Introduction
The advent of the European Union and subsequent enlisting of the United Kingdom among its members brought drastic changes to the style of governance that the UK was accustomed to. The historical motley of the executive, judicial and legislative power that characterized the monarchy were inconsistent with the doctrine of separation of powers and in particular Article 6 (1) of the European Convention on Human Rights. Hitherto, the role of Lord Chancellor was both of a government minister and a judge, something the Convention guarded against given that a judicial officer, having executive and legislative powers, is unlikely to be impartial in his trials. It was against this background that the Constitution Reform Act of 2005 was enacted to radically restructure the office of Lord Chancellor, thus culminating in the creation of the UK Supreme Court. This paper delves into the detailed changes that occurred in the judicial system of the UK after the Royal Assent was given to the Act on March 24, 2005.
The Constitutional Reform Act 2005
The legal issues surrounding this Act emanated from the European Union Convention on Human Rights, which required that any state or country joining the Union must fulfill the requirement in Article 6 paragraph 1. The article alludes to the doctrine of separation of powers for fair trials by the judicial systems of its member states. The office of Lord Chancellor played the three roles of government hence was the target of the Constitutional Reform Act of 2005. The Act aimed at disentangling the judiciary from the legislative and the executive arms of government to enhance fair trials and conform to the European Union’s legal requirements.
The Act was divided into three sections, where the first section dealt with the reformation of the office of Lord Chancellor. The second section concerned the institution of a Supreme Court; and finally, the third section was about the regulation of the appointment of judges. The Act upheld the rule of law by drawing a better demarcation between the Lord Chancellor and the Lord Chief Justice; and between the Lord Chancellor and the House of Lords. The latter now has its own Lord Speaker, not Lord Chancellor who had taken up the role besides other responsibilities previously. The Lord Chief Justice now plays the lead role as the Head of the Judiciary in England and Wales, while the Lord Chancellor is under oath to protect the independence of the judiciary. Out of the three roles that the office of the Lord Chancellor had, only the executive (Secretary of State for Justice) has been spared.
The Act instituted the United Kingdom’s Supreme Court to replace the Appellate Committee that heard cases referred from British High Courts. The opening of the Supreme Court of the UK in October 2009 marked the end of the protracted process of separation of the judiciary from the executive and the legislature, thus emphasizing its independence. The UK now has at the summit of its judicial system, an institution easily accessible to the public.
The Act has established a more independent process through which judges are appointed, remote from the executive influence. It set up a new independent body, the Judicial Appointments Commission, with a key responsibility of selecting judges and hence ensuring a system of checks and balances that guarantee a professional, autonomous judiciary appointed purely on merit. Originally, the Lord Chancellor or the Prime Minister proposed to the Monarch names of those to be appointed as judges, and this flawed the judicial system in terms of professionalism and impartiality of trials in some cases that involved the executive.
The Role and Influence of the Organs of the State
In every state, there are three organs or institutions that influence the governance of that state, namely: the executive, the legislature, and the judiciary. The role of the executive ranges from policy formulation to management and delivery of services to the public. It introduces laws into Parliament and implements them if passed. Usually, legislation empowers the executive to enact secondary laws, upon Parliamentary approval, to manage specific aspects of policy within the context of primary laws. The judiciary and the legislature act as watchdogs to the executive to ensure that it does not exceed its mandate as stipulated in the Constitution. In the UK, the executive is headed by the Prime Minister assisted by Cabinet Secretaries.
The supreme legislative body in the UK is the Parliament, though the devolution has brought into existence the Scottish Parliament, the Northern Ireland, and Welsh Assemblies with considerable legislative powers. The primary function of Parliament is that of enacting laws, albeit other countries with written constitutions limit the legislature’s authority to enact laws. The UK Parliament, however, legislates on any issue, constitutional or otherwise; and therefore has the authority to repeal and/or amend any law regardless of whether the legislation contains constitutional principles. This is the basis of the doctrine of the sovereignty of Parliament that has created an icy relationship between the legislature and the judiciary in Britain. The reason is, judges can hardly declare an Act of Parliament as unconstitutional even the courts find the legislation to be incongruous with the Human Rights Act. It is the Parliament, and not the judiciary, that has the mandate to rectify the inconsistencies.
The executive has the power to constrain Parliament’s ability to enact laws when it accepts international obligations by treaty. For example, the Parliament accepted the European Union law to have primacy over British law in areas of its competence and considered the European Court of Justice as the seat for the final determination of these obligations. Nevertheless, these treaties do not invalidate nor undermine the UK’s Parliament sovereignty since they can be repealed by primary legislation. The UK’s Parliament is bicameral, composed of the House of Lords and the House of Commons.
The third organ of the state is the judiciary whose primary role is the interpretation and application of the law, enacted by the legislature, in cases of dispute. Although the judiciary, through judges, can develop the common law, Parliamentary sovereignty may curtail this crucial role. Through the judicial review of executive actions, the judiciary plays its role in ensuring that the executive exercises its powers within the law. To provide an objective evaluation of the executive and to remain impartial in its trial, the judiciary must become independent from the whims and caprices of the executive and the legislature.
The Doctrine of Separation of Powers
The doctrine of separation of powers was a brainchild of John Locke, an English Socio-Political Philosopher. He observed that if a single person were to enact laws and execute them at the same time, it is highly likely that the individual would not only exempt himself from the law but also use it for their selfish gains. He thus called for a separate executive and legislature. Montesquieu added that the judiciary should be separated from the two for fair trials.
The existence of the UK’s Parliamentary sovereignty may appear to impede the doctrine of separation of powers. The reason is that there is an apparent fusion between the three arms of government with the legislature being more dominant. The Premier who is the head of government of the UK, for instance, must be drawn from the Members of the House of Commons and can be fired by Parliament by a simple majority vote.
The Monarchy further obstructed the doctrine of the separation of powers since it united the various organs of the state. The Monarch wields the authority to open and dissolve Parliament thus making the latter dependent on the Monarchy. Moreover, the Monarch must append her Royal Assent for a Bill to become an Act the Monarch must give the Royal Assent. In the executive arm, the Monarch appoints all ministers upon recommendation by the Prime Minister. Before the enactment of the Constitutional Reform Act 2005, the Premier or the Lord Chancellor recommended names of judges to the Monarch, who appointed them.
The Constitutional Reform Act 2005 has endeavored to establish the rule of law in the British government by separating the judicial system from the executive and the legislature. Judicial autonomy is crucial to the rule of law given that it enhances public confidence in judges who are considered as defending the law. The result of such a system are social and economic benefits since people are assured of equal justice should their rights be interfered with, or should there be a need to enforce duties on others. Furthermore, the independence of the judicial system increases confidence from the international community where the UK is considered conducive for investment given its foolproof judicial system.
Conclusion
The Constitutional Reform Act 2005 was landmark legislation that brought significant changes in the structure of the British government. For the first time in the history of the UK, the judiciary was isolated from the executive and legislature. The office of Lord Chancellor was stripped of judicial and legislative powers, only left with executive powers. The judicial system became independent where judges were appointed by the Judicial Appointing Commission. The Act also replaced the Appellate Committee with the Supreme Court of the UK.
The doctrine of separation of powers requires that the three organs of the state stand independent of one another but at the same time provide checks and balances to one another. The UK’s Parliamentary sovereignty seems to override the other two arms of government because of its freedom to legislate on any matter including constitutional matters. However, the enactment of this legislation to make the UK conform with the European Union Convention on Human Rights has effeminated but not invalidated the Parliamentary sovereignty. The Act has made the UK government uphold the rule of law by its judicial review of the executive actions and autonomy of the judiciary.
References
Abbott, L.F. British Democracy: Its Restoration and Extension. New York, NY: Industrial Systems Research, 2006
Alston. P., Bustelo. R.M., and Heenan. J. The EU and Human Rights. Oxford, UK: Oxford University Press, 1999.
Anthony, G. UK public law and European law. New York, NY: Hart Publishing, 2002.
Barnett, H. and Jago. R. Constitutional & Administrative Law. New York, NY: Taylor & Francis, 2010.
Bernan. Draft Constitutional Renewal Bill. London, UK. The Stationery Office, 2008.
Great Britain, Parliament, House of Lords, and Select Committee on the Constitution. Relations between the executive, the judiciary, and Parliament: report with evidence, 6th report of session 2006-07. London, UK: The Stationery Office, 2007.
Great Britain. Constitutional Reform Act 2005. Chapter 4 Explanatory Notes. London, UK: The Stationery Office, 2005.
Lane, J. Constitutions and political theory. Manchester, UK: Manchester University Press, 1996.
Malleson, K. The Legal System, Oxford, UK: Oxford University Press, 2007.
Peele, G. Governing the UK: British politics in the 21st Century. New York, NY: Wiley-Blackwell, 2004.
Pollard, D., Parpworth, N. and Hughes, D. Constitutional and administrative law: text with materials. Oxford, UK: Oxford University Press, 2007.