1. As a former Editor of The Times put it: ‘Nothing has been worse handled by the Prime Minister than his judicial reforms. He did not consult the law lords; he did not consult the Lord Chief Justice; he could not get the past Lord Chancellor's agreement; he did not perform his constitutional duty to tell the Queen. He mixed up the most important judicial reforms in a century with a panic reshuffle of his Cabinet. He thought he had abolished the Office of Lord Chancellor, which he did not have the power to do.’ Lord Rees-Mogg ‘The supreme court: isn't there some law against it?’The Times, 4 August 2003

2. CP 11/03 (July 2003) (‘Supreme Court’).

3. CP 10/03 (July 2003) (‘Appointing Judges’).

4. Constitutional Reform: reforming the office of the Lord Chancellor CP 13/03 (2003). The document is not significant for this paper. It is, however, a reminder that the Lord Chancellor's Office is, like the Smithsonian in the US, ‘the attic of the nation’. So much of the debris is the strange result of an established church and academic institutions seeking to be embraced by monarchy.

5. Bernard Bailyn The Ideological Origins of the American Revolution (Harvard, 1992) ch 2.

6. Bernard Bailyn To Begin the World Anew (New York, 2003) p 50.

7. ‘The independence of the judges ought to supercede all other considerations. The judges are, or ought to be, of a reserved and retired character, and wholly unconnected with the political world’: speech by Edmund Burke proposing a plan for reform of civil and other establishments, House of Commons, 11 February 1780. Parliamentary History, XXI, p 11ff.

8. Blackstone argued that there had to be judicial independence to protect the judges' law making powers: William Blackstone Commentaries, vol 1.

9. On this see generally Robert Stevens The Independence of the Judiciary: the View from the Lord Chancellor's Office (Oxford: Oxford University Press, 1993); Robert Stevens The English Judges: Their Role in the Changing Constitution (Oxford: Hart Publishing, 2002).

10. Stevens (1993), n 9 above, pp 8–9.

11. For the first assault by Secretary Blunkett, see ‘The Human Rights Act meets Bruiser Blunkett’ in Stevens (2002). n 9 above, pp 128–136. For the second assault, see Anthony Bradley ‘Judicial Independence Under Assault’ [2003] PL 397. And see Michael Zander ‘Lord Woolf s criticisms of Mr. Blunkett's Criminal Justice Bill’ [2003] NLJ, 8 August and 15 August.

12. This led to the debate in the House of Lords on 21 May 2003. The article which gave most offence had appeared in the Evening Standard on 12 May 2003: see David Blunkett ‘I won't give in’.

13. ‘Top Judge stays to fight politicians’The Times, 1 August 2003.

14. The tradition was that the Attorney-General had the right of reverter to the Chief Justiceship. It worked for Hewart in 1922 and the tradition did not finally die until it was denied to Sir Reginald Morningham-Butler, probably because of his personal reputation, in 1958, although he was later consoled with becoming a Lord of Appeal and Lord Chancellor.

15. Coleridge, E H Life and Correspondence of John Duke, Lord Coleridge, Lord Chief Justice of England 2 vols (London, 1904)Google Scholar.

16. 95 HL Official Report (5th series) col 234.

17. Memorandum, LC02/3630, 31 January 1943.

18. H Woolf ‘Judicial Review - the tensions between the executive and the judiciary’ (1998) 114 LQR 579.

19. Frances Gibb ‘The Supreme Sacrifice’The Times, 17 July 2001. Lord Mackay, the last Conservative Lord Chancellor, recently defended the Office, noting, of attacks on the judiciary, ‘The fact that the Lord Chancellor is in the Cabinet already has a restraining effect’: Frances Gibb ‘Closing the silk route is not a “done deal”’The Times, Law, 23 September 2003.

20. 475 HC Official Report (6th series) col 155, 4 December 2001.

21. Frances Gibb ‘Lord Chief Justice warns ministers he is not crying wolf’The Times, 2 August 2003. For the continuing concerns, see, for example, Lord Woolf s view that ‘we mustn't let the English legal system end up like our railways’Daily Telegraph, 9 November 2003; ‘The wrath of judges’Evening Standard, 7 November 2003; ‘Judges warn of threat to judicial independence’Financial Times, 7 November 2003

22. Department of Constitutional Affairs, Speech of Lord Woolf, Mansion House, 9 July 2003.

23. The Judges' Council Response to the Consultation Papers on Constitutional Reforms demands that the Lord Chief Justice replace the Lord Chancellor as Head of the Judiciary and be given appropriate powers: p 17. The paper also calls for more control over the courts and guaranteed resources. The Judges' paper would also put the disciplining of judges under the Lord Chief Justice: Part III. This would presumably transfer the power of ultimate accountability currently vested in Parliament by the Act of Settlement. The time is clearly ripe for a modem version spelling out what is meant by dismissal after addresses to both Houses of Parliament.

Sadly the response of the judiciary bears some of the hallmarks of 1960s complacency. Remarks like ‘our judiciary being admired round the world’ (p 26) suggest a degree of hubris. The theme continues ‘our judiciary also has a record of being entirely free of corruption - a record that not all other jurisdictions can match’. This is true of the High Court, although only fully established in the twentieth century; circuit judges have recently been removed for cheating customs and other offences.

24. R F V Heuston Lives of the Lord Chancellors, 1885–1940 (Oxford, 1964) p 52; A Roberts Salisbury: Victorian Giant (London, 1999) p 684.

25. R Stevens Law and Politics: The House of Lords as a Judicial Body 1800–1976 (N Carolina, 1978) p 55.

26. [1915] 1 KB 893. When, in 1914, the Court of Appeal, in Continental Tyre v Daimler, refused to ‘lift the veil’ of Continental to show that it was controlled by a German parent, there was considerable discontent. The Times took up the issue and judges were active in the correspondence columns. The matters were debated extensively in Parliament. Lord Halsbury, no longer Lord Chancellor, introduced a Bill in the Lords to reverse the decision, or at least to allow the Attorney-General to petition to have such decision overruled. The Bill (Companies of Enemy Character Bill) was supported by Lord Mersey and Lord Wrenbury (who had dissented in the Court of Appeal). The Bill reached the Committee Stage in the Lords, when the Government itself introduced a Bill. At that late point, Daimler decided to appeal to the House of Lords in its judicial capacity. The good Lord Halsbury -then aged 93 -presided, and Lord Mersey sat. The Court of Appeal was overruled, in the eyes of most of the Law Lords because the directors did not have the authority to issue the writ; for Lord Halsbury because they were really Germans: [1916] 2 AC 307. See especially, David Foxton ‘Corporate Personality in the Great War’ (2002) 1 18 LQR 428

27. Heuston, n 24 above. p 151.

28. Stevens, n 25 above, Part II, ‘The Rise of the Professionals’.

29. Lord Woolf had toyed with becoming a Tory candidate.

30. To many lawyers, the ideal Lord Chancellor was the second Lord Hailsham, Edward Heath's and Margaret Thatcher's (until 1987) Lord Chancellor. He had been a vigorous politician, had sought the leadership of the party, been a scourge of Labour, yet no one had any doubts that he was ‘above politics’ once he had become Lord Chancellor.

31. John Griffith in 1970 argued that, rather than being chosen by a political Lord Chancellor, judges should be chosen by the legal profession itself. See now T C Hartley and J A G Griffith, Government and the Law (2nd edn, 1981) p 180. Some critics had argued in favour of a Judicial Appointments Commission: Brian Abel-Smith and Robert Stevens In Search of Justice (London, 1968) pp 192–196.

32. R v Secretary of State for Employment, exp Equal Opportunities Commission [1995] I AC 1 (1994).

33. The Times commented that ‘Britain may now have, for the first time in its history, a constitutional court’: Stevens (2002), n 9 above, p 46.

34. On both Lords Mackay and Irvine see now Diana Woodhouse The Office of Lord Chancellor (Oxford: Hart Publishing, 2001); and Richard Abel English Lawyers Between Market and the State (Oxford: Oxford University Press, 2003).

35. Stevens (1993), n 9 above, pp 173–176.

36. Stevens (1993), n 9 above, p 177.

37. Stevens (2002), n 9 above, ch 4.

38. ‘Woolf guards judges’ pensions' [2003] NLJ, 8 August, at 1222 The Chief Justice claimed subjecting the judges to the rules applicable to non-judges would affect ‘recruitment and retention’. The Treasury took the view that ‘tax is universal’. See also, ‘Judges unite to fight taxman's raid on pensions’The Times, 6 September 2003. The excitement will be even greater, one expects, if judges are required - as looks possible -to contribute to their own pensions.

39. Eg JUSTICE The Judiciary in England and Wales (1993).

40. General Council of the Bar Quality of Justice: The Bar's Response (1989) p 187.

41. IPPR The Constitution of the United Kingdom (1991).

42. On this period, see Stevens (2002), n 9 above, chs 8 and 9.

43. A fixer, not a lawyer. He was on the Main Board of Enron when it went bankrupt. He was also on the Audit Committee, although he was reported as saying he had never understood the accounts.

44. See Robert Stevens From University to Unit; the Politics of Higher Education in England (Politicos, 2004) ch 9.

Of course, the changed attitude went far further than the Human Rights Act 1998. Eg England (Politicos, 2004) ch 9. ‘End this compensation nightmare, say judges’Daily Telegraph, 3 August 2003; ‘Judge opens floodgates for patients to charge NHS for surgery abroad’The Times, 2 October 2003; ‘Judge ends women's rights of motherhood’The Times, 2 October 2003.

45. Daily Mail, 8 September 2001.

46. McGonnell v United Kingdom (2000) 30 EHRR 289.

47. Lord Steyn ‘The Case for a Supreme Court’ (2002) 118 LQR 382.

48. ‘People power to pick judges’The Observer, 31 August 2003.

49. Barbara Hewson, letter, Financial Times, 18 July 2003: ‘Acknowledge the judiciary's diversity before letting a mums army loose in the courts’. And see a mock advertisement in Private Eye, entitled ‘Hey, you! Wanna be a High Court judge?’, adding, ‘don't be put off by old-fashioned ideas that judges are elderly upper-class men in wigs and pin-stripe suits, that's all changed. The 21st century judge of today is much more likely to be a twenty-something, black, single mother who is having to work part-time because one of the old-fashioned judges sent her husband to goal for selling dope’: Private Eye, 23 July 2003.

50. JUSTICE Bulletin, Autumn 2001, p 9. And for the view that Morris Finer and Peter Pain would not have been judges without Elwyn-Jones as Lord Chancellor, see Sir Michael Kerr As fur as I Remember (Oxford: Hart Publishing, 2002) p 307.

51. Department of Constitutional Affairs, Lord Woolf ‘Speech at the Annual Dinner for HM Judges’, 9 July 2003.

52. Woolf, n 51 above. And see Frances Gibb ‘Top Judge stays to fight politicians’The Times, 1 August 2003.

53. Stevens, n 25 above, p 245.

54. Judges memorandum, para 105ff. The alternative model would allow the Secretary of State to reject a nominated candidate if he gave reasons. ‘Any greater involvement than that envisaged by the second model would mean that, while the reforms are intended to protect the judiciary, they actually result in the judiciary's role in appointments being substantially reduced and the executive's contribution remaining the same or, on one view, increasing. This latter argument is based on the fact that the involvement of the minister who was Head of the Judiciary will have been replaced by a minister who is not a judge’: para 109.

55. ‘Power to veto judges could be negotiable, says Falconer’Financial Times, 24 November 2003. The Law Lords, are reported on willing ‘to make life bloody for this government’ in the legislative debates on the abolition of the Lord Chancellor, the appointment of judges and the creation of a Supreme Court. ‘Lords behaving badly’Economist, 24 November 2003.

56. Paras 44 and 45.

57. Stevens (1993), n 9 above, pp 61–63.

58. This presumably explains the embarrassing outburst by the Deputy Lord Chief Justice, Lord Justice Judge, at a press conference, who saw the possibility that in the future, dreadful things would happen in the democratic process from which the judges must be protected: ‘I am not making a party political point against anybody, but we do have to remember the popularity of the second person in the recent presidential election in France. We do have to remember that Hitler came to power in a democratic country by getting a significant popular vote and then subverting the constitution. There are nasty people out there and there is no guarantee that because we are Great Britain none of them will ever, ever come to power’. Press Conference, Lord Chief Justice and Deputy Lord Chief Justice, 6 November 2003. And see ‘Top judge fears legal reform will raise ghosts of Nazis’: Daily Telegraph, 7 November 2003.

59. One of the great ironies is the selective use of Council of Europe documents. The judges had no time for suggestions that the Lord Chancellor violated the Separation of Powers (see Kate Malleson ‘Modernizing the constitution: Completing Unfinished Business’, this volume). Yet they embraced the European Charter on the Statute of Judges that half the Commission should be composed of judges (para 132). There was no mention of the politician members of the Commission, customary in continental countries nor the recommendations that seem to spell the end of the lay magistracy and perhaps the jury. Nor did it discourage the judges from suggesting that the Lord Chief Justice (and the equivalents in Scotland and Northern Ireland) should be members of an appointed House of Lords! (Paras 158–160.)

60. Para 80.

61. Speech of Lord Lester, 648 HL Official Report (5th series) col 894, 21 May 2003.

62. The article proclaimed: ‘I won't give in to the judges … judges now routinely rewrite the effects of a law Parliament has passed.’ They use ‘ever more ingenious ways of getting what they want… we need a long hard look at the constitutional relationship between Parliament and the judges and be clear how it has changed’. See speech of Lord Rodgers, 648 HL Official Report (5th series) col 875, 21 May 2003.

63. David Blunkett ‘I won't give in’Evening Standard, 12 May 2003. At least he spared the judges Signor Berlusconi's view of the Italian judges: ‘anthropologically divorced from the rest of humanity’: ‘Forza Berlusconi!’The Spectator, 6 September 2003.

64. See Sir Oliver Popplewell Benchmark: Life, Laughter arid the Law (London, 2003).

65. ‘Woolf guards judges’ pensions' (2003) NLJ, 8 August 2003, p 1222.

66. And see generally William M Landes and Richard A Posner ‘The Independent Judiciary in an Interest-Group Perspective’ (1975) 18 J Law and Economics 875.

67. Lord Woolf, 648 HL Official Report (5th series) col 879, 21 May 2003.

One of the lamest parts of the judges' submission is the brief paragraph on ‘Democratic Accountability’: ‘… we recognise the need for democratic accountability. This will be provided by the continuing role of the Ombudsman, who will scrutinise the appointments process and publish an annual report. In addition, the Chairperson of the Judicial Appointments Commission should be required to report annually to Parliament. We would also expect the Constitutional Affairs Select Committee regularly to scrutinise the appointments process’: para 113.

68. Daily Telegraph, 19 January 1998.

69. The Times, 25 February 1998.

70. Liam Fox ‘Judiciary Needs Greater Scrutiny’The Times, 15 April 1999. See also ‘If judges are able to make law then they must be subject to review and checks and balances in the same way as other legislators. In the new political climate it is now appropriate to institute greater parliamentary scrutiny of those who are appointed to the higher judicial positions, eg the Lords of Appeal in Ordinary (the law lords) and … the Lord Chief Justice, the Master of the Rolls, the Vice-Chancellor and the President of the Family Division’: Liam Fox ‘Holding Our Judges to Account’, Politeia, 1999.

71. 597 HL Official Report (5th series) col 1446, 1 March 1999. See also Sir Sidney Kentridge ‘The Highest Court: Selecting the Judges’ [2003] 62 CLJ 55.

72. A New Way of Appointing Judges (2003) p 75.

73. In a recent debate in the Lords, Lord Lester suggested that the Attorney-General might act as a substitute Lord Chancellor, while Lord Alexander made a plea for the retention of a scaled-down Lord Chancellor. See 652 HL Official Report (5th series) cols 112 and 117 respectively, 8 September 2003. Lord Mackay is also now on record suggesting the Attorney-General as a substitute Lord Chancellor: ‘Law Diary’The Times, 23 September 2003.

74. Lords Nicholls, Hoffmann, Hope, Hutton, Millett, Rodger. On the other side were Bingham, Steyn, Saville and Walker. They regarded ‘the functional separation of the judiciary at all levels from the legislature and the executive as a cardinal feature of a modern, liberal, democratic state governed by the rule of law.’ See House of Lords The Law Lords' response to the Government's consultation pages on Constitutional Reform: A Supreme Court for the United Kingdom (2003) p 1. Some Law Lords were becoming increasingly outspoken in their opposition to the proposed constitutional changes. Lord Lloyd referred to the changes as ‘constitutional vandalism’. Lord Nicholls noted, of the efforts to emulate other democracies: ‘Dull uniformity adds nothing. It is not a virtue.’‘Senior Law Lord attacks Supreme Court move’Daily Telegraph, 2 December 2003.

75. For criticism of the logic of this by a political scientist peer, see Lord Norton, 652 HL Official Report (5th series) col 122, 8 September 2003.

76. The arrogance of the Judges' Council Response to the Papers on Constitutional Reform, n 23 above, knows few bounds. Para 164 seems to suggest that the Supreme Court Appointments Commission should consist only of Supreme Court judges, chaired by the President. Para 165 makes it clear that open applications and hearings would be inappropriate.

77. Appointing Judges, n 3 above, p 4.

78. Clare Hogan ‘In search of justice fit for a Rainbow Nation’The Times, Law, 9 September 2003. And see Edwin Cameron ‘Judicial Accountability in South Africa’ (1988) 6 South African J Human Rights 251.

79. M de W Howe (ed) Holmes-Laski Letters (London, 1953) p 1368.

80. For a discussion of how the various panels affected the outcome in Pinochet see Stevens, n 9 above, pp 107–112. In particular, see the alleged observation of Lord Bingham, then Lord Chief Justice, when he heard the two South African liberals - Hoffmann and Steyn - were to sit: ‘Well, that's two votes against.’ Stevens, n 9 above, p 110. And see Lord Steyn's later observations about the internment of al Quaeda suspects at Guantanamo.

81. Supreme Court, n 2 above, para 52.

82. Supreme Court, n 2 above, para 51.

83. Supreme Court, n 2 above, para 47.

84. See, for instance, Lord Lester in a recent debate in the new Supreme Court: ‘The quality of independence is well provided by judges drawn from the independent Bar, for the Bar is a profession of self-governing and inner-directed individuals, trained to be robustly independent. But the Bar still lacks diversity and it has no monopoly for providing judges with such qualities. Judges and barristers need to recognise that experience of advocacy is not a necessary condition for a good judge. The qualities needed can be well provided on the basis of wider professional experience beyond the Bar, including solicitors, those who have chaired tribunals or who have been distinguished academics and civil servants.’ 652 HL Official Report (5th series) col 113, 8 September 2003.

85. Supreme Court, n 2 above, para 31.

86. Supreme Court, n 2 above, p 3.

87. See also Lord Morris of Aberavon, discussing the Scarman and MacPherson Inquiries: ‘When a judge enters the marketplace of public affairs outside his court and throws coconuts, he is likely to have the coconuts thrown back at him. If one values the standing of the judiciary … the less they are used the better it will be.’ 648 HL Official Report (5th series) col 883, 21 May 2003.