What part does the Lord Chancellor play in the appointment of judges? What other roles does he have?
Written by Richard Johnson
Judicial
Appointment of Queen’s Council members and appointment and dismissal of inferior judges
The Lord Chancellor appoints all of the inferior judges (judges which have jurisdiction below the High Court) on the advice of interview panels.
The Lord Chancellor expanded the duty to more candidates in 1994 when he removed the ban that stopped lawyers in the Crown Prosecution Service and in the civil service from becoming judges. The Courts and Legal Services Act 1990 also meant that the Lord Chancellor can appoint academic lawyers with no experience in practising as lawyers, as inferior judges if they the correct number of years experience. Both acts are to bring about a greater range of ethnic backgrounds and genders across the bench.
As well as having the power to give inferior judgeships he can take them away if he feels the existing inferior judge, in question, is incompetent for any reason, be it incapacity or corruption. He also appoints Queen’s Council members and since 1995 solicitors with advocacy certificates have been eligible for this.
Appointing superior judges
The Courts and Legal Services Act 1990, approved by the Lord Chancellor, also allows legal professionals, other than those on the Bar, to take superior judgeships. Now the role can be obtained through the relevant advocacy qualifications and from promotion through each level.
Technically speaking, the Lord Chancellor doesn’t appoint superior judges. The process goes through him, then the Prime Minister and lastly the Queen. The Lord Chancellor drafts a list of his favoured candidates for the appointment for the Prime Minister. The Prime Minister then chooses from the list and the Queen makes the final action in appointing the individual. Naturally, with the Prime Minister’s duties outside of the judiciary (and, therefore, having presumably less knowledge on candidates) and the Queen’s part being merely a formality the Lord Chancellor is still very influential in who becomes superior judges.
Before the mid 80’s only guess-work could be made as to how the Lord Chancellor decided which names to put on the lists but in 1986 the existing Lord Chancellor, Lord Hailsham, published a document that shed some light on the selection process. However, this document does little more than reveal how secretive and potentially unbalanced the selection is. The Lord Chancellor holds notes on what he knows of all the candidates over the years and all of this data is the spoken opinions from other lawyers and judges. This information is kept from the subject, so he or she doesn’t know if mistakes are on record and neither does the Lord Chancellor.
House of Lords (speaker and judge) and Head of Chancery Division
As a Law Lord (Lord of Appeal in Ordinary) he can hear appeal cases with his peers (nearly all of which will be civil). The civil appeal cases heard often deal with complex and specific fields of law.
His role also gives him the right to judge in the High Court, but he usually delegates this duty to the Vice-Chancellor.
The Judicial Committee of the Privy Council
The Lord Chancellor stands here as a speaker. The council itself is a reformed version of the ancient King’s Council. Its original purpose was to advise the Crown. But now it serves as the final court of appeal for both criminal and civil cases for a few Commonwealth countries and colonies of British territory. Examples include Malaysia, New Zealand and Hong Kong.
Legislative
He stands as speaker in the legislative area of the House of Lords to take part in debates and he can also introduce new Bills for consideration by the House of Lords, provided the Bills are on matters connected with justice in the House of Lords. Although it poses no relevance on his duties he also holds the Great Seal, a symbolic token of the signature of the Crown in its corporate capacity.
Executive
His status as Lord Chancellor is only as long-lasting as the existing government is in power (though the Prime Minister can still dismiss him). This is because he’s a member of the cabinet and can discuss and debate new laws for suggested implementation.
Given he’s a chief government minister he has some of the standard political duties and responsibilities as other politicians, but his basis remains strongly in the legal system with duties in the management of funding in the legal system, court cases and the Law Commission itself.
What criticisms can be made of having all of these roles carried out by only one person?
Separation of powers
A French philosopher of the 18th century called Montesquieu identified there were three key arms in most modern states for laws. The part that invents laws, the part that permits them and the part that judges issues arising from those laws or around them. He also recognised that each must be kept separate from the other, with no links between the three, in order to sustain legal and governmental harmony.
In the UK we have living proof that we do not follow Montesquieu’s methodology. The Lord Chancellor is a figure of great importance with influence and varying levels of control in each arm: the judicial, the executive and the legislative.
Who ever takes the title with each new government has too much power. One man shouldn’t have a say in what laws could be created, which laws are created and how those newly created laws are dealt with in practical use.
There are no real fears that the Lord Chancellor would ever use this power for insidious aims but because the position exists at all it contradicts, to an extent, what balance of power there should be.
James Pickles, a retired judge and author of the book Straight From the Bench, said that ‘the office of the Lord Chancellor is odd. It refutes in one man the idea that we have separation of powers.’
Work-load
It’s impossible for a single person to fulfil all of these judicial, legislative and executive duties competently. Three people, one for each arm, are a more realistic job-set.
As a result of this insurmountable range of tasks the Lord Chancellor uses others below him to carry out come of his duties. For example, he’s technically the head of the Chancery division of the High Court, but the reality is he very rarely sits as a judge there and the Vice-Chancellor, unofficially, has more control over the division than he does. Naturally this creates a more complex system of personnel which operates with the certain inefficiency of bureaucracy to the Lord Chancellor.
The Lord Chancellor must appoint all the inferior judges, but, truthfully, he is only as competent in this task as the interview panels are. He may make the final decision but it’s different bodies of people around the country who tell him all about their chosen candidates, whom he will know very little about.
His knowledge of all the barristers and judges, inferior and superior, come from spoken comments and informal statements from his peers.
While everyone is answerable to him, he is only as strong in nearly every field of his profession as the people beneath him.
If many of these duties were relieved of him then the people whose whole responsibilities are to fulfil them, would not have to answer to him. This would abolish the criticisms of the Lord Chancellor being too powerful and being too detached from very fields he’s meant to be heading. Democracy would be seen to be stronger, especially in the appointment of judgeships.
Government influence
Law journalist Francis Gibbs discussed in The Times how the Lord Chancellor was accused of favouritism and how the law profession in general has ‘unrivalled links’ with the government, this article was back in February 2001.
An independent judicial commission is a stronger case than ever for the various reasons already stated.
Indeed, how can a country which proudly claims to have a legal profession so independent have so many politicians who were lawyers and Lord Chancellors with questionably strong personal political ties? Judges in general are often condemned for being too pro-establishment, for giving too much favour to the government in relevant cases and weakening the sense of justice the individual feels. Some would say it’s hardly fitting for the most senior judge in the land to demonstrate such glaring pro-establishment attitudes by serving as a member of the cabinet.
Reforms
Judicial Appointments Commission
A board such as this would be responsible for appointing all inferior judges, free of influence from the Lord Chancellor. The merits of this reform are that it relieves work from the Lord Chancellor (so he may pay more attention to other duties), diminishes the power of the Lord Chancellor (imposing even less risk of dictatorship-like control of the judiciary) and means even less bureaucracy (reports from law panels will not all be revised and sent to one man for approval).
Not only are there many advantages then, but it’s also realistic given the interview panels already do all the work in assessing suitable candidates for judgeships anyway. Much in the same way that the Queen is little more than a formality in appointing superior judges, the Lord Chancellor can be placed by some, today, in a very similar position in appointing inferior judges. So a reform such as this would not be too difficult to set in place and would receive little opposition.
The only possible draw-back in this is the question of who appoints the members of the commission. If it were the Lord Chancellor then he’d still have influence over the judgeships. If the Prime Minister were responsible then he would surely be under unofficial instruction from the Lord Chancellor given his lack of knowledge in the judiciary compared to the Lord Chancellor’s.
Full-time House of Lords speaker
This reform could work in conjunction with the one above and the title is quite self-explanatory. By restricting the Lord Chancellor’s duties to this we have the familiar benefit of a better separation of powers. Also, this will mean greater democracy as far as the judiciary is concerned and with the time spent as a speaker he’ll have much less, if any influence, in the executive arm – thereby strengthening Montesquieu’s philosophy .
Change to Department of Constitutional Affairs
This reform is already in place and this change came to make the Lord Chancellor’s department more accountable to the House of Commons. This has a conflict of interests in itself. On the one hand the judicial realm of the Lord Chancellor can now be subjected to greater democracy and scrutiny from government to, theoretically, make the department less cloaked in speculation of the goings on (the appointment process of superior judges, alone, is considered very shadowy). On the other hand, this only pushes the separation of powers doctrine further from practice as the highest activities in law are merged with the legislature power of the House of Commons. In a sense, it’s another link between the law-making bodies that shouldn’t exist.
Conclusion
The office of Lord Chancellor is nearly a millennium and half years old. Stretching in different forms from Augmendus in AD605 right up to the present day Lord Falconer. As with all historical English issues, governments have trouble changing them, reforming them or, in this case, abolishing them. It’s easy to understand why current governments are reluctant to accept changes to instrumental parts of ancient institutions. The basic arguments that ‘it’s always worked before’ and that ‘tradition is sometimes more important than smaller current issues’ are ones that always receive due consideration. But, in my eyes and in the eyes of so many Members of Parliament and senior legal professionals, the archaic position of Lord Chancellor can’t hold up against the times. Why should it? It’s impossible to comprehend exactly how much the country’s changed since Augmendus, but we can rest assured the changes, if not ‘progressive’, have caused equally inconceivable complications across society.
Law must always strive to reflect the modern society it rules, so it makes obvious sense to abandon the Lord Chancellor position after so many years of few, if any, reforms to it.
At the present time though, the judiciary is caught between homeostasis and transtatus, new over old, and whilst one major reform has been realized the others are being addressed but not acted on. In particular it’s the Conservative Party opposed to the changes and the Labour Party struggling to push them forward.
I suspect that in the not-to-distant future we’ll be discussing the Secretary of State for Constitutional Affairs rather than the Lord Chancellor, and I think the change will be worthwhile and well-kept, but it will be a lot of paperwork and debates before that happens.
By Richard Johnson (Nov 2004)
Bibliography
‘AS Law Third Edition’ by Mary Charman, Bobby Vanstone and Liz Sherrat
‘AS Law’ by Catherine Elliott and Frances Quinn
‘English Legal System Fourth Edition’ by Catherine Elliott and Frances Quinn
‘The English Legal System Third Edition’ by Jacqueline Martin
‘The Herald’ newspaper, July 14th, 2004
‘The Guardian’ newspaper, June 13th, 2003 and March 28th, 2003