Lord High (and active) Chancellor
David Williams
We British have never bothered to write down our constitution as a coherent complete code. We have always found it more expedient to adopt, and if necessary adapt, the habits of our forefathers. Anomalies creep in, are found useful, and survive.
One such anomaly is the office of Lord High Chancellor of Great Britain. The holder of this office (until recently the highest paid political office in the kingdom) occupies a unique place in our government machine. Primarily, he is the nearest thing we have to a Minister of Justice. He appoints judges and magistrates, and oversees the courts. He always sits in the Cabinet, and is collectively responsible for all acts of government. At the same time he hold the office of Speaker of the House of Lords. This particular task, thanks to the gentlemanly conduct, not to say somnolence, of their Lordships House, is not exactly a strenuous one, nor, apart from a few formalities, a necessary one.
But the Lord High Chancellor also has a third hat (or wig) he can wear. He is the senior judge of the United Kingdom. As appeals to the highest court in the land, the House of Lords, are technically hearings by the whole House, it was only natural that he should remain at its head In judicial session. And when in 1948, largely due to the noise of building Operations, the Appellate Committee of file House was formed, it was also natural that he should, in name at least, be the Chairman. For other equally historic reasons, the Lord Chancellor also has a residual role as President of both the Court of Appeal and the High Court.
In practice the Chancellor has never sat In these lower courts in recent years. Further, Chancellors have increasingly refrained from intervening in the Appellate Committee. Lord Gardiner, Lord Chancellor throughout the last Labour administration, very rarely took part in its Proceedings. His immediate predecessors, Viscount Dilhorne and Lord Kilmuir, although they did sit on occasion, did so With declining frequency. Similarly, Lord Jowitt, during the Attlee administration, became an infrequent attender. But the only other post-war Lord Chancellor, Lord Simonds, did attend more frequently. However, he had been a Law Lord for several years before he took office, so that Is hardly surprising. Even so, the declining rate of attendance prompted one of our leading academic commentators to note last year that "the Lord Chancellor seldom sits as judge." Lord Hailsham has shown signs that he is reversing this practice, as he has become a more frequent attender of the Appellate Committee during the last two Years. He is obviously not letting too much dust accumulate in this area of his activities. This renewal of interest by the Lord Chancellor in a function which has been outmoded can only be seen as unfortunate. Indeed, it could be argued that changes in the nature of the government machine and in the functions of the courts have rendered it unconstitutional that the practice be reversed.
The change of practice is entirely unnecessary. The quorum of the Appellate Committee is, with rare exceptions, five or fewer, and thus it can easily be staffed from the ranks of the ten Lords of Appeal in Ordinary, retired Lord Chancellors and other legally qualified peers. This admittedly was not the case a few decades ago.
But there are cogent reasons, resting on far deeper foundations than expediency or staff shortages, which make this a retrograde step. One major change that has taken place since Lord Hailsham's father occupied the Woolsack is a very significant decrease in the number of Lords in the Government. In Lord Hailsham Senior's day there were as many as six other Lords besides him in the Cabinet, and a proportionately high number in the lower ranks of the Ministry. Now only Lord Carrington and Lord Jellicoe are available to share with Lord Hailsham the task of leading for the Government in the Lords from a position of full authority.
The result has been that the Lord Chancellor in recent administrations has become involved far more in the day to day affairs of the Lords in their legislative capacity. A glance at the index of Hansard will show how much more frequently the Lord Chancellor now has to speak, and how many more Bills he has to guide through the Chamber. But at the same time the pace of legislative change has quickened remarkably. Further, the legislature is far more active in reviewing 'lawyers' law,' no longer the exclusive domain of the courts. Many moves on this front have come from the Law Commission, appointed by, and responsible to, the Lord Chancellor.
This means that the Lord Chancellor must participate actively in the politics of legal decisions. A recent decision, for instance, on the liability of British Rail for injury to a trespasser, where judges criticised the existing law, led Lord Hailsham to refer the question to the Law Commission for review to consider possible alteration. Again, the Animals Act 1971, largely drafted by the Law Commission, was piloted on to the statute book by Lord Hailsham partly to reverse a judicial decision of the House of Lords a couple of decades before. Thus the risk of clashes between political and judicial decisions is heightened. It would be invidious for the Lord Chancellor to find himself in the position where he was either overruling himself by statute, or supporting his own dissenting judgement in the Appellate Committee. The risks of such an event occurring are increased by the direction of the House in 1966 that it would not necessarily in all cases in future be bound to follow its earlier decisions. When the opportunity to change its mind arises, policy is an obvious major factor in dictating the decision. Such policy considerations should be seen as separate from those of any party. This situation would not appear to exist if a senior member of the Cabinet was seen to be sitting in on the deliberations leading to a decision in such a case.
Further compounding this area of possible compromise is another consideration arising from the Chancellor's dual position. The courts have always followed the rule that they pay no heed to what goes on in Parliament during the passage of legislation, They will turn only to the enacted statute to find the law. They are there to enforce rules, not good intentions. The increasing participation of the Chancellor in the passage of legislation makes it more difficult than ever to expect his consideration of a case to be divorced from 'his previous political involvement.
This danger is heightened when a government is dedicated, as is the present one, to a policy of confrontation involving the courts. In such a matter as the Industrial Relations Act it would be well nigh impossible for a Lord Chancellor to cut himself free from the preconceptions on which the legislation is based.
Whatever the individual disposition of a Lord Chancellor to favour his government (and the impartiality of Lord Hailsham is not in question), there still remains an old adage that 'justice must not only be done but must manifestly and undoubtedly be seen to be done.' Courts are very ready to criticise and quash decisions of inferior bodies where there is an appearance of bias, even if none can be proved to exist. Indeed, in the classic case, Dimes v. Grand Junction Canal, the decision of a Lord Chancellor was set aside because he was a shareholder in the company involved in the case. The judgement was therefore tainted, even though there was not a shred of evidence of actual bias.
Emphasis is given to this point by the previous careers of recent Lord Chancellors. They tend to be very active politicians rather than judges or other senior lawyers. All these considerations make it a matter of growing constitutional importance that the Lord Chancellor should be openly dissociated from the content of judgements of the courts. Such action will not, of course, •be made illegal under our constitution. But then it is legally permissible for the House to go back on previous resolutions and sit as a full House, with lay members present, when acting judicially. It is a convention that lay members never sit to determine legal appeals. It is time that the incumbent of the Lord Chancellor's office was included in this convention. It is unnecessary for him to act as a judge. It is wrong that he should be seen to do so.
Lord Hailsham may regard this as concentrating on the "irrelevant or the trivial" as he once termed House of Lords reform. But if, as he has also said, he believes that the institutional framework of our society is breaking down, he should be prepared to make his contribution to a rationalisation of this framework to accord with modern realities.
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