Constitutional Reform Act And Its Sensitivity

These three branches are the executive, the legislative, and the judicial. Another revolutionary, Dicey, advocated the impartiality of the judiciary free from any other branch in order to ensure the freedom of the British people. Modern legislation, in the form of the European Convention on Human Rights, incorporated into British law through the Human Rights Act 1998 (HRA 1998), further requires the preservation of the right to a fair trial, enshrined in Article 6(1). It is these key and fundamental principles, inherent within the unwritten British constitution, that the Constitutional Reform Act 2005 seeks to preserve. This piece will explore the following: Firstly, what the motive behind the enactment of the Act was. Secondly, an analysis of the Act’s key areas of reform and how it addressees the concerns. Finally, it will be established whether the Act does indeed reform the law.
At the forefront of calls to reform and strengthen the independence of the British judicial system was the role of the Lord Chancellor. His role and responsibilities, and including those within the judicial system prior to the enactment of the Act, warrants discussion to appreciate the full merits of the Act. The Chancellor is a cabinet minister and was a head of a government department that possesses the power to appoint members of the judiciary, and has overall responsibility for the British courts. Further, he presided over the appellate committee of the House of Lords and the Judicial Committee of the Privy Council. In addition, he was head of the Judiciary and protector of judicial independence, and was also a speaker in the legislative chamber of the House of Lords. An immediate problem with this role was the interlinking role of the Chancellor within both the executive, judicial, and legislative branches of governance, and therefore an infringement of the separation of powers theory discussed above. Such roles meant that the judicial branch was not sovereign of the executive branch and as a result politics and law became embodied. This was also unacceptable to the requirements under European Convention on Human Rights (ECHR), embodied into British law through the HRA 1998. Under Article 6(1), individuals have the right to a fair trial and for this to be afforded judges must therefore be independent of any political interference, hence strengthening critics of the Chancellor’s powerful position.
The Act attempts to redefine the link between the judiciary and the other branches of government in order to accommodate the obligations imposed from revolutionary statutes such as the HRA 1998, and remedy the discrepancies discussed above. Significantly, the Act does so by establishing a Supreme Court that assumes the jurisdiction of the Appellate Committee of the House of Lords (s.23) together with that of the Privy Council, and discards the right of senior judges to preside in the legislative chamber of the House of Lords. Moreover, the Act creates a position of Lord Chief Justice who acts as head of the judiciary, therefore removing the Chancellor’s role in this regard. Furthermore, the Chancellor can no longer preside as judge of the judiciary (Chapter II). A Judicial Appointments Commission (JAC) further reduces the Chancellor’s sphere of influence by providing him only with the power of rejecting or accepting recommendations. Integral to the functioning of the judiciary, and the Act itself, s.3 imposes a duty on all ministers to uphold judicial independence, but in addition to this confers upon the chancellor a responsibility to defend this independence.
Despite attempts to accord the judiciary with sufficient independence, the Act still fails to accommodate the reality of the judiciary’s functioning. For example, the institutional makeup of the system means that the Supreme Court is dependent on the Department of Constitutional Affairs for funding, and also, quite notably, the full range of administrative support and services, including human resources property management, and IT. The Act also fails to identify what constitutes a threat to judicial independence under s.3, and how to defend against such threats. Quite notably, though the Chancellor’s role with respect to judicial appointments has been restricted by the JAC, a realistic overview indicates otherwise. This is on the basis that as the chancellor can reject a name, the JAC will, therefore, be an advisory commission.
Hence, the aforementioned considerations indicate the extent to which the Act will afford the judiciary with the independence it strives for. It does put it on an equal footing with modern expectations, including that of the HRA 1998, but only time and practice will establish whether it affords sufficient protection, especially when analysed against the backdrop of the practical inadequacies that may result.
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