. 30
( 155 .)


or pragmatic grounds™. He noted that the Lord Chancellor was ˜a spokesman for
the government in furtherance of its party political agenda™ and that, even in
respect of matters a¬ecting the administration of justice, he was ˜subject to
collective Cabinet responsibility™. (See also Lord Steyn, ˜The case for a Supreme
Court™ (2002) 118 LQR 382.) Lord Irvine of Lairg, as Lord Chancellor, himself
underlined the political nature of his o¬ce (HL Deb vol 622, col 814,
21 February 2001):

It is not the case that Lord Chancellors are not party political. They are appointed by the Prime
Minister; they take the party Whip; they speak and vote for the Government in Parliament;
they sit in Cabinet; and they campaign for their party.

Paradoxically, the multiple role of the Lord Chancellor was defended as sup-
porting the separation of powers, even if incompatible with a ˜purist™ version of
the doctrine. Lord Irvine said that the o¬ce ˜stands at a critical cusp in the sep-
aration of powers™, so that ˜the judiciary has a representative in the Cabinet and
the Cabinet in the judiciary™, and further that the protection of the judiciary
from executive interference is ˜a high order duty™ of any Lord Chancellor: ˜The
o¬ce is a bu¬er between the judiciary and the Executive which protects judicial
independence™. (HL Deb vol 597, col 734, 17 February 1999. Compare Lord
Steyn™s article cited above.)
That the Lord Chancellor might “ and from time to time did “ sit as a judge
on the Appellate Committee of the House of Lords gave rise to particular
concern, although it was said that his doing so fostered ˜the necessary close rela-
tionship with the senior judiciary™ (Parliamentary Secretary, Lord Chancellor™s
Department, HL Deb vol 344, col 1364, 22 February 2000). If there was
complacency about the Lord Chancellor™s judicial role it was disturbed by the
decision of the European Court of Human Rights in McGonnell v United
Kingdom (2000) 30 EHRR 289.
McGonnell owned land in Guernsey which was not zoned for residential use
under the island™s development plan. His appeal against a refusal of permission
for residential use of the land was dismissed by the Royal Court of Guernsey,
composed of the Baili¬ of Guernsey and lay members, the Baili¬ being the sole
judge of the law. The Baili¬ also presided (and could exercise a casting vote) in
the States of Deliberation (the legislative assembly) which had adopted the
development plan. The European Court of Human Rights held that the Bailiªs
participation in the adoption of the plan gave objective grounds for doubt to be
cast on his judicial impartiality, and accordingly that the hearing by the Royal
Court constituted a breach of Article 6(1) of the European Convention on
Human Rights (right to a fair trial by an independent and impartial tribunal).
The court accepted the submission of the United Kingdom Government that
the Convention does not require states ˜to comply with any theoretical concepts
117 The ideas of the constitution

as such™ “ so that adherence to some particular understanding of the separation
of powers is not demanded “ and said that the question is always ˜whether, in a
given case, the requirements of the Convention are met™.
Compatibility with Article 6(1) would be in doubt if the Lord Chancellor
were to sit in a case in which governmental interests were at stake or legislation
in which the Lord Chancellor had participated came into question. After
the McGonnell decision Lord Irvine of Lairg said (HL Deb vol 610, col 33 WA,
23 February 2000):

The Lord Chancellor would never sit in any case concerning legislation in the passage of which
he had been directly involved nor in any case where the interests of the executive were
directly engaged.

Indeed it was by then ˜unthinkable that he could now sit in any of the major
cases which come before the Law Lords every year, such as cases involving
constitutional law, public law, devolution, human rights, important points of
statutory construction, and so forth™ (Lord Steyn, ˜The case for a Supreme
Court™ (2002) 118 LQR 382, 387).
Some took the view that all that was necessary to ensure constitutional ¬tness
was for the Lord Chancellor to relinquish his role as a judge. But other features of
the o¬ce were also problematic. It was doubted whether as a senior minister with
extensive executive responsibilities, owing loyalty to his colleagues in government
and bound by collective ministerial responsibility, the Lord Chancellor could as
head of the judiciary e¬ectively defend the independence of the judges, protect-
ing them from political interference. His responsibility for the appointment of
judges, too, had come under increasingly critical scrutiny (see below).
In the result the Government decided on radical reform: the o¬ce of Lord
Chancellor would be abolished and those of his functions that were to be
retained would be redistributed. These changes, it was claimed, would ˜put the
relationship between the executive, the judiciary and the legislature on a modern
footing, and clarify the independence of the judiciary™ (Constitutional Reform:
Reforming the O¬ce of the Lord Chancellor, Department of Constitutional A¬airs
(2003)). A new Secretary of State for Constitutional A¬airs would have respon-
sibility for safeguarding judicial independence. The Lord Chief Justice would
become the head of the judiciary of England and Wales. A Constitutional
Reform Bill to implement the Government™s proposals was introduced in the
House of Lords in 2004: see now the Constitutional Reform Act 2005. In
the event the o¬ce of Lord Chancellor was retained by the Act, albeit that the
o¬ce is now shorn of its judicial role. (For extensive analysis of the passage of
the legislation, including commentary on its impact on the separation of powers,
see Windlesham [2005] PL 806 and [2006] PL 35.)
Senior judges were initially disturbed by the proposal to abolish the o¬ce of
Lord Chancellor, fearing that the protection of judicial independence would be
weakened, but in the second reading debate on the Constitutional Reform Bill
118 British Government and the Constitution

in the House of Lords the Lord Chief Justice, Lord Woolf, said that, following
an agreement (known as the ˜concordat™) reached between himself and the
Secretary of State for Constitutional A¬airs in January 2004 and re¬‚ected in
the terms of the bill, the constitutional independence of the judiciary was
satisfactorily assured (HL Deb vol 658, col 1004, 8 March 2004. See also Lord
Woolf [2004] CLJ 317, 324.) It is of fundamental importance that the judicial
authorities of the state should be independent, so that their decisions are
reached in accordance with law and not in submission to the wishes of govern-
ment or upon other extraneous considerations. Invited to give a de¬nition of
judicial independence, a former Lord Chancellor, Lord Mackay of Clashfern,
responded (HL Deb vol 576, col 106 WA, 16 December 1996):

Judicial independence requires that judges can discharge their judicial duties in accordance
with the judicial oath and the laws of the land, without interference, improper influence or
pressure from any other individual or organisation.

It is plainly necessary that judges should be secure in their tenure of o¬ce,
and with us this has been assured, for the senior judiciary, since the Act of
Settlement of 1701. The Senior Courts Act 1981 (formerly known as the
Supreme Court Act), section 11(3), now provides:

A person appointed to an office to which this section applies [ie the office of a judge of the
Court of Appeal or the High Court of Justice] shall hold that office during good behaviour,
subject to a power of removal by Her Majesty on an address presented to Her by both Houses
of Parliament.

The Constitutional Reform Act 2005 makes equivalent provision for judges of
the Supreme Court (section 33) and for judges of the High Court and Court of
Appeal in Northern Ireland (section 133). A judge of the Court of Session in
Scotland may be removed from o¬ce by the Crown on a recommendation by
the First Minister of the Scottish Executive, supported by a resolution of the
Scottish Parliament following a report by an independent tribunal that the
judge is un¬t for o¬ce (Scotland Act 1998, section 95).
The Act of Settlement and its modern successors are generally understood as
meaning that a judge may be removed by the Crown either for misbehaviour,
or for other cause following an address from both Houses, but it is thought
unlikely in practice that a judge would be removed for misbehaviour except in
pursuance of an address from Parliament. Rodney Brazier comments
(Constitutional Practice (3rd edn 1999), p 296):

The reluctance of any government to remove any senior judge other than by the long-winded
address procedure; the refusal of successive governments to initiate that procedure, even when
a judge has been convicted of an offence as serious as drunken driving; the government™s
ability to control Commons™ business and thereby to prevent discussion of any early-day motion
119 The ideas of the constitution

critical of the judiciary; and the government™s power to vote down any Opposition motion
debated in Opposition time, taken together all mean that the tenure of office of the senior
judiciary is extremely secure.

The only instance since 1701 of removal of a judge under the Act of Settlement
procedure was that, in 1830, of Sir Jonah Barrington, a judge of the High Court
of Admiralty in Ireland, who had been found guilty of embezzlement. Motions
for the removal of a judge have been tabled by backbenchers from time to time “
for instance, a motion supported by over 100 MPs called for the removal of the
Chief Justice, Lord Lane, in 1991, after the revelation of a miscarriage of justice
in the case of the ˜Birmingham Six™ (see R v McIlkenny [1992] 2 All ER 417). But
such motions are intended rather as an expression of criticism of judicial conduct
than to bring about the judge™s dismissal, and they are not debated.
There is little likelihood of the Act of Settlement procedure being invoked
because a judge™s decisions are unwelcome to the executive. On the other hand
vigilance is called for in case of covert pressures being brought to bear on judges,
for instance, pressure to resign, or changes in the administrative arrangements
for the courts which may have an adverse impact on the conduct of cases and
the independent functioning of the whole judicial process. (See D Woodhouse,
In Pursuit of Good Administration (1997), pp 117“20; Malleson, ˜Judicial train-
ing and performance appraisal: the problem of judicial independence™ (1997)
60 MLR 655.) The Constitutional Reform Act 2005 should help to counter
threats of these kinds. As we saw above, the o¬ce of Lord Chancellor is retained,
but he is replaced as head of the judiciary in England and Wales by the Lord
Chief Justice, who is also the President of the Courts of England and Wales. The
Lord Chief Justice has an enhanced capacity to in¬‚uence decisions relating to
the administration of the court system, including decisions on resources for the
administration of justice.
The 2004 concordat declared that judicial independence should be expressly
guaranteed. Accordingly, section 3(1) of the Constitutional Reform Act places
a general obligation on the Lord Chancellor, other ministers of the Crown and
˜all with responsibility for matters relating to the judiciary or otherwise to the
administration of justice™ to ˜uphold the continued independence of the judi-
ciary™. This is supplemented by particular duties imposed ˜for the purpose of
upholding that independence™. These are set out in section 3(5) and (6) as

(5) The Lord Chancellor and other Ministers of the Crown must not seek to influence partic-
ular judicial decisions through any special access to the judiciary.
(6) The Lord Chancellor must have regard to “

(a) the need to defend that independence;
(b) the need for the judiciary to have the support necessary to enable them to exercise
their functions;
120 British Government and the Constitution

(c) the need for the public interest in regard to matters relating to the judiciary or
otherwise to the administration of justice to be properly represented in decisions
affecting those matters.

The duty placed on ministers and others by section 3(1) is of a declaratory
rather than speci¬cally enforceable nature, though it may be hoped that it will
be taken seriously and contribute to sustaining a culture of judicial indepen-
dence. The obligation of the Lord Chancellor to have regard to ˜the need to
defend that independence™ (s 3(6)) seems to add little to his duty to ˜uphold the
continued independence of the judiciary™, but it emphasises that he has a special
responsibility in this matter, over and above that resting upon other ministers.
(Compare the sceptical comments of Woodhouse (2004) 24 LS 134, 141“3.)
In terms of the oath that must be taken by the Lord Chancellor, he swears to
˜defend the independence of the judiciary and discharge my duty to ensure the
provision of resources for the e¬cient and e¬ective support of the courts for
which I am responsible™ (s 17). If matters of concern should not be satisfacto-
rily resolved, the Chief Justice of any part of the United Kingdom may invoke
the power conferred by section 5(1) to:

lay before Parliament written representations on matters that appear to him to be matters
of importance relating to the judiciary, or otherwise to the administration of justice, in that
part of the United Kingdom.

(With regard to the independence of the judiciary in Northern Ireland see
sections 4, 10 and 11 of the Act.)
The tenure of members of the lower judiciary is not secured by the Act of
Settlement procedure. Circuit Judges and Recorders, for instance, may be dis-
missed by the Lord Chancellor on the ground of misbehaviour or incapacity,
but only with the agreement of the Lord Chief Justice and in accordance with
procedures prescribed by regulations made under the Constitutional Reform
Act 2005 (s 115). The question arose, in respect of part-time or temporary judi-
cial o¬ce, whether the o¬ce-holder was an ˜independent™ tribunal in the
meaning of Article 6(1) of the European Convention on Human Rights (right
to a fair trial by an independent and impartial tribunal). In Starrs v Ruxton 2000
SLT 42 the High Court of Justiciary in Scotland held that trial before a tempo-
rary sheri¬, who held o¬ce at pleasure, could be removed from o¬ce at any
time, and the renewal of whose appointment was within the unfettered discre-
tion of the executive, did not constitute a fair hearing before an independent
tribunal as required by Article 6(1). (See O™Neill (2000) 63 MLR 429.) In con-
sequence of the ruling in Starrs no further use was made of temporary sheri¬s
and the Bail, Judicial Appointments etc (Scotland) Act 2000 provided for the
appointment of part-time sheri¬s who would have security of tenure. New
arrangements were also made to strengthen the security of tenure of part-time
121 The ideas of the constitution

judicial o¬cers in England and Wales (eg deputy High Court Judges, deputy
Circuit Judges and Recorders). (See Judicial Appointments Annual Report
1999“2000, Cm 4783/2000, paras 2.14“2.18.)
Security of tenure is essential to judicial independence, but it has been rightly
said that this ˜cannot justify judicial immunity from proper investigation of alle-
gations of misconduct™ (David Pannick, The Times, 24 February 1998).
Complaints about judicial conduct were formerly made to the Lord Chancellor
who as head of the judiciary could, after investigation, ˜guide, counsel, advise
or rebuke™ or, rarely, exercise his powers of dismissal in respect of the lower
judiciary. (A Circuit Judge was dismissed in 1983 for the o¬ence of smuggling
whisky.) Brazier deplored the Lord Chancellor™s power of dismissal as ˜a dis-
turbing accretion of power in the hands of a Minister™ (Constitutional Practice
(3rd edn 1999), p 298). The matter is now regulated by the Constitutional
Reform Act 2005, sections 108“121. It is there provided (s 115) that the Lord
Chief Justice may, with the agreement of the Lord Chancellor, make regulations
for the procedure to be followed in investigating allegations of judicial miscon-
duct. The Lord Chief Justice is authorised to give formal advice or a formal
warning or reprimand to judicial o¬ce-holders “ or in certain circumstances
to suspend them from o¬ce “ with the agreement of the Lord Chancellor
(s 108(2)“(7)).
It is essential that the appointment of judges should not be a¬ected by
political partiality. The Lord Chancellor formerly had a decisive role in the
appointment of judges by the Queen, in making recommendations either
directly to the Queen or to the Prime Minister as adviser to the Queen on
appointments to the most senior judicial o¬ces. The Lord Chancellor, besides
being a high judicial o¬cer, was a member of the government. There were no
formal safeguards against politically motivated appointments; as with so much
in our constitution the avoidance of malpractice depended on those concerned
observing the conventions and acting with respect for constitutional principles.
Before the Second World War, appointments to the judiciary were sometimes
made as a reward for political services, but such impropriety has not, since then,
blemished the system.
The selection of those to be recommended for appointment by the Queen
was made by the Lord Chancellor after informal and con¬dential consultations
with the senior judiciary and senior members of the profession. Lord Scarman
once described the process of appointment as ˜all too haphazard™ and an ˜old-


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( 155 .)