Calls to create MoJ | The Solicitors' Journal â€“ 8 June 1999
ARE YOU actively involved in politics?
This is one of the standard questions asked of those seeking judicial appointment, full- or part-time, the inference being that the Lord Chancellor is unlikely to appoint those who answer in the affirmative. This may seem a little rich bearing in mind that the House of Commons contains a number of Recorders and the Prime Minister's wife has herself not been shy about campaigning. It also sits ill with the head of the judiciary hosting fund-raising dinners for the Labour Party and soliciting donations from potential judges.
This country prides itself on its unwritten constitution, claimed political maturity and an allegedly independent judiciary. We snigger at President Bush who acquired office with a minority of the popular vote and a little help from the State of Florida, controlled by his brother. We ridicule the French 'cohabitation' of President and Parliament from opposite parties. We positively laugh at the Italians who have had more governments since 1945 than varieties of ice cream.
But ours is a desperately flawed constitution. We have an unelected head of state whose patronage the Prime Minister exercises. The second chamber includes clerics of the state religion, hereditary peers and ex-MPs persuaded to resign to enable the Prime Minister's friends to enter the House of Commons. The second chamber is also the final appellate court. The Lord Chancellor is a member of the executive, an unelected member of the legislature, the head of the judiciary and can sit as a law lord. The Lord Chancellor personally chooses all members of the judiciary. Most of the Tribunals have their budgets controlled by their sponsoring departments. The Department of Health runs the Mental Health Tribunals, the DSS the Social Security Tribunals etc. Is this acceptable in what purports to be a modern democracy?
Today, the Prime Minister will choose the Queen's ministers, create and disband government departments and start writing the Queen's Speech. A country that has seen constitutional change in Northern Ireland, Scotland and Wales is ripe for change, at least in the creation of a truly independent judiciary. The Prime Minister should create a Ministry of Justice, transferring to it those matters relating to the administration of justice at present controlled by the LCD and Home Office. The judiciary should be headed by the senior law lord of the day who would oversee a fully independent judicial appointments commission that would appoint all judicial office holders. The Lord Chancellor should be stripped of his judicial functions. He can remain a member of the government and legislature. All the Tribunals and other judicial bodies should have their budgets transferred to the new ministry. We are soon to receive the Leggat report on Tribunals and the Auld report on the criminal courts. Their proposals are likely to fit easily into the new ministry. The ministry should be headed by a Cabinet minister sitting in the Commons so that it is accountable to the elected chamber. The executive functions of law enforcement, prisons etc can remain where they are.
The time has come for the creation of a truly independent judicial system.