The Lord Chancellor, the independence of the judiciary and the rule of law – UK Constitutional Law Association

At the beginning of the year, this blog covered the report from the House of Lords Constitution Committee into the Lord Chancellor and the Law Officers, with Conor Casey’s post focusing in particular on the latter. This post aims to ensure that 2023 is bookended by consideration of the issues addressed in the committee’s report – and in the subsequent Lords debate on that report in July – by providing a closer look at the role of the Lord Chancellor.

The Blair government’s seismic reforms of the judiciary, which were largely given effect by the Constitutional Reform Act 2005 (CRA), were at least partly motivated by the desire to disentangle the executive and judicial branches of the state. By rationalising an archaic and convoluted constitutional arrangement, the then government hoped to realise a meaningful separation of powers that would durably buttress judicial independence, provide stronger structural foundations for the rule of law, and move us towards the position of other modern democracies. 

Whether those reforms achieved their aims remains an issue of some debate. What should be clear is that the 2005 reforms were not the unequivocal fillip to judicial independence and the rule of law that they might appear to have been at first glance. 

Out with the old

On its face, the reform of the office of Lord Chancellor was a long-overdue update of an arcane institution woefully at odds with modern democratic values. The arrangements before 2005 were highly irregular, with a single man – until as recently as 2016 the Lord Chancellor had always been a man – straddling the three branches of the state. As a cabinet minister he was part of the governing executive; he participated in the legislature as Speaker of the House of Lords; and he was both a senior judge and the head of the judiciary. 

Strict separation of powers has never been central to the constitutional arrangements of the United Kingdom, where the government of the day is drawn entirely from serving MPs and peers. However, the office of the Lord Chancellor was particularly constitutionally incestuous and, in the eyes of many, untenable. Jack Straw, the second person to hold the newly-reformed office, has observed that “on any constitutional theory [the roles combined in the person of the Lord Chancellor] should have been separate”. It could not be right that the person at the apex of – and with significant discretion to make appointments to – the institution responsible for the disinterested adjudication of disputes under the law was also a central figure in the government’s legislative programme and tasked with overseeing proceedings for scrutinising that same legislation in one of the chambers of Parliament. 

Lord Falconer, a major architect of the reforms and Straw’s immediate predecessor, has since noted that “the time had come where the role of the Lord Chancellor […] was no longer resonant with our constitution.” He might have added that this was at least in part a result of other significant constitutional reforms introduced by the government of which he was a part. The House of Lords, recently shorn of all but 92 of its mostly absent hereditary peers, was no longer a dusty club for aristocrats but a renewed legislative force more closely resembling a conventional (albeit unelected) upper chamber of Parliament – demands for a full-time speaker were therefore growing among members of the reinvigorated chamber. Meanwhile, the rise of judicial review, and the widening of the scope of justiciable government policy following the coming into force of the Human Rights Act, only augmented the tension that had always existed between the Lord Chancellor’s role as a cabinet minister and his near total discretion in appointing judges – the temptation for him to lean into his judicial role to the government’s political advantage could only be stronger following the extension of the scope of those same judges’ powers to strike down government acts as unlawful. 

And in with the new

All of this changed with the announcement of plans, in 2003, to abolish the office of the Lord Chancellor. In the end, its ubiquity in statute meant that the role was radically transformed rather than jettisoned completely. The Concordat, an agreement signed in 2004 between the then Lord Chancellor and Lord Chief Justice (LCJ), set out the proposed reforms. These were largely given effect through the CRA, the major implications of which were summarised in the Constitution Committee’s report:

The CRA fundamentally altered the role of the Lord Chancellor, and the constitutional framework surrounding it, by:

  • Replacing the Lord Chancellor as head of the judiciary in England and Wales with the Lord Chief Justice
  • Enabling the Lord Chancellor to be replaced as Speaker of the House of Lords by a new office of Lord Speaker
  • Creating a new Supreme Court, replacing the Appellate Committee of the House of Lords and removing the Lord Chancellor’s right to sit as its presiding judge
  • Establishing the Judicial Appointments Commission and thereby restricting the Lord Chancellor’s role in the appointment of judges. 

At first blush, these changes were unambiguously good news for judicial independence and the rule of law. As we have already seen, the old constitutional setup appears to have paid no regard to the need to protect judicial independence in the way that it apportioned responsibility for the state’s judicial functions. That independence depended largely on the conservatism and probity of the individual appointed Lord Chancellor who, as a serving cabinet minister, would have a motive for meddling. In stark contrast to this arrangement, the CRA imposed a statutory duty on all ministers to uphold judicial independence, and a specific duty on the Lord Chancellor to defend judicial independence.

The reforms also did away with a system under which no attempt was made to honour the separation of powers. They introduced a clear delineation between traditional branches of the state both by paring back the role of the Lord Chancellor, as we have seen, and by disentangling the judicial and legislative branches of the state – with the establishment of a new UK Supreme Court, the CRA ended another constitutional anomaly whereby the highest court in the land was, at least formally speaking, a committee of the House of Lords.

As for the rule of law, this seems to have been bolstered not only by the separation of powers – in his evidence to the Constitution Committee, former LCJ Lord Thomas of Cwmgiedd noted that “fundamental to the rule of law is the complete constitutional independence of the judiciary” – but also by the very first clause of the CRA, which embedded the rule of law in the process of government by putting it on a statutory footing.

You don’t know what you’ve got ‘til it’s gone

But closer examination invites us to question whether the reforms were unambiguously positive for judicial independence and the rule of law. 

No-one can accuse the changes introduced by the CRA of being superficial or cosmetic; the reforms were undeniably deep and far-reaching, dismantling a system which had grown organically over decades and centuries. But that system, though convoluted, was largely effective. The pre-2005 office of the Lord Chancellor acted as a constitutional ‘buckle’ working in support of both judicial independence and government’s respect for the law. Lord Chancellors had both the instinct and the competencies to support the judiciary in government. They were invariably experienced lawyers with a reverence for the rule of law and judicial independence. Typically appointed at the end of a successful career and harbouring no ambitions of further political advancement, they had the clout to represent the judicial position within government and no issue standing up to colleagues in Cabinet. The point was made pithily by Lord Mackay of Clashfern in his valedictory speech in the House of Lords in July 2022. In his view the role of the Lord Chancellor, an office which he held from 1987 to 1997, was “to represent the judiciary in the cabinet.” 

Admittedly, guarantees of judicial independence and respect for the rule of law were, under the old system, almost always to be found in convention and historical practice. There was no statutory requirement for the Lord Chancellor to be a ‘big beast’ of the legal world. The argument went that, rather than trust in well-established cultural grooves, an alternative and better approach would be to embed the conditions for the respect of those principles in formal institutional arrangements. This is the spirit which animated the reforms of 2005 (and, indeed, many of the constitutional changes implemented during Tony Blair’s premiership). The CRA unpicked the system of culturally entrenched norms which, with the old-style Lord Chancellor at its centre, had acted as the basis for the relationship between government and judges, and replaced it with highly codified arrangements which would govern the new relationship between a more formally separate executive and judiciary. Under the new arrangements the respective responsibilities of the Lord Chancellor and the LCJ were itemised in detail and the Lord Chancellor was now required unambiguously, by law, to defend judicial independence and continue his (unspecified) role in relation to the rule of law. 

Judicial independence

It might be expected that, having irrevocably altered the relationship between the judiciary and government that undergirded judicial independence, the reforms introduced by the CRA would have reorganised the administration of justice so that it no longer depended on the relationship as it had previously functioned. And, to some degree, they did. The fundamental constitutional responsibility for deciding who does the judging – that is, responsibility for most judicial appointments – moved from the Lord Chancellor to the newly-formed Judicial Appointments Commission for England and Wales (JAC). For even the most senior judicial appointments, where the Lord Chancellor typically has the final word, the office holder’s discretion has been all but eliminated – they are presented with a single recommendation by the JAC or a selection panel, which they can either accept, reject, or send back for further consideration.  

But many decisions regarding the state’s judicial functions remained the preserve of the executive. The government retains responsibility, for example, for deciding court closures, determining judicial pensions, and setting the terms and conditions under which judicial office holders are recruited. While the Lord Chancellor is required under Section 1 of the Courts Act 2003 – and pledges as part of his statutory oath – to properly resource the courts and tribunals, in practice the annual settlement received by HM Courts and Tribunals Service (HMCTS) is subject to the same ruthless logic of government budgeting as any other service.

The result is to produce tension: the judges are still materially dependent on the executive for the apparatus within which they exercise their functions, but they no longer have the same powerful voice in government representing their views. Whereas the old-style Lord Chancellor could be a heavyweight advocate for an independent judiciary within the cabinet, his modern counterpart is more likely to be a middle-ranking cabinet minister without a deep legal background. As such, he or she is less likely to possess the legal instincts to understand his or her role as a judicial advocate, the legal reverence to be inclined to play this role, and the authority within cabinet to do so successfully. Instead, “special pleading on behalf of judges is likely to be received in the same sceptical spirit as arguments made on behalf of other stakeholder groups,” and “negotiations with judges and justice policy are now transacted to a greater extent as part of the knockabout culture of politics, and less as a part of the deferential and innately conservative culture of the legal profession.” (Both quotations from The Politics of Judicial Independence in the UK’s Changing Constitution (2015), pp. 51-52). 

When the Lords debated the Constitution Committee’s report in July, Lord Garnier suggested that the widening gulf between the office of the Lord Chancellor and the legal universe from which its occupants used invariably to hail – a phenomenon which he himself felt keenly when “he took one of the many recent Lord Chancellors to dinner in [his] inn [and] they felt like they were going into a foreign country” – is symptomatic of the more general trend whereby “the fellowship of lawyers and members of Parliament, between the judiciary and government and judiciary and Parliament, is gone.”

Indeed, it took only two years from the passage of the CRA for it to become clear that, in their initial incarnation, the new formalistic arrangements were struggling to substitute for the cultural mechanisms they had replaced. In 2007 the Department for Constitutional Affairs, as the Lord Chancellor’s Department had become, took over responsibility from the Home Office for prisons and probation and became the Ministry of Justice. These changes prompted concerns among judges that, in the face of competition from this politically sensitive portfolio, HM Courts Service (as it then was) would suffer financially. As a result, the judiciary insisted on further codification of constitutional arrangements which led, in 2008, to the agreement of a framework document giving the Lord Chancellor and LCJ joint oversight of HMCS. It is tempting to wonder about the counterfactual scenarios: if the judiciary had still had an old-style Lord Chancellor representing their interests in cabinet, or if decisions about HMCS funding had been transferred to them wholesale, would they have felt this formal safeguard necessary? 

Rule of law

The House of Lords Constitution Committee’s report also observed that several events – notably the UK Internal Market Act 2020 and the Northern Ireland Protocol Bill – have meant that “the government’s commitment to the rule of law has been called into question.” Were the report to be published today, it would likely also mention the developing story of the government’s Rwanda policy. If one believes that these events do constitute a wavering commitment to the rule of law, one might wonder why statutory obligations to respect the rule of law did not prevent the offending behaviour. Of course, there is no guarantee that a stern reproach from an old-style Lord Chancellor would have carried the argument in cabinet. Nor did the absence of such a figure spare the government from criticism by its own members; Lord Keen of Elie resigned his ministerial post and his position as Advocate General for Scotland after concluding that he was unable to “reconcile what I consider to be my obligations as a Law Officer with your [the then Prime Minister’s] policy intentions with respect to the UKIM Bill.”

But while the pre-2005 arrangements were neither necessary nor sufficient to guarantee the government’s respect for the rule of law, it is difficult to escape the feeling that an important safeguard was lost when political mechanisms designed to keep government within the bounds of the law were replaced with probably non-justiciable words in an Act of Parliament. More specifically, what was lost – to quote Lord Thomas of Gresford at the Lords debate – was “the one person of experience, judgement and standing, who can say to a Prime Minister, ‘no, your policy is unlawful’.”

The loss of the safeguard represented by the Lord Chancellor is felt so keenly because, when it comes to primary legislation, the government is largely self-policing. (The same cannot be said when it comes to secondary legislation or non-legislative decisions more generally, the validity of which can be challenged in the courts with reference to other laws.) Although Parliament is a counterweight to the executive, our system ensures that, in normal circumstances, the government can get its legislative programme onto the statute book. Meanwhile, there is no constitutional court to enforce adherence to an entrenched, more basic set of constitutional requirements. Where primary legislation is concerned, Parliament – and by extension, in normal times, the government – is supreme. 

Absent a fundamental constitutional change – for example, the introduction of an entrenched, codified constitution – the major force acting as a constraint on the executive’s legislative plans remains self-restraint. In abolishing the old-style Lord Chancellor, the CRA may have removed a keystone of governmental self-restraint. That the formal statutory guarantee of the rule of law was not able to fill the resulting hole was inevitable so long as the UK’s constitutional fundamentals preserve a situation in which, notwithstanding the many political limitations within which each administration operates, the government is accountable only to itself when passing laws.

Sammy Talalay is currently a postgraduate law student and aspiring barrister.

(Suggested citation: S. Talalay, ‘The Lord Chancellor, the independence of the judiciary and the rule of law’, U.K. Const. L. Blog (19th December 2023) (available at https://ukconstitutionallaw.org/))

Leave a Reply

Your email address will not be published. Required fields are marked *