No right to judge

In a continuing series on human rights, Roger Smith argues that the Human Rights Act finally sank the role of the Lord Chancellor

There is a satisfying symmetry in the fate of the last real Lord Chancellor.

Lord Irvine's greatest achievement did for him.

The Human Rights Act 1998 was, as its author pointed out with characteristic modesty, 'intelligently drafted'.

It was also the dagger driven through the heart of our longest running recognisable office of state.

However, all the excitement over process should not make us forget the fundamental reason why an organisation such as Justice has called for this reform for more than 20 years.

It was article 6 that did it - the guarantee of 'an independent and impartial tribunal'.

No case had reached the European Court on the role of the Lord Chancellor, but it was wise to bail out in time.

The Bailliff of Guernsey had already gone - a humbler version of the same mixture

of legislative, executive and judicial roles.

He got his come-uppance in McGonnell v UK, where the court opined: 'Any direct involvement in the passage of legislation ...

is likely to be sufficient to cast doubt on the judicial impartiality of a person subsequently called on to determine a dispute [on it] ...'

Another case got even closer - the court interesting itself in Lord Irvine's own backyard, Scotland.

Lord McCluskey, somewhat unwisely, indicated his hostility to the proposal of a Human Rights Act.

His public comments were successfully cited in Hoekstra as an indication of potential lack of impartiality in a subsequent case that turned on the Act's construction.

Lord Irvine had only sat in three cases since coming to office.

Subtle minds attempted a last apology for current arrangements by seeking to define a narrow range of cases that the Lord Chancellor might continue to judge.

Lord Cooke mused that perhaps constitutional change could take an evolutionary course.

For the constitutional conservatives, he advanced the 'sunset defence', suggesting that the future might see 'only an occasional sitting in totally non-political private law cases, or perhaps even desuetude altogether'.

So, no change was required.

But, the game was up.

The coup de grce was probably delivered by a mild-mannered Dutch constitutional lawyer.

Erik Jurgens, a member of the Council of Europe, published a thoughtful paper last year indicating that he thought the Lord Chancellor's mix of roles was a rotten example of good governance to show the fledgling new democracies of eastern Europe.

It was difficult to explain to the Romanians.

Unlike Wolsey, who fatally resisted the end of his office, Lord Irvine may even have comforted himself with the intellectual conviction that it was right to go.

However, the forthcoming end of the Lord Chancellor is not the end of the story.

The point of this reform is not to give the executive greater control over the judiciary - it is, by contrast, to increase the independence and legitimacy of the judges.

For this, the changes need to be carried out in a certain spirit.

There must be legal requirements and constitutional conventions that the new judicial appointments commission is a non-political body with commissioners who have the required expertise in human resources, recruitment and selection.

It is not desirable, as proposed, that the chairman be appointed by the Secretary of State for Constitutional Affairs in consultation with the home secretary.

This is a wave to the populist gallery.

It is intended to indicate that tough appointments will be made.

Other cabinet ministers have an interest.

Why not the Secretary of State for Trade and Industry? The Commercial Court is, after all, a major source of foreign earnings.

The appointment of judges should be made as politically neutral as is possible.

Decisions should be by, or on the advice of, the Secretary of State for Constitutional Affairs alone.

This, by itself, should impose some constitutional constraints on the office-holder.

Hitherto, the horsehair wig and the knee breaches played some function in protecting their wearers from the mud of day-to-day roustabout politics.

The constitutional secretary of state should maintain an air of decorum and distance.

A serving judge, presumably the Lord Chief Justice, will have to become the head of the judiciary.

Both behind the scenes and in public, the secretary of state will need to conduct a public dialogue with the representatives of the judiciary over matters of mutual interest.

This will require a bit more restraint than has been shown by frustrated home secretaries of the ilk of David Blunkett or Michael Howard.

Part of the political - as opposed to legal - impetus for reform has come from the success of the present commission for judicial appointments, a group of non-lawyers under the chairmanship of the shrewd Sir Colin Campbell.

The commission has been clear about the defects of our current system.

The problem is not so much that we make bad appointments.

The overall quality of our judiciary is acknowledged as high.

It is that we may pass over appointable candidates.

These reforms were necessary for technical compliance with the Human Rights Act.

They should also lead to an improvement in procedures, maintained quality and greater diversity.

Let us hope that they do.

But we would do well to remember that the price of democracy is eternal vigilance.

Roger Smith is the director of human rights campaigning group Justice