What This Civil War Is REALLY about; ANALYSIS

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Byline: EDWARD HEATHCOAT AMORY

Lord Woolf's declaration of judicial independence could lead to constitutional crisis. Here, a Mail writer analyses what is at the heart of the matter

Battle over the Supreme Court

The issue: The senior judges who form the Law Lords are Britain's final court of appeal.

The Government believes its reform of the Lords makes this inappropriate and the Law Lords should be replaced by a supreme court, separate from Parliament.

Lord Woolf's view: Once the judges are no longer in the Lords, they will lose their insight into what Parliament intended when it passed a law, as well as their ability to propose amendments to flawed legislation.

A supreme court will be more 'proactive' in challenging the Government, leading to ' tensions' between the judiciary and ministers.

Any reform should wait until Lords reform has been completed. There would be no place for judges in a wholly-elected Lords.

The real argument: Woolf fears MPs will follow the American example, and insist Parliament should be able to interview judges appointed to the supreme court.

Judges would be chosen for their views rather than their talents.

Politicians worry that judges, who have often overruled ministers, will become even more selfconfident in a supreme court.

Woolf 's suggestion that it will all lead to ' tensions' is an understatement.

Axing of the Lord Chancellor

The issue: Last June the Government announced, with virtually no consultation, it was abolishing the job of Lord Chancellor. His replacement, a constitutional affairs secretary, would no longer have a judicial role, nor be Speaker of the Lords.

Lord Woolf's view: The Government 'seriously underestimated' the significance of the office of Lord Chancellor within the British constitution. He performed a vital role representing the judiciary in the Cabinet, and preserving its independence.

The real argument: The last Lord Chancellor, Derry Irvine, often acted as the trade union representative for the judiciary.

He defended it against David Blunkett, who felt judges were becoming more powerful than politicians.

Once the Lord Chancellor goes, judges fear they will be at Blunkett's mercy.

But was it appropriate to have a Cabinet minister acting as a representative of a special interest group, even one as exalted as the judiciary?

So who should pick the judges?

The issue: Senior judges were appointed by the Lord Chancellor, in a process that relied on his taking other judges' advice.

With no Lord Chancellor, this job would go to an independent Judicial Appointments Commission - but the Secretary of State for Constitutional Affairs will continue to have the final say on appointments to the new supreme court. …