Do we need these reforms?

The radical changes to the justice system caught us all by surprise, but, asks Robert Verkaik, do we need a supreme court? And what about the ordinary litigant?

As MPs and peers sat on the terrace of the Houses of Parliament, enjoying Thursday's mid-morning sun, none could have suspected what historic events were about to unfold. The first hint that there was something big afoot came at 11.30am with the resignation of Alan Milburn, the Secretary of State for Health. But it wasn't until after 6pm that it became clear that his departure was just the start in a train of events that ended with the most fundamental changes to the English legal system for hundreds of years, including the abolition of the office of Lord Chancellor and the establishment of a new supreme court.

Yet only last month it seemed that the most pressing legal reform facing the Government was the rather mundane question of whether barristers and judges should continue to wear wigs.

The chaotic nature of last week's announcements suggest that the timing of such seismic changes was forced upon the Government. Even senior Whitehall advisers admitted that they had little idea of how the new arrangements were supposed to work. Officials at the Lord Chancellor's Department, to become the Department of Constitutional Affairs, wondered whether they would still have jobs in the morning.

The speed of the changes must have taken even Lord Irvine of Lairg by surprise. Only a few weeks ago, he was confidently declaring to the recently created Commons select committee, set up to scrutinise his burgeoning empire, that there would be no supreme court. He said the expense of finding new accommodation for a revamped law lords made such a move cost-prohibitive. He was equally dismissive of any suggestions of his reforming his own office, which he batted away in an astonishing act of hubris. In an interview last month with Professor Richard Suskind at Gresham College, in London, Lord Irvine also voiced his opposition to the establishment of a ministry of justice, saying that he was happy with the way the present system was working.

For those reasons alone, Lord Irvine's departure from office was a prerequisite for reform. But what do these fundamental constitutional changes really mean?

The detail is still very sketchy and it is perhaps easier to define them in terms of what they are not. The new Department of Constitutional Affairs is not a ministry of justice; rather, it is business as usual and a name change for the Lord Chancellor's Department - although there will be additional work with its new role over Scottish and Welsh affairs.

However, the absence of Lord Irvine and the abolition of his former office does provide real scope in the future for evolving a new ministry that has responsibility for the whole of the criminal justice system. Such a creature would at last give real meaning to the New Labour mantra of "joined-up government". The substitution of the judicial function of the House of Lords with a new supreme court raises as many questions as ministers hoped it would answer. Will it follow the US model and allow judges to strike down legislation? Will its members be vetted by the Commons for any political allegiance? And will they be elected to office?

It seems that such profound constitutional change is unlikely and that we can expect a new supreme court to function in a very similar way to the judicial committee of the House of Lords. A consultation paper to be published shortly is expected to address many other questions, including the future role of law lords who sit as a final court of appeal for Commonwealth death row cases before the Privy Council.

Lord Falconer says he is committed to reinforcing the separation of constitutional powers by creating an independent judicial appointments commission. But Lord Irvine's reservation that such a commission would lead to a quango of a self-appointing oligarchy still needs to be addressed.

The legal reform group Justice argues that all judicial appointments should be made by the new Secretary of State for Constitutional Affairs, on the advice of a commission for judicial appointments. Justice's director, Roger Smith, says: "The commission should advance the names of all those considered suitable for appointment to a maximum of three for all "senior" appointments. "Senior" appointments would be defined to include appointments to the High Court and above, together with such other posts as were designated. The commission might rank the list. The Secretary of State can appoint anyone on the list."

Perhaps the most serious question of all concerns the responsibility for the discipline of the judiciary. The Lord Chancellor receives around 1,000 complaints a year about judges, most of which are concerned with an adverse outcome of court case. But in cases of very serious misconduct the Lord Chancellor, as head of the judiciary, has the power to admonish and even remove a judge from office.

It is unthinkable for this power to pass to the new Secretary of State for Constitutional Affairs, who would hold a post in cabinet. Such a move would fly in the face of the Government's claim that its reforms are intended to help define the independence of the judiciary. Perhaps the responsibility should fall to the Lord Chief Justice, who could become the new constitutional head of the judiciary.

Lawyers and judges have given the changes a cautious welcome, and the Government must be congratulated for the boldness of its thinking. But there is still a lot of work to be done. Lord Falconer, who will be Lord Chancellor until the post is abolished, took time last week to try to help people to understand the motives behind the reforms: "Why should the Lord Chancellor's role go? Because the person who appoints judges should not be a member of the executive, a member of the legislature and head of the judiciary." He said the changes to his role would have to be introduced by the passing of bills in Parliament, which would allow ample time for consultation and debate.

And the legacy of his predecessor? Most commentators think Lord Irvine will be remembered for his wallpaper rather than any great programme of reform. David Willetts, the shadow Work and Pensions Secretary, says: "Lord Irvine is being pensioned off with a package worth £2.6m, after just six years in the job. He leaves with a pension even more expensive than his wallpaper."

But let the last word go to Richard Miller, representative of the thousands of high-street solicitors who represent the ordinary litigants in the courts. "Sadly, his epitaph will be not as a reformer who introduced the Community Legal Service, but as a Lord Chancellor who was outmanoeuvred by the Home Office and the Treasury, and failed to secure the budgetary increases his department needed. This failure has undermined the ability of the Community Legal Service to ensure that access to justice is not just restricted to the wealthy."