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24 May 1999

Who will curb the mighty Irvine?

The Lord Chancellor is set to acquire extraordinary new powers. And if we get a Human Rights Act he

By Frances Howell

The man who was once the Prime Minister’s boss will, in the next few weeks, tuck a few more political powers under his belt – raising fears among his (numerous) critics that he will become the most powerful man in the land. Lord Irvine of Lairg, the Lord Chancellor, who as a senior barrister taught his young assistant, Anthony Blair, to win his first courtroom battles, already holds leading posts in parliament, the government and the justice system. He presides over proceedings in the House of Lords; is a senior member of the cabinet (his £160,000 salary is higher than the PM’s); and he heads the judiciary. He is both the man responsible for appointing new judges, and the most important judge in the land. In short, the Lord Chancellor can preside over the making of a law, put it into effect and then adjudicate on its application.

Over the coming weeks, the Lord Chancellor will significantly expand his authority with the controversial Access to Justice Bill by taking a bundle of powers out of the hands of the legal profession and into his own. The bill has already sparked controversy; as it went into committee stage in the Commons last month, the solicitors’ Law Society kicked up a fuss with a series of advertisements in the national press (including the NS) which looked like the latest shock tactics from the NSPCC or the Commission for Racial Equality: a typical one, under the headline “Justice denied”, showed a black man with the description: “Beaten up, falsely imprisoned and ridiculed, this citizen is now facing more discrimination. And the government’s about to turn a blind eye.”

The Lord Chancellor’s new powers in the Access to Justice Bill include selecting the cases for free state funding. At the moment, independent solicitors certify that a case has a reasonable chance of success; in the future, the decision will be taken by a new body controlled by the Lord Chancellor. The Lord Chancellor’s department will also have control over the new Criminal Defence Service. This could replace the private lawyers who, until now, have ensured that those accused of crimes have a fair hearing, with US-style public defenders. Similarly, the rules of legal conduct and training have for centuries been decided by the law professions themselves; but once this bill is passed, the Lord Chancellor will decide these, too.

The real boost to the Lord Chancellor’s power, though, stems from the omission from the bill of details of how these reforms will be put into practice. If Lord Irvine has his way, the legislation will also shed the set of overriding principles that the House of Lords inserted into the bill – and against which the Lord Chancellor’s actions can be held to account. This would allow the Lord Chancellor to do as he pleases with his new powers over case funding, criminal defence and the legal profession. As he will decide which cases reach the courts, and who can act in them, this gives him an extraordinarily tight personal grip on the dispensation of justice.

When the government finally implements the Human Rights Act in October 2000, it will push the constitutional balance of power yet further in the Lord Chancellor’s favour.

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By incorporating the European Convention of Human Rights into British law, the act will enable judges to overrule Parliament’s decisions. This will inevitably draw judges into an area traditionally reserved for politicians, as courts decide questions such as whether homosexuals can serve in the army. This new role risks turning judges into a significant unelected political power – with the Lord Chancellor, as head of the judiciary, in charge. The new Welsh Assembly and its executive are bound by the convention, and are therefore already subject to the censorship of judges, led by Lord Irvine.

A powerful Lord Chancellor, though by no means a break with history (think of Lord Irvine’s own icon, Cardinal Wolsey) has raised concern among constitutional reformers who advocate a US-style political system, where the executive, legislative and judiciary bodies are independent of each other. They view the Lord Chancellor’s role as an unacceptable overlap of power that should be curbed. Supporters of the British constitution instead see Lord Irvine’s multi-functionalism as integral to the political system.

Despite this constitutional debate, the one threat to Lord Irvine’s new powers does not come from political theorists (nor, indeed, from the enraged legal profession). It comes from the island of Guernsey, in the shape of a case, McGonnell v Guernsey, that is on its way to the European Court of Human Rights from the European Commission of Human Rights. The commission has recently ruled that while the bailiff of Guernsey presides over the island’s courts, legislature and administration, it compromises the appearance of judicial independence and impartiality required in article six of the convention – otherwise known as the principle that justice must not just be done, but must be seen to be done. If this is upheld in the court, the Lord Chancellor could find that the ruling prevents him from sitting as a judge – which would call into question the nature of his office.

In the meantime, the Lord Chancellor seems set on extending his powers to gain political and administrative control of both the legal profession and the justice system. Unelected as he is, the Lord Chancellor is answerable to just one man, who has always looked up to him. Lord Irvine is well known to have the ear of Tony Blair. But who listens to whom is another question.

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