The wisdom of constitutional practice suggests that the Lord Chancellor's involvement in the activities of all three branches of government raises fundamental contradictions, for while being a judge, he is also seen as being in close political sympathy with the government of the day.

Yet the office has survived largely because it has evolved to become a judicial office, and that is the extent to which the modern constitution can tolerate it.The virtue of the office in the constitution is owed in the main to the skills of the office-holder in balancing the contradictory demands on his office without jeopardising his independence as a judge.

This in itself can be the source of considerable uncertainty in the workings of the constitution as the office-holders change when different political parties come into power.

As a member of the cabinet the office-holder is expected to yield to any constraints proposed by the Treasury and agreed by the cabinet.The crucial question is whether the head of the judiciary can exercise executive (governmental) functions without having to sacrifice some formal aspects of justice and established constitutional norms.

One would be forgiven for thinking that such an achievement is impossible.

The present holder of that office is undoubtedly a distinguished, honourable and sincere person.

He is also known to be brave and one who does not shy away from difficult concerns.

The unintended effect of such courage is to open the workings of the Lord Chancellor's office to a previously unknown level of scrutiny and thus expose the con tradictory responsibilities imposed on his office.

Being in charge of the efficiency of the judicial services necessarily empowers him to exercise supervisory duties over his judicial budget.

This will have to be done in order not to undermine his cabinet commitment.

This legitimate discharge of his constitutional duties can place him in a compromising position if he is seen, rightly or wrongly, as accentuating his executive responsibilities to the detriment of his judicial duties.

Two events in recent times can be used to illustrate the oddities of the Lord Chancellor's responsibilities in the modern constitution.

The first relates to the widely publicised disagreement between the Lord Chancellor, Lord Mackay, and Mr Justice Wood, the former president of the employment appeal tribunal.

In what seemed like an attempt to accelerate hearings and to clear the backlog of cases at the EAT, the Lord Chancellor sought assurances that vexatious and unmeritorious appeals would be dismissed summarily.In principle Lord Mackay was proffering nothing other than good advice.

If, however, he sought to direct or influence the decisions of the tribunal, then he was unquestionably acting contrary to the constitution.

In a letter to Mr Justice Wood on 19 March 1993, the Lord Chancellor is reported to have said: 'I ask you again for your immediate assurance that rule 3 is henceforth to be applied in full and that preliminary hearings are not being used where no jurisdiction is shown.

If you do not feel you can give me that assurance, I must ask you to consider your position.' The perception of unconstitutional enterprise is compounded by the fear that Lord Mackay's supervisory commands were directed by his cabinet commitments to the Treasury.These speculative judgments on the work of Lord Mackay's office have been denied but the appearance of executive excessiveness in the work of the Lord Chancellor still abounds.Another recent illustration of the difficulty in which a Lord Chancellor may be placed can be found in Lord Mackay's judgment in the recent House of Lords case of Pepper v Hart [1993] WLR 1032.

One of the questions before the House was whether the courts should be allowed to seek guidance from Hansard in the event of ambiguity in statute.In spite of the limited scope of the proposal for change, the Lord Chancellor was unable to bring himself to support the proposal principally because of the potential increase in the cost of litigation.

He reminded the House that 'the costs of litigation are a subject of general public concern and I [Lord Mackay of Clashfern] personally would not wish to be a party to a well established rule which would have a substantial effect in increasing these costs against the advice of the Law Commissions'.The matter of the costs of litigation is always of interest; but since it was not argued before the court, it seems unfortunate that the Lord Chancellor would wish to base his opinion principally on this element.

It is not entirely clear from the Lord Chancellor's opinion where the undertaking to 'do of justice to all manner of people according to the laws and customs of England' was placed in relation to the cost of executing that duty.

It is axiomatic that justice can be expensive, for after all justice in the courts of this realm is one of the attributes that distinguishes our system of government from totalitarian regimes.

There is no doubt that a role still exists for the office of the Lord High Chancellor but this role has evolved and must continue to evolve to suit the demands of the constituti on.

It may very well be that because of the very idiosyncratic nature of our constitution, we are presently witnessing a change in the emphasis of the Lord Chancellor's responsibilities from the judicial to the executive.

Such a change has not been fully demonstrated and only time can tell.

Until it can be adequately established, it is important to remember Lord Hailsham's wise words: 'It [office of Lord High Chancellor] is older than democracy, older than Parliament, older than Magna Carta, older than the Norman Conquest.

But it is not older than the conception of law.

Law came first.

Law and justice came first.'