'He champions the independence of the entire justice system'
Guardian staff Edward Garnier
<B>Edward Garnier</B> says the lord chancellor is a vital guarantor of our freedom.
https://assets.guim.co.uk/static/frontend/icons/homescreen/apple-touch-icon.svg
the Guardian
The arguments for getting rid of the lord chancellor are perfectly respectable. They have a certain neatness to them. They are eminently rational. But one of the strengths of the British constitution is that it is different from every other, yet wholly capable of protecting the rights and interests of the citizen. We live by what is reasonable, not by what is rational, and have seen the common law provide as much, if not more, protection for the individual against the overmighty state as the supreme courts of other countries with written constitutions. Fiddling with the role of the lord chancellor will not make a worthwhile difference to that. No politician in the Commons making his way up the greasy pole can guarantee to be an adequate substitute.

The lord chancellor untidily bestrides the constitution. Is our democracy the feebler for that? Are our judges government stooges who do no more than the bidding of the politician that appointed them? Are they appointed for their political views rather than their legal expertise? Every week the courts decide cases against the government. The home secretary, David Blunkett, fulminates against the judiciary for applying the very laws his government has passed against it.

Our courts often award damages against the police. A private citizen was granted £1m in compensation for nuisance against the MoD, during the Iraq war, for noisy low flying by RAF fighter jets over his house. The right to strike and to demonstrate is protected by the courts.

In all his areas of responsibility, Lord Irvine, despite his questionable political and diplomatic skills, can justly claim to have behaved entirely properly. Like him or hate him as a party politician, he was subject to the control of parliament in all that he did as lord chancellor. His successor, Lord Falconer, although he prefers the title constitutional affairs secretary, is equally circumscribed by parliament and convention - for the present.

Undoubtedly we have an omnipotent parliament, subject only to the will of the government majority, but we also have an independent judiciary. It is the primary task of the lord chancellor to champion that independence and the entire justice system against parliament and the pressures of populism that so affect MPs and the press. In the absence of a written constitution we have been able to rely upon the fearless integrity of that office holder. It is an integrity that requires more than mere party loyalty or blind obedience to a prime minister. It requires qualities we are unlikely to find in a politically ambitious secretary of state for constitutional affairs. It also requires the office holder to have a foot in all three parts of the constitutional divide and to understand why.

The turf wars between the Home Office, the departments dealing with local government, the law officers and the Lord Chancellor's Department (LCD) will wax and wane, and the extensive political and executive role of the present lord chancellor will be different from that of his successor, Labour or Conservative. But the vital and central role of the lord chancellor which requires him to tread carefully along the three parallel but invisible lines of the British constitution - the legislature, judiciary and executive - is justified and justifiable. While there is room to restructure the LCD and to depoliticise the office of the lord chancellor - frequently and most usefully held by people of the highest intellect and legal experience who are beyond political ambition and above the hand-to-hand fighting of modern politics - its essential purpose and functions should be maintained. The office of lord chancellor is not bad because it is ancient; it is ancient because it is good.

An office that has served this country and its constitution well for hundreds of years must not be abolished to answer a seven-day political crisis over a cabinet reshuffle in June 2003. What we have now is a political and intellectual farce: verdict first, evidence later. How very New Labour.

· Edward Garnier QC is the Conservative MP for Harborough and was shadow attorney general from 1999-2001.