Prior to the Constitutional Reform Act 2005, the role of the Lord Chancellor is rather controversial in the sense that his responsibilities were in conflict with the doctrine of separation of powers. This doctrine states that the power of the state has to be divided between the three organs, namely the judiciary, legislature and executive. Each of the organs should operate independently and none will become all powerful. The Lord Chancellor, who is the member of the cabinet, was the head of the judiciary and was entitled to sit in the House of Lords to hear the appeal cases. Besides that, he was the speaker of the House of Lords, which is the legislative chamber. This conflict to the doctrine of separation of powers was seen to be incompatible with the independence of the judiciary.
The fact that the Lord Chancellor was involved in all the three organs of government was said to be unacceptable since it contradicts with Article 6 of the European Convention on Human Rights. This Article is to ensure fair trial which requires that a judge must be independent of the government. However, one could have doubt as to whether the Lord Chancellor, when sitting as a judge, would be bias against the government. In light of the 2005 Act, although the Lord Chancellor remains a Cabinet minister whose responsibility is in connection with the system of justice, he no longer sits as a judge hearing a case.
Part 2 of the Constitutional Reform Act 2005 has modified the role of the Lord Chancellor. In order to be appointed as the Lord Chancellor, he or she need not be a member of the House of Lords. Moreover, no legal qualifications or experience is required. Jack Straw, who is a member of the House of Commons, was appointed to be the first Lord Chancellor under the 2005 Act.
Before the appointment of Jack Straw, Lord Falconer, who was thought to be the last Lord Chancellor, was appointed to be the Secretary of State for Constitutional Affairs. Besides that, the Lord...