Downloaded from https://academic.oup.com/clp/article/44/1/241/339460 by guest on 27 September 2021 The Lord Chancellor in the 1990s LORD MACKAY OF CLASHFERN I am delighted to be here tonight to give this, the inaugural Mishcon lecture. I am particularly grateful to have been invited to speak by Lord Mishcon, at an occasion which honours Lord Mishcon, and on a subject which he has suggested. Victor Mishcon has been active in both law and politics for very many years and his reputation in both fields of endeavour speaks for itself. I have now been Lord Chancellor for over three years and from my seat on the woolsack can testify to the care and concern he brings to debates on a wide range of legal and other topics. He is a very skilful, persuasive opponent, but I have always found him a fair and wise opponent. With the late Lord Elwyn Jones, whom we all miss from his accustomed place in the Lords, he has borne the burden of the Opposition legal affairs spokesman since I was introduced to the Lords. I believe he has served Her Majesty's Opposition, the House of Lords, and our country with great distinction in that capacity. It is particularly apt, therefore, that my theme—the role of the Lord Chancellor and the pressure for change—should also cross the boundaries between law and politics. I will not pretend that this is a new topic, but I hope that what I have to say will contribute to and inform debate on the important question what is the proper balance between the judicial and the legislative and executive arms of Government. I also hope that what I have to say will confirm once again that, although this is indeed an ancient office (indeed, since 605 A.D. 210 people have held the office of Lord Chancellor of whom one was a woman, Queen Eleanor in 1253) it has plenty of life left in it and the prospect of further development in the 1990s. A number of people have helped me with this paper. I should 241 242 The Lord Chancellor in the 1990s particularly like to thank Bernadette Kenny of the Lord Chancellor's Department. Responsibility for any errors or weaknesses in the paper is, however, entirely mine. The Lord Chancellor was originally, centuries ago, the head of the King's secretariat or Chancery, with special respon- Downloaded from https://academic.oup.com/clp/article/44/1/241/339460 by guest on 27 September 2021 sibility for operating the Great Seal. This made him one of the King's most important advisers and it was then a small step to his acquiring a central role in Parliament, ultimately as Speaker of the House of Lords (a responsibility still held by the Lord Chancellor). During the latter part of the middle ages his power to issue writs under the Great Seal, and to take petitions to the King's Council, led to his acquiring judicial responsibilities as well. So from a very early stage the office of Lord Chancellor could be described in terms of the three most important functions of the modern post—judge, minister and parliamentarian. These three features also make the position of Lord Chancellor unique among modern institutions, but, however anomalous they may seem when taken together in one job, they do represent a practical and, I would say, a sensible answer to the difficult question how best to manage the relationship between a sovereign legislature, a powerful executive government springing from it, and an independent judiciary. First of all the Lord Chancellor is a judge. But he is no ordinary judge. Unlike any other judge in England and Wales he holds a political appointment, terminable on the advice of the Prime Minister, or, in the event of a General Election, indirectly at the wish of the electorate. He has no security of tenure. He is also the head of the judiciary. He is the presiding chairman of the Appellate Committee of the House of Lords and of the Judicial Committee of the Privy Council. The Lord Chancellor is also, by virtue of section 1(2) of the Supreme Court Act 1981, the President of the Supreme Court, that is, the Court of Appeal, the High Court and the Crown Court. In particular he is President of the Chancery Division of the High Court, although in practice the functions of President are exercised by the Vice-Chancellor. He is also, by virtue of the County Courts Act 1984, the controlling authority for the County Courts. In practice, the Lord Chancellor's other responsibilities do not allow him the time to sit judicially other than in the House of Lords or on the Privy Council. Pressures of time The Lord Chancellor in the 1990s 243 exist even here; however, I have sat judicially 11 times in the House of Lords and twice on the Privy Council since I became Lord Chancellor in 1987. A far cry indeed from the days when the first Lord Chancellor Hailsham sat judicially every day before the House sat at 4.30 pm. However, I do regard it as Downloaded from https://academic.oup.com/clp/article/44/1/241/339460 by guest on 27 September 2021 important for the Lord Chancellor to sit judicially on a regular basis. Foremost amongst those other responsibilities are my duties as a Cabinet Minister. The Lord Chancellor is always a member of the Cabinet and normally ranks as one of its more senior members. His primary role in Cabinet is to represent the vital place of the law in the affairs of Government and to participate in the formation particularly of legal policy. My main responsibilities as Cabinet Minister are therefore largely concerned with the administration of justice in the courts, and with the civil law and statute law generally. First of all I have wide functions in respect of judicial appointments. I advise the Crown directly on the appoint- ment of High Court and Circuit Judges, Recorders, Queen's Counsel and Stipendiary Magistrates. The most senior judges—Lords Justices, Law Lords and heads of Division, are appointed on the advice of the Prime Minister but I will advise the Prime Minister on these matters in the first instance. I directly appoint all the lower judicial officials: District Judges, Masters, Tribunal Chairmen and so on, I also appoint all the lay Magistrates, except in the Duchy of Lancaster, on the advice of local Advisory Committees. I have the power if necessary to dismiss such officials and magistrates, and Circuit Judges on the grounds of mis- behaviour; a power which I am happy to say, has over the years been only very seldom invoked. The more senior judges, by virtue of the Act of Settlement, can be removed only on a joint address of both Houses of Parliament. The number and range of judicial and other legal appointments are such that a considerable amount of both the Lord Chancellor's and his senior officials' time is taken up with this responsibility, not to mention the 40 or so staff who work full time on it. At the beginning of 1990, there were 108 members of the senior judiciary (High Court and Court of Appeal), 421 Circuit Judges, 221 full time District Judges and nearly 1700 members of the part time judiciary (Recorders, Assistant Recorders and deputy District Judges). In 1989 the Lord Chancellor appointed nearly 1700 members of the lay magistracy. 244 The Lord Chancellor in the 1990s I assign newly appointed judges to the appropriate Division of the High Court (under section 5(2) of the Supreme Court Act) and, with the consent of the Lord Chief Justice and the Head of the Division from which the transfer is being made, I have the power permanently to transfer judges between Downloaded from https://academic.oup.com/clp/article/44/1/241/339460 by guest on 27 September 2021 Divisions. Temporary transfers may also be made at my request, subject to the agreement of the Heads of Division concerned. I am then responsible for providing and managing the staff, accommodation and other resources which are needed by the courts if they are to operate effectively. I have equivalent responsibilities in respect of certain tribunals (notably the Social Security Commissioners, the Immigration Adjudicators and Appeal Tribunal and the Pensions Appeal Tribunal) but not for the magistrates' courts, which are administered locally on a grant partly from the Home Secretary. In relation to all these courts and tribunals, I am responsible to Parliament for the delivery of a fair, effective and efficient overall system for the administration of justice within the constraints of the moneys voted to me for these purposes by the House of Commons. I am not answerable for the determination by the judges of individual cases within the system. This is the sole responsibility of the independent judiciary: no judge can be directed to decide a case in a particular way. I have particular responsibilities in relation to the jurisdic- tion and procedure of the civil and higher criminal courts in England and Wales. Where necessary it falls to me to promote legislation to make improvements in the constitution, jurisdic- tion, procedures and so on of these courts. I am Chairman of the Supreme Court, the County Court and the Matrimonial Rule Committees. I have an effective veto over rules made in respect of Supreme Court and family proceedings and I alone make the regulations in respect of the County Court rules, always of course after extensive consultations.