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

110 The Weaknesses of the Pragmatic Tradition
Lord Hailsham was in 1986 challenged before the Lord
Chief Justice on a petition for review brought at the
instance of the Bar Council, and in substance found to have
acted contrary to the established principles of administrative
law. 27 Clearly, one possible reason for judges not having
administrative responsibilities is that it is part of the function
of the judiciary to oversee the administration's due
observance of the law. But the issues are more complex and
puzzling than that.
I am puzzled in particular as to why conduct which seems
to be perfectly acceptable when it is indulged in by the Lord
Chancellor is not regarded as acceptable if indulged in by
other judges. Is this because there is only one Lord Chancellor,
and an anomaly can therefore be swallowed if it is
small enough? But this hardly seems a satisfactory answer
to my question when we remember what a fundamental
constitutional principle it seems to be that judges are supposed
to be non-political. We do not usually accept
breaches of fundamental principles just because they are
small ones. Or is it because the Lord Chancellor is usually
an astute politician as well as an able lawyer who can somehow
be trusted to keep apart his political and his judicial
role? Or is it, perhaps, possible that many judicial
decisions, especially those demanded of senior appellate
' R. v. Lord Chancellor, ex p. Alexander (1986), referred to (though not
reported, in) 136 New L.J. 297. The proceedings never went to a final
judgment but only because the Lord Chancellor in substance conceded
victory to the Bar, and agreed that his prior determination of the level of
legal aid fees should be treated as interim only, and subject to further
negotiations with the Bar. This is confirmed by the fact that an order for
costs was made in favour of the Bar. cf. Bates v. Lord Hailsham [1972]
1 W.L.R. 1373.