Background
6. The package of changes associated with the ending
of the office of Lord Chancellor includes two fundamental constitutional
changes: the removal of the jurisdiction of the Appellate Committee
of the House of Lords over appeals and reform of the system of
appointing judges in England and Wales. These two issues are largely
separate although there is a link with the question of how judges
of the Supreme Court will be appointed. The planned disappearance
of the office of Lord Chancellor, although itself a separate issue,
is important to the way in which some people view the reforms.
Taken together, these proposals represent the most significant
change to the courts systems of England and Wales, Scotland and
Northern Ireland for over a century.
7. The two matters are examined separately. The appointment
of judges of the final court of appeal is dealt with in the Supreme
Court section, as the Supreme Court can be regarded as a separate
entity from the rest of the courts systems and it is proposed
that there would be a separate mechanism for appointing its members.
It would be a UK institution, rather than one based on any of
the separate jurisdictions which exist in the United Kingdom.
8. The present position relating to hearing appeals
in the House of Lords and to the appointment of judges is intimately
connected with the office of the Lord Chancellor. This is an office
of long and varied history.[7]
Its modern form dates from the end of the nineteenth century,
when the Lord Chancellor became the head of a Government Department.
Since the Second World War Lord Chancellors have sat less and
less frequently in the Appellate Committee of the House of Lords.
Since 1971, the Lord Chancellor has had a significant increase
in his administrative role as a result of the Courts Act 1971
which made the civil courts system his sole responsibility. Since
then, the Lord Chancellor's responsibilities have involved running
a department in a similar way to other ministers.
9. By virtue of the office's "great antiquity,
much dignity and considerable importance"[8]
the holder has special status within Government. He has always
in recent times been a lawyer.[9]
He has generally in recent times been at one remove—at least
in the public eye—from the day to day activity of the Government.
Often Lord Chancellors have been promoted from a career outside
Parliament, although some have previously served as Attorney General.[10]
All have been distinguished within the legal profession, to which
they displayed great loyalty.
10. The Lord Chancellor has a complex range of responsibilities
which have been acquired over time. These responsibilities arise
as much from historical accident as from strategic logic. He is
a senior judge, he is a member of the cabinet and he presides
over the House of Lords. He is in the strange position of being
bound by collective responsibility as a member of the cabinet,
yet as a senior judge he sits on the Appellate Committee of the
House of Lords and the Judicial Committee of the Privy Council
(presiding, when he does sit); he is President of the Supreme
Court in England and Wales,[11]
an ex officio judge of the Court of Appeal[12]
and President of the Chancery Division of the High Court.[13]
His judicial office places on him the duty to be impartial, notwithstanding
his active political affiliation. He has many other duties. The
present Lord Chancellor has indicated that he will not sit as
a judge.
11. The Government proposes to replace the office
of Lord Chancellor with a Secretary of State for Constitutional
Affairs and to devolve his various duties to other appropriate
office holders. The details of these changes were the subject
of consultation and were set out in more detail in the Lord Chancellor's
statement of the 26 January 2004.[14]
12. Despite the Lord Chancellor's membership of the
Cabinet, his office is held in great respect by the judiciary.
His status as a member of the Government is regarded not as a
political threat but as a means of safeguarding judicial independence.
The Law Lords are:
"…. very greatly concerned that the
important constitutional values which the office of Lord Chancellor
protected should continue to be effectively protected. In the
past the Lord Chancellor's role was to uphold constitutional propriety
and champion judicial independence. The constitution would be
gravely weakened if that safeguard were removed and not replaced."[15]
13. Whoever carries out the functions of the office
of Lord Chancellor will be in charge of the Court Service and
will play a central role in the administration of justice. Part
of that role is the protection of the judiciary from political
pressure in Cabinet and, when necessary, in public. There is a
radical difference between on the one hand a Lord Chancellor,
who as a judge is bound by a judicial oath, who has a special
constitutional importance enjoyed by no other member of the Cabinet
and who is usually at the end of his career (and thus without
temptations associated with possible advancement) and on the other
hand a minister who is a full-time politician, who is not bound
by any judicial oath and who may be a middle-ranking or junior
member of the Cabinet with hopes of future promotion.
14. It is a matter of regret that the proposals were
formulated and announced in a way that was hurried and evidently
without the knowledge of many of those who would be expected to
have been extensively consulted. Lord Hope of Craighead, a Lord
of Appeal, said in evidence to the Committee:
"I saw it on the news at Heathrow on my
way home to Edinburgh one evening. Certainly I was not consulted,
none of us was. There was a Scottish dimension too, which was
overlooked initially, I believe, although it has been attended
to now. My regret is that some very interesting issues were not
and probably now will not be debated.[16]"
The way in which these fundamental proposals were
announced, as a part of a Cabinet reshuffle and without consultation
or advice, has created anxieties amongst the most senior members
of the judiciary and was felt by some supporters of the changes
to have been unhelpful in presenting the case in favour of them.
15. These are not simple matters on which to legislate.
We set out to examine the proposals and their consequences in
more detail, in order to establish whether difficulties could
be resolved, and to establish how much time would be needed to
resolve them. We became increasingly aware of the complexity of
the issues.
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