Vol. 11 (September 2001) pp. 443-445.

THE OFFICE OF LORD CHANCELLOR by Diana Woodhouse. Oxford: Hart Publishing, 2001. 223 pp. Cloth $45.00. ISBN 1-84113-021-4.

Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University.

This book will tell you all about the Lord Chancellor of the United Kingdom. Indeed, it possibly will tell you more than you ever wanted to know about an office whose origins were somewhere in the first millennium, perhaps as early as the seventh century, and that has had, by one reckoning, 210 incumbents. The chief problem with writing the history of such an office is that it has developed and grown out of experience, like much of British government, and has never had a single formal document or design.

Those of us who slogged through English legal history in law school well remember the evolved division of common law and equity, and that it was the Lord Chancellor who eventually became the recipient of petitions to King for relief from the rigors of the common law. The origins of equity jurisdiction were in such petitions, but equity itself in turn was encumbered by red tape. Equity eventually gave rise to the Chancery Court, whose tortuous delays Dickens lamented in his novel, Bleak House (1852-53). So, by the mid-fourteenth century the Chancellor had become an important judicial officer as well as an important officer of the Crown. In 1539 he took the seat of the "Woolsack" to be preside over the House of Lords. By the eighteenth Century the Chancellor was recognized as head of the legal system and by the end of the nineteenth Century he was responsible for a government department. Thus it was that the Lord Chancellor came to have executive, legislative and judicial functions, contrary to the principle of separationof powers.

The absence of separated powers leads naturally to concerns for judicial independence, the consideration of which is probably the most important part of this book. Even while sitting in the cabinet as a minister of the government of the day, the Lord Chancellor has responsibility for the appointment of judges and Queen's Counsel (senior barristers of recognized competence and experience). The tenure of office, at least for part-time judges is weak, judicial salaries are not secure against inflation, and many worry about political influence over the judicial process.

The Lord Chancellor's Department has a staff of about 12,000, more than 10,000 of whom work in the Court Service. The Court Service was created in 1972 and was accorded separate agency status in 1995. In April 1998, the first non-lawyer was chosen to be the Permanent Secretary at the Lord Chancellor's Department.

In terms of his executive role, the Lord Chancellor has high ceremonial rank, taking precedence over other government ministers. Formally the Lord Chancellor is the senior member of the cabinet after the Prime Minister or Deputy Prime Minister (if there is one). According to Lord Mackay, a

Page 444 begins here

recent incumbent, "the 'primary role' of the Lord Chancellor in the Cabinet is, "to represent the vital place of the law in the affairs of Government and to participate in the formulation of legal policy." His participation in the development of legal policy has become especially problematic during the Blair government due to constitutional reforms involving devolution of power to Scotland, Wales and to the London metropolitan government. Also problematic are the potential consequences of the enactment of the Human Rights Act 1998.

The Lord Chancellor is president of the Supreme Court, a member (ex officio) of the Court of Appeal and he serves as well as president of the Chancery Division. However, most incumbents rarely participate in the decision-making processes of those courts. The Lord Chancellor also sits as a member of the Appellate Committee of the House of Lords (the appellate court of last resort) and as member of the Judicial Committee of the Privy Council. Therein lies the problem, for incumbents are most likely to participate in cases before the House of Lord, which now has responsibility under the Human Rights Act 1998 for final decisions giving effect to the European Convention on Human Rights. Thus the Lord Chancellor is one of the judges charged with the duty of sometimes determining whether a government policy (in which he may have participated) violates the Convention. This conflict is highlighted by Article 6 of the European Convention on Human
Rights, which declared the right to be tried before an "independent and impartial tribunal." At present the Lord Chancellor would have to exercise personal discretion as to whether or not to sit in such cases.

Chapter 6 considers the power of the Lord Chancellor over judicial appointments. Woodhouse lists his appointment powers as involving "direct influence" over the appointment of 98 High Court judges," more than 500 circuit judges, more than 1,300 recorders and assistant recorders, 1,000 district judges, almost 200 stipendiary magistrates and most of the 30,000 lay magistrates. As she writes, "in practice, if not theory, the appointments are his." Of course, given these numbers, civil service officials must play an important part in the recruitment and appointment process. Various reforms have been proposed for a more open system of
appointments. For example, since early February 1998 vacancies for High Court positions have been advertised and applications solicited, whereas before applications were by invitation only.

While in opposition the Labour Party proposed the establishment of a judicial appointments and training commission, but Woodhouse notes that the proposal soon "crept off" the new government's agenda. Lord Irvine, the current incumbent appears to be resisting the establishment of such a commission, despite pressure from reform-oriented NGOs.

The brief review can only touch on a few of the issues involving the office of Lord Chancellor. The last Chapter of the book evaluates various reforms for the office. At the end about all that would remain would be for the Lord Chancellor to be a minister responsible for the administration of justice, but without judicial duties. To reach that conclusion Woodhouse argues that the Lord Chancellor should entirely relinquish his role as ajudge and surrender his responsibility for judicial appointments.

Page 445 begins here

The Lord Chancellor would be a member of the Cabinet and Speak of the House of Lords, but the newly created Ministry of Justice would be led by an
elected member of the House of Commons and thus would be accountable to the electorate. To be sure, these are not like to be easy or prompt outcomes.

This is a relative brief and straightforward book that will chiefly be of interest to those who follow British politics and government. It is also a worthy choice for those who are interested in the comparative study of judicial independence, a subject also covered recently in a book edited by Peter Russell and David O'Brien (2001).

Readers of this book who are especially interested in the politics of judicial selection in the U. K should also read the work of J. A. G. Griffith (1991, 1993) and the more recent work of Gavin Drewry (1998).

REFERENCES:

Drewry, Gavin. 1998. "Judicial Appointments." PUBLIC LAW 1998: 1-7.

Griffith, J. A. G. 1991. THE POLITICS OF THE JUDICIARY. London: Fontana Press, 4th ed.

------ 1993, JUDICIAL POLITICS SINCE 1920. Oxford: Blackwell Publishers.

Russell, Peter H. and David M. O'Brien (Eds.). 2001. JUDICIAL INDEPENDENDE IN THE AGE OF DEMOCRACT: CRITICAL PERSPECTIVES FROM AROUND THE WORLD. Charlottesville: University Press of Virginia.

****************************************************************

Copyright 2001 by the author, Donald W. Jackson