For debate in the Standing Committee — see Rule 15 of the Rules of Procedure

Doc. 9798

28 April 2003

Office of the Lord Chancellor in the
constitutional system of the United Kingdom

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Erik Jurgens, Netherlands, Socialist Group

Summary

In the United Kingdom, the office of Lord Chancellor combines the functions of a Cabinet minister (with responsibilities including a central role in making judicial appointments), presiding officer of the upper house of the legislature, and head of the judiciary (including a role as an active judge presiding over the highest courts in the jurisdiction). This presents grave inconsistencies with the principle of separation of powers, which has become a part of the common basic constitutional traditions of Europe. In particular, the appearance of independence and impartiality of the judiciary – required by Article 6 of the European Convention on Human Rights – is compromised by the Lord Chancellor’s exercise of both judicial and executive functions. A further conflict of interest arises from his acting both as legislator and judge, compounded by the fact that the highest court as a whole consists of the Appellate Committee of the House of Lords, the upper house of the legislature. Whilst the office of Lord Chancellor may be venerable and as yet remain unchallenged before the European Court of Human Rights, continuation of the current system creates real problems of lack of transparency and thus of lack of respect for the rule of law.

To resolve these issues, therefore, the Parliamentary Assembly recommends to the United Kingdom authorities that the Lord Chancellor establish a constitutional convention whereby he no longer sits as a judge, and that consideration be given to the creation of a Supreme Court whose members could not at the same time be members of the upper house of the legislature.

I.       Draft resolution

1.       In the United Kingdom, the office of Lord Chancellor combines the functions of Cabinet minister (with responsibilities including a central role in making judicial appointments), Speaker (presiding officer) of the House of Lords (the upper house of the legislature), and head of the judiciary and active judge (as Chairman of both the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council).

2.       The Assembly recalls that the separation of powers has become a part of the common basic constitutional traditions of Europe, at the very least insofar as it concerns the attribution of the judicial office to an independent state institution.

3.       It further recalls that, to preserve these principles as well as to ensure the basic right to a fair trial, Article 6 of the European Convention on Human Rights (ECHR) requires inter alia that signatory parties respect and protect the entitlement of everyone within their jurisdiction to an independent and impartial tribunal for the determination of civil and criminal proceedings. The European Court of Human Rights, in its jurisprudence on Article 6, has made clear that independence and impartiality are essential not only in actual substance but also in appearance (see, for example, the judgment in Langborger v. Sweden of 22/6/89 at paragraph 32).

4.       The Assembly recognises that the United Kingdom is one of the oldest democracies in Europe, a founder member of the Council of Europe and an originating signatory party to the ECHR. Nevertheless, it considers that the United Kingdom should not wait until its incorporation of the ECHR into domestic law, which took effect in 1999, leads to a direct challenge in the courts to the Lord Chancellor’s present position and roles.

5.       The Assembly considers that these matters raise the following concerns:

i.       at present the Lord Chancellor continues actively to engage in his judicial role – albeit infrequently and apparently only on cases not involving government interests –, creating a potential conflict of interest with his executive position and thus calling into question the independence and impartiality of the head of the judiciary and of the highest court;

ii.       he also continues to play an important, if limited, role in the legislative process as Speaker of the House of Lords, creating a potential conflict of interest with his judicial position (accentuated by the fact that all other ‘Law Lords’ are also members of the House of Lords capable of intervening in legislative activity);

iii.       it is clear that these potential conflicts of interest raise serious questions of incompatibility between the office of Lord Chancellor as currently defined and the legal and constitutional principles of the Council of Europe.

6.       Accordingly the Assembly recommends to the United Kingdom authorities:

i.       to invite the Lord Chancellor to announce publicly that he deems it proper and necessary no longer to sit as an acting judge, thus creating a “constitutional convention” which would effectively sever the link between his judicial and other functions;

ii.       to consider the creation of a Supreme Court whose members could not at the same time be members of the upper house of the legislature.

II.       Explanatory memorandum

      by Mr Jurgens, Rapporteur

A.       Introduction

1.       A motion for a resolution, tabled in May 20011, considered that in the constitutional system of the United Kingdom, the Office of the Lord Chancellor combined executive, legislative and judicial functions and that combining the function of judge with those in other branches of the government called the independence of the judiciary into question. Accordingly, the motion called on the United Kingdom to “review the Office of the Lord Chancellor as Chairman and member of the Appellate Division of the House of Lords in such a way that his judicial function is no longer combined with membership of the cabinet and with the presiding membership of a chamber of the legislative assembly”. The background to this initiative lies in the special interest that the Parliamentary Assembly has in the way the European Convention of Human Rights is implemented by the courts in general, and in the independence of the judiciary, including the transparency of judicial decision making, in particular.

2.       With a view to collecting more information on this subject, I visited London on 21-23 October 2002 and met both opponents and supporters of the current constitutional arrangements regarding the Lord Chancellor, although I was not received by the Lord Chancellor himself. The present report is largely based on the discussions which I had during this visit. The programme is enclosed in appendix I. On 27 March 2003 I again visited London to give evidence before the House of Commons Committee on the Lord Chancellor’s Department. As a result of the discussions I had with this Committee, I made certain additions to clarify the report.

3.       I should like to take this opportunity to thank all those who helped me in organising this visit, first of all the British Parliament and its Overseas Office and the Permanent Representation of the United Kingdom with the Council of Europe. I also thank all those who agreed to meet me in London and shared with me their views on this issue. I greatly appreciated these meetings, which took place in an open and constructive spirit.

B.       Lord Chancellor’s responsibilities

4.       The Lord Chancellor’s responsibilities range over all three branches of government: the executive, the legislature and the judiciary. Under the current system, he is:

-       a Member of the Cabinet;

-       Speaker of the House of Lords;

-       Head of the Judiciary and a judge. As such, he is;

5.       The Lord Chancellor’s responsibilities have developed over centuries. The function of chancellor (‘cancellarius’ or secretary) was - as in all of Europe - originally a function in the court as the principal assistant of the king. He was usually a cleric and a lawyer. As the king was also the fount of justice that assistance evolved, inter alia, into a judicial role. As the common law – based on precedent - was often too rigid, petitions to the king that were decided on by the chancellor lead – in England - to a separate jurisdiction known as ‘equity’ . This explains the judicial role of the chancellor, which he performed since 1621 within the House of Lords together with some other lords. Indeed, formally their judicial decisions are decisions of the House of Lords as such. This situation was continued even after the Act of 1876. Parliament also evolved from the royal court. As the chancellor presided over this, at first, advisory body to the king, he continued to do so in the House of Lords when parliament became divided in Lords and Commons. And his role as legal assistant of the king continues to this day as minister who “represents” the judicial system in the cabinet.

6.       In 1876, the Appellate Jurisdiction Act created the Office of “Law Lords” (comprising the at present twelve Lords of Appeal in Ordinary, along with peers who are former Lords of Appeal in Ordinary, former Lord Chancellors or current holders of other high judicial office). Up to 1945, the Lord Chancellor still participated for much of the day in the Lords judicial work. In 1948, the Appellate Committee (of the House of Lords) was created to hear the cases. As its sittings were often in parallel with those of the House, the Lord Chancellors had to share their time between the Speakership and their judicial functions.

7.       Currently, the Lord Chancellor’s responsibilities in the government concerning the administration of justice are predominant. His Department fulfils a part of the usual functions of a Ministry of Justice, although not all – some aspects are under the responsibility of the Prime Minister or other government members (mainly the Home Office).2

8.       The most important responsibility of the Lord Chancellor is judicial appointments, i.e. appointments of justices and some court officials. The highest justices are appointed by the Crown, but on the recommendation of the Lord Chancellor or after consultation with him. This responsibility includes the power to remove judges,3 exercised on the concurrence of the Lord Chief Justice and following an investigation by a judge nominated by him. The responsibilities of the Lord Chancellor’s Department are listed In Appendix III (Source: List of Ministerial Responsibilities, Cabinet Office, July 2002).

9.       I consider it important to make this brief historical reminder of the evolution of the Lord Chancellor’s responsibilities in order to demonstrate that the focus has shifted from his parliamentary and judicial functions towards the administrative function in the government.

C.       Separation of powers under the British constitutional system

10.       Under the British constitutional system, the separation between the legislative and the executive functions is traditionally relatively less strong than in most European continental democracies. Nevertheless, all our interlocutors, both partisans and opponents of the current arrangements concerning the Lord Chancellor, insisted on the importance of the strict independence of the judicial function.

11.       Since Locke and Montesquieu separation of powers has been seen as the distinction between different functions of government and the attribution of those functions to separate institutions of the state. Accordingly, the independence of the judiciary under the current British system may be compromised, or be seen as compromised, by the fact that the highest Court is a part of the legislature (a Committee of the House of Lords) and especially that a judge of the highest court (and its Chairman) is a politician and an important member of the cabinet.

12.       The unusual aspect of the Lord Chancellor’s position is widely recognised, both by opponents and partisans of the current system. Its existence is due to the specific conditions of the United Kingdom constitutional system, which has evolved over centuries without the beneficial modernisation introduced by the French Revolution, the effects of which were disseminated in the rest of Europe by Enlightenment thinking and the conquests of Napoleon.

13.       The functioning of this system has, so I was assured, not yet given rise to any formal complaints from parties to a judicial proceeding (although the direct application of the European Convention on Human Rights, especially Article 6, since 1999, could well change this). Nor it is a subject of much public attention and discussion outside legal and political circles. This is partly due

to the existence of a whole system of practical arrangements and informal checks and balances aimed at preventing conflicts of interest, and partly to the conservatism which is generally innate to existing institutions:

i.       as regards relations between the judiciary and the executive

14.       The Lord Chancellor rarely hears cases. He has sat judicially twice during the last two years. It was stated to me that these two cases were private law cases with no direct political consequence;

15.       The Lord Chancellor, according to what we have been told, would certainly not sit on a case which could be considered as “sensitive” and where a slightest possibility of a challenge would exist from parties objecting against a minister sitting as a judge;

16.       The Lord Chancellor does not decide who of the Law Lords sits on individual cases. It is the role of the Senior Law Lord, who is a professional judge. (Nevertheless, in formal terms, it is the Lord Chancellor who delegates this power to the Senior Law Lord. According to some opinions, it is not possible to ascertain whether he can exercise indirect influence in this area);

17.       The Lord Chancellor plays an important role in the removal of judges, which, while requiring the concurrence of the Lord Chief Justice, include the flexible and/ or potentially subjective tests of misbehaviour and sustained failure to observe the standards reasonably expected from a holder of such office; this process does not envisage any direct role for the legislature. We were told that the Lord Chancellor has not exercised this power within living memory. In modern democracies under the rule of law, judges should be removed not by ministers but by an independent decision of the judiciary itself. Since Lord Chancellors have consistently abstained from using their power in this respect, however, this would seem to have become the constitutional rule also in the United Kingdom.

18.       In the note from the office of the Lord Chancellor (Annex II), paragraph 6 ends and 7 begins as follows: “His tripartite role enables him to act as both a link and bulwark between the judiciary and the executive and the legislature. He can explain, defend and interpret each to the other. The Lord Chancellor is thus the judges’ guardian and representative in the Cabinet and Parliament and, as necessary, vice versa.” This may be true, but it also shows the lack of transparency, as the public cannot know what transpires when the Lord Chancellor “acts as link between Cabinet and judiciary”. Is there any undue influence?

ii.       as regards relations between the judiciary and the legislature

19.       The “speakership” in the House of Lords is a function with limited responsibilities. The House is a self-regulating body and the Speaker does not have the same powers to control proceedings, which presiding officers of parliaments in continental Europe usually have. This is understandable because, being a member of the Cabinet, his impartiality could easily be called into question.

20.       The involvement of the Lord Chancellor, as a member and as presiding officer of the Lords, with the real legislative business is not very intense. Similarly, the Law Lords, all of whom hold full office in the upper house of parliament, by convention do not become involved in politically contentious issues – although in practice this has not always been the case.4 As a cabinet minister, however, the Lord Chancellor does take part in Cabinet decisions on introducing draft laws to parliament, he defends those drafts actively in the Lords (temporarily standing aside from his presiding seat to do so) and is involved in the making of secondary legislation. This is the normal task of a minister, but the question is whether it should be the task of someone who is also a judge of the highest court and the presiding officer of a legislative assembly.

21.       Nevertheless, it could be argued that being a legislator is not compatible with the function of a judge, at least if it concerns a judge of the highest court in the judicial system.

22.       The creation of a Supreme Court, which would be separate from the House of Lords, is a related issue. Some claim that if the Lord Chancellor ceased to be sitting as judge and ceased to be the "Head of the Judiciary", it would clear the way for the establishment of a normal Supreme Court, which could not only be independent of the House of Lords but also could be seen to be so.

iii.       as regards relations between the executive and the legislature

23.       The constitutional system of the United Kingdom is based on a considerable fusion of the legislative and executive functions, the Cabinet being in fact a committee of the parliamentary majority. Accordingly, every Cabinet member is a member of one or other House of Parliament. Several dozens of members of Parliament have either senior or junior government position. In this respect, therefore, the position of the Lord Chancellor is not out of the ordinary.

D.       Compatibility of the Lord Chancellor's position with Article 6 of the European Convention

24.       According to Article 6 (“Right to fair trial”), “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

25.       As a general principle, all court decisions are under scrutiny from parties to a trial, which can appeal, ultimately, to the ECHR. No complaints before this Court have been formulated so far on the grounds of an alleged biased involvement by the Lord Chancellor. There is general recognition, including by the partisans of the current Lord Chancellor’s position, that if such a challenge appeared before the ECHR, it would certainly be a reason to review the existing constitutional arrangements. It is clear that it would be preferable not to wait for such an adverse ruling of the ECHR, but to anticipate it.

E.       Other questions arising in connection with the Lord Chancellor’s position

i.       Judicial appointments

26.       Appointment of justices is one of the most important functions of the Lord Chancellor. He does not appoint “Law Lords”, which are appointed by the government on his recommendation.

27.       With a view to ensuring independent scrutiny of the appointment processes of judges, the Commission for Judicial Appointments was established, and the first Commissioner appointed, in March 2001. Seven further commissioners, from a wide range of backgrounds, were appointed from December 2001. The Commission’s remit is to investigate complaints and to review the appointment process, while it has no role in making or recommending the appointments.

28.       It is generally recognised that the creation of the above-mentioned body has improved the appointment procedures, even though some legal professionals believe that further improvements are necessary in this area, as the transparency of the procedure is still insufficient. Nevertheless, this specific problem lies beyond the scope of the present report.

ii.       Parliamentary supervision of the Lord Chancellor’s department

29.       The work of the Lord Chancellor’s Office is under the scrutiny of the Home Affairs Committee of the House of Commons. At the time of my visit, a special parliamentary committee was being set up to follow the work of the Lord Chancellor’s Department: this Committee held its first meeting on 4 February 2003, and will include in its remit constitutional issues, civil justice and the legal services market, family justice and the vulnerable, criminal justice, the courts and tribunals, judicial matters and international legal matters, as well as the HM Land Registry, Public Record Office and Northern Ireland Court Service for which the Lord Chancellor is also responsible.

F.       Conclusions and recommendations

30.       The constitutional arrangements concerning the Lord Chancellor’s Office are unique in Europe and, to my opinion, do not satisfy the requirement of the separation of the judicial function from that of the executive.5

31.       The partisans of the current system claim that the central issue is ensuring real independence of justice. They ascertain that the Lord Chancellor’s position, given the specific conditions of the functioning of the United Kingdom constitutional system, reinforces this independence, because the Lord Chancellor can ‘represent’ the judiciary in the Cabinet. The Lord Chancellor’s department was so kind as to sent me a note in this respect, which is reproduced in appendix II.

32.       It is not clear to me, however, why the judiciary cannot be represented by a minister who is not himself “Head of the Judiciary”. Ministers of Justice in traditional European democracies have been doing this quite competently as long as parliamentary government exists.

33.       So far there have not been any challenges by parties who regard the Lord Chancellor’s sitting on trials to be in violation of Article 6 of the European Convention on Human Rights (right to a fair trial). But I consider as essential that even in the absence of concrete challenges, the judiciary should be seen as independent both by the country’s citizens and by fellow European countries. In my opinion, only a change in the current constitutional arrangements can achieve this objective.

34.       This situation may also cause confusion, or be abused, in the new member countries of the Council of Europe, where the Council of Europe is repeatedly stressing the judiciary should be a completely independent branch of government.

35.       It is, in a formal sense, easier to make constitutional changes in the United Kingdom than in countries with a written constitution. It can be done by statute (law accepted by parliament) or by constitutional convention. The constitutional theory is that for a constitutional convention to become valid it needs “usus” (custom) and “opinio necessitatis” (general acceptance that this custom is as it should be). It would therefore seem that it is not difficult to introduce a convention ruling that the Lord Chancellor should not sit as a judge.

36.       The United Kingdom, one of the oldest democracies in Europe, should not let any doubts persist as to the independence of its judicial system. Therefore, I suggest to the Parliamentary Assembly to recommend to the United Kingdom authorities:

-       to invite the Lord Chancellor to announce publicly that he deems it proper and necessary no longer to sit as an acting judge, thus creating a “constitutional convention” which would sever the link between his judicial and his other functions;

-       to invite the government of the United Kingdom to consider the creation of a Supreme Court of which the members could not at the same time be members of the Upper House of the legislature.

APPENDIX I

Programme

of the visit to the United Kingdom on 22-23 October 2002

by Mr Erik Jurgens, Rapporteur

Tuesday 22 October 2002

0800       Meeting with Lord Bingham

0930-1015       Meeting with Dr Rhodri Walters, Clerk of Committees, House of Lords

1100-1200 Meeting with Mr Tony Lloyd, MP, Leader of the United Kingdom Delegation to the Assembly

1300-1400       Meeting with Mr Roger Smith, Director of Justice

1430-1530       Meeting with Mr Ross Cranston, MP, Solicitor-General (1998-2001) and Professor of Law, University of London

1600       Meeting with Mr Bill Cash, MP, Shadow Attorney General

1930       Meeting with Professor Jowell, Member of the Venice Commission for the United Kingdom

Wednesday 23 October 2002

0900-1000       Meeting with Lord Steyn

1000-1030       Meeting with Ms Jacqy Sharpe, Clerk of the Overseas Office

1200-1300 Meeting with Mr Malcolm Bruce, Member of the Committee on Legal Affairs and Human Rights

1430       Meeting with officials in the Department of the Lord Chancellor:

1630        Meeting with Lord Hoffmann

1730       End of visit

APPENDIX II

APPENDIX III

Ministerial responsibilities of the Lord Chancellor's Department6

The Lord Chancellor:       The Rt Hon The Lord Irvine of Lairg QC

• the resourcing of his Departments

• constitutional issues – including House of Lords reform

• all appointments judicial or otherwise

• royal, church and Hereditary issues, and Lord Lieutenants

• any delegated matter which merits the Lord Chancellor's personal attention

Parliamentary Secretary:       Ms Yvette Cooper, MP

• Criminal Justice Policy

• Court Service

• Magistrates' Courts

• IT and E-Government Policy

• Human Rights

• Freedom of Information

• Data Protection, data sharing and privacy project

• The Electoral Commission

• Policy on Electoral Law

• Referendums

• Party Funding

Parliamentary Secretary:       Ms Rosie Winterton, MP

• Family Policy

• CAFCASS

• Tribunals policy and strategy

• Social exclusion

• Devolution issues and regional policy

• Channel Islands and the Isle of Man

• Northern Ireland Court Service

• Public Guardianship Office

• Official Solicitor's Office

• Council on Tribunals

• Public Record Office

• Statutory Publications Office

Parliamentary Secretary:       The Rt Hon The Baroness Scotland of Asthal QC

• Legal Aid, the Legal Services Commission and Community Legal Service

• Civil Justice Policy

• Civil Law Development

• Domestic and International Legal Services

• Legal Services Ombudsman

• Law Commission

• Commonhold and Leasehold

• Immigration and Asylum Policy

• International Policy and the European Union, including the Convention on the future of Europe

• Judicial Group, other than individual appointments and casework

• Land Registry

• Government spokesperson in the House of Lords for Gender and Equality issues (supported by the Women's Unit in the Cabinet Office)

Spokespersons in the House of Lords:

The Rt Hon The Lord Irvine of Lairg, QC

The Rt Hon The Baroness Scotland of Asthal, QC

The Lord Bassam of Brighton

Agencies of the Lord Chancellor's Department:

HM Land Registry7

Public Record Office8

Court Service

Public Guardianship Office

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 9096, Reference No 2620 of 22 May 2001

Draft resolution adopted unanimously by the Committee on 1 April 2003

Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Akçam, Mr G. Aliyev, Mrs Arifi, Mr Arzilli, Mr Attard Montalto, Mr Barquero Vázquez, Mr Berisha, Mr Bindig, Mr Brecj, Mr Bruce, Mr Chaklein, Mrs Christmas-Mĝller, Mr Cilevics, Mr Clerfayt, Mr Contestabile (alternate: Mr Iannuzzi), Mr Daly (alternate: Mr Mooney), Mr Davis, Mr Dees (alternate: Mr Janssen van Raaj), Mr Dimas, Mrs Domingues, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mrs Frimansdóttir, Mr Frunda, Mr Galchenko, Mr Guardans (alternate: Mrs Alvarez-Arenas), Mr Gündüz, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty, Mr Jansson, Mr Kelber, Mr Kelemen, Mr Kontogiannopoulos, Mr S. Kovalev (alternate: Mr N. Kovalev), Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Livaneli, Mr Manzella, Mr Martins, Mr Mas Torres, Mr Masson, Mr McNamara, Mr Meelak, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pehrson, Mr Pellicini, Mr Pentchev, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Raguz, Mr Ransdorf (alternate: Mr Mezihorak), Mr Rochebloine (alternate: Mr Dreyfus-Schmidt), Mr Rustamyan, Mr Skrabalo, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica, Mr Symonenko (alternate: Mr Baburin), Mr Tabajdi, Mrs Tevdoradze, Mr Toshev, Mr Vanoost, Mr Wilkinson (alternate: Mr Malins), Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner

1 Doc 9096.

2 Thus the Home Secretary can take decisions as to the length of specific prison sentences. This unusual judicial function in the hands of a minister has already led to two adverse decisions of the European Court of Human Rights (Stafford v, United Kingdom 28.5.2002; Benjamin & Wilson v. United Kingdom, 26.9.2002).

3 On grounds of misbehaviour, incapacity, persistent failure to comply with sitting requirements (without good reason), failure to comply with training requirements, sustained failure to observe the standards reasonably expected from a holder of such office, part of a reduction in numbers because of changes in operational requirements, or part of a structural change to enable recruitment of new appointees.

4 See “Written Evidence to the Royal Commission on the Reform of the House of Lords by a JUSTICE Working Party” at www.justice.org.uk/images/pdfs/hol.pdf, para. 16.

5 This has been forcefully argued by Lord Steyn (who is a Lord of Appeal in Ordinary), in his article “The Case for a Supreme Court”, Law Quarterly Review, July 2002.

6 Source: List of Ministerial Responsibilities, Cabinet Office, July 2002.

7 HM Land Registry is a separate Government Department which reports to the Lord Chancellor.

8 The Public Record Office is a separate Government Department which reports to the Lord Chancellor.