Most recent Lord Chancellors - for that matter, most Lord Chancellors throughout recorded history - have been fairly generally disliked. It may be because they have always been paid more than other ministers, including the Prime Minister, and have had bigger pensions too. It may be because they do not necessarily have to be either good politicians or good lawyers, but simply lawyer-politicians who happen to find themselves in the right place at the convenient moment. Or it may simply be that they tend to be pompous, pomposity going with the job: all that dressing up, and sitting on the Woolsack, and walking backwards, though, to his credit, Lord Irvine managed to get out of that as the noticeably more infirm Lord Hailsham did not.
Thus Lord Simon was one of the most distrusted politicians of the last century. Lord Jowitt was unpopular on all sides. Lord Simonds was a promoted reactionary judge rather than a politician; Winston Churchill regretted having appointed him. Lord Kilmuir was not liked, while Lord Dilhorne was a joke. Lord Hailsham was a national figure but a tiresome egomaniac who accomplished little in his two stints in the job.
Lord Gardiner was kindly, innovative but remote: there was not a single representative of the People's Party at his memorial service at the Temple Church, which admittedly reflected less on Gardiner than on his party. Lord Elwyn-Jones possessed West Wales charm but had little else to offer. Lord Havers was an affable loafer who was in the job for only four months. Gardiner apart, perhaps the most distinguished incumbent was Lord Mackay, who was not only a Scotsman but a Scots lawyer and was accordingly disliked by the English Bar on both counts.
Lord Irvine is not a Scots lawyer but he is a Scotsman. He was as unpopular as most of his predecessors. But he managed to get more done than they did. Indeed, he has claims to be regarded as one of the great reforming Lord Chancellors, even if the competition may not be stiff. His greatest achievement was perhaps the Human Rights Act. This has already had an effect on our law, as various alarmed editors (together with that well-known producers' co-operative, the Press Complaints Commission) had occasion to note when Ms Sara Cox successfully sued The People after having been photographed naked on her honeymoon.
The Act, by the way, does not derive from Brussels and the European Union, as our great europhobic papers say it does, but from the European Convention which we ratified in 1953. Before the recent Act, UK citizens had to go to Strasbourg to establish their rights before the court there. Now they can establish them before the courts here, because the Convention has been incorporated into UK law. That is what Lord Irvine has achieved.
His other achievement was to set up the Parliament in Scotland and the Assembly in Wales. Many observers predicted that this could not be done or that, if it could, the whole business would take longer than it has. Whatever view you take of these devolved bodies, they are functioning more or less as they were intended to, often to the embarrassment of Mr Tony Blair and his colleagues. The Welsh Assembly in particular is a great success. So much for all that talk from No 10, obediently reproduced by the lobby, about Mr Rhodri Morgan as a "maverick"! But perhaps it is precisely because he is such a creature that the Assembly - which should clearly be given the same powers as the Scottish Parliament's - is proving such a success.
Lord Irvine's failures have included the House of Lords, which is now in a state of paralysis. But then, a Labour government has at last, after years of party debate, managed to abolish the legislative powers of the hereditary peers. This is something to be grateful for, whatever may be put in their place.
His other failure concerned the Freedom of Information Act. Lord Irvine came up against various departmental ministers. In particular he came up against Mr Jack Straw as Home Secretary. In fact we have such an Act, though you might be forgiven for not noticing. It became law in 2000. At present it provides only for public access to the internal doings of the House of Commons. How it is functioning in this area is largely unreported and, alas! I am in no position to help. For other public bodies, notably ministries, we shall all have to wait till 2005, which is a clear victory for the civil service.
Even so, Lord Irvine's record is formidable overall. And now he is the last of the Lord Chancellors, a good title for something or other. He was a reformer in some respects but a conservative in others. For instance, he was against either abolishing his office or depriving it of the power to appoint judges. The power is to be transferred to an appointments commission.
It is now the fashion to farm out appointments. Graduates of business schools and City charlatans today earn a handsome living as "head-hunters", compiling shortlists and even making single, final appointments in fields of which they are comprehensively ignorant. The judges' commission will not, presumably, operate like this. Nevertheless, the tendency of all committees is to go for the safe choice. I doubt whether the commission would have appointed a former Communist such as Lord Justice Sedley. In this life, moreover, there are certain people who are always being appointed to posts, whereas others never are. I feel fairly sure that no columnists' commission would ever have given me a job. I have had to trust in editors instead.
The judges' commission will appoint the members of the Supreme Court which will replace the Appellate Committee of the House of Lords, also known as the Lords of Appeal in Ordinary, or the Law Lords. We know that Lord Falconer, the new Minister for the Constitution and much else besides, will not sit with them. Lord Chancellors had the right to do so. But few availed themselves of it to the fullest extent for fear of causing offence to the four-days-a-week regulars. They were judges promoted from the Court of Appeal or, much less frequently, from the lower divisions of the High Court (though Lord Radcliffe went straight to the Lords).
While in practice the Lord Chancellor was a walking affront to the separation of powers, the Law Lords were nothing of the kind. Occasionally they might intervene in a debate where they had special knowledge or strong views (Lord Ackner, for example, having a particular dislike of journalists). But on the whole they kept well away from controversy. The paradox is that, in the attempt to separate politics from the judiciary, our new Supreme Court could well become, like its US equivalent, more political, as much in its composition as in its judgments.Reuse content