The House of Lords Constitution Committee has opened an inquiry on the office of Lord Chancellor. Here, Patrick O’Brien outlines the evolution of the Lord Chancellor’s role. He argues that in an important sense the Lord Chancellor no longer exists and formal abolition of the role could result in positive judicial developments.

On 16 July, Graham Gee and I (as part of the Judicial Independence Project), together with Professor Andrew le Sueur of the University of Essex, gave evidence to the House of Lords Constitution Committee as part of its inquiry into the office of the Lord Chancellor. The inquiry as the call for evidence puts it:

seeks clarity on what the current role is, whether changes to it are needed and what criteria (if any) should apply when appointing future holders of the office.

The pre-2003 Lord Chancellor [LC] was a unique office that combined judicial, parliamentary and executive roles. Occupied by a senior lawyer, generally without any further political ambition, the post was almost apolitical, yet sat at the heart of government. The sacking of the last ‘old’ LC, Lord Irvine, by Tony Blair in 2003 was intended to kick off a series of constitutional reforms that would have included the abolition of the office. Significant resistance in the House of Lords led, however, to a compromise in which the office was retained but in a greatly reduced form. No longer would the LC be a judge or the speaker of the House of Lords. It would now be a purely executive office. The Constitutional Reform Act 2005 sought to preserve two key roles of the LC within the reformed constitutional arrangements: that of ‘minister for courts and the judiciary’ and that of special constitutional guardian of the principles of judicial independence and the rule of law within Cabinet.

Calls to restore the office of Lord Chancellor to something more like its pre-2003 form generally focus on this idea of the LC as a special guardian, operating to some extent outside of normal politics. At our session the Constitution Committee were particularly interested in this idea of guardianship. All three witnesses were agreed that the kind of guardianship exercised by the LC has changed significantly. It is not clear that pre-2003 LCs did in fact exercise their special guardianship role consistently (see e.g. Lord Browne-Wilkinson [1988] Public Law 44 and Diana Woodhouse (2002) 22 Legal Studies 128), but leaving that point aside it seems clear that post-2003 LCs are not ‘special’ guardians any more. Since the creation of the Ministry of Justice, referring to the ‘Lord Chancellor’ has gradually come to mean little more than the name that is given to the Secretary of State for Justice when he exercises his functions in relation to courts and the judiciary. The Justice Secretary/LC does not behave substantially differently to conventional Justice Ministers that exist in other countries. This is not to suggest that the new LC no longer exercises any kind of guardianship. Rather, the new LC is a guardian of the judiciary and the rule of law in the same way that the Health Secretary could be regarded as a guardian of the NHS. His or her guardianship is political: dependent on personality, policy outlook and on the surrounding political context. Judges are now treated more like a conventional departmental stakeholder group and not as a privileged group with special status. In this sense, the ancient office of LC does not add much to the new office of Justice Secretary.

What conclusion should we draw from this: what should happen to the office of Lord Chancellor? No doubt conforming to stereotypes about both lawyers and academics, Graham and I draw opposing conclusions from the same body of evidence (our work on the Judicial Independence Project). With apologies to Graham for paraphrasing his argument (see G. Gee, What are Lord Chancellors for? [2014] Public Law 11
 and also his written evidence to the inquiry), he argues with considerable justification that the divide between the old and new LCs is not all that clear. New LCs still exercise an effective guardian function, but in a different (more political) way. There is value in preserving the office of LC as a means of identifying certain constitutional functions as both special and important. He also worries that, given that there has been so much constitutional change in the past decade, further change might create too much uncertainty. Instead, the existing structures and practices need a period of calm in which to bed down and mature.

I wholeheartedly agree that too much constitutional change too quickly is undesirable, but I draw the opposite conclusion. In an important sense, the Lord Chancellor no longer exists. The office no longer exercises a special (as opposed to a more conventional political or departmental) guardianship function. This constitutional change has already occurred de facto. Completing the process begun in 2003 by formally abolishing the office of LC would have the merit of presenting relations between Parliament, government and the courts as they really are. It is clear from interviews we conducted as part of the Judicial Independence Project that some judges still pine for the old LC and define their relations with government through this now out-dated paradigm. Abolition of the office might encourage judges to be their own guardians – to be their own ‘Lord Chancellors’, as it were. It might encourage them to take a more robust approach in their public and private negotiations with government in relation to the defence of the courts, the judiciary, judicial independence and the rule of law. Formal abolition of the LC would also allow the new constitutional bodies that have developed in the past decade – such as the Judicial Appointments Commission, HM Courts and Tribunals Service, and the Supreme Court – the space to mature and to function as constitutional guardians in their own right.