20th June 2013

[Posted on behalf of John Crook]

Sir Thomas More

Last week a seminar was held marking the 10th anniversary of the abolition of the office of the Lord Chancellor. A note by Patrick O’Brien about what was discussed at this seminar is available here.

On 12 June 2003, in what was one of the great political mysteries of our time, Lord Irvine resigned from the office of Lord Chancellor. This was prompted by a policy announcement the day before. The Prime Minister’s press office announced plans to abolish the Office of the Lord Chancellor. The Lord Chief Justice would become head of the judiciary, a Supreme Court would be established and a new system for appointing judges would be introduced under the Constitutional Reform Act (CRA) 2005.

A memo written by Lord Irvine in 2009 has clarified much of what went on behind the scenes. He was provoked into responding by Lord Turnbull, the Cabinet Secretary in June 2003. Turnbull had told the House of Lords constitution committee that Irvine was consulted before the decision was taken to abolish his role but “the trouble was that he disagreed with it.”

Tony Blair told Lord Irvine about the reform a week before the announcement, on Wednesday 5 June. Irvine was surprised that Blair thought that abolishing the office of Lord Chancellor (who, amongst other things, was head of the judiciary and Lord Speaker of the House of Lords) was a routine transfer of departmental responsibilities. Irvine felt he had not fully appreciated its constitutional significance. On Tuesday 11 June, Lord Irvine submitted a minute to the Prime Minister explaining that the office of Lord Chancellor was statutory and could only be removed by statute; in the interim there were some functions that could only be performed by a residual Lord Chancellor. In the minute Irvine said he “personally regret[ed] the demise of the Office of Lord Chancellor…” but he offered to stay on to see the changes through. However, the Prime Minister felt that Lord Irvine’s support for the reforms was half-hearted so the role was given to Lord Falconer. Tellingly, in his autobiography Blair wrote that “Charlie Falconer [was] on side”, the implication being that Lord Irvine was not. The discussion at last week’s seminar bore this out. Add to this the dynamic of Irvine and Blair’s personal relationship. Irvine was Tony Blair and Cherie Booth’s pupil master: he helped facilitate the Prime Minister’s political career as well as introducing him to his future wife. It was this relationship that made Irvine a key advisor to the Prime Minister rather than the status of Irvine’s office. The events of June 2003 precipitated the unravelling of their relationship.

The government provoked something verging on a constitutional crisis because of the manner in which the reforms were formulated. At the previous attempt at reforming the Lord Chancellor’s Office in 2001, four members of the senior judiciary convinced Blair to abandon the reforms on the grounds that they threatened judicial independence. The reform would have placed the courts under the control of then Home Secretary David Blunkett who was perceived as lacking sympathy for courts and the judiciary, but left the Lord Chancellor in the Cabinet as the head of the judiciary. In the eyes of 10 Downing Street another attempt at reforming the Lord Chancellor’s Office would be a catch-22: if they discussed reforms with the department in advance, they would be leaked and opposition would again be given a chance to coalesce. If they failed to discuss reforms with the department they would be accused of bungling reform because they couldn’t work through all the detail in advance. But creating a Department of Constitutional Affairs would have been far more palatable to the judiciary than incorporating the Court Services within the Home Office. Concern that the judiciary would dig in their heels seems in retrospect to have been exaggerated.

The Lord Chief Justice was told about the reforms during an away day with civil servants. We now have an image of members of the Senior Judiciary huddled around a telephone, very annoyed, in a pub! It seems their annoyance was as much to do with the lack of consultation by Downing Street as the substance of the reforms. Eight months later, the Prime Minister himself conceded, ‘I think we could have in retrospect – this is entirely my own responsibility – done it better’.

Ultimately, the House of Lords, outraged by the manner in which the change was announced without consultation, ensured that the name ‘Lord Chancellor’ was retained. But to all intents and purposes the office of Lord Chancellor was abolished in the reforms of 2003-5. Importantly, for the purposes of judicial independence, the CRA 2005 provides that the office now has no judicial role. However, the real change to the office of Lord Chancellor has not been that the office has ceased to be held by a judge or lawyer, but that it is no longer held by a senior politician at the end of his or her career. Because the role combines responsibility for prisons with that of the courts, new-style Lord Chancellors are increasingly likely to be ambitious mid-career politicians.