mind, I want to make some initial observations about the role of the LCJ, noting that we may not necessarily understand the nature of LCJ power simply by reading relevant statutory provisions, since the power of the LCJ is partly a function of the role and partly of the character, personality and skills of the individual holding it. What this suggests is that the change in office-holder may prove to be more significant than it appears at first.

Debates about the proper scope of, and limits on, judicial power have been a dominant motif in UK public law over much of the last decade. The role of the LCJ is a less extensively debated site of judicial power than perhaps are other judicial office holders or, as is more often the case, power exercised through courtroom decision-making. However, the role of the LCJ is one which has undergone significant change in recent years. This lack of attention might perhaps be due to prudent, careful and subtle exercises of power by the office holder(s). But however its power is exercised, the office of LCJ epitomises what might be termed the ‘leadership dimension’ of the judicial role today: the work of some judges which takes place away from courtroom decision-making. 

This dimension of work might include matters relating to the leadership and management of the judiciary as an organisation, managing and maintaining relationships with other political institutions or dealing with matters relating to individual judges such as training or discipline. While this is not the total sum of the LCJ’s leadership role, it prompts the question: what is the true nature and scope of the power of the LCJ and can we clearly pinpoint where that power comes from? 

A brief overview of LCJ power

The LCJ is an office upon which great responsibility falls; not only the responsibilities of a sitting judge, but also responsibilities relating to the leadership and management of the judiciary of England and Wales. Since 3 April 2006 and the coming into force of the Constitutional Reform Act 2005 (CRA 2005), the LCJ has been both Head of the Judiciary of England and Wales and the President of the Courts of England and Wales. The LCJ now runs the judiciary and exercises his or her ‘executive and leadership responsibilities’, with the support of Heads of Division, through the Judicial Executive Board. Much of the LCJ’s current power is provided for by statute and under the CRA 2005; the Lord Chief Justice has ‘some 400’ statutory duties alongside responsibilities derived from the office itself. The scope of the LCJ’s responsibilities (statutory or non-statutory) include: sitting as a judge in important cases across criminal, civil and family justice, including appeals; representing the views of the judiciary to Parliament and Government; the welfare, training and guidance of judges in England and Wales; the management of judges’ work and their deployment across His Majesty’s Courts and Tribunals Service (HMCTS); leadership roles in key judicial bodies such as the Sentencing Council and Magistrates’ Association, chairing the Judicial Executive Board and Judges’ Council as well as working within – and being supported by – the Judicial Office and Judicial Communications Office.

This brief overview gives a clear sense of the vast scope of the LCJ’s role and indicates why it should be a site of interest in relation to questions of power. Such questions may relate to what power the LCJ has, how that power is exercised, its interactions with other actors within power relations or the influence of the wider context in which the power exists. However, the office holder does not have unfettered discretion when it comes to matters of justice. It is necessary to understand the LCJ as part of a larger picture of political power. Post-CRA, for example, an important influence on the LCJ’s power is the role and power of the Lord Chancellor (‘LC’); a role which has itself undergone notable constitutional surgery. The LCJ has several responsibilities which exist in conjunction with the ‘new’ LC: alongside the LC, the LCJ is involved in resource allocation and the investigation of complaints made against judges. With the LCJ taking the reins of many of the LC’s previous judiciary-related functions and the LC focusing on their ministerial role as Secretary of State for Justice, there is now a clearer separation of judicial power from executive and legislative power. This said, the LCJ will work closely with the LC – in some instances reaching decisions jointly, or in others working in consultation.

The LCJ’s power has changed as a result of changes to the office of LC and, while the 2005 reforms may have been intended to see greater attention placed on the LCJ in light of additional responsibilities, it has remained the case that the role of LC still garners more academic and political attention. 

Where, exactly, does LCJ power come from?

Statutory power

Many aspects of the LCJ’s power are based in statute. Increased codification of that power was a significant feature of statutes relating to constitutional reform and the courts. The CRA 2005 provides for the LCJ’s ‘new’ powers with provisions transferring extensive duties to the LCJ from the office of the LC. Section 7(1), ‘President of the Courts of England and Wales’, confirms the LCJ as head of the judiciary, while s7(2) sets out the main responsibilities of the office relating to matters such as representation of the views of the judiciary, responsibilities for welfare and training and matters relating to judicial deployment. Within the Act, further provision exists for the LCJ’s leadership roles relating to criminal law and family justice as well as details relating to the interaction between the LCJ and LC on judicial appointments. Not only does the CRA detail the transfer of power between the LC and the LCJ, it creates new powers as well. Section 5(1) CRA permits an LCJ to, ‘lay before Parliament written representations on matters that appear to him to be matters of importance relating to the judiciary, or otherwise to the administration of justice’. The provision was inserted by the then LCJ, Lord Woolf, as an ‘attempt to square the circle’ and preserve the ability of the post-CRA LCJ to continue to appear before the House of Lords and convey important matters relating to the judiciary.

Beyond the CRA, more recent statutes clarify the scope of the LCJ’s statutory responsibilities. Under the Crime and Courts Act 2013, the four parts to Schedule 13 provide further clarification of the LCJ’s power in respect of appointments. Not only does this relate to the transfer of power to the LCJ relating to appointments but incorporates diversity requirements under the Equality Act 2010. These provisions place a duty on the LCJ – and the wider judiciary – to improve the ‘prospects of increasing diversity within the judiciary.’ Setting out these examples should highlight not only the changes to the power of the office of LCJ but also that much of that power relates to the work of an LCJ as a judicial leader. This is an important dimension of judicial power which operates away from courtroom decision-making. It emphasises the power and influence of this judicial office in the context of its external relationships such as with the UK Government, the UK Parliament, HM Courts and Tribunals Service, the devolved administrations as well as the internal relationships between the LCJ and other judicial office holders. 

Non-statutory or ‘social’ power

In spite of the clarity offered by specifying the statutory powers and duties of the LCJ, these do not provide a complete account of this type of judicial power. There are many episodes of LCJ power which cannot be explained by reference to statutory authority but instead to something more personal to each LCJ. Take for example, the LCJ’s condemnation of the government’s attack on the legal profession in November 2020. Using an appearance at the Commons Justice select committee, Lord Burnett made clear that the government’s rhetoric relating to ‘activist lawyers’ constituted, in his view, an ‘attack’ not only on the legal profession but also on the rule of law. The use of such an appearance – and the context of these comments – could be framed as an example of the LCJ’s ‘social power’. This kind of power may be determined not least by the personality and character of the officeholder themselves and how they can ‘take people along’. Similarly, statements made by LCJs within judicial speeches, annual reports, or select committee appearances to highlight matters relating to issues such as court closures or judicial pensions have been influential sites of the LCJs’ social power and carry much potential influence. 

The basis for such influence is much less obvious than a statutory provision or even written guidance, yet it has the potential to affect the behaviour of others – whether that be in shaping attitudes or more explicitly changing how others behave. Social power is an accepted – if sometimes underacknowledged – feature of organisational behaviour and a way in which we understand the power of those in management. Within an organisation there are structured social arrangements formed by the recognition of hierarchies of authority. Certain positions exist near to, or at, the apex of this hierarchy and have the ability to exercise considerable social power. For example, the CEO of a large multi-national corporation or the position of the office of the LCJ at the apex of the judicial hierarchy. French and Raven offered five types, or ‘bases’, of social power: reward power, coercive power, legitimate power, referent power and expert power. One may, too, be familiar with Max Weber’s authority types: rational-legal, traditional and charismatic. 

These means of classifying authority and locating power may help to better capture the wider responsibilities and influence derived from the office itself. An LCJ making ‘politically palatable’ suggestions to address concerns relating to court funding and legal aid provision may be viewed through the lens of expert power, with any subsequent compliance with those suggestions secured by virtue of the LCJ’s expertise in the matter. It might also be considered legitimate authority if, presumably, it relates to the administration of justice and falls within the scope of the role of LCJ. In a similar sense, LCJs hold a form of charismaticauthority: an accomplished lawyer with a vast array of skills, not least in matters of politics, diplomacy and wider statecraft. Weber’s traditional authority could apply, too, in the sense that the office of LCJ presents a settled and well-established site of substantial legal authority within the workings of government. By acknowledging the work of the LCJ in the context of (small ‘p’) politics, it encourages the recognition of this social power. As head of the judiciary, the LCJ is a vital component in the operation of the state and managing relationships between political institutions – not least in managing relations between judges and ministers. Therefore, the way in which any LCJ develops their social power is important too. 

Concluding thoughts

Whatever the form of power identified, what is clear is that the role of an LCJ today is not just to be an excellent lawyer at the pinnacle of the legal profession, but to also have good relations with a wide range of stakeholders. To recognise other features of the LCJ’s power within a political context helps us to consider these sometimes under-explored elements of the role. While this short post cannot offer a complete analysis of the power of the office of LCJ, it is hoped it prompts consideration of whether we adequately acknowledge the changing and subtle ways in which the office holder has or may have power. This will be particularly important as we approach the change in office holder and the inevitable evaluation of the work of the new LCJ which will occur. Reports have suggested that Dame Sue will be well-placed ‘… to do the public-facing stuff… liaising with the government and the lord chancellor’. It will be interesting to see what we will learn in time about how the new LCJ will use her power, whether statutory or social. Whatever those observations may be, it would be fair to say that Dame Sue’s extensive leadership experience suggests the judiciary will be led by a safe pair of hands.

Dr Josie Welsh is a Senior Lecturer in Law at the University of Worcester. I would like to thank Professor Graham Gee, Dr Chris Monaghan and the editors of this blog for their helpful comments on an earlier draft of this post.

(Suggested citation: J. Welsh, ‘The Power of a (Lord) Chief Justice’, U.K. Const. L. Blog (3rd July 2023) (available at https://ukconstitutionallaw.org/))