In his testimony before the House of Lords Select Committee on the Constitution today, the President of the Supreme Court, Lord Neuberger of Abbotsbury, suggested that he and his colleagues would prefer a Lord Chancellor “who had the court system and the judicial system running in their veins.” His comments come amidst growing concern over whether or not the office of Lord Chancellor should be combined with that of Secretary of State for Justice.
Traditionally, the Lord Chancellor was a member of all three branches of government. As a Minister of the Crown, he had executive responsibility for the court system. As Head of the Judiciary, he made rules for the courts and was eligible to sit as an ex-officio judge of the High Court, the Court of Appeal, the Appellate Committee of the House of Lords, and the Judicial Committee of the Privy Council (though in practice, he only sat on the Appellate and Judicial Committees). As Speaker of the House of Lords, he presided over its debates (and unlike the US Vice-President, he was expected to do so regularly).
In June 2003, Tony Blair suddenly announced that the office of Lord Chancellor would be abolished as part of a sweeping set of judicial reforms, and its functions would be transferred to others. The executive functions would go to the Secretary of State for Constitutional Affairs, the judicial functions to the Lord Chief Justice of England and Wales, and the legislative functions to the newly created Speaker of the House of Lords. These changes were to be implemented by the Constitutional Reform Bill, but the government was forced to give ground during the bill’s passage through Parliament.The House of Lords managed to save the Lord Chancellorship from oblivion, though it survives in a much different form. Its legislative and judicial functions are gone, and the title of Lord Chancellor is now appended to the office of Secretary of State for Justice (the Department for Constitutional Affairs became the Ministry of Justice in 2007). However, the Lord Chancellorship is not a sinecure. He still plays a role in the appointment of judges (although the actual selections are made by the independent Judicial Appointments Commission, the Lord Chancellor makes the formal recommendation to the Queen), and he has a number of statutory duties relating to the judicial system. More specifically, he is supposed to uphold the independence of the judiciary and see to it that judges have the resources they need to do their jobs properly.
However, the decision to combine the offices of Lord Chancellor and Secretary of State for Justice is highly problematic because there is an inherent tension between the two roles. As the Joint Committee on Human Rights pointed out:
The Secretary of State for Justice is a political minister in a Government which has collective responsibility for its political views, while the Lord Chancellor, historically, had the different role of standing up within Government for the interests of the justice system (House of Lords and House of Commons, 10-11).
This problem is compounded by the fact the Lord Chancellor no longer needs to have any legal experience. When the Constitutional Reform Act was going through Parliament, the House of Lords tried to make sure that future Lord Chancellors should continue to be legally qualified, but the government wouldn’t accept that. Instead, they agreed to a compromise. Section 2(1) states that “A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.” However, this provision is essentially meaningless since the following subsection lets the Prime Minister take any type of experience into account (perhaps a future Prime Minister will want to consider a person’s dancing skills like Queen Elizabeth I did when she chose Sir Christopher Hatton!). Although the first three dual-role Lord Chancellors were lawyers, David Cameron chose to appoint a layman, Chris Grayling, in 2012.
Unfortunately, Grayling seems to forget that he’s Lord Chancellor. For example, on the same day that the government announced a consultation on the future of judicial review, Grayling wrote an article in the Daily Mail wherein he complained that judicial review “is not a promotional tool for countless Left-wing campaigners.” Such rhetoric gives the impression that the government is less concerned with genuine reform than with stopping politically troublesome cases. That doesn’t sit well with the Lord Chancellor’s statutory duty to uphold the rule of law and the independence of the judiciary. To quote the Joint Committee on Human Rights once again:
[T]he Lord Chancellor’s energetic pursuit of reforms which place direct limits on the ability of the courts to hold the executive to account is unavoidably problematic from the point of view of the rule of law. Providing independent judges with the means to deal adequately with possible abuses is an important part of the constitutional arrangements. It is vital that the Lord Chancellor always demonstrates his awareness of the conflict inherent in his dual roles as a political minister and as the head of the judiciary with a constitutional responsibility for upholding the rule of law (House of Lords and House of Commons, 11-12).
I don’t think there’s a good way to resolve that conflict as long as the two offices are together. Perhaps it’s time to divvy up the Ministry of Justice. The oversight of the judiciary would stay with the Lord Chancellor, while the ministry’s law and order functions would go back to the Home Office. That way, the courts could be looked after by a seasoned judge/lawyer, while the more partisan Home Secretary handled law and order.
House of Lords and House of Commons. The implications for access to justice of the Government’s proposals to reform judicial review (HL 174/HC 868). London: The Stationery Office, 2014.