1. The Institutions of Government
The Lord Chancellor’s Office
The nineteenth-century Lord Chancellor was in two senses ‘a minister without a ministry’.1 He had no team of civil servants nor accommodation dedicated solely to his executive functions. In the early part of the century he and his small retinue of secretaries and officers arrived in a coach each morning to conduct his business in his own court at the top of the steps at the south end of Westminster Hall. No permanent corpus of departmental records was kept and the papers belonging to an outgoing Chancellor were removed and usually destroyed.2
The Chancellor had officials serving him in his various capacities, but most of those belonging to the court of Chancery were not available to him for non-judicial work and those belonging to the great seal were reduced and remodelled in the 1870s.3 Besides his retinue of body officers, some of whom were also employed on clerical duties4 the Chancellor had three secretaries: a secretary of presentations for ecclesiastical patronage; a secretary of commissions for the magistracy; and a principal secretary who was a general factotum.5 By the 1860s (p.786) all were quartered in the House of Lords, except a couple of outlying clerks in Quality Court, off Chancery Lane.6
At the same time that the Judicature Commissioners were seeking to remodel their structure, there were moves afoot to reduce the autonomy which the courts enjoyed and integrate the legal departments more closely with the rest of the public service. An Act of 1869 laid down the principle that the expenditure on the courts should be met from the consolidated fund; some of the suitors’ funds in Chancery and bankruptcy were transferred to the exchequer and Treasury supervision over monies in court was strengthened.7 In 1873, pursuant to the recommendations of the Childers Committee, all new appointees not permanently attached to a judge were ‘deemed to be civil servants’ and that same Committee expressed the need for ‘some Department of the Government directly responsible to Parliament [to have] the power to administer and organise those officers in such a manner as to ensure the greatest amount of efficiency, combined with all practicable economy’.8 Selborne persuaded the Committee not to recommend that this ‘Ministry of Justice’ be located in the Home Office, but it was due more to the reluctance of the government to embark on a major and (as involving patronage) controversial legislative initiative than to any convincing constitutional or administrative arguments that the Lord Chancellor became not only the president of the SCJ but also the responsible minister for its finances and organization.9
When, as had to be conceded, the legal offices were investigated by the Lisgar Commission, Selborne and Cairns agreed (as did the Commissioners) that the principal secretary should not be converted into a permanent official but should, like the other secretaries, continue to come in and go out with his master.10 By 1882, however, the labour of implementing the Judicature Acts and the prospect of an ongoing supervision of the Supreme Court had convinced both men that this was no longer viable.11The last fruit of their co-operation in law reform was to combine in the person of Kenneth Muir McKenzie a new permanent secretaryship with the dignified and largely honorific office of clerk of the Crown in Chancery. The other secretaryships were continued and in 1886 Halsbury gave Muir McKenzie a chief clerk.12
(p.787) This small department was now entirely concentrated at the House of Lords and for the next 30 years Muir McKenzie was, for all practical purposes, ‘the Lord Chancellor’s Office’. It was characteristic of the man that he chose for his assistant Adolphus Liddell, an unsuccessful barrister with no professional ambition, polished manners, and an amiable disposition.13 Muir McKenzie is an elusive figure whose secretive working methods makes his influence difficult to follow.14 For all his detestation of patronage,15 he was rumoured to enjoy a considerable backstairs influence on judicial offices and, as befitted a political radical, he was at first a vigorous proponent of reforms in the legal system. Unfortunately for him, the Chancellor for most of that time was Halsbury, conservative in politics and administrative reform alike, and by the time a genuine reformer in Haldane arrived, Muir McKenzie had lost much of his earlier zeal.16
Haldane was astonished by the working practices and organization of the office, which he described as ‘not far removed from being an interesting little museum’, but he took no immediate action, perhaps waiting for Muir McKenzie to retire.17 The only resource Muir McKenzie hankered after was a junior minister in the Commons, where LCO measures were inadequately promoted by Treasury ministers or law officers.18 He was content with an office in which record-keeping was sparse and imperfect and which was wholly dependent upon his own memory and knowledge.19 Though his contribution to reforming the courts was generously acknowledged by the Civil Service Commission,20 it was clear that substantial changes in the LCO as well as the courts it supervised were badly overdue.
(p.788) The Council of Judges
One of the permanent secretary’s roles was as secretary to the Judges’ Council. This body, comprising all the judges of the SCJ, originated in a concession to Cockburn and his allies.21 It had an imposingly wide remit22 and was to meet at least annually, reporting to the Home Secretary.23 Although the Lord Chancellor was a member, he did not usually attend, leaving it to be chaired by the Lord Chief Justice.
As has been remarked, the Council had considerable potential for reformist activities but it was never fulfilled.24 It seems that the official report to the Home Office was made on just three occasions (in 1880, 1884, and 1892) and the KBD Commission in 1912 was told that it had met only three times in 33 years.25 This is a misleading figure, however. In fact what was described as the Council met regularly until 1889 and debated several important subjects: appeals from the benchers of the inns of court; rules for district registries; the proposal for continuous provincial sittings; sentences in criminal cases; and the long vacation.26 Above all they held repeated discussions on the vexed question of circuits and Assizes.27 If the Council was to become the main forum for dealing with the organization and procedures of the SCJ, it was essential that its de facto head should be in broad sympathy with the Lord Chancellor, but Coleridge had come to resent what he felt was the expansion of the Lord Chancellor’s power at the expense of his own office, bemoaning ‘the enthroning of the Lord Chancellor upon the neck of all of us’ and finding ‘the great traditional influences of the Chief Justice and the deference to him lessened materially, in every way, year by year’.28 Coleridge became a defender of the old system and led the opposition to key changes—the fourth Assize and grouping in particular. In 1887 he was the beneficiary of a remarkable act of deference on Halsbury’s part. (p.789) Comprehensively outvoted on a proposal to impose extensive grouping for civil matters and to have home counties litigation heard in London in exchange for the end of the hated fourth Assize, Coleridge nevertheless backed the reactionary diatribes of Grantham J. with a ‘bizarre outburst’ of his own.29
Halsbury gave way but the episode probably left him disenchanted with the Council. At all events, its regular meetings ceased not long afterwards and the only time he summoned one after 1890 was to fend off demands for a royal commission.30 After 1892 it did not meet again until 1904, when it considered proposals to alter the long vacation; there was a meeting in 1907 for the same purpose.31Loreburn and Haldane disparaged the Council and Schuster’s reading of the papers (and perhaps a briefing by Muir McKenzie) suggested to him that ‘the proceedings on each occasion have not been such as to encourage those present to come together again with any lively hopes of any good result’.32Brief revivals between the wars confirmed that view and it was at length abolished in 1981.
The Rule Committee
As established in 1881 the Rule Committee comprised the heads of the divisions and the Court of Appeal, plus four judges.33 The judges were in practice nomi-nated by the chiefs, two from the QBD and one apiece from Chancery and the Court of Appeal.34 Though Halsbury had rebuffed the professional bodies’ call for formal consultative status, in 1894 Herschell expanded the Committee to include the president of the Law Society ex officio and a further two persons, at least one a practising barrister.35 Given the shortness of the president’s term and his other commitments this hardly provided effective representation of solicitors, and in 1909 it was modified. Henceforth both bar and solicitors were to have two representatives, a silk and a junior nominated by the Bar Council, a London solicitor named by the Law Society and a provincial one chosen by the Lord Chancellor.36 The(p.790) full Committee of 12 was rather unwieldy and it was seldom that everyone attended. Most judges sat for only a few years but a few made substantial contributions, examples being Lindley and Chitty in the early years and Channell in the 1900s.37 No rule was ever annulled under the parliamentary procedure, but dissents were now and then recorded.38
It was sometimes suggested that the Committee would benefit from having a master as a member, and the impressive contribution made by Master Chitty to rule-making after the First World War lends substance to this argument.39 It was, after all, from the masters (who held monthly meetings) that most suggestions for amendment came.40 The law societies were another frequent source (more so than the Bar Council, though that was very active in criticizing the new in forma pauperis rules which dominated the Committee’s meetings from 1910 to 191441). Much of the Committee’s business, however, arose from new statutes.42
At intervals in the 1890s the Committee’s composition and activities came under strong criticism.43No one denied its industry (it usually held two or three meetings a year) or productivity; 24 sets of rules were said to have been added to the 1883 code by 1894 and a further six between 1896 and 1899.44 The quality of the drafting, however, left much to be desired. Order 30 (the summons for directions) proved a particular embarrassment. Rule changes of 1894 needed a six-strong Court of Appeal to interpret and then a further rule to remedy the consequences of their decision.45Furthermore, despite the abundance of rules they did not cover all details of practice and were supplemented by a growing body of practice directions issued by the chiefs.46 These contributed to swell the Supreme Court Practice (the ‘White Book’), which had reached 2400 pages with an index of 332 by 1914,47 and which it was said only Chitty and perhaps Bray J. (p.791) fully mastered.48 Its intimidating bulk was a measure of how far the hoped-for simplicity of the Judicature Acts had become encrusted with procedural niceties and complications,49 and the only attempt the Committee made to consolidate the rules, in the mid- 1890s, was left incomplete.50
2. Organization and Staff
The Lisgar Sub-Commission recommended that the common law offices should be amalgamated into a ‘central Masters’ department for the Common Law Divisions of the High Court of Justice, which shall provide all the official and clerical power required for the administration of civil and criminal justice in London and on circuit’.51 The Jessel Committee was more ambitious, and proposed integrating almost all departments within the central office, the principal exceptions being the Chancery registrars and taxing office and the non-contentious business staff of the PDA, who alone among the officers were not to be relocated in the Strand but would remain in Somerset House.52 In the event, the whole of the PDA and both the Chancery registrars and taxing masters preserved their independence.
A number of departments were created within the central office (eight of them in 1914). Besides those Chancery and PDA offices which retained their independence, there were added several others. The London Bankruptcy court staff were transferred in 1883, a Supreme Court pay office was created in 1884, a central scrivenery department in 1891, a companies winding-up department in the same year, and an office for the Court of Criminal Appeal in 1908. The only further amalgamation of offices to offset this proliferation was the central taxing office in 1901. All but the probate registry were housed in or adjacent to the RCJ.
Many of these offices were overmanned at the outset, and the central office nevertheless contrived also to offer a poor service to litigants, whose complaints (p.792) led to the setting up of a committee under the LCJ in 1886.53 Overmanning was inevitable if all the staff of the old courts were kept on, for as the Chancellor of the Exchequer ruefully told the Childers Committee, ‘I have never seen yet that we were able to get any great improvement in the law without paying smart money for it in some way.’54Government witnesses faced sharp questioning from the Committee over the generous compensation recently awarded to the redundant commissioners in bankruptcy and the accountant-general of Chancery, and there was no intention of incurring further expense and criticism by buying out court clerks and masters.
Consequently the Judicature Act 1873, section 77 enabled the court staff to ‘continue to perform the same duties as nearly as may be’, preserving their salaries, tenure, and pension rights. Only on a vacancy were the Lord Chancellor and the Treasury empowered to make a saving by leaving a post unfilled.55 Since attempts to persuade surplus clerks to retire on less than their full salary were for the most part unavailing,56 the departments created by the amalgamation of offices were manned rather according to the existing expertise of clerks (often very specialized) than to the number needed to carry out the work.57 The reconstruction was all the more difficult because the RCJ buildings were not well adapted and the establishment was top-heavy with senior clerks; ultimately some half-a-dozen ‘redundants’ who could not be fitted in anywhere were pensioned off on full salary.58 Only very gradually was the complement reduced to an appropriate level.59
The delicate task of fitting these clerks into their new departments was given by the Lord Chancellor to the official solicitor, H. Leigh Pemberton, for the Lisgar Commission’s recommendation to create a superintendent was dropped.60 The (p.793) Central Office Committee, and the senior master, felt this should have been entrusted to the masters, but they were a major part of the problem.61 Initially they were too many62 and most of them preferred their judicial role to the managerial.63 The negotiations over establishment revealed them as conservative and eager to protect their own staff, and some were obstructive towards procedural innovations.64 Some adopted such an unhelpful attitude that they drove solicitors to their more amenable colleagues, so unbalancing the workload,65 and because they were too many for their duties they covertly arranged a rota of unauthorized absences.66 After the Coleridge Report a ‘committee of control’ was set up with the senior master and two elected masters, but it seems to have achieved little.67
The whole hierarchy of oversight and control was weak. The Lord Chancellor had virtually no power over the PDA and there were doubts about the basis for the authority he exercised over the central office.68 Heads of division mostly knew little about the running of their courts and the masters at the head of each department were really no more than ‘primus inter pares’.69 Not surprisingly, the result was a very conservative institution, which was only reluctantly embracing the typewriter—a reluctance compounded by the necessity of employing women to use it70—and the telephone71 and in which the stated objectives of the 1879 Act, ‘the assimilation of duties and places…homogeneity and co-operation’72 had scarcely been fulfilled.
In 1893 Herschell, supported by the Treasury, sought to strengthen the Lord Chancellor’s powers and align them more closely with those of other departmental ministers. But the judges were not deceived by the artless description of the clause as simply intended ‘to strengthen the safeguards in the existing law (p.794) in matters of unnecessary appointments’.73 They reacted forcefully and unanimously, a committee claiming that the bill ‘practically vests the whole control of the subordinate officers administering the law, whose numbers exceed 500, in [the Lord Chancellor]’ and that it would be ‘prejudicial to the due administration of justice’, sacrificing ‘much of the independence of the great tribunals of this country’.74 Faced with this assertion that the independence of the judiciary was threatened and without (seemingly) Halsbury’s support, Herschell abandoned the offending clause and draft regulations.75
It was not until 1913 that a further general scrutiny of the SCJ took place, as part of a wider inquiry into the civil service. This investigation, like the Childers Committee of 40 years before, found that the legal departments lagged badly behind the rest of the civil service in their working practices: in office hours, promotion and transfer, retirement, and above all in that most sensitive matter of recruitment. The Lisgar Committee had been split on the issue of whether all clerks other than the judges’ body clerks should be appointed by the Lord Chancellor or some other ‘Minister of Justice’ and Selborne and Cairns had no wish to provoke unnecessary opposition to their proposals.76 The Judicature Act 1873 provided that while the Lord Chancellor and the Treasury would determine the number of officials, and the former would appoint to all the non-divisional offices, divisional staff would be chosen by the head of the division.77