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What is important for present purposes is that the Lord Chancellor was the head of the judiciary and responsible for the appointment of judges. He acted as their representative in Parliament and government. He was the champion of their independence and of the maintenance of the rule of law.

Tony Blair’s Constitutional Reform Act 2005 had the principal aim of stripping the Lord Chancellor of almost all of his powers, and the whole of his status (though the formal precedence somewhat forlornly remains). A second purpose of the Act was to replace the House of Lords as the top appellate court by a new Supreme Court, in which the Lord Chancellor was to play no part. It is fair to say that the legal profession remains divided over the wisdom of or necessity for this change. A third function of the Act was radically to alter the way judges were appointed. Here again, the role of the Lord Chancellor was emasculated: there was to be a new, independent appointments body (the JAC), and the Act contained detailed prescriptions as to how it should function.

The story of constitutional reform can be told in graphic form by three pictures. In that part of the Inner Temple reserved for Benchers (senior members of the Inn), there hang at the time of writing three adjacent portraits, appropriately of diminishing size, of successive Lord Chancellors.

First, Lord Irvine, Blair’s first Lord Chancellor and a devoted supporter of Labour in the long march to 1997. Shortly after that first election victory, the then Robert Cranborne let it be known to Conservatives struggling to reconcile themselves to the new order that there was no need to worry about Derry Irvine — he was really a high Tory. The understanding between the two men produced the 1999 compromise over the continued presence of the hereditary peers in the Lords which endures to this day. There is no denying the air of self-confidence about the sitter: his hour has come. Only in retrospect can one see the significance of his justified pride in office. Irvine was a constitutional conservative. He keenly exercised what Lord Hailsham called the first duty of the Lord Chancellor, namely defending the standing of the judiciary. His judicial appointments were made with “a fierce independence” that made our judiciary “the envy of Europe” (Lord Hoffmann again).

The second picture is of Irvine’s successor, Lord Falconer. Blair’s former flatmate was unexpectedly appointed in 2003 to replace Irvine, who had been dismissed in a “brutal and unseemly” gesture — the adjectives are David Blunkett’s — recalling Henry V’s rejection of Falstaff. The Falconer portrait is not reflective of his genial personality; rather, the artist seems to have discerned a note of iconoclastic mischief. For the original plan, once Irvine was out of the way, and without any consultation of, for example, the senior judiciary, was to abolish the Lord Chancellorship altogether. This idea was as technically ill-conceived as it was constitutionally rash. Its execution was chaotic: the then Cabinet Secretary, Lord Turnbull has described it as “on the day . . . a complete mess-up”. The 2010 report of the House of Lords Constitution Committee (insufficiently noticed by the press) was scathing about the process: proper constitutional norms were disregarded in a “particularly disturbing” way; there was a lamentable absence of planning and advice-taking, and “wholly inadequate consultation” both within government and outside, for which there was “no justification”.

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December 20th, 2016
2:12 PM
Paul Leslie's posting is wholly inappropriate. His complaints arise from matters nothing to do with what Jonathan Gaisman has so pertinently written about and he does not begin to justify his comment that "most of this article is utter nonsense and even dishonest in parts". That is unsurprising: the article is on the ball and palpably honest.

Paul Leslie
December 15th, 2016
2:12 PM
Unlike most Standpoint articles this piece is not only utter nonsense but also dishonest in parts. "Society axiomatically benefits from a judiciary in good fettle, vigilantly defending our rights and freedoms, even — particularly — when there is violent disagreement over what those rights are" - what vigorous defence? With the full complicity of many senior and more junior judges - sometimes even without recourse to legislation which tramples the rights of the accused - more and more cases are coming to court where there is no proof even that a crime has been committed Especially since the deplorably one-sided report by Robin Auld, the only defence for the unjustly accused against prosecution is not the lack of solid evidence but a belief by the DPP that there is not a more than 50% possibility of conviction. As far as victims of miscarriages of justice are concerned they have to jump through expensive hoops and demonstrate their innocence "beyond reasonable doubt". Even when, as in the case of Victor Nealon, this can be conclusively demonstrated - including by invoking the proof (I am aware that absence of evidence is not always proof of innocence, but not in this case) that his DNA was completely absent, whether on the victim's clothing or elsewhere at the scene of the crime - there are any number of highly placed judicial functionaries to bring forward specious arguments to deny justice to the wrongfully convicted. See and other relevant articles.

Paul Leslie
December 15th, 2016
2:12 PM
Unusually for a Standpoint article most of this article is utter nonsense and even dishonest in parts. "Society axiomatically benefits from a judiciary in good fettle, vigilantly defending our rights and freedoms, even — particularly — when there is violent disagreement over what those rights are." - and the complicity of so many senior and more junior judges in the serious erosion of the fundamental principle of the presumption of innocence and the contemptible curtailing of compensation for the wrongly convicted? The wrongly convicted have to jump through expensive hoops to have a chance of being compensated and to demonstrate that they are innocent "beyond reasonable doubt". Take, for example, the case of Victor Nealon case where the absence of his DNA at the scene of the crime demonstrates conclusively that he could not have been guilty the high ranking judicial functionaries involved found a way to deny him any form of retroactive justice (I am aware that absence of evidence is not always a proof of innocence, but not in the case of this poor man who served seventeen years in prison following a deplorable miscarriage of justice). In a country where the judiciary is attached to the right of a fair trial someone who is acquitted or wrongly convicted and only belatedly let out of prison should not pay for justice to be properly served.

Angela Brown
November 25th, 2016
7:11 PM
The selection process for judges seems to be built around a framework of desirable competencies and behaviours, as frequently used by HR professionals. A much better indicator of capability and potential is performance in relevant current and previous roles, when available, which it surely is in the case of recruitment to the judiciary.

November 23rd, 2016
2:11 PM
I entirely agree and particularly enjoyed the excoriation of Falconer. It seems a shame to bring the Article 50 case into it though. However unfair some of the press criticism may be it is not a case of the courts stepping in to restrain a tyrannical legislative majority or overbearing executive, but of the courts being exploited by a disaffected minority to try to frustrate the result of a referendum. Perhaps it was the right decision from a legal point of view but lawyers should not be surprised that non-lawyers look askance at the outcome.

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