Sweep-out in the halls of British justice

By ROBERT VERKAIK

As MPs and peers sat on the terrace of the Houses of Parliament enjoying last Thursday's mid-morning sun, none could have suspected what was about to unfold.

The first hint of something big afoot came at 11.30am with the resignation of Alan Milburn, the Secretary of State for Health.

But it wasn't until after 6pm that it became clear that his departure was the start in a train of events that ended with the most fundamental changes to the English legal system in hundreds of years.

Among the changes was the abolition of the office of Lord Chancellor and creation of a supreme court to replace the Privy Council.

Yet only last month, it seemed that the most pressing legal reform facing the Government was the rather mundane question of whether barristers and judges should continue to wear wigs.

The chaotic nature of last week's announcements suggest that the timing of such seismic changes was forced upon the Government.

Even senior Whitehall advisers admitted they had little idea of how the new arrangements were supposed to work.

Officials at the Lord Chancellor's Department, to become the Department of Constitutional Affairs, wondered whether they would still have jobs in the morning.

The speed of the changes must have surprised even the departing Lord Chancellor, Lord Irvine.

Only a few weeks ago, he was confidently declaring to the parliamentary select committee set up to scrutinise his burgeoning empire that there would be no supreme court.

He said the cost of finding new accommodation for a revamped law lords made it too expensive.

He was equally dismissive of any suggestions of his reforming his own office.

In an interview last month, Lord Irvine also opposed setting up a ministry of justice, saying he was happy with the present system.

For those reasons alone, his departure from office was a prerequisite for reform. But what do these fundamental constitutional changes mean?

The detail is still very sketchy, and it is perhaps easier to define them in terms of what they are not.

The new Department of Constitutional Affairs is not a ministry of justice.

Rather, it is business as usual and a name change for the Lord Chancellor's Department - although it will have more work with its new involvement in Scottish and Welsh affairs.

But the absence of Lord Irvine and the abolition of his former office does give scope for evolving a new ministry responsible for the whole of the criminal justice system.

Such a creature would at last give real meaning to the New Labour mantra of "joined-up government".

Replacing the House of Lords' judicial function with a new supreme court raises as many questions as ministers hoped it would answer.

Will it follow the US model and allow judges to strike down legislation? Will its members be vetted by the Commons for any political allegiance? And will they be elected?

It seems that such profound change is unlikely, and we can expect a new supreme court to function in a very similar way to the judicial committee of the House of Lords.

A consultation paper to be published shortly is expected to address many other questions, including the role of law lords who sit as a final court of appeal for Commonwealth cases before the Privy Council.

Lord Falconer, who will be Lord Chancellor until the post is abolished, says he wants to reinforce the separation of constitutional powers by creating an independent judicial appointments commission.

But Lord Irvine's reservation that such a commission would lead to a self-appointing oligarchy still needs to be addressed.

The legal reform group Justice says all judicial appointments should be made by the new Secretary of State for Constitutional Affairs, on the advice of a commission for judicial appointments.

Perhaps the most serious question concerns the responsibility for the discipline of the judiciary.

In cases of very serious misconduct the Lord Chancellor, as head of the judiciary, has the power to admonish and even remove a judge from office.

It is unthinkable for this power to pass to the new Secretary of State for Constitutional Affairs, who would hold a post in the Cabinet.

That would fly in the face of the Government's claim that its reforms are intended to help define the independence of the judiciary.

Perhaps the responsibility should fall to the Lord Chief Justice, who could become the new constitutional head of the judiciary.

Lawyers and judges have given the changes a cautious welcome, and the Government must be congratulated for the boldness of its thinking. But a lot of work has still to be done.

Lord Falconer last week explained the motives behind the reforms: "Why should the Lord Chancellor's role go? Because the person who appoints judges should not be a member of the Executive, a member of the legislature and head of the judiciary."

He said the changes would have to pass through Parliament, which would allow ample time for consultation and debate.

- INDEPENDENT