What role for the Lord Chancellor?

Speech to Winkworth seminar on constitutional change. 7.7.04

I’ve got ten minutes to run around what I think is a very significant series of issues relating to our constitution – although I must say that, looking at the issue in the press and even among parliamentarians – is not seen as significant. The main issue seems to have been what is recognised as a botched reshuffle which in effect appeared to abolish the office of Lord Chancellor by a stroke of a pen on a Tuesday afternoon.

Issue far more serious.

Necessary first to take a brief detour back to the constitution – not that we have one. Since we don’t have one, we have in this country no separation of powers as for example set out formally in the US constitution.

From the point of view of Parliament, the traditional critique of the lack of separation is that the executive dominates – the government is formed from the party that can command a majority, the same people who have got to parliament on the party ticket are appointed as ministers, but on the PMs patronage, and those people determine the passage of legislation through the house and in effect, enforce its passage by executive whipping of those people who are not on the payroll.

This is, though, a matter of internal grief in the commons. But there are wider issues. We do, of course have a constitution. Summed up by Sir Robert Carnwath who wrote to House of Lords Select Committee

‘Under the British constitution parliament, under the crown is supreme. In different ways both the executive and the judiciary are servants of parliaments will.’

This of course is true – the doctrine of the Queen-in-parliament effectively accessing parliament through the lords (Black Rod Queens speech in Lords, Whip held hostage etc) still holds. We are still subjects of the Queen in the UK, not citizens.

In essence the checks and balances in the British constitution have arisen from an interplay of elected hereditary and appointed, and the operation of a number of conventions regulating their relationships.

So is it real and does it matter? And if it does it address modern problems?

Well, under the Carnwarth doctrine, the function of the Lord Chancellor needs no amendment. Since both the legislature and the judiciary point up to the crown, there should be no problem.

And in practice there has not been a great deal of problem. The Lord Chancellor as appointer of judges has attracted little adverse comment on appointments over a period, and has the confidence of the judiciary in doing so.

But so the alternative argument goes the idea now that all functions of the state look upwards to the crown is a fiction. The power in reality resides in the House of Commons, and with the executive. The checks on this power are there in theory, but in reality are just that – largely theoretical. And if we take the reform of the House of Lords into account, we have a radical diminution of the idea in the theoretical model that the hereditary and appointed check the democratic – hence the debate on who actually appoints members of the House of Lords to replace the hereditaries, and whether they should be party based and subject to the whip as in the House of Commons.

So looked at from the other end of the telescope and acknowledging the reality of executive dominance of the legislature, the Lord Chancellor occupies a strange position.

• He is a Government minister appointed by the PM but in turn appoints judges.
• He can also sit as a judge judging perhaps the constitutionality of a piece of legislation.
• He has in reality a large department to run. In addition to his involvement with the judiciary, he is concerned with human rights, open government, data protection, church issues, Channel Islands, House of Lords reform, the electoral commission and party funding, electoral law, and devolution policy and administration.
• He is also, in effect, the Speaker of the House of Lords.

So the question arises, is he a legislator (Speaker), and member of the executive (minister) or a member of the judiciary (appoints judges, judge in own right).

Problem now of perception, and as has been pointed out, a particular problem of perception on issue of human rights now that its operation has been signed into UK legislation.

So the reforms can be seen as an attempt to separate out powers so that the separation is visible.

• Role of Minister for Dept of Constitutional affairs separated from power to appoint judges or be a judge, or be the speaker of the H of Lords.
• House of Lords makes its own arrangements for a speaker, who is not Lord Chancellor.
• The Head of the Judiciary is then the Lord Chief Justice.
• Logically implies new method of appointing judges – judicial appointments committee – more of this in a minute.
• Also then logically leads to questions about role of House of Lords as Supreme Court of last appeal.

Again traditional constitutional doctrine is clear – set out in Sect 4 of the Appellate jurisdiction act 1876

‘Every appeal shall be brought by way of petition to the House of Lords, praying that the matter of the order or the judgement appealed against may be reviewed by HM the Queen in Her court of Parliament’

That is, if parliament is highest body in land below sovereign, then it also ought to be the highest judicial body also.

But on the same argument, law lords are in a strange position. They sit in the House of Lords and may speak and vote on legislation. Arguably that is a good thing and adds to the wisdom of the house. But on perception it is strange. And by convention they do not vote on most such matters – but they are constantly, and only, in a milieu which with reform is clearly becoming more political, as the extended wrangles on ping-pong going on this week and next and last session testify.

And of course, as the Supreme Court they sit in rooms carved out for these purposes otherwise used by the legislature – a very cramped and unsatisfactory position to be in.

So the logic leads to the setting up of a separate supreme court, with its members not sitting in the House of Lords, and its premises not attached to it.

But here a number of problems arise, some practical some not. I must say that the Select Committee seemed to hear a great deal about the degree to which the premises the supreme court might sit in would be agreeable or not, and I think that is a matter simply of practicality.

But other issues

• If the judiciary is separated out in this way but otherwise there is an incomplete real separation of powers – who protects the judiciary in the executive. Arguably that was one of the roles of the Lord Chancellor. Whoever occupies the role of Minister for Constitutional Affairs will still have central role in judicial affairs, but will not be a judge bound by oath, and may be a middle ranking minister, replaced every eighteen months.
• Who appoints the judicial appointments panel? Is it the executive? If not is it self perpetuating? Is this a good thing? And should the panel refer its senior appointments to the final imprimatur of a minister – perhaps the PM? The Select Committee looked at the Scottish model here – works in practice although some of the logic has loose ends attached to it
• How do you reconcile Scottish law and a supreme court presiding over two systems? Do you reserve places for Scottish judges
• How do you separate out the pay and rations of a supreme court? Do they have a separate vote from parliament?

One of the chief recommendations of the Select Committee was to produce a draft bill and examine a number of these questions through the scrutiny procedure. Govt as we know has decided not to do this, and introduced the Constitutional Reform Bill on the 24th February. The House of Lords has in effect introduced what would have been the draft bill procedure by subjecting the bill to a select committee and not a committee on the floor of the house. Some of these questions will no doubt be answered through that process.

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