Constitutional Reform Act 2005: A Decade Of Change

The Constitutional Reform Act 2005 was an Act of the UK Parliament that brought about significant changes to the judiciary and the roles of the Houses of Parliament. The Act's primary objective was to reform the UK's institutional structure and establish a clearer separation of powers, dividing the mixture of executive, judicial, and legislative powers in the same unelected body. The Act's key areas of focus were the office of the Lord Chancellor, the establishment of a Supreme Court, and the regulation of judicial appointments. The Constitutional Reform Act addressed concerns regarding the compatibility of the powers of the Lord Chancellor with fair trial rights under the European Convention on Human Rights, leading to the removal of the Lord Chancellor's judicial functions and the establishment of judicial independence.

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The establishment of a Supreme Court

The Constitutional Reform Act 2005 (c. 4) is an act of the Parliament of the United Kingdom that brought about significant changes to the country's judiciary and the roles of the Houses of Parliament. One of the most notable aspects of the Act was the establishment of a Supreme Court of the United Kingdom, which had far-reaching implications for the House of Lords and the office of the Lord Chancellor.

The creation of the Supreme Court was primarily aimed at achieving a clearer separation of powers between the legislature and the judiciary. Previously, the highest court in the land had been the Appellate Committee of the House of Lords, with the Lord Chancellor—a minister—serving as both head of the judiciary and a government minister. This arrangement raised concerns about potential political influence over the judicial process and conflicted with the principle of separation of powers.

The Supreme Court, established by the Act, is composed of 12 judges, including the then-current twelve Lords of Appeal in Ordinary. The Act sets out comprehensive procedures for the selection and appointment of future members of the Court, with eligibility criteria requiring individuals to have held high judicial office or been a qualifying practitioner for a minimum period. The Act also emphasises the need to ""encourage diversity"" in the appointment of judges.

The Supreme Court is housed in the Middlesex Guildhall, located across Parliament Square from the Houses of Parliament. This physical separation from Parliament further underscores the intended independence of the judiciary. The Supreme Court's establishment marked a significant shift towards greater judicial independence and accountability, with explicit recognition of the rule of law and the barring of legislative and executive members from influencing judicial decisions.

In conclusion, the establishment of the Supreme Court by the Constitutional Reform Act 2005 was a pivotal moment in the history of the United Kingdom's judiciary. It addressed long-standing concerns about the mixture of powers and reinforced the separation of powers between the legislative and judicial branches of government. The Supreme Court's independence, diversity, and eligibility criteria for judges strengthened the rule of law and enhanced public confidence in the judiciary.

Separation of powers

The Constitutional Reform Act 2005 was an Act of the UK Parliament that was divided into three parts. The first part reformed the office of Lord Chancellor, removing the functions of Speaker of the House of Lords and Head of the Judiciary of England and Wales. The second part established a Supreme Court of the United Kingdom, taking over the previous appellate jurisdiction of the Law Lords. The third part regulates the appointment of judges, prescribing the creation of the Judicial Appointments Commission.

The Act's significance regarding the separation of powers lies in its attempt to address concerns about the historical mixture of legislative, judicial, and executive powers in the office of Lord Chancellor. The Lord Chancellor could act as both a government minister and a judge, which ran contrary to the idea of separation of powers and the requirements of Article 6 (paragraph 1) of the European Convention on Human Rights. The Act removed the Lord Chancellor's ability to hold both executive and judicial roles, achieving a clearer separation of powers between the legislature and the judiciary.

The creation of the Supreme Court further reinforced the separation of powers. Previously, the highest court of appeal in the UK was within the House of Lords, with the Lord Chancellor as its head, raising suspicions of political influence. The Supreme Court was established as a separate institution from the Houses of Parliament, ensuring that appeals would be handled independently and impartially.

The Judicial Appointments Commission, established under the Act, also contributed to the separation of powers by introducing an independent body responsible for appointing judges. This reform addressed criticisms of the old system, where the Monarch appointed judges on the advice of the Lord Chancellor, by removing potential political influence from the appointment process.

Overall, the Constitutional Reform Act 2005 significantly strengthened the separation of powers in the UK by redefining the role of the Lord Chancellor, establishing an independent Supreme Court, and introducing a transparent and independent judicial appointments process. These reforms enhanced the independence of the judiciary and protected against potential political interference, bringing the UK's constitutional arrangements closer to the principles outlined in the European Convention on Human Rights.

Changes to the office of Lord Chancellor

The Constitutional Reform Act 2005 made several changes to the office of Lord Chancellor.

Firstly, the Act removed the functions of Speaker of the House of Lords and Head of the Judiciary of England and Wales from the office. This meant that the Lord Chancellor could no longer act as both a government minister and a judge, addressing concerns about a lack of separation of powers. The Act also provided for a Supreme Court of the United Kingdom to take over the previous appellate jurisdiction of the Law Lords, which had previously been within the House of Lords. This change aimed to achieve a clearer separation of powers between the legislature and the judiciary.

Secondly, the Act redefined the role of the Lord Chancellor and set out an oath of office for them to take, which includes a commitment to "respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible".

Thirdly, the Act made changes to the way in which some of the functions vested in the office of Lord Chancellor are exercised. For example, the Lord Chancellor's judiciary-related functions were transferred to the Lord Chief Justice of England and Wales. The Act also provided for the creation of a Judicial Appointments Commission, responsible for appointing judges for English and Welsh courts, with the Lord Chancellor making appointments or recommendations to the Queen based on the Commission's selections.

Finally, while the title of 'Lord Chancellor' was retained, the office holder no longer needs to be a member of the legal profession and may be an elected politician. The Lord Chancellor remains the custodian of the Great Seal.

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Judicial independence

The Constitutional Reform Act 2005 (CRA) introduced significant changes to the judiciary in the United Kingdom, enhancing judicial independence.

The CRA addressed the historical mixture of legislative, judicial, and executive powers in the House of Lords, which was seen as a breach of the separation of powers principle. The Act removed the functions of Speaker of the House of Lords and Head of the Judiciary of England and Wales from the office of Lord Chancellor, who could previously act as both a government minister and a judge. This change was made to ensure compliance with Article 6 (paragraph 1) of the European Convention on Human Rights, which states that a judicial officer should not hold legislative or executive power to be considered impartial.

The CRA also established a Supreme Court of the United Kingdom, separate from the House of Lords, with its own independent appointments system, staff, budget, and building. This court took over the previous appellate jurisdiction of the Law Lords, ensuring a clear separation of powers between the legislature and the judiciary.

Furthermore, the CRA introduced the Judicial Appointments Commission, responsible for appointing judges for English and Welsh courts. This addressed criticisms of the old system, where the Monarch appointed judges on the advice of the Lord Chancellor, by establishing an independent body for judicial appointments.

The CRA also expressly recognised the rule of law and the continuing judicial independence of UK courts, barring members of the legislative and executive branches from influencing judicial decisions or having any access to judges. This marked the first time in the history of UK law that judicial independence was formally recognised.

The changes brought about by the CRA led to greater judicial independence, with Robert Hazell arguing that this political achievement requires ongoing support from politicians and parliament. The CRA's impact on judicial independence has been the subject of ongoing inquiries by the Lords Constitution Committee, exploring the relationship between the judiciary and the government.

Appointment of judges

The Constitutional Reform Act 2005 (CRA) brought about significant changes to the judiciary in the United Kingdom. One of the key aspects of the CRA was the establishment of a Supreme Court, which replaced the Appellate Committee of the House of Lords as the highest court in the land. This change addressed concerns about the lack of separation of powers between the legislature and the judiciary, as the House of Lords was part of the legislative branch.

The CRA also introduced reforms to the appointment of judges, which was the focus of the third part of the act. Previously, the monarch appointed judges on the advice of the Lord Chancellor. However, this system was criticised by the Law Society in 1991, which emphasised the need for an independent body to be responsible for judicial appointments.

The CRA addressed these concerns by creating the Judicial Appointments Commission, responsible for appointing judges to English and Welsh courts. This commission is now responsible for the selection process of judges, with comprehensive procedures in place to ensure diversity and merit-based appointments. The CRA also sets out eligibility criteria for Supreme Court judges, including holding high judicial office for at least two years or being a qualifying practitioner for a minimum of 15 years.

The act also brought about changes to the role of the Lord Chancellor, who was previously both a government minister and the head of the judiciary. The CRA removed these judicial functions, transferring them to the Lord Chief Justice, and redefined the role of the Lord Chancellor, including introducing requirements for their appointment. These changes ensured that the Lord Chancellor no longer had the power to influence judicial decisions or access to judges, further enhancing the independence of the judiciary.

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