What part does the Lord Chancellor play in the appointment of judges? What other roles does he have?
Written by Cherie Faherty
Introduction
In this question I am asked what part the Lord Chancellor plays in the appointment of judges and what other roles does he have? To answer this question I will first explain briefly who the Lord Chancellor is and then go on to explain the Lord Chancellors role in the appointment in judges, then I shall go on to explain the Lord Chancellors other roles.
Who is the Lord Chancellor?
The position of Lord Chancellor was established in AD605; however the position of Lord Chancellor has recently been abolished. The Lord Chancellor is involved with all 3 arms of the state; the Lord Chancellor is head of the judiciary, a member of the cabinet and is a speaker in the House of Lords. The Lord Chancellor is selected and appointed by the Prime Minister, due to being involved with all 3 arms of the state the position is often criticised which I will be explaining in more detail in the second part of my essay. I will now go on to explain the Lord Chancellor’s role in the appointment of judges.
The role in appointment of the Judiciary
Before 2005 the Lord Chancellor played a role in all 3 arms of the state one of which was the Lord Chancellor being head of the judiciary. The Lord Chancellor can sit as a judge in the House of Lords, and is also head of the chancery division. Being head of the judiciary also means that the Lord Chancellor had a major role in the selection of both inferior judges and superior judges.
Appointment of inferior judges
The Lord Chancellor is more involved with the appointment of inferior judges, and has the power to dismiss them from the position for incapacity or misbehaviour which rarely happens. The Lord Chancellor is solely responsible for the appointment of recorders and assistant recorders, meaning he chooses and appoints them himself, for the appointment of circuit judges a panel which consists of an official from the Lord Chancellor’s office, and all ready serving judge and a lay person, interview and draw up a list of potential candidates, hand it to the Lord Chancellor who then chooses the most suitable candidate to appoint. District judges are appointed by the Crown from recommendations of the Lord Chancellor, so has you can clearly see the Lord Chancellor has a major role and influence on the appointment of inferior judges.
Appointment of superior judges
The process of selecting superior judges is a much more secretive one; this position cannot be applied for as the positions of inferior judges can be. The Lord Chancellor keeps secret files on possible candidates for the positions; these files also include opinions from other judges. The Lord Chancellor looks at these files and draws up a short list of potential superior judges and passes this list onto the Prime Minister, from this list the Prime Minister then chooses and hands his nomination to the Crown who eventually appoints the selected candidate, when the list in drawn up it is in order of preference, and the Prime Minister often follows the Lord Chancellor’s first choice, thus the Lord Chancellor still having a major influence over who is appointed. The method of the way in which superior judges are selected is often greatly criticised due to it being so secretive and decisions tending to be based on word of mouth, and because of this it is leading to the superior ranks of the judiciary consisting of being white, male dominated.
Other roles of the Lord Chancellor
As mentioned before the Lord Chancellor has a role in all three arms of the state, as well as being involved in the judiciary he also has parts to play in the executive and the legislative arms of state. The position of Lord Chancellor is a political appointment by the Prime Minister and so he is a member of the cabinet and government of the day, thus giving him his involvement in the executive arm of state. The Lord Chancellor is also speaker in the House of Lords, thus giving him involvement in the legislative arm of state. He also takes part in debates and in the introduction of new laws and new bills when sitting in the legislative capacity.
With the Lord Chancellor being the head of the judiciary brings him even more responsibilities. Since the Courts Act 1971 the Lord Chancellor has much control over many areas of the courts.
The Lord Chancellor also has responsibility over legal funding; Lord Chancellor decides the amount of legal funds available each year in the community legal services fund. The legal service fund is the amount of money available each year to help fund civil claims.
The Lord Chancellor department administers to all the courts of England and Wales excluding the Magistrates Courts. To do this the Lord Chancellor department uses the Courts service agency that provides the courts with it staff, buildings and its equipments.
As well as all of the above the Lord Chancellor is also a judge, who can sit in the House of Lords, and he can sit as a member in the Privy Council. He is the president in both the Supreme Court and the chancery division of the High Court however he very rarely sits and the Vice Chancellor of the Chancery division is the day to day head of the Supreme Court and the chancery division. The Lord Chancellor does not have the power to dismiss superior judges but he can however dismiss inferior judges for incapacity or misbehaviour which rarely happens. For a superior judge to be dismissed can only happen if both Houses of Parliament request it which again only happens in extreme circumstances. Because superior judges cannot be easily dismissed their independent is maintained and they cannot be dismissed for making decisions which are unpopular with the government of the day.
The Lord Chancellor has many roles and many responsibilities, there are many criticism of the position of Lord Chancellor which I will go on to explain in part B OF this essay.
Introduction
For the second part of this essay I am asked to state what criticism can be made by having all these roles carried out by the one person, to do this I will first discuss Montesquieu theory and then explain criticisms that have been made by past judges and other criticisms that are made, from this I will draw up a conclusion.
Montesquieu theory/idea
Montesquieu came up with the idea of the doctrine of the separation of powers, this was designed to safeguard democracy and protect the freedom of citizens. The doctrine of separation of powers states that the three arms of state should be kept separate from each other, and so by doing this it will allow them to keep a check on each other and limit there power to any one section.
Former Judge James Pickles
Former judge James Pickles claimed the role of Lord Chancellor is one of which is odd. A major criticism is that the Lord Chancellor had a part to play in all three arms of state. The Lord Chancellor being a cabinet minister shows his role in the executive arm of state, the Lord Chancellor is a speaker in the House of Lords in its legislative capacity thus showing involvement in the legislative arm of state and finally the Lord Chancellor being head of the judiciary gives him a great deal of responsibility in the Judiciary arm of state. And so the Lord Chancellor being involved in all three arms of state goes completely against Montesquieu theory of the separation of powers which requires no individual to be a member of more than one arm of state
Lord Elwyn
Lord Elwyn was a form Lord Chancellor. During his time of being Lord Chancellor he admitted that the role of Lord Chancellor goes against Montesquieu theory of the doctrine of separation of powers, however he did not just stop at stating that, he then when on to say that even though the role of Lord Chancellor goes against Montesquieu theory, that it was still a universal joint in the machinery joint in the machinery allowing the maintenance of separations of powers to flourish, and further said that he feels its necessary to have the position of Lord Chancellor having responsibilities and roles in all three arms of state so that it provides a form of link between them in order for them to function separately.
Further criticism
Another criticism is that the independent of the judiciary can be affected by the Lord Chancellor’s positioning of cabinet minister and being a member of government of the day. This is a criticism because it is thought that because the Lord Chancellor has a critical role in the selection of judges potential judges may feel they have to make decisions in favour of the government of the day and the Lord Chancellor at the time, thus affecting their independent of decision making.
However
It has been argued that even though the Lord Chancellor has much influence over the judiciary that the independence of the judiciary is still there as it is difficult to actually remove judges from there position once they have been appointed. Yes the Lord Chancellor has the power to remove inferior judges from there positions for incapacity or misbehaviour but this really does only happen in extreme cases and has rarely occurs. The Lord Chancellor has no power in any circumstance to remove a superior judge because superior judges have more power in the interpretation of laws and they can only be removed on request by both houses of parliament, this method of removal has only actually ever been used once and this was in 1830 when Jonan Barrington was removed from the judiciary after taking £700 from court funds.
Biased selection?
Is the selection of judges and higher ranks of the English Legal system that of a biased selection. It is criticized that the Lord Chancellor selection of judges is one of a biased nature, this is because at the 1st of September 2003 there was only three female justices of appeal out of 38, there was no female law lords at this time and there was only 6 out of 100 female judges in the High Court and at the lower lever of the judiciary only 14.5% of inferior judges where females.
The selection of judges by the Lord Chancellor also suggests a selection of a biases nature of ethnic minority’s judges too. On the 1st of September 2003 there were no superior court judges of ethnic minorities and only 2.86% of inferior judges at that time where of an ethnic background.
In 2001 two women tried to bring a claim in the Court of Appeal against the Lord Chancellor. They where arguing that the way the Lord Chancellor had selected his special advisor and had discriminated them on the grounds of their gender and race. The Lord Chancellor had selected his special advisor from a group which mostly consisted of men he all ready knew. However this claim did not succeed as the Court decided that the special advisor of Lord Chancellor had to be someone that the Lord Chancellor all ready knew and because of this a suitable group of people had been chosen. And from this it could not be argued that there was an issue of biased based decision making.
The court however did go on to say that:
“It does not follow that this practice is unobjectionable. It will often be open to objective 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 in a particular gender or racial group; it may infringe the principle of equal opportunities”
This statement made by the court suggests that even though the case did not have discrimination on the grounds of gender and race, it’s still possible for people to have been excluded for these reasons and so people who could have been possibly better candidates for the position in question will not have been chosen.
Is it too much for one person?
The position of Lord Chancellor is a single person position that has so many roles and responsibilities in all three arms of the state, and so being involved in all three arms of the state has much influence over them. Having such an influence in all three arms of the state affects the doctrine of the separation of powers and democracy itself in which the doctrine aims to protect.
As mention before the position of Lord Chancellor is a political appoint meant, Lord Chancellor is chosen by the Prime Minister and can be dismissed by the Prime Minister and because of this the Lord Chancellor also has to be loyal to the political party in which appointed him. This matter is seen to have serious effects with the Lord Chancellor’s role in the legislature and Judiciary arms of state, especially when selecting or appointing judges.
As I have mentioned before the selection of superior judges is a secretive process based upon secret file kept by the Lord Chancellor and so the Lord Chancellor still has much influence of the appointment of the superior judges and because of this it is argued that is has an unfair advantage that certain people may only be chosen due to their political views or because they have been pressure into thinking a certain way and into making decisions in favour of the government of the day to avoid them being asked to resign.
Reform of position Lord Chancellor
The term “Lord Chancellor” is not longer used, and the position of Lord Chancellor has been abolished and replaced by the Secretary of State for Constitution Affairs. The current Secretary of State for Constitution Affairs Lord Falconer is introducing new reforms. He is going to reform the speaker ship of the House of Lords. To do this he will bring in a new speaker who is not a minister, and by doing this he will be separating the legislature from the executive arms of state.
Decisions previously made by the Lord Chancellor, will now be made committees, especially judicial appointments, these will now be made the judicial appointments commission, they will be in charge of appointing all judges for the Court of Appeal. The judicial appointments commission will be made up of a total of 15 people, which will include five judges, five lawyers and five lay people, by doing this it will prevent a single person from having to many responsibilities and duties in which where contradicting the doctrine of separations of powers. It will also give lay people a role in the selection of judges but the lay people who are involved are more likely to be senior civil servants.
Having this new system should also keep judicial independent because a member of cabinet will no longer be involved in the selection of most judges.
However
New proposals will mean that the Lords of Appeal in Ordinary and most of all superior judges who all ready sit in the House of Lords will eventually be able to sit in the new supreme court and will be selected by the Prime Minister. But it is also feared that this method of selection will raise the issue that the Prime Minister is a powerful member of the executive state of arms and it could lead to it being seen as contradicting with the doctrine of the separation of powers if the Prime Minister is involved in the selection of judges, especially in the selection of the superior judges.
Conclusion
The original position of Lord Chancellor meant that he was involved in all three arms of state, which contradicted the doctrine of the separation of powers. With the Lord Chancellor being a head of the judiciary, a speaker in the house of Lords and a member of the cabinet it was strongly criticized that this one position had to much power for one person alone. And it was thought that it affected the independence of the judiciary and contradicted the doctrine of separation of power set out by Montesquieu. Now the position of Lord Chancellor has been abolished and is now known as the Secretary of State for Constitution Affairs these concerns are still present, this is mainly because the Prime Minister will now be selecting the Lords of Appeal in Ordinary which is the highest judicial rank throughout England and Wales. I feel that abolishing the position of Lord Chancellor was a good decision as I feel that it was a position that had too much power and responsibility for one person alone to have. The new reforms set out by Lord Falconer are ones of good nature, but I feel that more still needs to be done. The duties and responsibilities should be spread out to a large number of different people or committees so that no one has too much power or duties to carry out. Also if they did this, it would insure a clear cut and separation between the three arms of states which in effect would work with Montesquieu doctrine of separation of powers instead of contradicting it which the position of Lord Chancellor has done for many years. Also by doing this it would mean that the judicial independence should not be affected in anyway shape or form.