The Constitutional Reform Act 2005

The Constitutional Reform Act 2005 (CRA) was agreed by both houses on March 21, 2005 and received royal assent on the 24th March 2005. It fundamentally makes provision for adjusting the functions of the Lord Chancellor and the office as well as providing a Supreme Court to substitute the existing role of the Law Lords in the House of Lords. Furthermore, it resolves new judicial appointments. By introducing these reforms, the question arises as to whether the CRA has developed the doctrine of the separation of Powers in the UK’s constitution that it hoped to achieve.

It was stated by a Law Lord, Lord Steyn that the role of the chancellor was ‘no longer on either constitutional or pragmatic terms…a spokesman for the government in furtherance of its party political agenda.’ The Lord Chancellor had progressively developed overlapping powers including being a member of the Cabinet, Head of the Judiciary and a Speaker in the House of Lords allowing a concentration of power to the same one person which is undemocratic. This resulted in the government, deciding on a radical reform called the Constitutional Reform Act 2005 (CRA) without any consultation. They had the desire to increase separation of Powers between judges and government and to comply with article six of the European Court of Human Rights (ECHR) on judicial independence. The decision in the ECHR in McGonnel v United Kingdom distributed the Lord Chancellor’s judicial role. This was because the court held that a breach in Article 6(1) of the ECHR (the right to a fair trial) was seen in the doubt of the Bailiff’s judicial impartiality as he had a dual role in approving and hearing the development plan. The government claimed it would ‘put the relationship between the executive, the judiciary and the legislature on a modern footing, clarify the independence of the judiciary.’ The role of a new Secretary of State for Constitutional Affairs was developed with the responsibility for the safeguard of judicial independence. The Lord Chief Justice has turned under s.7 (1) holds the office of President…and is head of the Judiciary’ of England and Wales. This clearly shows that the CRA has enhanced the separation of Powers within the UK’s constitution. However, this was not always the case as at first the senior judges were in dismay at the proposal to abolish the office of Lord Chancellor, as they feared their protection of judicial independence would be weakened. However, in the second reading the Constitutional Reform Bill the Lord Chief Justice that the ‘constitutional independence of the judiciary was satisfactorily assured.’ It is very important that the judiciary should be separate to the executive and legislative branches of Government. This is to ensure that their decisions are reached in accordance with the law and not submission to the wishes of government who have a political biased agenda or breach the European conventions on Human Rights. This is now enacted in law under s.3 (5) of the CRA as it states ‘The Lord Chancellor…must not seek to influence particular judicial decisions through any special access to the judiciary.’

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Furthermore, the government under the CRA s.23 has proposed to welcome reform of the position of the Law Lords through the establishment of a Supreme Court to emphasise their independence from Parliament. The powers and roles of the Supreme Court will be essentially unchanged from the House of Lords as are proposed to be just like the old judicial committee of the House of Lords. This is shown under s.37 as it sets out that the new court will assume the jurisdiction of the House of Lords and the jurisdiction in matters of devolution of the Privy Council. The development of a Supreme Court is seen to enforce the separation of powers, as it is independent from Parliament, which will decrease government control over judges. However, by introducing this aspect the Lords will loose their judicial functions, which have seen to be working effectively working for generations. The government ministers will also now be barred from trying to influence judicial decisions by virtue of special access that may affect the political confidence in the political process in the separation of powers. Overall, to allow Parliament to apply the doctrine of the Separation of Powers the Supreme Court will allow emphasis as a separate body.

Finally, the CRA established a new appointments commission as prior to the act in 1911 the Law Society criticized old system, which allowed the Queen to appoint judges on the advice of the Lord Chancellor. This developed a house public school, oxford stereotypical judges. The new Judicial Appointments Commission has been enacted under s.61 of the CRA. It is responsible for English and Welsh Judges and incorporates twelve individuals; seven of those who have legal experience and the other five are ‘lay people’ who have no legal experience but have a profession. This allows the separation of power to develop even further as it allows better specialisation and a diverse, fair system. However, the development of extra institutions and positions will make coordination more difficult between the judiciary and parliament but it certainly emphasises the separation of powers as this power over appointing judges has been taken away from parliament.

In conclusion, it is very clear that the CRA has enhanced the application of the doctrine of the separation of powers within the UK’s constitution. This is because the Lord Chancellor’s role in the judiciary, executive and legislature has now been redistributed into many different roles abolishing a concentration of powers. A new proposed role of the Supreme Court in replace of the House of Lords would allow a true separation of the judiciary. Moreover, the creation of the Judicial Appointments Commission has allowed specialisation to come into the independent body of the judiciary and for the separation of powers to develop even further.