Essay AS3 by Paul Gomm
Section A “What part does the Lord Chancellor play in the appointment of judges? What other roles does he have?”
Introduction
In this section of the essay I will be examining the part in which the Lord Chancellor plays in the appointment process of judges. I will be critically examining the appointments (if there is any gender, educational and racial bias). I will then be discussing the Lord Chancellors other role in the 3 arms of the state. The Legislature, the Judiciary and the Executive.
The Lord Chancellor – A Brief History
The position and role of the Lord Chancellor has been in existence for over 1400 years. The position was first filled in AD 605 when Angmendus took the role. Hardly any information is known about him. Nor are the next 3 holders of the Lord Chancellors office recalled. Their names were Cenmora, Bosa and Swithulplus. The position is not properly recalled until the middle ages when people such as St. Thomas Becket and Cardinal Wolsey took the position over. The position has always been ill-fated with many of the Lord Chancellors from the middle ages being executed for treason. In 1990 the position was given more roles and the role of the Lord Chancellor became a higher and more respected role. The position is now known as Secretary of State for Constitutional Affairs but I will discuss why later in the essay. The role of Lord Chancellor has been much debated about though over the last few years as people have begun to feel that his role of legislature, executive and judiciary give the Lord Chancellor to much overall power. The current Lord Chancellor is Lord Falconer.
The Lord Chancellor and His Role in the Appointment of Inferior Judges
The Lord Chancellor currently plays an active role in the appointment of judges of Inferior and Superior Level. He appoints all of the lower ranks of the judiciary. The ranks of the judiciary hold qualifications, which will be needed to qualify for that position. These qualifications are set out in the Courts and Legal Services Act 1990. With Inferior Judges potential candidates will apply for the position, which they wish to stand in. Certain positions in the judiciary such as circuit and district judges are advertised so that candidates may apply knowing what the position is. For the position of recorders however potential candidates send a general application off not knowing what position is available. If there is currently a position as recorder available then the Lord Chancellor may choose to elect an applicant to that position.
Most usual routes to become judges though is to apply for a position as recorder and then work your way up the judicial ladder to circuit judge, district judge and then higher into the positions which superior judges fill. Most qualifications for the lower levels involve a 10 year right of audience although usually applicants are not appointed to a position such as recorder unless they have at least 15 years experience as a barrister or solicitor. Recorders will only sit for 20 days a year in the Crown or County Courts and they are therefore part time judges.
The Lord Chancellor and His Role in the Appointment of Superior Judges
The Lord Chancellor does not outright elect candidates into the position although he is still greatly influential in the appointment. The Lord Chancellor will draw up a short list of potential candidates for the positions in the higher courts. Once this list has been decided he will pass it onto the current PM who will then recommend the candidates, which would, best suit the positions to the Queen. It seems though that in most circumstances the Lord Chancellor will get his first choice from the list although in some circumstances the PM will reject the Lord Chancellors first choice. This has been seen when the prime Minister was Margaret Thatcher of the Conservative Party. For positions in the top courts e.g. the Appellate Committee of the House of Lords and the Court of Appeal those chosen are invited to join the positions. This is usually the sane in positions for the High Court although the potential candidates may apply for the position as well. The appointment process was set out in 1986by the Lord Chancellor. Lord Hailsham. Lord Hailsham published a document entitled “Judicial Appointment” in which he set out the selection and appointment process.
The appointment process involves the Lord Chancellors Department to keep information, opinions and confidential papers on potential candidates in secret. The papers are then used when deciding whether a candidate is right for the position. This system has errors and faults so a Judicial Appointments Commission was set out to keep track on the selection of the judges. The Commission has no overall say in who is appointed though.
Therefore overall the Lord Chancellors role in the selection and appointment of judges is more active than people originally perceive.
Criticisms about the appointment and selection process
The main criticism of the appointment and selection of the bench is that it appears that positions are filled by white, upper class, elderly males. In 2002 out of 100+ High Court Judges only 9 were female and out of 35 judges in the Court of Appeal only 2 were female. In the House of Lords there is only 1 female law lady. This helps to show that women are unfairly underrepresented in the top judicial positions. The position was even worse for people from ethnic minorities with only 3 recorders and 1% of circuit judges being from ethnic minorities. There were no judges in the higher ranks from ethnic minorities. However this number is slowly improving, with judges from ethnic backgrounds becoming slowly represented in the higher positions.
Educational and social status also appears to be a large problem in the judiciary. 73% of those appointed had been to private school and 79% had been to Oxford or Cambridge.
These points help to raise questions on whether the appointment process is fair and is not discriminating against women, ethnic minorities and those from a les privileged background.
The Lord Chancellors Other Roles
The Lord Chancellor currently represents all 3 arms of the state. These arms are, the legislature, the executive and the judiciary. The legislature is defined as being the “law making arm of the state and in our system this is Parliament.” The Executive is defined as “the government of the day which forms the Cabinet” and the judiciary as “the judges who apply law”. All of these definitions can be found in THE ENGLISH LEGAL SYSTEM 3RD EDITION BY J.MARTIN 2002 FROM HODDER & STOUGHTON.
The positions, which apply to the criteria of the Lord Chancellor, are: The Speaker of the House of Lords (LEGISLATURE). As his position as the speaker of the House of Lords, the Lord Chancellor takes part in debates, introduces Bills and opens Parliament.
The position, which links the Lord Chancellor with the EXECUTIVE, is that he is currently a member of the cabinet. This means that he is part of the currently elected government. The position of the Lord Chancellor is a political appointment, which helps to enforce this ruling.
The Lord Chancellor is also a judge in the House of Lords, a judge in the Judicial Committee of the House of Lords and Head of the Chancery Division of the High Court. He is therefore allowed o act as one of the judges in both of these courts. This is the Lord Chancellors link to the JUDICIARY, the third arm of the state. These three roles are criticised as they breach the current Doctrine of the Separation of Powers, which I will be examining in Section B of this essay.
Along with these roles the Lord Chancellor is an important public figure. He has other responsibilities and duties, which make his position important. He is head of the Lord Chancellors Department, responsible for the Community Legal Services, Law Commission, Council Tribunals, Land Registry, the Public Trustee Office and Official Solicitors Department. Therefore if the Lord Chancellor has all these duties should not the separation of powers doctrine come into power to decrease his work load and help to give other parts of the legal systems the more time which they need. Overall this is a very controversial subject, which I am now going to discuss in more depth in section B of this essay.
Section B
What criticisms can be made of having all of these roles carried out by only one person?
In AS LAW BY M.CHARMAN, B.VANSTONE, L.SHERRATT 2003 WILLIAN PUBLISHING there is a quote from a man called John Locke. In 1690 he first raised the point of a country needing to have Separation of Powers. Locke said “may be too great a temptation to human frailty… for the same person to have the power of making laws, to have also in their hands the power to execute them.” What this quote is basically saying is that a country cannot have one man to make laws and execute them as well.
An 18th Century Frenchman, Montesquieu, then properly put this theory forward. He proposed that there are 3 arms of the state, the legislature, the executive and the judiciary. He proposed that for a true democratic country to exist the three arms of the state must be kept separate. This way no one person can have to much power and the other bodies can keep a close watch on each other. The idea of legislature, executive and judiciary is that according to AS LAW BY M.CHARMAN, B.VANSTONE, L.SHERRATT 2003 WILLIAN PUBLISHING “one group makes the law, the second group enforces the law and a third group decides the result of any dispute of what the law is, then no single group of people can be in control of society.”
Currently our Lord Chancellor is involved in all 3 arms of the state. This therefore breaches the doctrine of separation of powers. He is speaker of the House of Lords, head of the judiciary and a member of the cabinet. Therefore the Lord Chancellor has too much power and influence over all the arms of the state.
Another criticism is that the three states are not independent from each other. The Lord Chancellor is a political appointment therefore if he has a role in each arm of the state there becomes an overlap in the states. To exist properly the judiciary needs to be independent from the other arms. If the Lord Chancellor has an active role in the judiciary and the other arms then the judiciary is not independent on a whole.
A criticism is that if there is not a separation of powers then citizen’s liberty is not safeguarded. Each arm is not keeping a proper watch on the other two arms of the state meaning that no one arm is able to wield to much power.
The Lord Chancellor as a political appointment will appoint judges and dismiss the inferior judges in the lower ranks, as they do not have a security of tenure. The problem was that he is a member of the executive as well.
He was a minister in the cabinet and speaker of the House of Lords which he could pass legislations with. But then as a member of the judiciary he could also apply these rules as a judge.
Also as a minister the Lord Chancellor had powers to appoint judicial positions. It has been argued that these powers should be given to the judiciary.
Independence of the Judiciary from the Legislature
The judiciary should not be involved in law making (legislature). Part time judges are currently allowed to sit the House of Commons where as fulltime higher ranked judges may not. The judiciary are still not independent from legislature as when the House of Lords is sitting in its legislative condition, the judges are allowed to be members and debate on new laws to be brought into precedence. Law Lords are not supposed to take part in heavy political debates as it overlaps the two arms of state although in recent years it has been known for judges have entered into law making decisions. Judges also, through the role of judicial precedent, take part in law making roles. This therefore once again overlaps the arms of state.
Independence of the Judiciary from the Executive
As judges are appointed by the Lord Chancellor and cannot be dismissed they are never fully independent from the executive. Once again the Lord Chancellor causes overlap as he is responsible for the appointment of the judges, as the executive, and is a member of the judiciary. He is therefore a member of the Government meaning that he is not independent from the Government when he is in his other roles in the state.
The Lord Chancellor also causes overlap as when in his executive form he is able to place pressure on the other judges meaning that they are not independent from the government.
The other main problem with the Lord Chancellor having 3 roles is that it causes the system to be come muddled and the offices in conflict with one another. The position has so many roles that he cannot run the position successfully. If the positions were to be divided up into a more fair and democratic system then the jobs would be run better and the overall system would be fairer. This idea is called a division of duties.
The Lord Chancellor is not a member of The House of Commons. This means that the House of Commons cannot question him. Since the position is a political position surely the Lord Chancellor should be able to be questioned in the House of Commons. MP’ are available for questioning so why not the Lord Chancellor. He is a judge in the House of Lords so it is possible that he could be questioned there although he is the Speaker of the House of Lords, which cause questioning to become very difficult.
One other criticism is that the Lord Chancellor holds a position in the cabinet. The Attorney general however does not, although he is the main law officer in the House of Commons.
The Breach of Human Rights
The current system also incurs a breach in human rights. One man having so much power over so many people and having so much power over the laws of the country could mean that the European Convention on Human Rights could enable change. They could arguer that the current system is unfair an undemocratic in a modern world.
All of these points help to show how the current system and role of the Lord Chancellor contradict and clash with each other. Therefore the position and Departments need to be reformed, some have already started reform. Reform of the position will be the only possible way forward.
Options of Reform
Many possible options of reform have been placed forward to replace the current Lord Chancellor and his Department. Some of these reforms have already started and have been set. To start with the Lord Chancellors Department has now become the Department for Constitutional Affairs and the Lord Chancellor the Secretary of State for Constitutional Affairs. The abolishment of this role was a hotly debated subject as it is an abolishment of a position, which has been used for just under 1500 years. Many of the Peers were unhappy about the original decision and felt the system should be left alone, as it did not need modernising.
Due to the change to Secretary of State for Constitutional Affairs other parts of the system now need to be reformed. One of the first parts of the old Lord Chancellor system, which needs to be changed, is the position of Speaker of the House of Lords. The role will now need to be changes into a full time job. The Law Lords, who make up the Appellate Committee of the House of Lords, would select this position. By having this position as a full time job there would be more time to discuss serious and other pressing matters. The job would no longer be involved with the presentation of legislation. The leader would consult with the other political parties as well as the House of Lords and they would discuss possible changes to the Standing Orders.
The next part of the system to be reformed would be the selection and appointment for judicial appointments. There is already a Judicial Appointments Commission acting but their role would be made more independent. It would improve the appointment politically and would make candidates feel that they are more fairly represented. Candidates would not have the belief that only the Lord Chancellors acquaintances get placed into the Higher Judicial positions. This would also make the judiciary more independent from the other arms of the state as the commission would be made up of 5 Judges, 5 Lawyers and 5 Lay People (male and female) meaning that they are not members of the executive as much as the Lord Chancellor was. The main job of the committee though would be the selection and appointment of judges. The main problem with this idea is the question of “Who will select the commission?” The commission must be selected in a non-biased fair and representative way. Therefore, it would be immoral for the Lord Chancellor or Prime Minster to select the role. So who would?
The other main and final reform point is the House of Lords. The proposed idea is for the creation of a Supreme Court. This would scrape the current House of Lords and would be an independent second chamber. Only professional judges would be able to sit in the court and would discuss matters. The problem may occur though for judges are that they will lose their representative from the executive (the Lord Chancellor). This would mean that they have less say in the Government. But the court would still be the most senior court in the land.
A large amount of these points were raised in 1918 and have been debated since. In 1918 the Ministry of Justice Scheme was proposed by the Haldane Committee. Many parts of the proposals it in with the new system of Secretary of State for Constitutional Affairs although other ideas were brought forward. One idea of Reform was that should an expert in the subject e.g. a judge/barrister be Head or Minister of a Department or should they be an unqualified representative. Does a head of department really need expertise in that field?
The other issue brought forward was whether one minister should be responsible for all points and aspects of law and justice? This is another point, which is often debated today. The main debate currently centres around the position of Home Office.
The Final Point is whether the judiciary need to be made overall independent from the other arms and positions of the state. Currently, until the reforms have taken place the judiciary still overlaps on points. We will have to wait to find out how the reforms change the current independency of the jury.
Now parts of the reforms have been implemented, Lord Falconer has taken up his position in The Department of Constitutional Affairs, but parts of his position still remain unchanged. Firstly he is still referred to as Lord Chancellor and is still currently Speaker in the House of Lords. This is because the Peers are still unsure what to do with his position so he has remained in charge until further notice. The House of Lords is still the same and has not yet become the Supreme Court. This is causing delays in the changing of positions and names; Lord Falconer will have to wait until he is able to change his position.
Conclusion
Over this essay I have reviewed and researched the current system, which is currently undergoing reform. I have researched the different methods of reform, which the system could undergo and have found criticisms with the old system.
Personally I feel that these reforms are good. Once they are fully implemented they will help to bring the current legal system upto date and give it a modern style. I feel that it is though a shame to loose positions such as the Lord Chancellor which have been around for thousands of years and I feel that the House of Lords should still remain the same except for the changes which involve the Lord Chancellor. I feel it would be bad to loose an old tradition. I agree that the Judicial Appointments Commission is a good idea but feel that it needs to be decided on who has input on the appointments and who elects the members of the commission. I feel that it will help make the Judiciary more independent and will help to insure that other lesser known barristers and judges get raised up into judicial ranks.
I do not agree with parts of the Ministry for Justice scheme as I feel that it is too dated and would not so much help the scheme but hinder it. Overall I feel though that reform and modernisation will be good for our legal system.
Paul Gomm (Nov 2004)
BIBLIOGRAPHY