Resolution
1342 (2003)1
Office of the Lord Chancellor in the
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
Parliamentary Assembly recalls that the separation of powers has become a part
of the common basic constitutional traditions of Europe, at the very least in
so far 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 ECHR, 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 June 1989, 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 the 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 in 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. The Assembly very much welcomes the decision
taken by the United Kingdom Government on 12 June 2003 – after the adoption on
28 April 2003 and subsequent publication of the report and draft resolution by
the Legal Affairs Committee – to abolish, in the near future, the existing
office of Lord Chancellor and to introduce legislation which will establish
new institutions to discharge the functions currently discharged by the Lord
Chancellor.
7. The Assembly takes note of the fact that the
newly appointed Lord Chancellor has stated that he will in future not sit as a
judge in the House of Lords, nor will the new Secretary of State for
Constitutional Affairs, thus putting to an end the combination of judge and
minister.
8. The Assembly also takes note of the fact that
the new Secretary of State for Constitutional Affairs will no longer hold the
presidency of the Upper House of Parliament.
9. The Assembly finally takes note of the fact
that the establishment of a supreme court is envisaged, which will be
completely separate from the House of Lords.
