Lord Falconer wants a more modern, but not more independent, judiciary

Judges should reflect the democratic will as expresed by the government and be less keen on challenging it in judicial review
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The Independent Online

In a long conversation about 10 years ago, Lord Mackay of Clashfern, the then Lord Chancellor, told me two stories that could hardly fail to stick in the memory. The first was how shocked he had been, as a young lawyer appearing in the early 1960s in a case before the House of Lords, that Lord Kilmuir, who was then Lord Chancellor, had adjourned the hearing over which he was presiding in order to answer some urgent summons on a now long-forgotten political matter from the Prime Minister, Harold Macmillan.

The second was how his own cabinet colleagues had been expressing outrage to him about the fact that an eminent Scottish advocate retained by the two Libyans suspected of the Lockerbie bombing had advised them that it would be unwise to visit Britain in the foreseeable future. Lord Mackay's response was gently to explain that in doing so, the advocate was fulfilling an elementary duty to his clients.

Both incidents go to the heart of the complex role of the office that Lord Falconer, its sunset incumbent, took one more decisive step yesterday towards abolishing. For Mackay, both also illustrated the need for the Lord Chancellor to create distance on behalf of the legal profession from the government to which he belonged. Unveiling his proposal for an entirely new system of appointing judges yesterday in the Lords, Lord Falconer remarked that it was better to change the system when it was strong rather than weak. Whatever the strength of that argument, he's right that this is hardly a low point in public regard for the independence of the judiciary - or of the Lord Chancellorship. For both its previous incumbents, Mackay and his successor Lord Irvine, have been notable for their independence of mind and their refusal to compromise judicial integrity.

Ministers from Tony Blair down have made a lot of the Merrie England flummery surrounding the office. But the archaic costumes didn't stop either man being on the more radical reforming edge of the governments they were members of. Mackay may have been - just - a Conservative. But he was no conservative. He was a legal reformer who also appointed on merit some left-wing judges. He is also the author of easily the best proposal for a democratised Upper House. On the last point, sadly, Irvine didn't agree with his predecessor. But on Freedom of Information and on arguably his outstanding achievement - the Human Rights Act - Irvine was a radical.

Lord Falconer comes, of course, to bury Lord Chancellors, and not to praise them. But at least two consequences flow from the independent - and dare we say modern - performance of the last two Lord Chancellors. The first is that abolition appears on the face of it to break, however sensible and timely the reasons, with the old rule of thumb operated by previous Labour governments, that to change the country in matters of substance it was better not to tamper too much with the forms unless, as in the case of a hereditary House of Lords, there was a strong political reason for doing so. Indeed, the abolition of the Lord Chancellorship (which has had a less interrupted existence over the centuries than the Crown) will be seen by republicans and others as strengthening the case for radical reform of the monarchy - which Labour governments have always shied away from for just such reasons: particularly reform as coherently argued as that in the report to be published today by a Fabian Society commission.

But the much more important consequence is that the more ministers argue they are doing what they are doing in order to create a judiciary that is more independent of government, the more their proposals have to clear the high hurdle of the fact that, thanks in part to the last two Lord Chancellors, the judiciary is pretty independent already. They do, of course, have other motives - some good, some less so - for the changes outlined by Lord Falconer yesterday. Judges, as socially homogenous a group as any in the land, should certainly be more diverse, and the criteria for their appointment more transparent. An appointments commission should go a long way towards achieving this. Some of the Bar's more knee-jerk responses may owe more to a fear that a monopoly of cosy, long-standing career progress through advocacy to the bench may now be (rightly) under threat. But trumpeting the motive of independence, ministers have to show that, at the end of the process, judges will be no less independent than they have been for the past 20 years. Otherwise independence will be, as it were, the WMD of their reforms.

And on this the omens are not yet, to put it politely, altogether clear. The Government's clearly preferred option for a new appointments system retains a ministerial veto. And it looks as if the Government's preference for the new Supreme Court will leave the executive, and the Prime Minister, with about the same influence over appointments as he has now. What's more, there are several questions deliberately left unanswered in Lord Falconer's admittedly very Green Paper. Just how long a shortlist - from one to many - will ministers invite the commission to give them? If, as the paper implies, individual cases where the ministers have rejected a recommendation from the commission are not to be made public, how strong will be the incentive not to do so? And how exactly will the body appointing the new commission be protected from a prime minister determined to ensure it is established in his own image? And so on.

That ministers want a judiciary more in tune with what they perceive as the public zeitgeist - the very same one that helped to propel them to power - is not really in doubt. In its more benign form - that adopted by the able Lord Falconer - that means simply a more diverse judiciary will organically reflect public concerns, including, perhaps, concerns about the balance of criminal justice being too far in favour of the defendant at the expense of the victim; and that it can reflect such opinion without in any way being contaminated by the direct influence of government. In its more extreme form, detected from time to time in the Home Office, this means that judges should indeed more fully reflect the democratic will as expressed by the government of the day - and be a little less keen on challenging it in judicial review; and that the problem with the Lord Chancellor was not that he represented the Government to the judges but the reverse.

It isn't so much that elected governments shouldn't have any influence on the operation of the criminal justice system, including sentencing. But the modern judiciary is a check and balance in a British constitution otherwise remarkably free of them. It is a tribute to Lords Mackay and Irvine that they understood this. To make these reforms stick, Lord Falconer and Tony Blair will have to dispel the notion that they would not have abolished the Lord Chancellorship if the incumbents could all be guaranteed to be vassals as unquestioning of prime ministers as Lord Kilmuir.