Peter Leyland

Separating powers and constitutionalising the office of Lord Chancellor

  • Abstract

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The decision to scrap the ancient office of Lord Chancellor in the ministerial re-shuffle of June 2003 was a major surprise. The details of the new department and the ministerial role are still in the process of being finally determined as the Department of Constitutional Affairs (DCA) is rising Phoenix-like from the ashes of the Lord Chancellor's department. This paper examines some of the implications of this re-structuring. We begin by looking at the governmental role of the new department, but the main concern is to reflect upon separation of powers and to assess the proposals for a new system of judicial appointments and for a Supreme Court in terms of the broader constitutional context of the re-balancing of powers between the main organs of the state. Fundamental values embodying a kind of separation of powers have been implicitly practised for generations in the UK despite the apparent constitutional contradictions. It is clear that a crucial element in achieving successful change will be ensuring that a prevailing culture of law is maintained and respected by both members of government and by lawyers and judges.

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