After the Constitutional Reform Act 2005, a clear separation was aimed for. The Lord Chancellor kept his name but his position radically changed. The post was combined with the secretary of state for justice.3 To be appointed, an appointee will now only have to be ‘qualified by experience’ and doesn’t have to have been a lawyer. The Lord Chancellor has lost all of his judicial functions, his position is now taken over by the Lord Chief Justice and the appointment of judges is now being handled by the judicial appointments committee (Woodhouse 2007). The Lord Chancellor is also no longer the speaker for the House of Lords, he therefore lost most of his legislative functions too. He is now mostly just involved in the executive and head of the newly established Ministry of Justice.
The argument that the role of the Lord Chancellor and the Human Rights Act (HRA) 1998 are incompatible has been articulated more in recent years. It has been said that the Lord Chancellor might not fulfil the requirement of ‘independence’ by the article 6 (1) of the Human Rights convention. The European court of Human Rights (ECHR) had made a potentially significant ruling in the case of McGonnell v. UK 2000. The bailiff of Guernsey, involved in McGonnell’s case, had legislative and executive functions on the island and McGonnell therefore sued under article 6 (1) saying that he had not received a “fair trial from an independent and impartial tribunal”.6 The ECHR ruled in McGonnell’s favour and pointed out that there was a violation against article 6 (1). At this time the government still did not accept the Human Rights argument in the relation to the Lord Chancellor.
The Attorney-General is the legal advisor of the crown and the government of the day and can also take cases to the Law Lords where points of general legal importance need to be settled.
Ever since the position of the Lord Chancellor has been under heavy criticism and reform since the HRA 1998 and the Constitutional Reform Act 2005, the position of the Attorney-General has been questioned too. Now when Baroness Scotland of Asthal accepted her new post, the Prime Minister has decided that things must change. She had to re-write her 500 year old office. The committee of constitutional affairs of MPs said “the ancient office has been tainted by the allegations of political bias and should be broken up and reformed”.4 It has also been said that there was an overlap in the Attorney-General’s roles. “These include overseeing the prosecution service, advising the government on legal matters as its chief legal advisor and sitting in government as a minister who, in case of Lord Goldsmith, ‘repeatedly’ attends cabinet. The office holder is also guardian of public interests with a duty to ‘uphold the rule of law’- a role in which he brings, for example, prosecutions for contempt of court”4 Many MPs wanted to end the Attorney-General sitting in cabinet and being the legal advisor to ministers. They suggested that the role should be done by a career lawyer not a political appointee, politician or member of government. There has been some controversy over this reform. Some, like Jeffrey Jowell (QC), say ‘yes’ to reform. He believes that “a simple solution would be the Indian, South African and Israeli route, where the Attorney-General is not a serving politician. In Israel, the government is obliged to follow the Attorney-General’s advice and the Attorney-General can refuse to defend a government that fails to do so” 5. Although this sounds like the ‘simple solution’ one should note that in Israel the Attorney-General is appointed by the government and therefore might be inclined to support those who appointed him. Jeffrey Jowell also mentioned “that the Attorney-General’s prime duty is to uphold the rule of law and judicial independence. In addition, his archaic oath of office, which presently binds his loyalties to the queen, should be amended so that his duty is to enforce the law on behalf of the public”. 5
On the other hand, Simon Myerson (QC), believes that the last Attorney-General Lord Goldsmith did a decent job and that “the Attorney-General’s job is always going to require access to the government. We only think he is compromised because we are prepared to think the worst of everyone. The answer lies in adjusting people’s perceptions and accepting that we may just have to trust someone. Reform means always having to say we are untrustworthy and in the end no one will be able to do any job involved competing arguments”.5 It appears that the Attorney-General doesn’t seem to be directly effected by the HRA 1998 other than in the same way as the Lord Chancellor by Article 6.
The Law Lords are the 12 judges that sit in the UK’s highest court. The obvious anomaly here is therefore the position of the judicial House of Lords which sits as a ‘committee’ in the legislative House of Lords. Therefore the Law Lords have often been criticised for going against the constitutional principle of the separation of powers just like that Lord Chancellor and Attorney-General. This has been a major issue since the HRA 1998 came into force. Article 6 (1) of the Human Rights convention states that everyone is entitled to “a fair and public hearing within reasonable time by an independent and impartial tribunal established by the law”. Can a judge who sits as a member of parliament and is responsible for making the law he is later applying be fair, impartial and independent? This has been a concern for many years and finally the government decided to act. Now the Law Lords, the highest court in the country, are being removed from the House of Lords and turned into a supreme court.
Judges have also been criticised for the borderline between interpretation and judicial legislating as it is not always visible e.g. Rv.A 2001 where, in order to ensure compatibility with article 6 of the Human Rights convention, the House of Lords implied words into a statute, that were plainly contrary to parliaments original intention. In Davis v. Johnson 1979, Lord Denning stated that he privately used Hansard in order to establish the true construction of a statute, a revelation not approved of by the House of Lords. Lord Denning was also previously accused by Lord Simonds in the House of Lord of ‘naked usurpation of the legislative function’ in the case of Magor and St Mellons Rural District Council v. Newport Corporation 1965.
Looking back at the functions of the Lord Chancellor, Attorney-General and the Law Lords over the past 20 years it can be said that they were undoubtedly affected by the HRA 1998 – some more clear than others but all have been reformed or are currently being reformed. The HRA 1998 seems to have had its main effect on these three institutional positions in Article 6, as the major criticism for them seems to be that they do not justify the element of the “fair trial by an independent and impartial tribunal. Overall it appears that our constitution is moving away from how it used to be and towards a constitution made for the people, not the government.
Endnote
1. However, this was controversial as it made judges less impartial to politics.
2. Jacqueline Martin (2005) AQA Law for AS, Hodder Arnold. Pg 178 Figure 11.3
3. Hilary Barnett (2008) Constitutional & Administrative Law 7th ed., Routledge-Cavendish. Pg 82-84
4. The times online. Attorney-General’s first task is to rewrite her job description. 26.7.2007
5. The times online. Should the office of the Attorney-General be reformed? 03.04.2007
6. Convention for Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950
Section 1, Article 6.
7. An example is Lord Chancellor Lord Irvine, who was criticised for being a close friend of the Prime Minister at the time, Tony Blair.
References
1. Oonagh Gay, Role of the Lord Chancellor, 2003.
2. Jacqueline Martin (2005) AQA Law for AS, Hodder Arnold.
3. Hilary Barnett (2008) Constitutional & Administrative Law 7th ed., Routledge-Cavendish.
4. The times online. Attorney-General’s first task is to rewrite her job description. 26.7.2007
5. The times online. Should the office of the Attorney-General be reformed? 03.04.2007
6. Story from BBC NEWS:
http://news.bbc.co.uk/go/pr/fr/-/1/hi/uk_politics/vote_2005/issues/4372135.stm
7. Peter Leyland, University of Sienna: January 2003 Separating Powers and Constitutionalising the Office of Lord Chancellor
8. Convention for Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950
