The Lord Chancellor

Another factor which in the past has helped to maintain the independence of the judiciary from government is that the judges have traditionally had a powerful friend in the government in the person of the Lord Chancellor. The Lord Chancellor is a very anomalous figure by most standards. He is head of the judiciary, but at the same time is also a politician. He is a member of the cabinet, and so must be chosen by the Prime Minister from supporters of the government party, which also means that he can be removed from office at any time by the Prime Minister. It also means that when the government is defeated in an election he must resign. As a politician he also presides in the House of Lords and is responsible for carrying legislation through that House when it is of legal significance. He is always a former barrister and that has usually meant that he has practised as a barrister in England, though Lord Mackay, who by 1997 had been Lord Chancellor for ten years, was originally a Scots barrister. As a former barrister, the Lord Chancellor will share the traditions and ideals of the bar (which is the collective name of the profession), and he has in the past been a powerful voice on behalf of the bar and of the judiciary within the Cabinet counsels. Despite his anomalous status, no modem Lord Chancellor behaves in an overt or unacceptably political way when he sits to hear cases as a judge. This is probably due to the simple fact that the fundamental structure of law and politics in England is so widely accepted by the whole community, that everybody tries to make it work, rather than to subvert it. Despite the very anomalous nature of the Lord Chancellor's position in the law and politics, it has not in general given rise to much public anxiety, though there are some signs today that the judges themselves increasingly feel that the Lord Chancellor's political role has grown uncomfortably greater than his legal role. While his powers could be distributed more widely among other Ministers, it is unlikely that the British system could work well without some central figure like the Lord Chancellor, and even the Labour Party's proposals for reform of the House of Lords in 1997 would not make much difference to his position.

In theory, high court and appeal court judges and lords of appeal are appointed by the Queen, though of course she always acts 'on advice'. (In modem times it is mere politeness that requires us to refer to these nominations as made 'on advice' - the reality is that the Queen cannot refuse the advice, though she may question it sometimes.) In the case of appeal court judges and lords of appeal, it is the Prime Minister who is nominally responsible for that advice, in the case of high court judges, it is the Lord Chancellor. But in practice it is hard to believe that the Lord Chancellor does not also have the major say in the nomination of the appeal judges as well, simply because the Prime Minister is unlikely to know much, or even to care much about the candidates for appointment. The Lord Chancellor also appoints all lower judges and magistrates.

Some people are worried by the fact that the appointing process is, in practice, almost entirely in the hands of one person - the Lord Chancellor. These appointments are, after all, very important ones. The judges have to interpret the law made by Parliament, and sometimes they have to make law themselves, so the kind of people they are is a matter of public importance. Because some people feel that the higher judges in England tend to be unrepresentative of the people at large, and because they are, in a sense, unaccountable to political superiors, there have sometimes been calls for a different type of appointment procedure. One suggestion, for instance, is that there should be some kind of advisory committee to make recommendations.

The English judiciary has great strengths which tend to be taken for granted, and some of these may also be partly due to the uniform background and traditions of most judges. For instance, standards of integrity are of the very highest, and so, in general, are standards of competence. So too, the judges undoubtedly have a very strong commitment to principles of fairness and openness, which among other things means that the conduct of proceedings in court must be, and appear to be, fair. Further, the competence and experience of English judges means that most of them are strong personalities well able to maintain the dignity of their courts and control the behaviour of counsel (the barristers). This helps to maintain high standards of integrity at the Bar, as well as on the Bench itself.

It is perhaps worth adding also that the common complaint that judges are not accountable in respect of their decisions is only true in a formal sense. It is true that a judge cannot be rapped over the knuckles (except by an appeal court) for the way he decides a case. But there is another sense in which English judges "are" accountable for their decisions. A judge is always expected to give "detailed reasons" for his decisions, and in cases of any importance, these reasons will be published in the law reports. In many cases the reasons will be scrutinized and commented on, and often vigorously (if politely) criticized by academic lawyers, and sometimes by other practising lawyers too, and of course, by judges in later cases. To be sure, judicial reasoning is often technical, and not accessible to the man in the street. At the same time it is no light thing for a judge to know that his reasoning will have to be exposed, and that if it is to pass muster, it will have to be acceptable by the standards of the profession.

Lower court judges do not have the tenure rights of high court judges. They can be dismissed by the Lord Chancellor, and although nobody has suggested that the Lord Chancellor is likely to dismiss a lower court judge because of the way he has decided a case, there is no formal control over the way the Lord Chancellor exercises these powers. In fact it is very rare for any lower judge or even a magistrate to be removed from office.