Pragmatism and Theory in English Law - College of Social Sciences ...

The Weaknesses of the Pragmatic Tradition 109
the law or political practice. But how independent is the
judiciary when the Lord Chancellor manages to combine all
these political and judicial functions in one person? Not
only is he himself not independent of the government, but
his powers of patronage and promotion are so extensive that
his position might be said to threaten the independence of
other judges or aspirants for judicial office. I do not, of
course, for a moment suggest that the present Lord Chancellor
would exercise his powers of promotion or patronage
so as to favour or disfavour a barrister or judge who acted in
a way which the government might find unpalatable. But
there are far more subtle ways of exercising power and
patronage some of which might indeed seem perfectly right
and proper to the Lord Chancellor. Clearly, for instance,
the Lord Chancellor has in the past (with the support of the
majority of the judges) taken the view that other judges
ought to steer clear of media exposure on controversial
issues, hence the Kilmuir rules. But it is also now clear that
not all the judges agree with the Kilmuir rules, and they
have been very publicly challenged by Judge Pickles. It
seems hardly open to doubt that someone who does not
believe in these rules, and openly flouts them in this way
will seriously damage his chances of appointment or promotion
in judicial office. Indeed Judge Pickles has publicly
announced that he has no interest in judicial promotion,
which is why he feels able to challenge the Kilmuir rules.
But I do not really want to get into a discussion of the
Kilmuir rules themselves. What I do want to raise are some
questions which might seem of a rather more theoretical
nature, although they are by no means without practical
import. As to the practical implications of some of these
questions, one only has to reflect for a moment on the fact
that it was because of his ministerial responsibilities that