(a) What part does the Lord Chancellor play in the appointment of judges? What other roles does he have?
(b) What criticisms can be made of having all of these roles carried out by only one person?
Written by Lisa Incledon
[Comments of Dr Peter Jepson on this essay ... "As a general rule, a part A and part B essay question should result in two separate essays (particularly in examinations). However, despite this methodology problem, this is a good essay which deserves to be short-listed."]
The decision has recently been made to abolish the position of the Lord Chancellor, a powerful position that was established in AD605. The Lord Chancellor is the head of the judiciary and has a major role in the selection of judges, however he is also a member of the cabinet and the position is a political appointment decided on by the Prime Minister and the position has been strongly criticised as being involved in too many different functions of the State.
Members of the judiciary are appointed from existing practitioners, in the past it was only barristers who could be appointed as judges but it was changed to include solicitors in order to make the judiciary more open and stop it from becoming very aloof and elite. The Courts and Legal Services Act 1990 also made it possible for academic lawyers who have never practised to be appointed as judges but this rarely occurs in practice.
The Lord Chancellor plays a major role in the appointment of both inferior and superior judges. The Lord Chancellor is solely responsible for the appointment of recorders and assistant recorders and a panel interviews applicants for the position of Circuit Judge and presents its view to the Lord Chancellor. It is the Lord Chancellor who decides which applicants would be suitable for the position and, as with District Judges, they are appointed by the Crown based on the Lord Chancellorís recommendations.
The appointment of superior judges is a much more secretive process, they cannot apply for positions, the Lord Chancellor keeps secret files on all possible candidates, including opinions of them from existing judges. Based on the contents of these files, the Lord Chancellor recommends potential superior judges to the Prime Minister, and the Crown, from nominations made by the Prime Minister, eventually appoints them. Thus the Lord Chancellor has a major role in the consideration of possible candidates and a lot of influence over who is eventually appointed to the judiciary. This is criticised because of the amount of influence the Lord Chancellor has, and because of the secretive method of appointment of superior judges, based on word of mouth among existing judges and leading to continued white, male dominance in the superior ranks of the judiciary.
In addition to his role in the appointment of the judiciary the Lord Chancellor has responsibilities in many different areas. His position as head of the Judiciary allows him, since the Courts Act 1971, control over many areas of the courts and responsibility for legal funding. The Lord Chancellor decides on the funds available each year in the Community Legal Services fund, which helps people to fund civil claims. The Lord Chancellorís Department also administers to all courts in England and Wales, apart from the Magistrates Court, through the Court Service Agency which is responsible for providing the courts with staff, buildings and equipment. A further role the Lord Chancellor has in the judiciary is as a judge; he can sit in the House of Lords or Privy Council as a judge and is President of both the Supreme Court and Chancery Division of the High Court, although in practice the Vice-Chancellor of the Chancery Division is the day-to-day head and the Lord Chancellor very rarely sits as a judge. The Lord Chancellor is also able to remove inferior judges for incapacity or misbehaviour, however this only occurs very rarely in extreme circumstances. He cannot dismiss superior judges, this can only be done at the request of both Houses of Parliament, and thus the independence of the judiciary is maintained in superior ranks, as they know they cannot be dismissed for making any decisions that are unpopular with the government.
Despite his position in the judiciary the Lord Chancellor is also involved in the executive and legislative arms of the state. He is a political appointment, chosen by the Prime Minister and a member of the cabinet and Government of the day, giving him some involvement in the executive. His role in legislature is as a speaker in the House of Lords, when it is sitting in its legislative capacity, taking part in debates on new law and introducing new Bills for consideration.
Many criticisms are made of having all these roles carried out by a single person as it is felt the position of Lord Chancellor has too much responsibility and influence in many different functions of the state.
In the 18th century, French political theorist, Montesquieu, developed the idea of the doctrine of the separation of powers, which is designed to safeguard democracy and protect the freedoms of citizens. The doctrine of the separation of powers states that the three different arms of the state; the executive, the legislature and the judiciary, are kept separate from each other, enabling them to keep a check on each other and limit the power of any one section.
Former judge James Pickles said that ëthe office of Lord Chancellor is odd. It refutes in one man the idea that we have separation of powers.í This is a major criticism of the position of Lord Chancellor because he is a cabinet minister giving him involvement in executive, a speaker in the House of Lords in its legislative capacity, giving him a role in legislature and head of the judiciary, with the ability to sit as a judge in the House of Lords and Privy Council and a powerful role in the appointment of all judges, giving him responsibilities within the judiciary. Thus the Lord Chancellorís wide variety of roles across all arms of the state is directly contrary to Montesquieuís theory, which requires no individual to be a member of more than one arm of the state.
An earlier Lord Chancellor, Lord Elwyn-Jones admitted the position was contrary to the doctrine of the separation of powers but claimed that the Lord Chancellor was the ëuniversal joint in the machinery allowing the maintenance of separation of powers to flourish.í He suggested that although the Lord Chancellorís position goes against the ideas set down by the doctrine of the separation of powers, it is necessary to have a position with responsibilities and roles across all three arms of the state and thus provides a link between them so that they can continue to function separately, other than that single position.
It is also suggested that the Lord Chancellorís position as a cabinet minister and member of the government of the day could compromise the independence of the judiciary as the Lord Chancellor is responsible for their selection and judges may feel pressured into making decisions considered favourable by the government and Lord Chancellor.
It has been argued that despite the Lord Chancellorís influence over the judiciary, judicial independence is still maintained because it is difficult to remove judges from their positions. The Lord Chancellor is able to remove inferior judges for incapacity or misbehaviour but this is only in extreme cases and rarely ever occurs. The Lord Chancellor under any circumstances cannot remove superior judges, who have more power in deciding the interpretation of laws; they can only be removed if both Houses of Parliament agree it is necessary. This very rarely occurs, indeed only one judge has ever been removed by this method, Jonah Barrington who took £700 from court funds and was removed in 1830. It is believed that the security of superior judges maintains judicial independence, as judges know they cannot be removed for making an unfavourable decision.
However, pressure can be placed on judges to resign, as occurred in the case of Mr Justice Hallett, who was asked to resign by the Lord Chancellor in 1959. This power of the Lord Chancellor to pressure judges into resigning was demonstrated in 1993, when Mr Justice Wood, a High Court Judge chaired the Employment Appeals Tribunal and the Lord Chancellor felt Mr Justice Wood was not using his powers fully. Following some earlier correspondence about the Lord Chancellorís concerns, the Lord Chancellor finally wrote to Mr Justice Wood asking him to apply Rule 3 in full and also saying ëif you do not feel that you can give me that assurance, I must ask you to consider your position.í Despite the Lord Chancellorís denials the implication of this letter was considered to be that; if Mr Justice Wood did not do what the Lord Chancellor wished then the Lord Chancellor would ask him to resign. This case clearly illustrates the strong possibility of judicial independence being compromised by the powerful position of the Lord Chancellor.
It has also been suggested that the Lord Chancellorís selections of judges and also his special adviser could be biased. As of 1st September 2003; there were no female Law Lords, only three female Lord Justices of Appeal, out of thirty-eight, and only six out of one hundred female judges in the High Court, at lower levels, 14.05% of inferior judges are female. At present there are no superior court judges from ethnic minorities, and only 2.86% of inferior judges are from ethnic minorities. Thus it appears the selection of judges, particularly superior judges is biased towards white males. Also, in 2001, Jane Coker and Martha Osamor attempted to bring a case against the Lord Chancellor in the Court of Appeal, claiming the way he selected his special adviser discriminated against them on the grounds of sex and race. This was because the Lord Chancellor selected his special adviser from a small group he already knew, comprised mostly of white males. The case did not succeed as the Court ruled that the adviser needed someone he already knew personally and from that group a suitable person had been chosen, and so did not amount to any indirect bias based on gender or race. However the court did comment that: ëit does not follow that this practice is unobjectionable. It will often be open to objection for a number of reasons. It may not produce the best candidate for the post. It may be likely to result in the appointee being of a particular gender or racial group. It may infringe the principle of equal opportunities.í This suggests that although this case did not constitute discrimination on the grounds of either race or sex, it is possible for people to be excluded for these reasons and therefore people who may have been better suited to the position will not be chosen.
The position of Lord Chancellor can be criticised for allowing a single person so many roles in the different functions of the state and so much influence, which undermines the doctrine of the separation of powers and thus democracy itself as this is what the doctrine aims to protect. The Lord Chancellor is a political appointment, chosen by the Prime Minister, able to be removed by the Prime Minister and loyal to the specific political party that appointed him. This can be seen as seriously compromising his roles in the legislature and judiciary, particularly when he is selecting judges. The selection process for superior judges is very secretive, based on the secret file the Lord Chancellor keeps on possible candidates and this means the Lord Chancellor has plenty of influence over who is chosen to become a judge and why they are chosen. This can therefore have a detrimental effect on the independence of the judiciary as judges may be selected for political reasons or feel it is necessary for them to make decisions considered favourable by the government to avoid being pressured into resignation.
New Reforms
The position of the Lord Chancellor has now been abolished and replaced by a
Secretary of State for Constitutional Affairs, presently Lord Falconer who is
also introducing the new reforms. There will be reforms to the speakership of
the House of Lords, enabling the introduction of a new speaker who is not a
minister, and thus separating the legislature from the executive. Also decisions
previously made by the Lord Chancellor will be made by committees, the Judicial
Appointments Commission will be responsible for appointing all judges up to the
Court of Appeal, and it will be made up of five judges, five lawyers and five
lay people. This will prevent a single person from having too many
responsibilities and duties in contradiction to the doctrine of the separation
of powers and allow lay people a role in selection of judges, although the lay
people involved are likely to be senior civil servants. This system will also
help to maintain judicial independence, as a member of the cabinet will no
longer select most judges. However under the new proposals Lords of Appeal in
Ordinary, the most superior judges who presently sit in the House of Lords but
will eventually sit in the new Supreme Court, will be selected by the Prime
Minister. This raises issues through the doctrine of the separation of powers as
the Prime Minister is a powerful member of the executive and it can be seen as
contrary to the doctrine to have the Prime Minister selecting judges,
particularly at the most superior levels.
In conclusion, the position of the Lord Chancellor as head of the judiciary, a speaker in the House of Lords and a member of the cabinet meant he was involved in all three arms of the state contrary to the doctrine of the separation of powers. There were many criticisms of the Lord Chancellorís role, which gave too much power to one person and could be seen as compromising the independence of the judiciary. Now the position has been abolished, there are still concerns over judicial independence and the doctrine of the separation of powers, particularly since the Prime Minister will be responsible for selecting Lords of Appeal in Ordinary, the highest judicial position in England and Wales. Personally, I think it is important to replace the Lord Chancellor with many different individuals and committees to carry out the various duties and avoid having a new position that is too powerful, and thus affects judicial independence, or is contrary to the doctrine of the separation of powers.
Bibliography
Martin J. ëThe English Legal Systemí ñ Hodder & Stoughton (2002)
Elliott C. & Quinn F. ëAS Lawí ñ Longman (2002)
Charman M., Vanstone B., Sherratt L. ëAS Lawí- Willian Publishing (2003)
www.lcd.gov.uk
www.hrmguide.co.uk