Supplementary memorandum by The Rt Hon
The Lord Woolf
1. I have been asked by the Chairman of the Select
Committee to clarify my view of the consequences of the retention
of an office with the title "Lord Chancellor". I have
also been asked by Lord Lloyd to respond to the suggestion that
the abolition of the office of Lord Chancellor and the establishment
of the new Supreme Court should be deferred. This note is my response
to those two requests. I have not, in the time available, had
an opportunity to ask the Judges' Council to endorse its contents,*
but I have consulted as many of my senior colleagues as possible,
including all the Heads of Division. They have indicated their
support for the views I express.
2. I start by making clear that the judiciary
as a whole has not taken a position on the question of whether
the office of Lord Chancellor should be abolished. Nothing in
this note seeks to change that fact.
3. By far the most important outcome that the
judiciary are seeking from the current Parliamentary process is
the implementation of the concordat which has been reached between
the judiciary and the Government. The concordat seeks to define
the relationship that should exist, in future, between the Lord
Chief Justice, as Head of the Judiciary, and the Government Minister
who will exercise the responsibilities which fall properly to
the Executive in respect of the judiciary and the courts. My firm
support for the concordat reflects the fact that I see no difficulty
with a Government Minister exercising any of the functions assigned
to the Secretary of State for Constitutional Affairs by the concordat.
I do not consider that such a Minister requires any enhanced status
or particular title to enable him or her to exercise those functions.
There is benefit in that Minister being a lawyer. However, the
Minister's ability to defend the independence of the judiciary
and the rule of law and ensure that the courts are adequately
resourced will, to an extent, depend upon his or her standing
within cabinet. This is a matter about which it is impossible
to legislate, since it is in the hands of the Prime Minister of
the day.
4. The concordat is predicated on the fact that
the Lord Chief Justice of the day will be the Head of the Judiciary
of England and Wales. As the senior judge in that jurisdiction
and the President of the Courts of England and Wales, he has to
represent the Judiciary in its dealings with the other two arms
of the State. There should be no scope for confusion on this point.
5. It has been suggested that it might be appropriate
to have two Heads of the Judiciary—the Lord Chief Justice
as the "professional" Head of the Judiciary and the
Lord Chancellor as the "constitutional" Head of the
Judiciary. Such an approach would create a serious risk of confusion
and the potential for future conflict between the two office holders.
It would be quite possible for them to have very different ideas
as to the proper boundaries of their respective roles. It is precisely
this lack of clarity, and the consequent risk of encroachment
on the independence of the judiciary, that the concordat is intended
to avoid. I would strongly oppose the retention of a Lord Chancellor
who was considered to be the "constitutional" Head of
the Judiciary. The judiciary must be represented by a judge.
6. If it proved possible to define an office,
bearing the title Lord Chancellor, which met the concerns I have
expressed, I would not object to that office. Indeed, as I indicated
when I gave evidence, I have an emotional attachment to this historic
title and understand why many members of this House are seeking
to find ways to preserve it. However, because of an accumulation
of events, including the fact that the role of the Government
Minister envisaged in the concordat is very different from the
historic role of the Lord Chancellor, I have real reservations
as to whether it is possible to retain the title while avoiding
the damaging consequences I set out above.
7. I am also aware of a suggestion that a future
Lord Chancellor might take the judicial oath. As any future Lord
Chancellor will not sit as a judge, it would be inappropriate
for him to do so. The judicial oath is not used for those who
are not judicial office holders.
8. As to the question of whether the establishment
of the new Supreme Court should be postponed, this is not a matter
upon which I am in a position to express a view on behalf of the
judiciary of England and Wales whom I represent.
* This supplementary memorandum was subsequently
endorsed by the Judges' Council.
24 May 2004
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