deployed as ‘a nuclear option’.
The major changes engineered by the CRA were:
• the abolition of the triple role of Lord Chancellor;10
• the replacement of the Lord Chancellor by the Lord Chief Justice as
head of the judiciary;
• the projected detachment of the Appellate Committee of the House of
Lords from parliament and its reconstitution as a Supreme Court in
name (as it had been for some while, in fact) so reflecting a continental
concept of separation of powers;11
• the creation of a Judicial Appointments Commission (JAC) (coupled,
inevitably with a Judicial Appointment and Conduct Ombudsman).
18 See, for precedents in the Major years, Joshua Rozenberg, Trial of Strength (London:
Richard Cohen Books, 1997).
19 Although Section 3 contains a list of provisions designed to immunise the judiciary from
practical interference while ensuring in terms of resources political support. See Lord
Bingham of Cornhill KG, ‘The Rule of Law’, the Sixth Sir David Williams Lecture,
Cambridge, November 2006, in Cambridge Law Journal, 66, March 2007: 67.
10 Influenced indirectly by the Strasbourg decision Mc Connell v . UK 28488/95 impugning
the triple role of the Bailiff of Guernsey.
11 Lord Mance, ‘Constitutional Reforms, the Supreme Court and the Law Lords’, Civil Justice
Quarterly, 66, 2006: 127.
In anticipation, a revivified Judges Council12 approved the terms of a
concordat reached between the Lord Chief Justice and the Lord
Chancellor as to who had responsibility for what, the negotiation of
which survived Lord Woolf ’s public description of Lord Falconer as ‘a
cheerful chappy’ – an observation not designed to cause offence but one
which clearly did so.
The functions of the Lord Chancellor, developed over a millennium,
spanned, at the commencement of the first Blair administration, the legislative executive and judicial spheres of government. He was a member of
the Upper House, its Speaker and a senior cabinet minister, and he presided
over the Appellate Committee of the House of Lords. He had responsibilities for overseeing court administration, making appointments to the
bench at all levels (including the lay magistracy) and of Queen’s Counsel,
and overseeing the funding of legal services. To this, during Lord Irvine’s
tenure, was added implementation of the HRA and in 2001 responsibility
for constitutional affairs (previously within the Home Office fiefdom).
The single most significant feature of Lord Falconer’s time as Lord
Chancellor was his (staged) abdication of the very powers to which Lord
Irvine had so tenaciously clung. The title of Lord Chancellor lingered on,
symbolic not substantial, the consequences of a minor revolt in the
House of Lords; but the smile on the face of the Cheshire cat had more
connection with the animal itself than the titular Lord Chancellor has
with the traditional holder of the office.
The judiciary
Lord Irvine sat only rarely as presiding judge in the House of Lords or
Privy Council.13 Lord Falconer never did and since April 2006 he (and his
12 Lord Justice Thomas, ‘The Judges’ Council’, Public Law, 2005: 608.
13 House of Lords
Modahl v. British Athletic Federation Ltd [2002] 1 WLR 1192
Boddington v. British Transport Police [1999] 2 AC 143
Director of Public Prosecutions v. Jones (Margaret) [1999] 2 AC 240
Carmichael v. National Power Plc [1999] 1 WLR 2042
Murray v. Foyle Meats Ltd [2000] AC 51
Uratemp Ventures Ltd v. Collins [2002] 1 AC 301
AIB Group (UK) Ltd v. Martin [2002] 1 WLR 94
B. (A Minor) v. Director of Public Prosecutions [2000] 2 AC 428.
Privy Council
David Alexander Schiller (Appellant) v. (1) HM Attorney-General for Gibraltar (2) The
Captain of the Port of Gibraltar (Respondents) (1998) LTL 11 September 1998 (unreported elsewhere).
successor) has been debarred from doing so. Power to appoint judges was
surrendered to a Judicial Appointments Commission (JAC); and to an
equivalent body to appoint Queen’s Counsel. The new and more significant title of Secretary of State for Constitutional Affairs (replaced on 9
May 2007 by Secretary of State for Justice) indicated that for the future
the role was political. And while mandated by the CRA to defend judicial
independence and by the Courts Act 2003 to maintain an efficient court
system,14 the incumbent may do so without any experience of the legal
system as a practitioner, or any knowledge of it as an academic, since the
future qualification for the office will merely be the possession of such
experience as the Prime Minister considers appropriate.15
The Lord Chief Justice assumed the title of ‘President of the Court of
England and Wales’ with the statutory duty of representing the judiciary’s
views to parliament and government, overseeing the deployment of individual judges, allocating work within the courts, and ensuring that appropriate structures are in place for the training and support of judges.16
The removal of the Lord Chancellor from the summit apart, there were
no major changes in the hierarchy – Lords of Appeal in Ordinary, Lords
and Lady Justices in the Court of Appeal, High Court Judges, Circuit
Judges (and Recorders17), District Judges and Deputy District Judges.
The surrender by the Lord Chancellor of his judicial functions led to the
Vice-Chancellor in the Chancery Division becoming the Chancellor.18
The Courts Act 2003 introduced new post-holders, the Head and
Deputy Head of Civil Justice. The CRA did the same for Criminal Justice
and Family Justice. The Official Referee’s Court was rebranded the
Technology and Construction Court, and the Crown Office list the
Administrative Court.
The Supreme Court will consist of twelve judges. The current Lords of
Appeal will become the first members of the new court and will thereupon cease to be entitled to sit in parliament. They will be called ‘Justices
14 A uniform system of court administration was established in 2005 as Her Majesty’s Court
Service (HMCS).
15 He has also left the Woolsack, as the House of Lords now selects its own Lord Speaker.
16 The CRA also contained new provisions for disciplining of judges.
17 In the wake of Starrs v. Ruxton (2000) SLT 2000 the Scottish system of temporary sheriffs
was held incompatible with the right to an ‘independent and impartial Tribunal’ under
Article 6 of the European Convention on Human Rights (ECHR), because of the vulnerability of their posts to executive influence. In Gilbertian fashion all assistant recorders
were collectively upgraded to recorders.
18 The AJA 1999 (see below) established the post of Vice-President of the Queen’s Bench
Division.
of the Supreme Court’ and the senior members will be president and
deputy president. They will inherit the jurisdiction of the House of Lords
and of the Privy Council in devolution matters. Reflecting yet again the
impact that architecture has on the legal system, the court will not come
into being until it can be properly housed – the preferred (by the government) venue for the new court is Middlesex Guildhall. Not all Law Lords
supported their detachment from parliament19 or even their physical
relocation;20 some did,21 others hedged their bets. ‘There can be no
doubt’, wrote the Senior Law Lord, ‘that since June 2003 the mountains
have laboured mightily: it remains to be seen whether they have brought
forth a mouse, or a valuable measure of overdue reform or a monster.’22
Lord Bingham of Cornhill was the first judge since Lord Alverstone to
bring off the career coup of becoming both Master of the Rolls and Lord
Chief Justice (in charge first of civil, then of criminal justice). Both his
successors, Lord Woolf of Barnes and Lord Phillips of Worth Matravers,
did the same. This double, once as rare as the cup and league double in
football, rapidly achieved the status of a norm – and in the same era. Lord
Bingham, however, went further and procured a treble, becoming Senior
Law Lord in 2000. This position was thus given new status. Previously, it
was allotted on the principle of Buggin’s turn.
Other personal (as distinct from institutional) innovations during the
Blair era included the first woman Law Lord or Lady (Baroness Hale of
Richmond in 2004). In 1997 there was only one female Lord Justice
(Butler-Sloss), but she was followed by (Mary) Arden, (Brenda) Hale,
(Janet) Smith and (Heather) Hallett (The Crown Court Act 2003 Section
63 belatedly introduced the title ‘Lady Justice’). (However, there were
neither at the start nor the finish of the Blair years any ethnic minority
representatives in posts above the circuit bench save for Mrs Justice
(Linda) Dobbs23.) Lawrence Collins became the first solicitor to be
appointed directly to the High Court in 2006 and then to the Court of
19 Lord Cooke of Thorndon, ‘The Law Lords: An Endangered Heritage?’ Law Quarterly
Review, 119, 2003: 49.
20 Lord Hope of Craighead, ‘A Phoenix from the Ashes? Accommodating New Supreme
Court’, Law Quarterly Review, 121, 2005: 253.
21 Lord Steyn, ‘The Case for a Supreme Court’, Law Quarterly Review, 118, 2002: 382.
22 Lord Bingham of Cornhill KG, ‘The Old Order Changing’, Law Quarterly Review, 122,
2006: 211.
23 In 2005 there were 10 women High Court Judges out of 107; 67 women Circuit Judges out
of 626; 197 women benchers out of 1,414; 85 District Judges out of 433. The information
on ethnic minorities is less robust, but at circuit level representation is 10%; at district
level 30%.
Appeal in 2006. Sir Jack Beatson was the second High Court Judge (after
Lady Hale) to have been appointed whose primary previous occupation
was as an academic (latterly as Rouse Ball Professor of English Law at
Cambridge).
In 1998 High Court appointments were for the first time advertised. In
1999, in the wake of Sir Leonard Peach’s report, an Advisory Commission
for Judicial Appointments was established. An audit carried out by that
body chaired by Sir Colin Campbell in 2003 found the present system
‘seriously lacking in transparency or accountability’. As a result of this
critique, as well as for reasons of constitutional propriety, the JAC was set
up with effect from April 2006 to select candidates for judicial office in
England and Wales across all areas of the judiciary, from High Court
Judges to non-legal tribunals, and to recommend one candidate for each
vacancy. The new rules gave the Lord Chancellor a right of single rejection for which he has to provide reasons: he cannot select an alternative
candidate. The JAC consists of fifteen persons: a judge, a solicitor, a barrister, a tribunal member and a JP with a lay majority. The lay chair,
Baroness Prashar, was the former Civil Service Commissioner.
The JAC set itself three objectives – to define merit; to identify fair and
effective assessment methods; and to encourage a wider range of applicants.24 The definition of merit comprises five core qualities and abilities
with seventeen supportive behaviours. Intelligence, integrity, scholarship, analytical skills and judgement, authority and articulateness are
naturally paramount; but mandatory criteria such as patience, courtesy
and sensitivity to other cultures and gender might well have excluded
many celebrated judicial figures in even the recent past.
The system represents a sea-change from that which prevailed in May
1997 when the Lord Chancellor, after what in another context were
famously called ‘the customary processes of consultation’ among the
senior judiciary, picked, chose and invited himself. A wholly closed
system has been replaced by a more open one. However, there is no doubt
that the unduly modest (and indeed the unduly arrogant) will be deterred
by the very need to apply for fear that any rejection may somehow
become public, and others, suffering from neither of these qualities, by
the sheer complexity of the system (supported, as it is, by a huge bureaucracy). It remains to be seen how much the constituency of these (especially at the High Court level and above) will differ from the beneficiaries
24 Baroness Usha Prashar, ‘Judicial Appointment – A Quiet Revolution’, The Barrister, Easter
Term issue, 2007.
of the abandoned methodology and, in particular, whether that constituency more accurately reflects the national demographic,25 and, to the
extent that it does so, does not concurrently compromise what its chairman has described as ‘the outstanding reputation of our existing office
holders’.26
Judges’ pay
The new arrangements for appointment do not in any way qualify either
judicial security of tenure or the principle that judges’ pay cannot be
diminished during their term of office, legacies of the Act of Settlement
1701.27 For the future, under the new constitutional arrangements the
amount of salary ‘is to be determined by the Lord Chancellor with the
agreement of the Treasury’, the one with responsibility for the rule of law,
the other for the wealth of the nation.
As a matter of practice the Senior Salaries Review Body (SSRB) with
its Judicial Sub-Committee makes recommendations to the Lord
Chancellor,28 which are usually if not always accepted.29 In the other two
groups within the SSRB’s remit (senior civil servants and senior officers
of the armed forces) there was a move towards performance-related pay
but it was rejected for the judiciary for fear of compromising judicial
independence.
Those who had taken the Queen’s shilling did not during the
Irvine/Falconer years in fact express major worries about their pay packet.
Only in 2005 was there a minor (at any rate compared with les événements
of 193130) crisis when the judges sought exemption from legislation in
force from April 2006 which imposed a lifetime limit on tax relief allowed
25 Lord Falconer has consulted on a proposal to permit judges below the level of the High
Court to retu
rn to practice as a means of encouraging women in particular to seek judicial
appointment (although he made it clear that he would not himself be the beneficiary of
any such rule).
26 Baroness Prashar, ‘Judicial Appointment’.
27 Michael Beloff QC, ‘Paying Judges: Who, Whom, Why, How Much?’, Neill Lecture 2006,
in Denning Law Journal, 30, 2006: 1.
28 Lord Williams of Mostyn QC (then Chairman of the Bar Council, later a poacher-turnedgamekeeper as Attorney-General, and finally, before his premature death, Leader of the
House of Lords) called it ‘dangerous to have an allegedly independent body which is then
overruled by politicians’. Speech at Bar Conference, September 1992.
29 After my own retirement to its chairmanship in 2003 there was a temporary purge of
lawyers, a small, but not uninteresting indication of the waning influence of the judiciary,
which had traditionally insisted that only lawyers could understand their special needs.
30 Robert Stevens, The Independence of the Judiciary (Oxford: Clarendon Press, 1993),
pp. 52–3.
on pension benefits – said to breach their legitimate expectations on
appointment – but were mollified by Lord Falconer’s stealthy and wellspun announcement, in an act of political legerdemain, that he would
spend an extra £9 million a year on judges’ pay and pensions.31
However, as the gap between the earnings of top practitioners (the
pool of recruits) and judges widened, there was a perceptible trend,
already apparent at the start of the 1990s, of those invited to take up High
Court appointments declining to do so – something almost unthinkable
even thirty years ago. In 2001–2 nineteen High Court judges were
appointed, but six refused. As the Sub-Committee reported in 2002:‘This
significant figure – almost a third of the number of those appointed –
calls into question whether there was an increasing pattern of refusals
which indicates future difficulties in attracting appropriate appointees.’ 32
Law officers
The decline in numbers of practising barristers who were concurrently
MPs (a phenomenon whose explanation lies beyond the scope of this
chapter but whose heyday was in the Edwardian era almost a century ago)
meant that the tradition that the Law Officers were in the Commons was
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