• What part does the Lord Chancellor play in the appointment of Judges?  What other roles does he have?

Written by Matthew Campling (Nov 2005)

Introduction:

The Lord Chancellor, also known as the Minister of Constitutional Affairs and Secretary of State for Constitutional Affairs, is a Government minister responsible among other things for the Lord Chancellor’s Department.  The Lord Chancellor also plays an important role in the three arms of the state, legislature, executive and the judiciary.

            The role of the Lord Chancellor has been around for about one thousand and thirty-eight years.  The Lord Chancellor is a political appointment chosen by the Prime Minister.  The Lord Chancellor be a superior judge, but anyone can be appointed into the job.  At the end of the term of the party, a new Lord Chancellor will be appointed.  However, if the party wins the election and sits for a second term, then the previous Lord Chancellor can be re-appointed.  The Prime Minister can dismiss the Lord Chancellor at any stage of the term.  The Lord Chancellor is the highest paid in the judiciary and he receives many benefits of holding the job.  For example he is given luxury apartments in Central London.  The Lord Chancellor role has yet to be filled by a women.

            In this essay I am going to write about what part the Lord Chancellor plays in the appointment of judges.  I am also going to talk about the other roles the Lord Chancellor has.

Appointment of Inferior Judges:

The Lord Chancellor has a role in the appointment of all inferior judges.  Inferior judges are the judges who sit in the lower courts of the English legal system.  These include the County Court, Magistrates Court and Crown Court.  Inferior judges are recorders, assistant recorders, circuit judges and district judges.  The Lord Chancellor appoints inferior judges.  Firstly the potential applicant applies for the position they wish to apply for.  At the lowest level of a judge, a recorder or assistant recorder, the applicant will make a general application without knowing whether a vacancy is available.  However, for positions of Circuit judges and district judges, advertisements are placed in the legal press and the applicants apply for the position.  After the applicant applies for the job, a panel including a serving judge, an official from the Lord Chancellor’s Department and a lay person interviews all potential inferior judges.  The interview panel will then put their view of the applicants to the Lord Chancellor who selects the successful applicants.  The Queen then officially appoints the applicants after being advised by the Lord Chancellor. 

The Lord Chancellor has the power to dismiss any inferior judge on the grounds of incapacity or misbehaviour i.e. committing a serious criminal offence.

Appointments of Superior Judges:

Like Inferior judges, the Lord Chancellor has a role in the appointment of all Superior judges.  Superior judges are judges who sit in the higher courts of the English legal system.  These include the High court, Court of Appeal and the House of Lords.  Superior judges include High court judges, Lord Justices of Appeal and Lord of Appeal in Ordinary (Law Lords). 

            The Lord Chancellor has an important role in the appointment of Superior judges.  In the House of Lords and Court of Appeal the judges are appointed by invitation only by the Lord Chancellor only.  The positions of Lord Justices of Appeal and Lords of Appeal in Ordinary cannot be applied for.  Positions of High court judges, however, can be applied for, although the Lord Chancellor invites many of them.

            In the positions of Superior judges, the Lord Chancellor draws up a shortlist of potential applicants in order of preference.  The Lord Chancellor then presents the list to the Prime Minister, who selects applicants from the list.  In nearly all cases the Prime Minister will choose the number one candidate on the Lord Chancellor’s list.  The Queen makes the appointment of the applicant after being advised by the Prime Minister.

            Unlike Inferior judges, the Lord Chancellor cannot dismiss Superior judges.  Dismissal from office can only be made after both the House of Lords and House of Commons agrees to the dismissal of the applicant.

Other Roles of the Lord Chancellor:

The Lord Chancellor has many other roles of his job.  The Lord Chancellor has a role in all three arms of the state.  The three arms of the state are Legislature, Executive and the Judiciary.  The Legislature is the Law making arm of the state.  In the English system this is Parliament.  The executive or the body of administering the law under the British political system is the Government of the day, which forms the Cabinet.  The Judiciary, who apply the law, are the judges of the English legal system.  The Lord Chancellor plays a role in all three arms of the state.  In the legislature it is his job to be the speaker of the House of Lords.  He also takes parts in debates on new laws and introduces new bills on matters connected with justice into the House of Lords.  In his role in the Executive, he is a member of the Cabinet and he is part of the Government of the Day.  His Judiciary role is being head of the Judiciary and head of the Chancery Division.  He also plays a role in all appointment of judges and has the power to dismiss inferior judges on grounds of incapacity or misbehaviour.  The Lord Chancellor can also sit in the House of Lords as a judge.  But the current Lord Chancellor, Lord Falconer and previous Lord Chancellors have decided not to sit as a judge as they feel there would be a conflict of interest if they did because they are part of the Government and it is seen that judges should be free from Government influence in all their judicial decisions.

            The Lord Chancellor also has important administrative roles.  The Lord Chancellor has the responsibility of appointing the court staff.  He also has the power to give directions about the business of the courts.  The Lord Chancellor also provides, equips and manages the buildings used for court business.  In addition the Lord Chancellor oversees the Community Legal Fund.  This role gives him power of the Governments funding of cases.  The Lord Chancellor decides on how much money is appropriate each year for the funding of cases for people who cannot afford legal aid.  He also oversees the work of the Law Commission, the Council of Tribunals, Official Solicitor’s Department, Land Registry and the Public Trustee Office.  It is his role to make sure everything is working efficiently and effectively.

Conclusion:

The Lord Chancellor has a major role in the appointments of all judges.  He has the final say in the appointment of all inferior judges, after being informed of the potential applicants by an interview panel.  In the appointment of Superior judges, the Lord Chancellor nominates judges and gives the list of potential nominees to the Prime Minister.  The Lord Chancellor also has many other roles to his job.  He has a role to play in all three arms of the state (Legislature, Executive, the Judiciary).  He also oversees many departments e.g. Law Commission and Community Legal Service Fund.  The Lord Chancellor is head of the Chancery Division.

            The Lord Chancellor has many different roles and is a key member of the Government and the English legal system.  He handles a huge amount of roles.

• What criticisms can be made of all these roles being carried out by one person?

Introduction:

The Lord Chancellor has an important job.  He has a key role in the Government and the English legal system.  His roles include being part of the three arms of state (Legislature, Executive and the Judiciary), head of the Chancery Division and overseeing various departments including the Land Registry and the Law Commission.  But there has been some criticisms raised about the Lord Chancellor and the roles he covers.

In this essay I am going to talk about the criticisms raised about the Lord Chancellor and the roles he covers

Criticisms of the Lord Chancellor and the roles he covers:

A massive criticism to the Lord Chancellor is that he has a role in all three arms of the state.  He is speaker of the House of Lords (Legislature), Government minister (Executive) and head of the Judiciary (Judiciary).  By the Lord Chancellor having all these roles it is in direct contradiction of the Doctrine of Separation of Powers.  An eighteenth century French politician called Montesquieu first brought up this theory.  The theory he stated was that the three arms of the state (Legislature, Executive and the Judiciary) should be kept separate so that people’s civil liberties and democracy is preserved.  As each arm of the state is exercised by independent and separate bodies each can keep a check on the other arms of the state.  This means the amount of power of each arm of state is limited and each arm has equal amount of power.  This theory means that no individual should be a member of more than one arm of the state.  With the Lord Chancellor being part of all three arms of the state the idea of preserving people’s civil liberties and democracy is in danger.  This then means that two arms of the state can become more powerful than the remaining arm.  As the Judiciary is one arm of the state and the Executive another and the Lord Chancellor has roles in both e.g. appointing judges and being a Government minister, this effectively means the appointment of judges is political.  This contradicts that judges should be independent from the Government in their decisions.  Montesqueiu’s theory says the Executive should not overstep its constitutional powers.  Another criticism is that of the Lord Chancellor’s position in parliament.  He is not a member of the House of Commons and therefore he cannot be questioned in the House of Commons.  This means the Lord Chancellor cannot be questioned about his department and therefore his ministerial accountability cannot be questioned.  Although the Lord Chancellor can be held accountable in the House of Lords, but as he is the speaker of the House of Lords it is hard for him to be held accountable.

            With having all these jobs in the hands of one person, it is seen as being a very hard job to succeed in and be efficient and effective in all areas of the job.  The various areas of the job may be completed more efficiently and effectively if they were split up into different areas and various people are giving the jobs.

            Another criticism is that the Lord Chancellor is a member of the Cabinet but the Attorney General, who is the main law officer in the House of Commons, is not.  This division of duties means that no particular department responsibility for law reform.  This leads to gaps in the law, which have gone, unchanged and left problems for ‘pure’ law areas.

            Criticisms have been raised about the real need for the departments of the Lord Chancellor and the Home office, whose work is seen to overlap.  Possible reforms have been raised about the two departments being merged into making one department, Ministry of Justice, to carry out all the functions of the two departments.  The major problem is that the Home office has roles, which potentially are in conflict with each other.  The responsibility of law and order i.e. overseeing the police forces, is not always compatible with enforcement of civil rights of the individual.

Possible Reforms of the Lord Chancellor:

There have been many suggestions by the Government in replacing the Lord Chancellor.  Possible proposals they have put forward is that a Judicial Appointments Committee will appoint all judges up to the Court of appeal.  The committee will include five judges, five lawyers and five lay people.  Another proposal was that existing Law Lords would form a new ‘Supreme Court’. This will replace the House of Lords as the senior court in England and Wales.  But many Law Lords have criticised the idea of the Supreme Court as being unnecessary and harmful to the English legal system.  Many Law Lords said the House of Lords should remain the final court of appeal.  The Government have also had problems in agreeing a suitable place for the Supreme Court to be built on.  The Constitutional Reform Act 2005 highlighted many of these key issues of reform.

Constitutional Reform Act 2005:

The Constitutional Reform Act 2005 is making the proposal of modifying the role and office of the Lord Chancellor.  It was also proposed to establish a Supreme Court in England and Wales and to abolish the appellate jurisdiction of the House of Lords.

            The act states that the Lord Chancellor would not be appointed without the applicant producing sufficient evidence to prove he is qualified by experience.  The applicant must produce that they were either a minister of the crown, member of either the House of Lords or the House of Commons, a qualified practitioner, a teacher of law in a university or any other experience the Prime Minister feels relevant.

            The act also stated the importance of having an independent judiciary.  No one should be able to influence judge’s decisions in the courts.  It states the role of the Judiciary should be taken over the Lord Chief Justice from the Lord Chancellor, so independence of the Judiciary arm of state is maintained.  The role of the Lord Chief justice would also be reformed.  He would become the President of the Courts of England and Wales. He will be responsible for the training, guidance and employment of judges.  He will also be responsible in representing the views of the Judiciary to Parliament and ministers.

            The act would also establish an independent commission, responsible for selecting candidates to recommend for judicial appointments.  The commission will be known as the Judicial Appointments Commission.  This ensures appointments are made on merit and not on friendship or reputation.  This opens up the system of appointments.

            The Lord Chancellor will no longer be automatically speaker in the House of Lords and a new post of speaker of the House of Lords will be created.  The title of the speaker will be Lord or Lady Speaker.  This means he will still be part of the Legislature arm of the state i.e. he will still take part in debates on new laws but he will have a big part of his Legislature role taken away.  This means the overlap of the three arms of the state will be reduced and the separation of powers theory will become more influential.

            The Constitutional Reform Act 2005 is currently being put through Parliament.  Many parts to the act have been passed but some proposals are yet to be passed.

Conclusion:

The Lord Chancellor and the many roles of his job have been criticised.  Criticisms has arisen that the Lord Chancellor has too many roles and power in all the jobs he has.  Critics believe the roles he has are far too much for one person to undertake.  Many people feel that his role in all three arms of the state is in direct contradiction of Montesquieu’s Doctrine of Separation of Powers theory.  That no one should be part of more that one arm of the state so power equally divided between all three arms of state.  The Lord Chancellor however contradicts this theory as he has a role in all three arms of the state.  Criticism has also arisen about all the jobs he has means he cannot efficiently or effectively carry out all of them.

            Many possible reforms have been raised, most importantly the passing of the Constitutional Reform Act 2005.  This has freed up some of the Lord Chancellor’s roles and powers.

            I believe the Separation of Powers theory should be enforced and the Lord Chancellor should have power in only one arm of state.  I believe people’s civil liberties and democracy are in danger with the Lord Chancellor having role in all three arms of state.  Civil liberty and democracy needs to be preserved.