Out goes Irvine - and a judicial function untouched since Saxon times

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The Independent Online

An exchange of letters between the Prime Minister and his Lord Chancellor has set in train the most profound constitutional shake-up to the English legal system since the days of the Saxon kings.

In one fell swoop the Government has pledged to replace the judicial function of the House of Lords with an American-style Supreme Court, as well as abolishing the ancient office of Lord Chancellor.

The changes usher in a new relationship between the judiciary and the executive and are expected to lead to an independent system for the discipline and appointment of judges.

Lord Irvine's removal from government was a crucial factor in the reforms, as he was opposed to both a separate Supreme Court for the function of the Law Lords and a new ministry of justice.

In his resignation letter to the Prime Minister, he wrote: "I believe the Office Of Lord Chancellor has been of great historic value in our constitutional arrangements, especially in upholding the independence of the Judiciary. I hope you will take the opportunity in the legislation, which will be necessary to abolish the office and to create a new Supreme Court, to reaffirm that guarantee of judicial independence."

Lord Irvine has also staunchly defended his former role, describing it as "a superior system to any other".

But the changes will be welcomed by the senior judges, many of whom have spoken out about the need for a truly independent final court of appeal. Among the leading reformers is Lord Bingham of Cornhill, the senior Law Lord, who has complained that the tied relationship with Parliament has helped to undermine the independence of the judiciary. Many other Law Lords have said that as sitting judges they are not free to speak in the Upper House for fear of having their views called into question when they decide cases.

In a recent interview with The Independent, Lord Bingham urged caution in the creation of a Supreme Court in that it should not follow the American model and could never challenge the doctrine of parliamentary sovereignty by having the power to strike down Acts of Parliament.

There is still much unknown about the final shape of the new highest court in the land. Will it sit en banc like the US Supreme Court or continue to deliver its judgments as panels like the House of Lords? Or will it be more like the constitutional courts of Europe? What is certain is that the new court must be housed in a new building to reinforce the separation of powers.

Angmendus, the first Lord Chancellor, took office in 605 ­ and in the centuries since the position has been filled by such giant figures in British history as Cardinal Wolsey and St Thomas Becket.

By tradition, the Lord Chancellor in his role as Speaker of the House of Lords sat on the Woolsack ­ a seat stuffed with wool to signify its importance to the medieval economy.Brewer's Politics, a Phrase and Fable Dictionary, relates a jibe aimed at some of the post's "less impressive" occupants: "You couldn't tell where the Woolsack ended and the Lord Chancellor began."

But such criticisms will now be confined to the history books. Under yesterday's changes the Lord Chancellor will lose his role both as Lords Speaker and a judge.

The seniority of the office has been reflected in the Lord Chancellor's duties during the State Opening of Parliament. Here, the Lord Chancellor must present the text of the Gracious Speech to the Queen before walking backwards down the steps of the throne, never turning his back on the monarch.

As Lord Irvine of Lairg leaves the Government, the chief responsibility for overseeing the running of courts in England and Wales will pass to the new Department of Constitutional Affairs, while a new commission will take over the appointment of judges.

While the Lord Chancellor's Department had been officially in existence since a permanent secretary was first appointed during Queen Victoria's reign, it only gained many of its most important powers in the 1970s.

The Lord Chancellor's Department (LCD) employed about 12,000 civil servants, mostly in the Courts Service. The department appointed many judges and advised on the appointment of others, administered legal aid, the courts system and some tribunals, and oversaw the revision and reform of English civil law.

With four ministerial posts, the LCD was also responsible for human rights, freedom of information, and the controversial task of reforming the House of Lords.

The origins of the judicial committee of the House of Lords are not so ancient. The modern form of appeal to the House was established by the Appellate Jurisdiction Act 1876 when provision was made for the creation of Law Lords (the first life peerages).

The reforms

* Creation of an independent Supreme Court to replace the judicial function of the House of Lords. The highest court in the land will no longer sit as part of the Houses of Parliament.

* Abolition of the 1,600-year-old post of Lord Chancellor as well as the Lord Chancellor's Department.

* Creation of a Constitutional Affairs Department to be headed by Lord Falconer of Thoroton. The change of name reflects the end of the role of Lord Chancellor. The new department will retain responsibility for the courts while working closely with the Home Office.

* A consultation exercise to bring about changes to the role of Speaker of the Lords will be launched.