ABSTRACT
The Lord Chancellor may refer matters to the Law Commission for investigation, or the Commission may investigate issues of its own motion.
The Lord Chancellor is a member of the executive arm of government. He is a senior member of Cabinet and, as such, may be dismissed by the Prime Minister.21 It is perhaps this feature of the Lord Chancellor’s office which has given rise to the greatest disquiet when evaluated against the doctrine of the separation of powers, for the obvious impression is given that there is too close an association between the head of the judiciary and the central body of the executive – the Cabinet.22 Nevertheless, there is some justification for this arrangement. Lord Chancellor Birkenhead (1872-1930), for example, defended the link between the head of the judiciary and the Cabinet in 1922:
... it is difficult to believe that there is no necessity for the existence of such a personality, imbued on the one hand with legal ideas and habits of thought, and aware on the other of the problems which engage the attention of the executive government. In the absence of such a person, the judiciary and the executive are likely enough to drift asunder to the point of a violent separation, followed by a still more violent and disastrous collision. [1922, Chapter 4]
More recently, Lord Hailsham, Lord Chancellor 1979 and 1987, argued that it is vital that:
... the independence of the judiciary and the rule of law should be defended inside the Cabinet as well as in Parliament. The Lord Chancellor must be, and must be seen to be, a loyal colleague, not seeking to dodge responsibility for controversial policies, and prepared to give to Parliament a justification for his own acts of administration. [1975]
Equally strong support for this constitutionally unusual relationship between the judiciary and the executive came from Lord Mackay of Clashfern, the former Conservative Lord Chancellor. Lord Mackay conceded that there is an inevitable tension between the role of Lord Chancellor as a judge and his role as a member of the executive. Nevertheless, Lord Mackay argued that these tensions are offset by the benefits which are perceived to flow from the close relationship. First, he supported Lord Hailsham’s view that the Lord Chancellor should be able to
21 As was Viscount Kilmuir in 1962.
