Written by Harrieet Levett (Nov 2004)

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?

The Lord Chancellor is the most senior legal official, being the head of the entire judiciary, but with his role stretching far beyond the limits of judicial matters. This post is a political appointment and is subject to the current Prime-Minister’s choice. The purpose of the Lord Chancellor in its entirety is essential to the English Legal System, conducting numerous essential functions . The job is complex, and detailed. The Lord Chancellor fulfils many roles, too many in fact, this abundance of work has triggered criticisms from various onlookers and participants the system. This role is essential in and involves high levels of influence on the seniors of the legal system and affairs beyond the judiciary. His roles directly within the judiciary and political roles and the incurring criticism of such influence are key issues in England’s Legal System today.

a)

The Role the Lord Chancellor Plays in the Appointment of Judges

                        The Lord Chancellor either indirectly or directly influences the appointment of all judges. The Lord Chancellor’s office contains secret files of records regarding the past conduct, practices and opinions regarding all legal professionals. It is from these files that potential judges are selected and later interviewed. The Lord Chancellor has a different role in the appointment of both superior judges and inferior judges.

The Appointment of Superior Judges

            The Lord Chancellor is indirectly involved in the appointment of the superior judges ( Law Lords [ Lords of Appeal in ordinary], Lord Justices of Appeal, and High Court Judges). Law Lords are usually selected from the Lord Justices of Appeal though can be directly appointed with 15 years of experience. They are selected and put onto a list by the Lord Chancellor who then advices the Prime Minister on whom to appoint. The Prime Minister is not bound by the Lord Chancellor’s recommendation, but only rarely does the PM disagree with the choice of the Lord Chancellor. Once decided the Queen does the official appointment. The Lord Justices of appeal usually get appointed from the High Court though they can also be appointed directly with 15 years of experience. The Lord Chancellor has the same role in appointing the Lord Justices of Appeal as he does with the Law Lords. He advises the PM , and the Queen then officially appoints. The High Court Judges that are either promoted after 2years as an inferior judge or directly with 10 years of experience are also appointed in the same way as the other superior judges.

The Appointment of Inferior Judges

            The Lord Chancellor is directly involved in the inferior judge appointment process. This means he appoints the Circuit Judges, District Judges, and Recorders. Circuit judges are appointed by the Lord Chancellor, either as a promotion or with ten years of practice. The Queen does the appointment of this post, but the PM does not have a role. The District Judges and Recorders also require ten years experience and are directly appointed by the Lord Chancellor and the ceremonial appointment is conducted by the Queen.

Dismissal and Discipline

The Lord Chancellor is not only responsible for the appointment of judges but he also plays a role in their dismissal and discipline. The Lord Chancellor is able to dismiss junior judges and discipline them, on the basis of incapacity or misbehaviour granted by the Courts Act 1971. The Lord Chancellor however is not able to dismiss the superior judges by himself. Superior Judges are protected by the Act of Settlement 1700, making it hard to dismiss them. Superior judges are either encouraged to resign, or if both houses of parliament vote to oust the judge then he can be dismissed (but this is highly unlikely).

Other Roles That the Lord Chancellor Plays

            The post of Lord Chancellor is a busy post to hold with jobs spanning across the government and judiciary of England. His roles outside of the judiciary are just as vital if not more so important. The Lord Chancellor is a cabinet minister, a speaker in the House of Lords, a judge in the House of Lords as a court, and he selects Queen’s Counsel members. As A government minister the Lord Chancellor has various roles including a significant role in government legal funding. The Lord Chancellor allocates a budget to the Community Legal Service Fund. This fund provides those unable to afford legal advice and/or representation with financial assistance. The Lord Chancellor not only decides on the amount of money given to the fund, but also sets a prioritization standard by which cases are judged in order to receive financial support. Currently prioritization has been given to child related cases and cases that involve a possible loss of liberty or life. The Lord Chancellor in this role also appoints the members of the Legal Service Fund. His other responsibilities under this title include the court system and the Law Commission.  As well as this the Lord Chancellor is a speaker in the House of Lords which allows him to debate and vote on passing laws/legislation. He also has the ability to sit in the House of Lords to hear cases. The Lord Chancellor has the task of selecting Queen’s Counsel members also. This involves a selection process from application and invitees. Among these other functions the Lord Chancellor has further power in appointing court staff, equipping and managing courts.  He also oversees the work of the council of Tribunals, the Official Solicitor’s Department, Land Registry, and the Public Trustee Office. Evidently the Lord Chancellor is a busy man, but this role is made slightly easier with his 10,000 strong staff. The Lord Chancellor’s duties are in abundance and incur a considerable amount of power.

b)

Montesquieu’s Three Branches of Power

            18th century French philosopher Montesquieu provided a separation of powers concept that serves to ensure a true democracy. This concept revolves around the idea that a government must have its power evenly distributed between three branches to avoid a breach of powers, allowing an individual or a group to gain excessive power and risk dictatorship. These branches must not overlap; if they do so then the notion of democracy is not true. The three proposed branches are the Legislative (that passes laws), the Executive (that proposes laws), and the Judicial (that applies the law). Because one man: the Lord Chancellor, has a position that involves roles within all of these branches ( judge, cabinet minister, speaker in the House of Lords) England can be argued to not be a true democracy. This incurs the potential for the European Court of Human Rights to bring a case against the UK for its lack of equal distribution of power.

Criticisms of the Lord Chancellor’s Position

            Due to the Lord Chancellor’s immense power in the three arms of state many critics have arisen in protest. People have said that there is a muddled task over-lap between the Home office and the Lord Chancellor’s department. In reference more specifically to the Lord Chancellor himself there is some conflict over the fact that as a member of the House of Lords rather than the House of Commons, he can not be called in for questioning in the House of Commons. This creates an uncertainty referring to his accountability, which is yet to be fully solved. Mainly though criticism revolves around the ineffectiveness and muddle-some nature of the English Legal System under the Lord Chancellor’s current position. Lord Goodhart, the Liberal Democrat constitutional affairs spokesman, has said “There is no other country in the world that has this extraordinary historic muddle where one house of legislature also sits as the supreme court of the land”. Erik Jurgens, a constitutional law expert and figure in the Council of Europe told MPs that the Lord Chancellor’s combination role was leaving a system open to abuse and was not in accordance with the heart of democracy. This mass audience of critics and their persistence spurred action in regards to the role of the Lord Chancellor.

Reforms

            Due to the criticism regarding the position of Lord Chancellor and its undemocratic nature, Lord Falconer and his staff were quick to enact change. The Lord Chancellor’s Department has transformed in the Department for Constitutional Affairs, and he is now the Secretary of State for Constitutional Affairs. Political parties are still confused on the terminology and are having problems getting used to the re naming, however it is the first of many problems with the transformation. Lord Falconer has also decided to not sit as a judge in the House of Lords, or utilize his ability to sit in parliament. Instead the first Secretary of State for Constitutional affairs will focus on making his role as a cabinet minister his full-time post. Furthermore the Lord Chancellor is planning to implement a Judicial Appointments Committee. This committee will consist of 5 lawyers, 5 lay people and 5 judges. Recommendations will then be put forward to the Prime Minister. The idea of a judicial promotion ladder with minor appointment for lawyers in their thirties is also being encouraged. The assessment of the QC rank though is still in the balance as the Lord Chancellor and others weigh the benefit of the status for the legal system. Another adaptation is the introduction of a similar court system as used in the United States, the Supreme Court. This is an unpopular idea with many legal professionals. In this new system Law Lords lose the ability to sit and vote in the House of Lords. Members of the Supreme Court however would be entitled to speak on matters that are not judicially sensitive. A new speaker in the House of Lord may also be placed –who is not a minister- to avoid any clash similar to that of the Lord Chancellor’s role. Reforms in the criminal justice system will also occur, involving: the creation of a single national courts service, improvements of court performance and maximization of effectiveness, enforcement of criminal penalties, and changes in the enforcement of fines. Tesco-law is also being proposed, this is a suggestion involving legal advice being available in supermarkets and such. This then stems discussion regarding the Clementi Review and the “one-stop-shop” idea of being able to get all necessary legal help in one place. This notion is very unpopular and has been criticized largely. With a long “to do list” the new Secretary of State for Constitutional Affairs is battling on with much opposition, confusion and ineffectiveness. These changes are taking a long time to implement, discuss and take hold. Suggestions and ideas from many groups are still being discussed and uncertainty seems to plague detail, but it is for sure that reform is underway.

Opposition

            With Law Lords, QC’s, barristers, and solicitors unsure about the whole reformation process words of harsh opposition are not hard to come across. Lord Stathclyde has said that these proposals are unnecessary and ill-considered. He also stated that “Our constitution is not bad because it is old; it has become old because it is good and has stood the test of time.” He also questioned the existence of any evidence of political interference with the law lords or any appointment issues with the Lord Chancellor. However, his voice is one of many. Six of the 12 law lords have called this reform “unnecessary and harmful”. Great concern has been demonstrated. The idea of a supreme court is particularly unpopular. However more support could be gained with the preservation of the QC ranking in terms of the Bar Council. The Clementi review and the concept of complete access to solicitors, barristers, etc. in one place is receiving a lot of displeased remarks. Claims of lack of specialization and choice are being voiced. All in all the reforms are left hung in the balance with discussion on going, and clarity called for from all angles.

Conclusion

Reforms are underway because the Lord Chancellor has too much work for one many to complete, and this breach of power is undemocratic. While the call for change is no denied as to some extent necessary the changes that are to take place are not clear and often not popular. The Lord Chancellor though is wasting no time in attempting to change the system and implement new systems to lighten his load. But Despite all criticism and problems it is evident that all roles fulfilled by the Lord Chancellor are vital and must be reallocated, not neglected.