The appointment of a Member of Parliament as Justice Secretary is the final step in the effective abolition of the ancient office of Lord Chancellor, a title which Jack Straw will still hold. In its stead has been created a Ministry of Justice in the forefront of daily political controversy (through its administration of the prison service) and a minister sitting in the House of Commons and subject to all its party political pressures. This is not a development that should trouble only constitutional conservatives; it concludes the destruction of the office best placed to protect the independence of the judiciary within the British constitutional settlement. Its replacement makes political interference with the judiciary almost inevitable and removes a critical safeguard against unchecked political power.
Reconciling judicial independence
Any constitutional settlement of the judiciary must reconcile judicial independence with one central fact: that judges can never be wholly divorced from political authority. As they are an arm of the state, ultimate authority for judicial appointments will always lie with the government, however much judicial independence is protected by the Judicial Appointments Commission, now responsible for proposing appointments to the Crown. Only the Crown can make such appointments and only an elected government has the democratic legitimacy to be accountable for them.
Government must also, through funding the court service, ensure that it is able to meet its critical obligations to the public: a well run and efficient court service, sufficient judges to guard against unjust delay, and resources enough to provide good quality legal advice and representation to those unable to afford it. For these reasons, the minister responsible for the judiciary must have a position of power and influence within the higher echelons of the Cabinet.
The old office of Lord Chancellor developed due to the need to balance these realities with the government’s duty to preserve judicial independence. By making the minister responsible for the judiciary one of them – and their leader – their interests were guaranteed proper protection within cabinet; and this dual role constrained the Prime Minister in making the appointment: as a judge, the Lord Chancellor must be a member of the House of Lords – removing him from the daily political controversies of the Commons; he must be a Queen’s Counsel of distinction, earning the respect of his judicial colleagues; and he must undertake his political office in accordance with constitutional conventions which arose to protect the judiciary – and his office – from political interference.
The existence of this unique position at the heart of government but away from the House of Commons had another great advantage: it pushed political controversy relating to the judiciary into the arena of the Home Secretary, always an MP. This minister has been an essential lightning conductor, isolating the Lord Chancellor – and judiciary – from complaints relating to the day-to-day administration of justice, for which he was responsible.
More importantly, however, political controversy about the judiciary has, of necessity, been converted into controversy over policy. For without the Lord Chancellor in the House of Commons, MPs with concerns about individual sentences (as opposed to sentencing policy), individual judicial decisions and judicial appointments had no option but to address their concerns to the political process of the development and debate of policy. This is as it should be in a democracy: the executive and legislature develop policy and legislation and the judiciary, uninfluenced by the other branches, interpret it.
With the creation of the Ministry of Justice and the position of Justice Secretary, however, that minister has been thrown directly into the political fray. Freed from the conventions to which his predecessors were subject, placed within the House of Commons and removed from their close relationship with the senior judiciary, he will be as susceptible to political pressure as any other minister.
Of course, accountability is at the heart of any democracy. MPs represent their constituents and, collectively, the people; it is only right that they call to account all those in positions of authority. There may be occasions on which they are right to exercise their sovereignty over the judiciary itself: the constitution provides that High Court judges can be removed by a vote of both Houses of Parliament (and no less). But democracy requires more than the projection of the popular will. It must protect the weakest, safeguard the rights of minorities and defend the freedoms of individuals to speak, protest and act against the majority. No body is more important in providing this protection than a strong, courageous and truly independent judiciary. And there is no more necessary means of protecting their independence than their isolation from the pressure of powerful groups and interests given vent by the press and pursued in the House of Commons.
The old office of Lord Chancellor was no anachronism, offending the principle of the “separation of powers”. Its existence recognised that the judiciary can never be divorced from the sovereignty of the people and compensated for that reality by making their minister exercise his authority from within the judiciary. Through this “colossus” of the constitution were judges’ independence protected. With its abolition, that independence has never been more vulnerable.