Everything and Nothing

Stephen Sedley on the changing constitution

In June last year, the lord chancellor, Lord Irvine, was dismissed in a cabinet reshuffle. It was announced, not to Parliament but by press release, that his office was not to be filled and that his department was to become part of the Department for Constitutional Affairs, headed by a newly appointed minister, Lord Falconer. Of the expected ministry of justice there was no sign. The Home Office, it appeared, would not relinquish its hold on criminal justice. Then it was realised that there were scores of functions which by law only the lord chancellor could perform, and Lord Falconer, wearing a morning coat instead of the splendid black and gold robe, was sworn in as a nightwatchman lord chancellor. The joke went round Whitehall that the legislation enshrining the new dispensation was to consist of a single clause giving press releases from Number Ten the status of primary legislation.

Only then did public consultation begin. Papers on a new supreme court, the reform of judicial appointments, the future of the Queen’s Counsel system and of the lord chancellor’s office, came out so swiftly and in such polished form that the constitutional historian Robert Stevens has speculated that they must have been in preparation before the changes were announced. No doubt there is always an advantage to government in starting a process of consultation and reform with some of the major facts already accomplished; but if this was the intention, the government has run into interesting and unforeseen difficulties. Against its wishes, the Constitutional Reform Bill was referred in March to a select committee in the Lords, where concerted endeavours were made to salvage the lord chancellorship. But the genie is now out of the bottle. Once it was accepted, as almost everyone has now had to accept, that a minister of the crown ought not to sit as a judge (or, what was the same thing, that a judge ought not to sit in cabinet), the dominoes began to topple. If the lord chancellor cannot be a judge, he cannot usefully be head of the judiciary: that role has to pass to the lord chief justice, leaving his two other roles to be filled. One is the speakership of the Upper House, something which any respected member could undertake. The other is the seat in cabinet representing the justice system, a role now falling to the secretary of state for constitutional affairs and one day, no doubt, to a minister of justice.

This is not the place for an appraisal of Irvine’s lord chancellorship, but perhaps one thing should be said before the waters close over his head. Pugin’s overpowering décor in the Palace of Westminster had been in need of renewal for some time, and the previous government had initiated a rolling programme of refurbishment which reached the lord chancellor’s apartments in Irvine’s first term of office. The press, who found him arrogant, got hold of this, and of the inevitably high cost of it, just as they were looking for something less arcane than his sardonic comparison of himself to Cardinal Wolsey to belabour him with. Irvine’s rejoinder that you couldn’t redecorate the Palace of Westminster with materials from B&Q was not impeccably judged. But the notion that this was a private scam at public expense was idiotic.

Whether or not the lord chancellorship survives in name, its substantial demise, together with the institution of a supreme court, will mean that the United Kingdom has finally come to practise what both it and others have preached for centuries – the separation of the judicial and political powers of the state. This Enlightenment ideal became the orthodoxy of democratic theory in the hands first of Montesquieu, then of Madison, each of them claiming to discern in Britain the limits on autocratic government which they desired for their own countries, at a time when British judges sat in cabinet and drafted legislation. The lord chancellorship was not the only such anomaly to survive into the 20th century. The attorney-general continued for several decades to have first claim on the lord chief justice’s office, and government backbenchers continued to become QCs for the asking – and sometimes high court judges – into the postwar years. Nowhere else, however, has a genuine separation of powers come about: Montesquieu’s successors today move seamlessly between public administration, political life and judicial office, while the chief executive of Madison’s republic enjoys a power of suspending legislation which it took a civil war in this country to wrest from the crown. The parallel anomaly of the lord chancellor’s triple role was offset by the value of a minister who by convention was not a career politician and whose rank in cabinet enabled him to resist political encroachments on the judicial function.

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[*] Constitutions of Europe: Texts Collected by the Council of Europe Venice Commission, edited by the Council of Europe (Brill, 2 vols, 1998 pp., €295, April, 90 04 13932 x).