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The office of Lord Chancellor: time to abandon the judicial role – the rest will follow*

Published online by Cambridge University Press:  02 January 2018

Diana Woodhouse
Diana Woodhouse*
Affiliation:
Oxford Brookes University
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Abstract

This paper considers the viability of the office of Lord Chancellor. It focuses on the Lord Chancellor's judicial role and argues that a number of factors, most notably the dominance of his executive responsibilities, the political influence and style of the current incumbent, Lord Irvine, and the incorporation of the European Convention on Human Rights through the Human Rights Act 1998, make its retention unsustainable. It therefore concludes that the Lord Chancellor should relinquish the role and no longer sit as judge. In the light of this conclusion, it moves on to look at the Lord Chancellor's responsibility for judicial appointments, his role as head of the judiciary, his position as a departmental minister in Cabinet and his function as Speaker in the House of Lords, and suggests that the nature of the office of Lord Chancellor is such that once the judicial role is relinquished, justifications for these other roles also disappear. The office should therefore be consigned to history, with other institutions assuming its responsibilities.

Type
Research Article
Information
Legal Studies , Volume 22 , Issue 1 , March 2002 , pp. 128 - 145
Copyright
Copyright © Society of Legal Scholars 2002

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Footnotes

*

This paper had its foundations in research undertaken for an ESRC-sponsored project ‘The Responsibilities and Accountability of the Lord Chancellor in a Market Economy’, R000222469, (1997-99).

References

1. Through the Courts Act 1971.

2. Responsibility was transferred from the Home Office in 1993 along with 50 civil servants.

3. The Lord Chancellor already had responsibility for civil legal aid. Responsibility for criminal legal aid was transferred from the Law Society in 1989.

4. Indeed, legislation was passed in 1998 to enable a non-lawyer, Sir Hayden Phillips, to be appointed Permanent Secretary. A non-lawyer, Jenny Williams, was also appointed head of the Judicial Appointments Division in 2000.

5. Sir Haydon Phillips, Permanent Secretary of the Lord Chancellor's Department, in interview with Francis Gibb, The Times, 11 April 2000. For a fuller consideration of the changes at the Lord Chancellor's Department and the growth of the executive role of the Lord Chancellor, see Woodhouse, D The Office of Lord Chancellor (Oxford: Hart Publishing, 2001)Google Scholar.

6. See eg, Browne-Wilkinson, Lord ‘The Independence of the Judiciary in the 1980s’ [1988] PL 44–57 Google Scholar and Sir Purchas, Francis ‘What is Happening to Judicial Independence?’ (1994) 144 NLJ 6665 at 1306–10.Google Scholar

7. See 572 HL Official Report (5th series) col 1258, 13 June 1996; 576 HL Official Report (5th series) col 41, 9 December 1997.

8. Lord Irvine, The Times, 12 July 1997.

9. He acted as chair of this committee until 1998 Beckett. He remains a member of it.

10. T Rayment, Sunday Times, 18 October 1998.

11. M Berlins ‘A Man for All Roles’ BBC Radio 4, 9 April 1998.

12. Eg, in 1960 Lord Kilmuir was a member of 23 committees, chairing 16 of them: Heuston, R F V Lives of the Lord Chancellor 1940-1970 (Oxford: Clarendon Press, 1964)Google Scholar. For his part, Lord Hailsham noted that he was a member of the Legislation, Future Legislation, Home Affairs and Defence and Overseas Committees: Hailsham, Lord A Sparrow's Flight (London: Collins, 1990) p 380 Google Scholar.

13. See eg, Steyn, Lord ‘The Weakest and Least Dangerous Department of Government’ [1997] PL 84–95.Google Scholar

14. This was Labour's proposal while in Opposition, Paul Boateng, their legal affairs spokesman, stating in 1994: ‘Labour will take executive functions away from the Lord Chancellor and give them to a Minister of Justice, headed by an MP’ Independent, 22 March 1995.

15. Supreme Court Act 1981, s 1.

16. Supreme Court Act 1981, s 2.

17. Supreme Court Act 1981, s 5(l)(a).

18. He ruled there was no cause for intervention over the marks but that the disciplinary proceedings were a nullity and should be set aside: Fine v Mc Lardy (1997) 19 November, QBD.

19. Dr Martin and Mrs Nearey v The Dean of Westminster (unreported).

20. Lord Chancellor's Department Press Notice 203/98, 10 July 1998.

21. A change in the rules in 1833 which allowed the Master of the Rolls to sit in open court, together with the appointment of two vice-chancellors in 1841, altered this position.

22. The original jurisdiction of the House of Lords ‘was an offshoot of the power of an absolute monarchy’ and included the power to impeach, as well as an appellate jurisdiction from the ordinary courts: Blom-Cooper, L and Drewry, G Final Appeal; A Study of the House of Lords (Oxford: Clarendon Press, 1972) p 16.Google Scholar

23. Blom-Cooper and Drewry, n 22 above, p 31.

24. Lord Hailsham, n 12 above, p 380.

25. The judicial workload of the House of Lords eased in 1825 when the right to appeal from the Scottish courts was curtailed.

26. Bradney, A ‘The Judicial Activity of the Lord Chancellors 1946: A Pellet’ (1989) 16 J L and Society 360.CrossRefGoogle Scholar

27. Section 5.

28. Section 17.

29. Home Affairs Committee, 3rd Report, Judicial Appointments Procedures (1995-96) HC 52-II, Appendix 1, Memorandum from the Lord Chancellor's Department.

30. Lord Havers is not considered as he was only in office for a few months in 1987.

31. Lewis, G Lord Hailsham: A Life (London: Pimlico, 1998) p 315.Google Scholar

32. Lewis, n 31 above.

33. Lord Wilberforce, quoted in Lewis, n 32 above.

34. Lord Bridge commenting on Lord Hailsham's judgment in R v Hyam [1975] AC 55; [1974] WLR 607; [1974] 2 All ER 41: Lee, S Judging the Judge (London: Faber and Faber, 1988) p 145.Google Scholar

35. Lord Templeton, quoted in Lewis, n 31 above.

36. Lord Lane, quoted in Lewis, n 31 above.

37. Lord Mackay was only the fourth Lord Chancellor since the Appellate Jurisdiction Act 1876 to have come via this route. The others were Lords Cave (1922), Maugham (1938) and Simonds (1951). Lord Sankey had been a Lord Justice of Appeal when appointed in 1929.

38. See eg, evidence by JUSTICE to the Home Affairs Committee, n 30 above.

39. 597 HL Official Report (5th series) col 1736, 17 February 1999.

40. Above n 39.

41. Lord Borrie, 602 HL Official Report (5th series) col 1062, 24 June 1999.

42. Hailsham, Viscount ‘Duties of the Lord Chancellor’ (Holdsworth Lecture) in Harvey, B W (ed) The Lawyer and Justice (London: Sweet and Maxwell, 1978) p 196.Google Scholar

43. Lord Hailsham, n 12 above, p 279.

44. During his two periods in office Lord Hailsham spent 28 and 53 days respectively sitting in appeals, while Lord Mackay sat for 60 days: Lord Irvine, 597 HL Official Report (5th series) col736, 17 February 1999.

45. Lord Irvine, n 44 above.

46. Lord Irvine, n 44 above.

47. At the time of writing (July 2001) Lord Irvine had sat in one appeal in 1998, four in 1999 and one in 2001.

48. Paterson, A The Law Lords (London: Macmillan, 1982) p 87.CrossRefGoogle Scholar

49. [1972] IRLR 25.

50. Quoted in Paterson, n 48 above, p 88.

51. Paterson, n 48 above, p 88.

52. Paterson, n 48 above, p 89.

53. 592 HL Official Report (5th series) written answers col 220, 30 July 1998.

54. Lord Wilberforce, 593 HL Official Report (5th series) col 1965, 28 October 1998.

55. Lord Lester, n 54 above, col1970/.

56. Lord Irvine told the parliamentary Joint Committee on Human Rights that the Law Lords would ‘let him know’ if a case on which he was proposing to sit was unsuitable (Implementation of the Human Rights Act 1998 (2000-01), Minutes of Evidence, HL 66-ii, HC 332-ii, para 65). He did not say he would always take their advice!

57. Lord Lester, n 54 above, col 1971.

58. Lord Loreburn's involvement in A-G v West Riding of Yorkshire CC [1907] AC 29 provides an exception. The case concerned whether, under the Education Act 1902, education authorities could be ordered to pay teachers for the time they spent teaching religious education. The Court of Appeal had held that they could not, an uncomfortable decision for the government and one which was likely to result in it being ‘bombarded with questions’ in Parliament. Lord Loreburn advised an appeal ‘as a matter of policy and fair play’ and four months later presided over a ‘generally liberal House’, chosen by him, which reversed the decision, Lord Loreburn delivering the leading judgment: Stevens, R Law and Politics: The House of Lords as a Judicial Body 1800-1976 (London: Chapel Hill, 1983) p 87).Google Scholar

59. Heuston, R V F Lives of the Lord Chancellors 1885-1940 (Oxford: Clarendon Press, 1964) p 199.Google Scholar

60. Rowlings v Takaro Properties Ltd [1988] 1 All ER 163.

61. Hone v Maze Prison Board of Visitors [1988] 1 All ER 3210.

62. [1993] AC 593.

63. Lord Mackay The Administration of Justice (Hamlyn Lecture, 1994) p 24.

64. Lord Mackay, n 63 above, p 25.

65. Above n 44, col 729.

66. Lord Lester, n 54 above, col 1971.

67. Oliver, D ‘Pepper v. Hart; a suitable case for reference to Hansard?’ [1993] PL 5.Google Scholar Interestingly, Lord Mackay's successor, Lord Irvine, suffered the consequences of the ruling in Pepper v Hart (n 62 above) when the Human Rights Bill was before the House of Lords. Lord Lester and others made repeated attempts to ‘Pepper and Hart’ him by getting him to expand upon how the Act should be interpreted, with a view to subsequently using his statements before the courts as indications of parliamentary intent.

68. [1999] 2 AC 143.

69. Lords Clyde and Hutton concurred and Lords Slynn and Hope dissented.

70. Boddington v British Rail Police [1999] 2 AC 143.

71. Lord Lester, n 54 above, col 197. He stated that this concern was shared by a number of leading lawyers and judges, including Heather Hallett QC, chair of the Bar Council of England and Wales, Philip Dry and Antoinette Curran, Presidents of the Law Societies of Scotland and Northern Ireland, respectively, Roy Amlot QC, recent chair of the Criminal Bar Association, and Michael Lavery QC, chair of the Standing Advisory Commission on Human Rights in Northern Ireland.

72. Above n 39, col 735.

73. Lord Steyn, n 13 above, p 92.

74. See Griffith, J A G The Politics of the Judiciary (London: Fontana Press, 4th edn, 1991)Google Scholar.

75. R v Bow Street Metropolitan Stipendary Magistrate, ex p Pinochet Ugarte [1998] 3 WLR 1456; (No 2) [1999] 2 WLR 272; (No 3) [1999] 2 WLR 827.

76. Lord Hoffmann was Chairman of Amnesty International Charity Ltd, a registered charity which undertook the charitable aspects of Amnesty International's work in the UK. He was not paid for this work, nor was he a member of Amnesty International. However, he failed to disclose his connection with the organisation, which, unusually, was given leave to intervene in Pinochet 1, thereby making it a party to the case. In Pinochet 2 the House of Lords held that Hoffmann had been automatically disqualified from sitting in the case. It therefore vacated its previous decision on the ground that the panel had not been properly constituted. (For discussion of the issue see Grant, E ‘The Questions of Jurisdiction and Bias’ in Woodhouse, D (ed) The Pinochet Case; a Legal and Constitutional Analysis (Oxford, Hart Publishing, 2000).Google Scholar

77. Reported in The Times, 18 December 1998.

78. For a fuller account see Egan, D Irvine; Politically Correct? (Edinburgh: Mainstream Publishing Projects, 1999) pp 230–32.Google Scholar

79. Above n 39, col 736.

80. 593 HL Official Report (5th series) written answers col 138, 20 October 1998.

81. Above n 80.

82. Bryan v United Kingdom (1995) EHRR 342, para 37.

83. Technically he, like all ministers, is appointed by the Queen on advice from the Prime Minister.

84. See Starrs v Procurator Fiscal, Linlithgow (1999) Times, 17 November and R v Lippe (1990) 60 CCC (3rd) 34,76/ and [1991] 2 SCR 114; see also the Canadian case, Ref Re Territorial Court Act (NWT) s 6(2) (1997) 152 DLR (4th) 132 at 141.

85. McGonnell v United Kingdom, No 28488/95 (20/10/98) European Commission of Human Rights.

86. Mr McGonnell was refused planning permission to build a dwelling house on his land, on the basis that the land was reserved for agricultural use and/or visual amenity, and exercised his right under the relevant legislation to appeal to the Royal Court.

87. No 28488/95 (20/10/98) European Commission of Human Rights, para 39.

88. No 28488/95 (20/10/98) European Commission of Human Rights, para 61.

89. McGonnell v United Kingdom, No 28488/95 (8/02/00) European Commission of Human Rights.

90. No 28488/95 (8/02/00) European Commission of Human Rights.

91. It is possible that the Law Lords themselves might be subject to challenge because of their legislative role.

92. 609 HL Official Report (5th series) written answers col 33, 23 February 2000.

93. Above n 92.

94. Above n 92.

95. Lord Irvine in evidence to the HL and HC Joint Human Rights Committee, n 56 above, para 65. Lord Irvine refused to be drawn on what cases might be appropriate.

96. Speech to the Worldwide Common Law Judiciary Conference, Edinburgh, July 1999.

97. Interview with Francis Gibbs, The Times, 17 July 2001.

98. There is no legal requirement for the Lord Chancellor to be a lawyer, although Lord Shaftesbury, who resigned in 1673, was the last non-lawyer to hold the position.

99. Baroness Smith (wife of the late John Smith, leader of the Labour Party) quoted in Egan, n 78 above, p 220.