Published: Fri, 12 Oct 2018
Constitutional Reform Act 2005
Why was it introduced (political sociological context)?
The Constitutional Reform Act of 2005 [‘the Act’] prescribed numerous changes in the judiciary of the United Kingdom [‘UK’] as well as the roles of the Houses of Parliament. The Act’s introduction must be situated on the backdrop of political intent to reform the historical constitutional mixture of legislative, judicial and executive powers being vested in the House of Lords, with growing concerns for instituting stricter separation of powers in UK government. The reform was further motivated by legal concerns regarding the compatibility of the current vestiges of powers in the office of the Lord Chancellor with fair trial rights under the European Convention on Human Rights. Thus, on this backdrop, a bill which highly restricted the jurisdiction of the House of Lords and completely abolished the office of the Lord Chancellor was proposed before the House of Lords in 2004. It was subject to heavy debates and amendments by the House of Lords and, eventually, was approved while retaining the role of the Lord Chancellor with limitations.
What was the aim of the Act (legal context)?
The primary aim of the Act is reform the UK institutional makeup in order to allow for a stricter separation of powers and divide the mixture of executive, judicial and legislative powers in the same unelected body. Accordingly, the Act reformed the office of the Lord Chancellor, introduced the Supreme Court of the United Kingdom, and regulated the appointment of judges outside of the auspices of the House of Lords.
What main changes did it make to the law?
The Act’s primary changes pertained to the office of the Lord Chancellor and the UK judiciary. Firstly, the Act severely restricted the powers of the Lord Chancellor. Prior to the Act, the Lord Chancellor, the senior officer of the House of Lords, was appointed by convention, without express procedures or qualifications thereto. However, the Act introduced provisions concerning the terms and qualifications of appointment of the Lord Chancellor. Further, the Act restricted the powers of the Lord Chancellor.
In altering the functions of the Lord Chancellor and restricting the jurisdiction of the House of Lords, the Act creates the Supreme Court of the UK as the new superior appellate court of the UK, replacing the House of Lords. The creation of the Supreme Court is supplemented by provisions concerning the appointment of its judges and its administration as separate and independent from the House of Lords.
Further, the Act compounds the abolition of the Lord Chancellor’s judicial functions by introducing a statutory recognition of judicial independence for the first time in the history of UK laws. The Act expressly recognises the rule of law and the continuing judicial independence of UK courts, barring members of the legislative and executive to influence judicial decisions or have any access to judges. This reform ensured, for the first time in UK legislative history, a formal recognition of the constitutional separation of powers.
The Act’s key areas concern the Office of the Lord Chancellor as well as the Supreme Court and appointment of judges in the judiciary. Firstly, affirming the existing constitutional principle of the rule of law (s1), the Act institutes a number of arrangements to modify the office of the Lord Chancellor. For example, the Act modifies the appointment of the Lord Chancellor by introducing the requirement that the Prime Minister may only recommend a person for appointment as Lord Chancellor if so “qualified by experience.” (s2). The Act further aligns the role of the Lord Chancellor with judicial independence, stipulating a provision that ensures that the Lord Chancellor must uphold the continued independence of the judiciary (s3), of which includes the Supreme Court, other established UK courts, and any international court (s3(7)). Schedule 4 of the Act further provides for the transfer and/or modification of functions to and from the office of the Lord Chancellor.
Secondly, the Act creates a framework for a Supreme Court as an independent judicial body. In prefaces the creation of the Supreme Court with a statutory recognition of “continued judicial independence” of the courts (ss3-4). The Act stipulates that “there is to be a Supreme Court of the United Kingdom” (s23(1)). The Act further stipulates provisions for the composition of this Supreme Court, providing that the Court shall consist of 12 judges appointed by Her Majesty (s23(2)), and that persons shall only be qualified to be appointed as a Supreme Court judge if they have held high judicial office for a minimum of two years or been a qualifying practitioner for a minimum period of 15 years (s25(1)). The Act prescribes comprehensive procedures for the selection process of judges and clearly designates the role of the Lord Chancellor thereto (ss26-31). The Act also expressly recognises the need to “encourage diversity” in the appointment of judges (s64). Further, the Act also contains provisions on the terms of appointments on the Court, including the requirement to take a judicial oath (s32), tenure (s33), salaries and allowances (s34), resignation and retirement (ss35-37), and others. The Act further expressly designates the jurisdiction of the Supreme Court as the superior appellate court of the UK (s40), its relation to other Courts (s41), its composition (ss42-43), its practice and procedure (ss44-47), and other procedural aspects in its administration.
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