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.
The Role of the Lord Chancellor as a politician
Another change to the current system brought in by the CRA 2005 is the change of the role of the Lord Chancellor. Before the CRA the Lord Chancellor was the head of the judiciary and a member of the cabinet. He was responsible for the appointment of judges and he was speaker of the House of Lords in its legislative capacity. this broke the convention of the separation of powers, as one person had very prominent roles in the legislature and executive with the effect being that it was unconstitutional. The change in the Lord Chancellor’s role came as a result of Professor Eric Jurgens of the Council of Europe’s visit. On this visit he told the Government that
“...the new states of the former Soviet Union often sought in their new constitutions to have their justice ministers sit as judges and to appoint other judges. When told … that this violated the spirit of democracy, they would say that this was inspired by our Lord High Chancellor.”
Shortly after this revelation, the CRA was passed as a result of a cabinet reshuffle, where the new role of the Lord Chancellor was found to be too complex to be changed without enacting a statute. This removed the Chancellor’s judicial status, replacing it with the IJAC and creating the Supreme Court.
After the CRA the Lord Chancellor is now also the Secretary of State for Constitutional Affairs. This means that the post could now be held by a member of the house of Commons, and no longer needs to be a barrister or even a lawyer. The Constitutional committee said on the subject
“… a person may be appointed Lord Chancellor only if he appears to the Prime Minister to be “qualified by experience”; the experience in question is stated to include ministerial, parliamentary, judicial or legal experience and “other experience that the Prime Minister considers relevant”. The Lord Chancellor is not required to be a member of the House of Lords, nor to have legal qualifications or experience.”
This is all set out in Section 2 of the CRA. It opens up the class of people able to become Lord Chancellor significantly, as before the CRA the class of people able to become Lord Chancellor were judges in the Lords. This now means that there is a greater sample of people that the Lord Chancellor can be chosen fro, as a result there will be a more eclectic mix of people that can become the Lord Chancellor.
With the new role of the Lord Chancellor the responsibility to uphold the independence of the judiciary still remains. Section three provides that he must “have regard to” the independence of the judiciary. In this case judiciary is defined
“…to include all courts in the United Kingdom and
also international courts (such as the European Court of Justice at
Luxembourg and the International War Crimes Tribunal).”
This shows that the Lord Chancellor must ensure that the judiciary in international courts also act completely independent of the executive of the UK, and can not be influenced by the executive. It may seem that there is no longer a need for the position of the Lord Chancellor, as the roles have all been delegated elsewhere and the Lord Chancellor is only overseeing them essentially. . Although Schedule 4 of the CRA re-allocates the statutory functions of the Lord Chancellor, power is delegated by s.19 of the CRA so the Lord Chancellor can make orders for the “transfer, modification or abolition” of his existing functions. This is as a result of the House of Lords insisting that the Lord Chancellor's position was to be retained as a politician, as it did not want the office and its core functions to be under the power of the Prime Minister under the Ministers of the Crown Act 1975. This gives the Prime Minister the power “to create new ministerial posts and departments and to transfer powers between ministers”
s.20 of the CRA prevents this from happening to the functions of the Lord Chancellor, ensuring that the role is retained as the House of Lords requested
Judicial deference v judicial activism
The attitude of the judiciary towards Parliament has changed significantly over the last few decades. In the late 1950's it was commented that the judiciary were
“leaning over backwards almost to the point of falling off the Bench to avoid the appearance of hostility [to the Government]”
This indicates that there have been times the judiciary have complied with the legislature as far as possible. In recent times, the attitude of the judiciary towards the sovereignty of parliament has changed, to the point that Lord Hope said of Parliamentary Sovereignty
“Parliamentary Sovereignty is no longer, if it ever was, absolute...[the] rule of Law enforced by the courts is the ultimate controlling factor on which our constitution is based”
In the same case Lady Hale said
“The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial powers.”
This quote seems to show that the courts have gone from deferring to the legislature as much as they can, to ensuring that the legislation is followed correctly. This is not a recent change in the views of the judiciary. In the GCHQ case Lord Fraser said
“Legislation frequently delegates power from the legislating authority … the delegated powers are defined more or less closely by the legislation… But whatever their source, powers which are defined … and whether the definition is expressed or implied, are in my opinion normally subject to judicial control to ensure that they are not exceeded.” This was reiterated by Michael Howard in an article in the Telegraph, where he said.
“... the courts have long had the task of deciding what an Act of Parliament actually means - and have frequently decided that it doesn't mean what the Government claimed or thought it meant...”
This seems to suggest that the courts are the regulator for the executive, so they have the control over the legislation to ensure that it remains supreme. The legislature supplies the legislation, and the courts uphold it. This has been seen recently in the A case, where the judiciary issued a declaration of incompatibility under s.3 HRA instead of trying to interpret the Human Rights (Designated Derogation) Order to make it compatible with the HRA. Clayton QC said of judicial deference
“Deference involves the principle that the courts (out of respect for the legislature or executive) will decline to make their own independent judgment on a particular issue. The concept is critical to a proper understanding of how the courts are to approach the HRA- whether and in what circumstances it is legitimate for the courts to gainsay Parliament or the executive, a process which has excited real political controversy with recent Home Secretaries”
This suggests that regardless of the opinion of the judiciary, they should always defer to the executive due to Parliamentary Supremacy. This has always been the case, in Jackson the judiciary seemed to be going against this. Lord Steyn said
“In exceptional circumstances involving an attempt to abolish judicial review or the ordinary courts [the courts] may have to consider whether this is a constitutional fundamental which even the House of commons can not abolish.”
This may seem that the hostility between Parliament and the judiciary is one sided, this is not the case.
In a discussion paper on the new Asylum and Immigration (Treatment of Claimants, etc.) Bill it was said
“… we have seen increased objection by the government to judicial scrutiny of its actions, and proposals for measures that would decrease government accountability,…..These are not new trends… but developments … ILPA is particularly concerned by recent statements that amount to attacks upon the independence of the judiciary, which bode ill for a culture of respect for the rule of law and human rights.”
This seems to show that the judiciary were not the only ones who were being negative in the relationship between the executive and judiciary, and it has been duly noted by other organisations.
In the A case the judiciary held that Human Rights (Designated Derogation) order 2001 summing up the case Lord Hoffman said
“The real threat to the life of the nation … comes not from terrorism but from laws such as these.”
This seems to show that certain members of the judiciary are unhappy with the way that the executive were acting.
In the Belmarsh case
“Their Lordships accepted the public emergency and the need to derogate from the European Convention on Human Rights as being matters for political judgment, but they held that detention without charge was a matter for Judges, and as such was ruled as disproportionate, and therefore incompatible”
This seems to suggest that if the courts had decided the fate of the detainees, rather than the Home Secretary, the detention without trial scheme would not have been declared incompatible with the ECHR as long as there was a political decision that there was a public emergency that needed to be derogated from.
This also shows judicial activism, in that they were trying as hard as possible to accept the decision of Parliament, to the point that they were saying what needed to change for it to become compatible with the ECHR. Parliament decided to change the system for suspected terrorists completely through control orders incorporating the suggestions from the Law Lords. This has incorporated the judicial review, in response to the judiciary deciding the fate of those under derogating control orders, , as most control orders are non-derogating, this is merely a token gesture, as the Home Secretary still decides the fate of the controlees under non-derogating control orders.
The detention without trial legislation has affected the relationship between the judiciary and executive in that the judiciary have become more vigilant with regards to the upholding of the law, and ensuring that the executive also follow this. The legislature have accepted this throughout, they have also changed legislation so that the judiciary have little say in it. The legislation has not necessarily affected the relationship by itself; it has enhanced the problems that were already there.
Woodhouse, The Constitutional Reform Act 2005 - defending judicial independence the English way. I.J.C.L. 2007, 5(1), 153-165 page 153
as set out in s.7 (4) and s. 23 (1) CRA 2005
Constitutional Reform Act 2005, HL Paper 83 at page 11-12
Mance, Constitutional reforms, the Supreme court and the Law Lords (2006) CJQ 155 at 161
Arden, Human Rights in the age of terrorism (2005) LQR 604 at 624
Mance, Constitutional reforms, the Supreme court and the Law Lords (2006) CJQ 155 at 161
Qureshi, Ruling Supreme NLJ (2007) 157(7283) 1069-1070
Jowell, Politics and the law: constitutional balance or institutional confusion? J.J. 2006, 3(2), 18-33 at 26-27
Constitutional Reform Act 2005, HL Paper 83 at page 8
s.3 Constitutional Reform Act 2005
Constitutional Reform Act 2005, HL Paper 83 at page 8
Ginsberg (ed), Law and opinion in England in the Twentieth Century, Steven and Sons Ltd, 1959, as quoted in Jowell, Politics and the law: constitutional balance or institutional confusion? J.J. 2006, 3(2), 18-33. at 19
Jackson v Attorney- General [2005] UKHL 56 para 104-128, as quoted by Gearty, Are judges now out of their depth? J.J. 2007, 4(2), 8-18
Jackson v Attorney- General [2005] UKHL 56 para 159, as quoted in Jowell, Politics and the law: constitutional balance or institutional confusion? J.J. 2006, 3(2), 18-33. at 25
Council of Civil Service Unions v Minister for Civil Service [1985] AC 374
Clayton, Principles for Judicial deference, Alba Summer Conference, July 2005
ILPA, Immigration, Asylum and Nationality Bill- Bill 13 House of Commons Standing Committee, Committee Sessions 27 October 2005
“Judges must bow to the will of Parliament” The Telegraph 10 August 2005
Samuels, Public protection and personal liberty - the balance and effectiveness of the criminal law. J.P. 2007, 171(51/52), 903-906 at 903