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

Written by Jason Raeburn

History of the Lord Chancellor

The office of the Lord Chancellor has existed since the 7th century and has historically been a very important and powerful position that had incorporated ecclesiastical, legislative, judicial and executive involvement. The position of the Lord Chancellor is appointed by the prime minister, and is eligible for removal at any time by the prime minister. The Lord Chancellor only holds office while the government of the day is in power if the party looses an election then a new Lord Chancellor is appointed in accordance with the new Prime Minister.   

Lord Chancellor’s role in Appointment of the Judiciary

The Lord Chancellor is the nominal head of the whole judiciary and plays a part in both the sole appointment of judges and giving advice to the Prime minister, and in turn, the crown for judicial appointments. Members of the judiciary are selected from existing practitioners of law, namely barristers and solicitors it was previously dominated solely by barristers but the range of selection was widened to include solicitors in order to broaden the elitist and aloof perception of the judiciary. The Courts and Legal Services Act 1990 further widened the diversity of selection for judicial posts, by giving academic lawyers (those which have never practiced) a chance to become a member of the judiciary, but as with many reforms, in practice, few are appointed as judges. Opening up judicial appointments to academic lawyers may raise a number of issues regarding the fairness of the matter, and the eligibility of such persons to become judges.

Barristers and solicitors have to have practiced for a minimum of at least seven years to become a district judge and even longer to become other types of judges, whereas academic lawyers do not need to have practiced for a certain amount of years which could be seen by practicing barristers and solicitors as unfair, and a somewhat unnecessary requirement if academic lawyers do not have to have the same amounts of experience.  Another argument against the appointment of academic lawyers as judges may be that some academic lawyers have never practiced at all, and therefore do not have sufficient experience of the atmosphere or real life workings in a court room, which can be obtained by years of hands on experience through practice, training for judges is provided, but is minimal and may not cover the needs of the applicant in fulfilling their judicial role.

Inferior and superior judges have different methods of appointment, to become a district judge, can apply by contacting the Legal and Judicial Services group which send an information pack and are short listed by an interview panel consisting of one lay person, a district judge and a senior official from the lord chancellor’s department. The Lord Chancellor then reviews the information and advice given to him by the interview panel and he then appoints positions as District Judges. A similar method is also used for the appointment of Recorders.

Circuit judges on the other hand are appointed in a different manner. Posts are advertised in a similar way as before and an interviewing panel of one lay person, a senior member of the Lord Chancellors office and a circuit judge are utilised but the Lord Chancellor does not appoint them directly, rather he recommends applicants to the queen for appointment. An advantage of the system of ‘applicant sifting’ by the interview panel could give confidence in the judicial appointment system because there is a lay person involved in the short listing process to combat the bias or prejudicial views of the judge and the senior member of the lord chancellor’s office. But realistically the input of a lay person would not have a significant impact on the types of applicants that get short listed because there are two other people to overrule his individual decisions; the judge and the Senior member, what is more, the final selection process relies on a single person, the Lord Chancellor who has the final say, and the largest influence on the crown and the prime minister.

Superior Judges have different methods of appointment, High court judge positions can be applied to, but the Lord Chancellor reserves the right to invite someone who has not applied. They are then appointed by the queen on advice by the Lord Chancellor. The Lord chancellor ensures that the judges appointed to each division of the high court, have expertise in that area of the law to aid there judicial decisions. The Lord Chancellor also has powers in the authorisation of appointment of deputy high court judges, under s.9 of The Supreme Court Act 1981 nominated applicants are those which have either applied, or who have been put forward by the presiding judges of the circuits.

Lord Justices of Appeal and Lords of Appeal in Ordinary are invited by the Lord Chancellor and are appointed by the Queen with advice from the Prime Minister, who in turn has advice from the Lord Chancellor. This method could be open to an abuse of power on all three parties. This may be said because the appointment of senior judges is not a democratic process that involves the consensus of a group of people that vote to show their opinions, rather advice is given in a level of hierarchy, whereby each level could show bias and eliminate candidates that they did not want to go forward for appointment.

The Lord Chancellor also has a number of different roles; he is also a speaker in the House of Lords, (he lacks the powers to speak in the House of Commons) which is a legislative role. He is also a member of the executive by being a member of the cabinet, and being a government legal advisor. The Lord Chancellor also appoints the legal services ombudsman, and is responsible for the Public record office and the Land Registry. The Lord Chancellor also has judicial roles he can occasionally sit as a judge. Since the Courts Act 1971 the Lord Chancellor also has responsibility over legal funding, by deciding the amount of funds that are available in the Community Legal Services fund to help people with civil claims, and control over many courts in England and Wales. The department of the Lord Chancellor is responsible for providing courts with staff and equipment, thought the Court Service agency. The Lord Chancellor also has the ability to remove inferior judges for incapacity or misbehaviour, however he does not have the power to remove superior judges from their positions, once appointed they have a security of tenure and cannot be removed unless both houses of parliament agree on it. This gives the superior judges in the judicial system a freedom to judge without being pressured by the government’s views, so that they are independent, this is important for judges that sit in higher courts because they are mainly appeal cases and require decisions to be made that may have a lot of pressure that is held on the outcome. However the issue of judicial independence could still be scrutinised due to the way in which judges get appointed in the first place, bias may be added and judges with similar political views may be chosen that would appease the government with their decisions. Under the Regency Act 1937 the Lord Chancellor also has the role of being a member of a panel of five people that decide whether the reigning king or queen has the capacity to rule and whether they should discharge their royal duties.   

Conclusion

The Lord Chancellor has a significant influence on the appointment of judges and plays an integral part in the judicial system by independently appointing district judges and recorders, and recommending and giving advice on circuit judges, high court judges and Lord Justices of Appeal, and Law Lords. It is evident that the Lord Chancellor has a diverse and large number of roles that have involvement in different arms of the state. It is apparent that there are a number of criticisms that could be made on the roles he has, which will be discussed in the following section.

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

There are many criticisms made on having so many roles carried out by one person, one of most pertinent criticisms is that he has too much power and has influence in all three arms of the state which is a violation of Montisque’s ‘Doctrine of the Separation of Powers’.

Montesquieu’s concept states that the state has there main functions and that these functions should be kept separate in order to protect the citizens at large and protect our democratic system. By separating each of the arms of the state; legislature, executive and the judiciary, each body can regulate the amount of power that each other individual arm has. Therefore there should not be an overlap in each of these arms of the state, which brings us to the roles of the Lord Chancellor which actually overlap into each of the arms of the state and is in violation of this principle.

The Lord Chancellors roles include involvement in: the legislature, by being a speaker in the House of Commons, the executive, by being a cabinet minister and the judiciary by sitting as a judge in the House of Lords when it acts as an appeal court and the Privy Council. It can be argued that due to the fact that the Lord chancellor has a part in political issues in the executive part of his role, that this could in fact aid his decisions in his legislative role when speaking in the House of Lords because many issues of law are political, and therefore his politics could in fact actually inform the decisions he makes.  Another view taken by a previous Lord Chancellor, Lord Elwyn-Jones felt that although the role of Lord Chancellor violates the doctrine of separation of powers, by having roles in all arms of the state, the Lord Chancellor provided a relay point between all three arms, so that they are in fact linked together and do not function separately.

The doctrine of the separation of powers could in fact be associated with the ECHR and the Human Rights Act 1998 because violation of this doctrine may lead to an unfair trial, and therefore breaching the right to a fair trial. This can be illustrated in the case of McGonnell v United Kingdom (2000) ECHR – where there was a lack of independence and judicial impartiality, which therefore resulted in an unfair trial because the judge hearing the appeal for planning permission was a member of the executive and legislature arms of the state which lead to the planning permission to be allowed.

Another main criticism of the role of the Lord Chancellor is the way in which he appoints and selects members of the judiciary, it could be suggested that it is open to bias and an abuse of power. This is evident in the composition of the bench today; it is dominated by upper class, white males that are quite old. Statistics show that women and ethnic minorities are underrepresented in the higher ranks of the judiciary and therefore are not representative of society at large. The selection process itself is shrouded in secrecy, and is highly criticised. Charter 88 commented on it as being highly secretive and lacks any definite criteria. Although Lord Havisham published a document regarding the appointment of judges, it did not give any insight into the criteria used in the selection process. Due to the fact that the process is so secretive, the Lord Chancellor may abuse this and be bias when selecting judges because only a very limited number of people can see what information is held on possible candidates. One positive angle that could be taken on the appointment of so many old judges, is that older people have more experience of life and have therefore had many more experiences that could allow them to see things from different points of view that a young judge may not be able to grasp. So the use of adjudges might be seen as an advantage in one sense, but may also be seen as out of touch and unable to relate to most defendants. 

One simple criticism of having all these roles carried out by one person may be that the workload is too high to be delegated to the one person, although The Lord Chancellor does delegate some of his work with his office and other appointed persons and panels, the fact that the Lord Chancellor has so many roles may lead to a neglect in one or more areas that he is responsible for, leading to certain aspects of his duties to fall below standard of what is required or needed.

Reforms

One of the main reforms is to abolish the role of the Lord Chancellor; this proposal has been put forward since 2003 and is still in the process of going through parliament.  The Constitutional Reform Bill was introduced into the House of Lords in Feb 2004 and includes a package of reforms to the Lord Chancellors Roles and the judicial system. The roles of the Lord chancellor that are in different arms of the state would be delegated accordingly; The legislative functions to a speaker in the House of Lords, the executive functions to The Secretary of State for Constitutional Affairs and the judicial functions to the Lord Chief Justice. Ministerial threats to pass the bill through without consent of the House of Lords have been made, which is allowed under the Parliament Act 1949. So far it seems as thought he House of Lords will accept the changes that are proposed in the bill but will retain the title of the Lord Chancellor.

Another reform that is proposed is to replace the House of Lords when it sits as an Appeal court with a Supreme Court which is similar to that of the United States of America, as the highest court in the land. A judicial appointments committee is also proposed, that would take on the responsibility of appointing judges up to the Court of Appeal. It would consist of 5 lawyers, 5 lay people and 5 judges. This committee would then be allowed to set ‘equality targets’ to make the judiciary open to ethnic minorities, women and younger people. This is an attempt to redress the under-representative dominance of judges and would hopefully improve the public’s perception of the justice system by boosting their confidence. However even after reform there will be issues that will have matters of concern; the lay people that re involved in the judicial appointments committee are likely to be civil servants and therefore may have a certain political bias when making their decisions. The law Lords who are the most superior judges will be selected by the Prime Minister who is the main member of the executive and would be crossing over into the judicial appointment sector of the state, therefore in contradiction of the doctrine of separation of powers. 

Conclusion

In conclusion, it is evident that the roles of the pre-reformed Lord Chancellor are involved within all three arms of the state and is in direct conflict with the doctrine on the separation of powers and therefore can be said to undermine our democratic system. Due to this situation, a number of reforms have been proposed but have not been fully put into implementation because they have not actually been passed yet, it is evident that even if these reforms are implemented there will still be some unresolved issues that may cause some concern for the future.