Would the abolition of the office of Lord Chancellor resolve the anomalies that attach to the UK doctrine of the separation of powers?

University Degree Law

Christopher M Barnes

Constitutional Law Assignment

December 2004

Tutor Group 2

Cathy Morse

Student ID: 14014863

Question (1)

"The whole office of the Lord Chancellor is a heap of anomalies. He is a judge, and it is

contrary to obvious principle that any part of administration should be entrusted to a judge;

it is of very great moment that the Lord Chancellor, our chief judge, sits in the cabinet, and

makes party speeches in the House of Lords."

(Walter Bagehot, The English Constitution, 1867).

Would the abolition of the office of Lord Chancellor resolve the anomalies that attach to

the UK doctrine of the separation of powers?

Constitutional Coursework

The concept of the reformation of the United Kingdom's constitution occurred when the Prime Minister Tony Blair came into power in 1997 and eventually in 2003 the idea of the abolishment of the Lord Chancellor was decided upon. His idea was to replace the House of Lords with a US style Supreme Court and appointment made by the Judicial Appointments Committee. The 'Lord Chief Justice' will replace the Lord chancellor and the Lord Chancellor will become the 'Head of Department for Constitutional Affairs.' The House of Lords will also be allowed to appoint its own speaker of the house. This concept will be enforced to ensure the separation of powers, ensuring an adequate balance required for a stable government, formed by the not yet implemented Constitutional Reforms Bill 2004.

The separation of powers ensures that any single section of government can not gain excessive power, which would ultimately lead to a dictatorship. An example of this can be seen in 1930s Germany with Hitler's rise to power. After appointment as Lead Chancellor, his first legislation to pass was the abolition of the president, giving him complete power and forming a totalitarian government. This can be avoided by distributing the powers between the three government roles, the Legislative [Parliament,] the Executive [the cabinet headed by the Prime Minister, Tony Blair] and the Judiciary [Judges] all of which must be given reasonably similar power and communicate with each other to ensure the stable running of government.

This is a preview of the whole essay

On the Legislative front, Barnett states that "The Queen in Parliament is the sovereign law making body within the United Kingdom. Formally expressed, parliament compromises the Queen, House of Lords and House of Commons. All Bills must be passed by each house and receive the royal assent." [Barnett, Constitutional and Administrative Law (4th Edition) 2002.] Parliament has two chambers, although one chamber has more power than the other. These two chambers are the unelected upper house, the House of Lords, and the elected lower house, the House of Commons. The House of Commons has more power than the House of Lords. In the House of Commons, the elected head is limited to a maximum of five years per term under the Parliament Act 1911, ensuring good distribution of power. A term, in practice, would normally last between three to four years. Lord Woolf stated in his speech on the 4th of March 2004 "The time may have been long past when Lord Chief Justices were, like Mansfield and Ellenborough, members of the cabinet, but still strong links continue to exist between the different arms of Government. Key examples have been the dual role of the Law Lords as judges and parliamentarians and the unique position of the Lord Chancellor as a member of the executive and head of the judiciary." These strong links are a weakness in the government as they breach the concept of separation of powers.

Again, Barnett states "The executive may be defined as the Branch of the State which formulates policy and is responsible for its execution. In formal terms, the sovereign is the head of the executive. The Prime Minister, Cabinet and other ministers, for the most part, are elected Members of Parliament." [Barnett, Constitutional and Administrative Law (4th Edition) 2002.] With this in mind, it can be seen that the Queen, Prime minister and their cabinet constitute the executive part of the government. However, Lord Hailsham said that the British government was an "elected dictatorship" or, in other words, that the Prime Minister has too much power. In a sense, this may be true. Ultimately, the Prime Minister has enough power to "prohibit smoking in the streets of Paris" [Sir Ivor Jennings] and even abolish the monarchy, we can only hope they do not abuse the power given to them. It is their responsibility to ensure an adequate separation and balance of power.

Finally, the third part of government is the judiciary. The judiciary is independent from parliament and the executive. The officer of the Lord Chancellor is the most criticised as a violation of the concept of separation of powers. The first [recorded] Lord Chancellor was appointed in 1068 after the Norman conquest. The King's secretary was called the royal chancellor. His role in the middle ages was to preside over parliament and, up until 1875, preside over the Court Of Chancery. It can be seen why the Lord Chancellor is thought to have too much power by his responsibilities and appointments: The Lord Chancellor is head of the judiciary and President of the Supreme Court (see Supreme Courts Act 1981) and the County Courts. The Supreme Court Includes the Court of Appeal, High Court and Crown Court. He works closely with the law commission of England who must "take and keep under review all the law with which [it is] concerned with a view to systematic development and reform..." Being a senior member of the cabinet, he is a member of the executive arm of government as well as being a speaker of the House of Lords.

The contemporary doctrine for the reformation of the United Kingdom's constitution ensures that a situation arising where the executive, the legislation and the judiciary work separately with no communications between them is avoided. The following quote [Barnett, Constitutional and Administrative Law (5th Edition) 2004] shows three hypothetical constitutional arrangements within a state: "(a) absolute power residing in one person or body exercising executive, legislative and judicial powers: no separation of powers; (b) power being diffused between three separate bodies exercising separate functions with no overlaps in function or personnel: pure separation of powers; and (c) powers and personnel being largely - but not totally - separated with checks and balances in the system to prevent abuse: mixed government and weak separation of powers." The latter arrangement of the three best describes the constitution of the United Kingdom. It can be seen that the current constitution is possibly the most effective form of government. However, the Lord Chancellor, at present Lord Falconer, being involved in all three areas of the government has brought about the Prime Minister's decision to reform the constitution. The fact that he is a judge and also a Member of Parliament is contradictory in itself, especially in cases where the claimant is against the crown. This can be seen in, again, in Lord Woolf's 4th of March speech "Ultimately, it is the rule of law which stops a democracy descending into an elected dictatorship. To perform its task, the judiciary has to be, and seen to be, independent of government. Unless the public accepts that the judiciary are independent, they will have no confidence in the honesty and fairness of the decisions of the courts." This shows that having a member of the government the claimant is against sit as the judge of the case can hardly be seen as fair. He is involved in law making as well, a process which involves neither the Judiciary or the Executive, yet he is a part of both. The fact that he is a judge who determines the law also shows poor organisation in parliament. The law may become too opinionated around one person's views as ultimately, he writes the law and can refuse to pass a law which do not reflect his beliefs. Although with the new system the Supreme Court will be able to appoint their own speaker and, thus, will not be much different to the current system of one man passing legislation based on his own judgements, at least the Court will have the opportunity to appoint someone who they feel has similar opinions to the majority as "under the Constitutional Reform Act 2004, recommendation for the appointment of judges will be made by a statutory Judicial Appointments Commission." [Barnett, Constitutional and Administrative Law (5th Edition) 2004.] It is wrong for one man to debate, enforce and pass legislation.

With this in mind, I concur with the statement that "The whole office of the Lord Chancellor is a heap of anomalies." [Walter Bagehot, The English Constitution, 1867]
it is simply too much power and responsibility for one man to exercise. Having representation in the Executive, Legislative and Judicial sectors of the government is breaching the entire concept of effective separation of power in a constitution. Although a further separation of the Judiciary and Legislative will be executed weakening communications between the two sectors, this is necessary to ensure the separation of powers is effectual and the independence may create a more efficient and reasonable legal system. it will, therefore, resolve the anomalies that attach to the UK doctrine of the separation of powers.

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