Tomorrow the Ministry of Justice will begin work. It will be responsible, in particular, for the courts and tribunals, and for criminal justice, including prisons. George Orwell cautioned that political language “is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind”. Many members of the legal profession are worried that the creation of the Ministry may promote substantial injustice.

There are two main concerns. The first is the lack of adequate consultation and the absence of any debate in Parliament. This is a foolish way to make fundamental reforms, however sensible they may be. It is arrogant for government to think that its proposals could not benefit from informed debate, and it is unwise to make changes that will struggle to win support because of the manner in which they have been introduced.

The second concern is substantive. There has been inadequate time to resolve complex and important questions of the relationship between the ministry and the courts. In particular, the ministry will be responsible for allocating resources for the courts, but it will also be a defendant in those courts in cases which will affect the ministerial budget. That creates a conflict of interest for the judiciary as its judgments may well affect the resources available to them in the future.

These concerns, and others, were explained last week to the House of Lords Constitution Committee by Lord Justice Thomas on behalf of the judiciary. Two weeks ago in his Clifford Chance Essex University Lecture, Lord Woolf (the former Lord Chief Justice) expressed his unease that “there is a real danger that justice will become a backwater so far as the new department is concerned”.

Lord Woolf’s thesis is that in the unwritten British constitution, the independence of the judiciary from outside interference has traditionally been protected in a paradoxical, but effective, manner. The judiciary has benefited not from a separation from government but by a close relationship with government. A minister, the Lord Chancellor, notionally also the head of the judiciary, was the judges’ “spokesman on the top table”, able to consult closely with the judiciary and then tell the Cabinet what it needed to do to maintain judicial independence and access to the courts. The checks and balances “personified in the former role of the Lord Chancellor” have gone and, Lord Woolf says, consideration needs to be given to what is to replace it.

The traditional functions of the Lord Chancellor became anachronistic by the end of the 20th century. The Courts Act 1971 imposed substantial new responsibilities on what had previously been more a private office than a government department. Battles over legal aid, Home Office antipathy for judicial decisions (under Conservative and Labour administrations), controversial governmental policies on legal issues (such as debates over the Human Rights Act), and the impossibility of a minister continuing to sit as a law lord removed the fiction that the Lord Chancellor’s duties were as much legal as political.

The legal profession was fortunate for so long to have a friend at the Cabinet table. Access to justice is a vital element of a democratic society, but so is a free press and yet newspaper editors had no representative in Cabinet. But to debate such issues is pointless, as it is inconceivable that there will, ever again, be a minister who acts as a conduit between the judges and the politicians. To have a new department deciding so much broader a range of policies will inevitably mean less influence for lawyers. In the very near future, the Minister of Justice will be an ambitious career politician in the House of Commons who may not have the maintenance of an effective court system as the top priority.

The question is whether other reforms are now needed to protect effective access to the courts. The Courts Act 2003 obliges the Lord Chancellor (from tomorrow the Minister of Justice) to ensure that the courts operate in an efficient and effective manner. But that requires adequate financial resources. Because the Minister of Justice will be a frequent defendant in those courts, and because of the potential impact of those cases on the budget for the courts, there is a very strong case for establishing an independent body which will, after considering representations, each year rule on, or at least recommend to Parliament, the level of funding for the courts. The first thing the Minister of Justice should decide tomorrow is that justice so requires.

The author is a practising barrister at Blackstone Chambers and a Fellow of All Souls College, Oxford

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