Memorandum by Lord Morris of Aberavon,
KG, QC
May I, as a long-standing proponent of the transfer
of functions of the Lord Chancellor to another Minister in the
Commons, express my thoughts as to the future of the office and
construct some kind of template of what the office functions might
be.
I am told that the over 800 years old office is the
constitutional link between Her Majesty the Queen and the Judiciary.
On either ground we should not lightly seek to replace it unless
one is satisfied that there is no better way.
I believe the way forward is a redefined and modified
office. It should no longer have any responsibility as a Minister
of the Crown for any significant spending accountability, many
of which have accrued since the advent of Legal Aid and the Beeching
reforms, coupled with a recent transfer of many duties, including
responsibility for Magistracy. At the last count, the Department
is staffed by more than 12,000 civil servants and has a spend
of £3 billion per annum. Recent changes may well have increased
this.
Such responsibilities lie properly on the shoulders
of a Minister in the Commons. It is constitutionally inappropriate
and politically unacceptable for such a department to be headed
by a Minister in the Lords, other than for a short period, when
a particular need counter-balances the usual constitutional proprieties.
Since the last half of the 17th Century, it became
established that the granting of supply and its appropriation
was a matter for the Commons. It is one of the hard-won liberties
of our democracy. It follows that the head of a significant spending
department should be directly accountable to the grantor of the
supply—the House of Commons.
A Parliament Secretary, or the like, does not adequately
fulfil the need for accountability.
Many are concerned whether the present role of the
Lord Chancellor, in balancing the constitution and protecting
the independence of the Judiciary, can be adequately undertaken
by a Secretary of State, as proposed in the Constitution Reform
Bill.
I share that concern. The more frequent the involvement
of so many of the organs of government before the courts, the
greater need to be doubly satisfied that there is no diminution
in the machinery to ensure the safeguarding of the independence
of the Judiciary.
The redefined Lord Chancellor should be at the peak
of the process of safeguarding judicial independence. I see no
difficulty in having responsibility for acting on the recommendations
of the Judicial Appointments Commission in the appointment of
judges. I also cannot see how a Secretary of State could properly
second-guess the Appointments Commission and one is concerned
where he will get his advice from other than the Appointments
Commission.
There may be fields of a generally non-contentious
nature and of a very limited financial responsibility that the
Lord Chancellor could properly carry out.
Who should be entrusted with this role, given its
non-political and non-spending nature? I see no reason why it
should be carried out by a Minister of the Crown at all.
In debate on 12 February 2004, I canvassed the alternatives
of the holder being either the Lord Chief Justice, in his new
role as President of the Courts of England and Wales and Head
of the Judiciary, or the Senior Law Lord.
Having reflected, however, I am now convinced that
the Lord Chief Justice has a more than adequate role. It may well
be that he also will have a major interest in some of the tasks
of the Lord Chancellor, obviously independently, but I believe
the office could be better held by the Senior Law Lord, who would
be, of course, styled "Lord Chancellor".
21 May 2004
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