Mixed appeal of the controlling body
10 October 1995
16 July 2013
21 January 2013
2 July 2013
17 December 2012
29 May 2013
The Law Society may take Lord Mackay to judicial review over financial tinkering, the Bar may grumble at his reforms, legal pressure groups may fight highly public battles against his cutbacks, but in the end his word is made law.
This is partly because he is a highly determined, forward-thinking man. But it is also to do with the machinery of his department, a fast-evolving body of civil servants, which has one eye on the tricky arena of "access to justice" and the other on the Treasury.
Of course, the Lord Chancellor does consult with the leading legal representative bodies about many of his proposals and they are able to make their opinions heard. However, there is an inevitability about much that he proposes.
As Lord Mackay is a dedicated legal reformer who genuinely aims to improve the administration of justice, his omnipotence is not so troublesome. But he is also a government minister answerable to Parliament on spending and has run into opposition from some quarters. In particular, the department which many consider should be on the side of the profession is often seen as being against it.
The LCD is part of Whitehall and yet it is different from Whitehall. Traditionally, promotion to the department was more likely if you were a lawyer. This is changing, although the top roles - the permanent secretary and the head of the Courts Services Agency - are still drawn from the ranks of the Bar.
Like any other collection of civil servants, the LCD serves the Government and advises a minister. However, that minister does not get reshuffled, is an impartial head of the judiciary - as well as a very partial member of a government - and is the speaker of the House of Lords.
The office of Lord Chancellor is at least 1,000 years old and the position is the nearest equivalent to a Minister of Justice. The Lord Chancellor is a judge and has always been a barrister.
The LCD is run by about 12,000 civil servants (middle-sized in Whitehall terms), the majority of whom (10,000) work for the Court Service. The Lord Chancellor's chief adviser is the permanent secretary Sir Thomas Legg. The post-holder must be either a lawyer of 10 years' standing or someone who has worked in the department for at least five years.
The LCD also oversees the Public Trust Office, the Northern Ireland Court Service, HM Land Registry, the Public Record Office and associated offices - the Law Commission, the Official Solicitors Department, the Judge-Advocate General's Department and the Statutory Publications Office.
The Legal Services Ombudsman, Council on Tribunals and the Legal Aid Board are non-departmental bodies which account to Parliament through the Lord Chancellor. In addition, the LCD is the central authority for England and Wales for action over child abduction and it also administers 10 tribunals.
It controls an expenditure of £2.31 billion annually, which includes nearly £1.46 billion on legal aid, £352 million on magistrates courts and £65 million on judges' salaries.
Parliament provides money to operate the legal system, but judges' salaries are an exception to the rule of ministerial accountability. Their pay comes from the Consolidated Fund and so is not considered as money voted by Parliament. The idea is to protect the independence of judges.
The relationship between the judges and Mackay is open to a great deal of speculation. He is wedded to the principle of independence and non-accountability among the judiciary, and recently he said it was up to individual judges whether they wanted to express their opinions to the media.
According to one Law Society official, the LCD is "hamstrung by its fear of the judges". He adds: "There are very few things they will do in the face of judicial opposition."
But a prominent magistrate identifies the civil justice reforms by Lord Woolf as an example of Mackay's good relationship with the judiciary.
He says: "The LCD stands up to them [the judges] to a degree which they find almost unbearable. When he started, I think the judges thought they were immune."
How does it work?
The LCD has a classic civil service structure, with a pyramid of high-grade civil servants running a string of departments.
According to one of them (officials never speak attributively), the department is changing its character and becoming less dominated by lawyers, although it still has a higher proportion of lawyers than other departments. The department is responsible for:
administering the court system
providing legal aid and legal services
reforming and revising civil law.
The rest of the country's legal remit is shared between the Attorney General and the Solicitor General, who are the Government's chief advisers, and the Home Secretary, who is responsible for law and order, including criminal law.
It is in law reform that the non-court's agency arm of the department sees its main work. The LCD official describes this role as "thinking about underlying themes". Lord Woolf's access to justice reforms are held up as a major example, but the Lord Chancellor has also made important changes to areas that personally interest him, such as the Children Act and divorce legislation.
Reporting to Sir Thomas Legg are head of policy Ian Burns, head of the judicial appointments group Robin Holmes, Richard White, head of the legal group, Amanda Jones of the policy group secretariat, Mary Burton of agency monitoring, Laurence Oates, associate head of the policy group, and Nicky Oppenheimer, head of personnel, finance and services group.
The Home Office used to be responsible for the magistrates courts. Then in 1992 they transferred to the LCD.
On the 3 April this year the department became an agency. The Public Trust Office was the first part of the LCD to convert to agency status under the Government's Next Steps policy.
Value for money, efficiency and localised decision-making were the primary principles behind the new agency.
Preceding it was the controversial appearance of the Courts' Charter which set out standards for court procedure. It was launched in mid-1992 by the Director of Public Prosecutions, Barbara Mills QC. She described witnesses, victims and defendants as "clients" of the courts system and said one aim was to make court documentation sent to witnesses easier to read and understand.
Whose side is it on anyway?
There has been criticism that, far from fighting the lawyers' corner, the LCD seems to have little sympathy with the plight of the profession. One Law Society insider says: "What riles us is that the Lord Chancellor never comes out of his shell to defend lawyers."
The LCD does not see itself as a defender of the profession as it suffers a downturn in its popularity. Its dealings with the Law Society are generally friendly, although there is said to be a healthy opposition on several fronts.
The insider says: "On a personal level we get on fine. On an institutional level we know how to fight each other quite hard. They don't expect anything less than full-scale fighting from us. I think we are conducting guerrilla campaigns quite a lot of the time."
It was full-scale war when the Lord Chancellor announced swingeing cuts to legal aid eligibility in 1993. The legal profession was mobilised and the war did not end until the society took the Lord Chancellor to judicial review and failed to reverse the cuts.
The relationship with the Legal Aid Board, a quango created by the LCD in 1988 to administer civil legal aid, can have its more laboured moments, too.
Generally, relations between the two are good - the Lord Chancellor was pleased with the LAB's idea for legal aid franchising and the LAB has welcomed Lord Mackay's Green Paper on legal aid.
But now and again there are clashes. Another Law Society source puts it this way: "The LAB doesn't think the department is very good at what it does. The department doesn't like the way the LAB runs things. They generally present a united front in public."
The sticking point is criminal legal aid. The LAB wants to run this area, too, but the LCD argues it would slow down the system. The board proposed a form of early cover to make the system work; the LCD turned it down.
The LCD's relationship with the Bar is at "arm's length, as it should be", according to a Bar spokesman.
A Ministry of Justice.
Labour has dumped the idea of a Ministry of Justice but the concept has been around for some time and it will not disappear overnight.
When a government post is 1,000 years old it's not surprising that there are calls for a change and the pro-justice ministry lobby claims the Lord Chancellor has his finger in too many influential pies because of his several titles.
A guide produced by the department describes how the calls for a Ministry of Justice have been heard since 1836 when the government of the day introduced a bill to set it up, only to have it defeated in the House of Lords.
However, the guide also adds: "In its modern form the argument in favour of the status quo has been that, precisely because the Lord Chancellor's Department has been created, reformed and enlarged, a Justice Ministry in the wider sense is unnecessary."
Sir Thomas Legg. Permanent secretary, Grade 1. Lord Mackay's right-hand man. Good example of the principle "it pays to stay". Appointed PS in 1989, 27 years after joining the department as a legal assistant. Pupil at the Chancery Bar. Has been described by one Bar Council official as "a Latin master". He is the chairman of the corporate board which runs the LCD.
Michael Huebner. Chief executive, Court Service, Grade 2. Took over the pre-agency status court service from Raymond Potter in 1993. Head of magistrates courts and then saw through the controversial "semi-privatisation" of the service into an agency this year.
John Taylor MP. Parliamentary secretary. Former Conservative whip and surprise choice for the role which was created in 1992. Ask anyone in the LCD why the backbench MP for Solihull was appointed and the answer is: "Well, he's been a solicitor in Solihull for 25 years." Otherwise his appointment was inexplicable to many at the time. Represents the Lord Chancellor in the House of Commons and takes the flak in heated legal aid debates.