The Separation of powers in relationship to the Terrorism Acts

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  1. Chapter 4: The Separation of Powers

  1. Introduction

Since the enactment of the Constitutional reform Act (CRA) 2005, the relationship between the judiciary and the executive has changed. The Lord Chancellor is no longer the head of the judiciary, and is now also Secretary of State for Constitutional Affairs. This Chapter discusses the new role of the Lord Chancellor and also how the relationship has changed between the executive and the judiciary as a result of the CRA. It also examines the structure of the new Supreme Court, which was created by the 2005 statute and how it has changed from the current structure of the courts.

  1. Supreme Court

Despite the fact that the independence of the judiciary is a long held concept, it has only been part of convention until the CRA was created. With the CRA the independence of the judiciary has been confirmed through the creation of the Supreme Court. This created a new hierarchy for the courts, and also means that the judges in the high courts will no longer be members of the House of Lords and as a result will no longer be part of the legislature. When the Supreme Court is initially opened, the judges will be the current law lords, after this, the judiciary for the Supreme Court will be chosen by the Independent Judicial Appointments Commission (IJAC). This will consist of a lay chairman and 14 other members, which will include “5 judges (1 from Court of Appeal, 1 from High Court, 1 from either Court of Appeal or High Court, 1 circuit judge, 1 district judge), 2 practising lawyers, 5 lay members, 1 legal tribunal member, and 1 lay magistrate. The Commission will give its recommendations to the Lord Chancellor who will then appoint the judges on their recommendation, ensuring the independence of the judiciary The Supreme court will have the balance of 8 English judges, 2 Scottish judges and 2 judges from Northern Ireland. As Arden said,

“Unless the judges are truly independent, they will not command the respect and confidence of those whose rights they are charged to determine. “

This shows the judiciary must keep their independence to keep their respect and integrity.  The new Supreme Court justices will only be able to be removed by address of both Houses of Parliament There is no other disciplinary or suspensive procedures in the statute, showing that the legislature is confident in the new system. This also ensures that the judiciary will remain as independent as possible as the legislature has little say on the judiciary. The court is not yet in place, it is expected to be in place by October 2009. It will bring an end to “the fact that (as peers) the senior members of the judiciary (the law Lords) are also members of the legislature.”  

The new system will initially have their members in the Law Lords, once it becomes established there will be no members that are in the legislature. There has been a lot of criticism of the new court from within the judiciary, and some see the new court as

 “yet another facet of the executive’s desire to ‘box in’ the judiciary and isolate them in the guise of transparency and openness…the ability of the law lords to inhabit parliament gives them an invaluable insight into the realities of social, economic and political policy- an insight, which enhances their ability to deal with ‘questions of general public importance’- the essential diet of the law lords on appeal.

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This may seem that it is important for the judiciary to also be part of the legislature, this is also unconstitutional, due to the doctrine of the separation of powers, which says that the judiciary and executive should be completely separate. As a result the new structure will mean that the judiciary is completely independent, as they will no longer be in the House of Lords or chosen by a politician. Therefore the structure will be constitutional.

  1. The Role of the Lord Chancellor as a politician

Another change to the current system brought in by the CRA 2005 ...

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