Divisions of power UNELECTED, UNACCOUNTABLE TO AN ELECTED CHAMBER AND SPANNING THE EXECUTIVE, LEGISLATURE AND JUDICIARY SHOULD THE POST OF LORD CHANCELLOR BE ABOLISHED? LUCY HICKMAN SOUNDS OUT lawyers As a cabinet member, speaker of the House of Lords, and head of the judiciary, the Lord Chancellors post breaks the almost universal albeit often...As a cabinet member, speaker of the House of Lords, and head of the judiciary, the Lord Chancellors post breaks the almost universal albeit often unwritten separation of powers rule, which are observed in many countries.

As Professor Avrom Sherr, professor of legal education at the Institute for Advanced Legal Studies, puts it: Separation of powers is something which most countries hold dear.

We also hold it dear but we ignore it in relation to the position of Lord Chancellor.

This does make his job difficult at times.

The Institute of Public Policy Researchs (IPPR) director of citizenship and governance, Sarah Spencer, says: There are many arguments about the Lord Chancellors status.

Some say that as a senior lawyer in the cabinet, he is perfectly placed to act as a bulwark against political interference in the judicial system, who can make the executive aware of the needs of the legal system.

Others say that having the head of the judiciary as a member of the cabinet will lead to political considerations influencing the appointment of the judiciary.

It may not be true in practice its a perception thing.

Three hats wielding tremendous power, but it was Lord Irvines addition of a fourth hat that of party fundraiser last month, which has again brought the argument to the fore that the Lord Chancellors post is potentially unfeasible.

But Lord Irvine remained bullish in the face of such criticism.

Speaking in the Lords, he said: I do not believe I did anything wrong.

I have not broken any current rules.

If I did, I would be the first to apologise.

I believe there is no real difference between party political campaigning and fundraising.

I do not believe anyone who attended the dinner could have thought that money would have bought them an advantage in gaining an appointment.

However, as a result, a growing number of commentators and newspapers are calling for the Lord Chancellor to be stripped of many of his functions, and have them redistributed between a ministry of justice and a judicial appointments commission actually to run the process, rather than the ombudsman-style commission Lord Irvine currently proposes.

Sadiq Khan, a partner with London firm Christian Fisher and vice-chairman of the Legal Action Group (LAG), says: The role of the Lord Chancellor is unique in the sense that the office spans the executive, the legislature and the judiciary.

It is a problem for one person to have so many powers in so many different areas.

It is a conflict in legal terms and a conflict in common-sense terms.The Law Society supports the idea of a ministry of justice, bringing together many legal functions carried out by the Home Office (whose responsibilities include crime and immigration), the Attorney Generals office, which oversees the Crown Prosecution Service and the Serious Fraud Office, and the Lord Chancellors Department (LCD).

A spokeswoman says: The Society remains of the view that the present structure has not been as effective as a proper ministry of justice would be.

The administration of all courts and tribunals, and policy decisions on public funding of legal aid, legal services and administration of justice are matters of public concern, and should be the responsibility of a senior minister sitting in the House of Commons.

Mr Khan, however, is sceptical about a wider ministry of justice.

He says: Some people advocate the big bang approach but one has to be pragmatic about what is realistically possible.

Aside from the cost involved in creating such a huge umbrella department, it would be a bureaucratic nightmare.LAG, says Mr Khan, supports the creation of a ministry of justice to take over the administration of the courts and legal aid, while a judicial appointments commission should make all judicial appointments such as judges, magistrates and QCs.The Lord Chancellor, says Mr Khan, should be allowed to continue speaking in the House of Lords, remain a senior member of the judiciary, and retain the right to sit as a law lord, a right Lord Irvine did not exercise last year.

However, he admits that this latter role is fraught with difficulty, since few cases decided by the House of Lords have no effect on government, thus throwing up conflicts under the Human Rights Act 1998 an Act, ironically, that Lord Irvine has championed.

The IPPR is holding a seminar next week on the reform of the Home Office and the LCD.

Ms Spencer has written a paper on the subject and says the Lord Chancellor should be replaced by an elected secretary of state.

She says: It is an historical anomaly that there is no secretary of state answerable to the Commons.

The LCD used to be quite a small department, now it is a big spending one with contentious areas.

You dont need to create a new department as such.

When Lord Irvine moves on, he should be replaced by someone in the Commons.

Responsibility for human rights should be moved from the Home Office, she says, to this alternative entity, while responsibility for racial equality should either also go there, or to the Department of Education and Employment, which already deals with gender and disability equality.

It would make sense to keep these together, she says.

Ms Spencer says moving responsibility for racial equality and human rights from the Home Office would allow a Whitehall-wide strategy to be formulated on these issues, and would prevent accusations of empire-building currently made if one department acts unilaterally.

However, as Ms Spencer explains, this would leave a question mark over crime: In some ways it doesnt make sense to split criminal and civil law they should be dealt with together.

Others say that you cant split criminal law procedure from the police it would leave them with their hands tied behind their backs.

Ms Spencer calls for an independent judicial appointments commission, which should remain under the umbrella of the department which replaces the LCD.

The Law Society has also been highly vocal in demanding a proper judicial appointments commission and the Societys ruling council recently repeated its determination to boycott participation in the so-called secret soundings process of appointing judges and QCs.

Vicki Chapman, the Societys head of law reform, says: Its a matter of fact that women and ethnic minorities are excluded from the higher ranks of the judiciary.

There should be a commission that commands the respect of the legal profession and the public at large.

She says commission members should include serving members of the judiciary and the legal profession, recruitment experts, and lay people who represent the community at large.

Some concessions have been made in improving the judicial appointments system.

Judicial posts are now advertised and candidates are given reasons for rejection although the identities of those who may have made derogatory comments during the secret soundings remain confidential.

Also, following recommen-dations in the Peach report in December 1999 which came out largely in favour of the current system of appointments a commissioner is scheduled to start next month, who will hear appeals from disgruntled lawyers who think they have been unfairly denied a judicial appointment.

However, Helene Pines Richman chairwoman of the Association of Women Barristers and a member of the working party set up by the LCD to look at possible changes to the judicial appointments system says a commissioner is not enough.

She says: The commissioner will be appointed by the Lord Chancellor and will have very limited authority.

He will only be investigating complaints and will not be involved in the interview process or with coming up with names for consideration this power remains with the Lord Chancellor.

The method and methodology of the appointments process are not compatible with the way the modern legal system operates, or with open government, she says, because they are so secretive.

She adds: The new commissioner position doesnt help because the process remains the same.

The debate over Lord Irvines fundraising already seems to have died down.

But the voices calling for reform of the LCD and particularly the judicial appointments system appear to be getting louder.

For a man who has led much of the governments work on reforming the countrys constitution with regional government and the Human Rights Act chief among them it may only be a matter of time before Lord Irvine has to apply the same zeal to reforming his own office.

Lucy Hickman is a freelance journalist.