Constitutional Reform Act of 2005 - Essay Example

Introduction: The intention of the constitutional reforms that were undertaken by the British government was on the expansion of the British judicial system and courts, for over the last thirty years.1 The growth and the development of the judicial reviews, the emergence of the European Union, the enactment of the human rights act, and the concepts of devolution have given the British courts, an important place in its constitution. Senior judges have the powers and the capability of policing the constitutional boundaries, and determining sensitive issues that have to deal with human rights, in a manner that the courts could not undertake, in some forty years back. A good example is the 2010 case law on HJ and HT vs. the secretary of state in charge of home department2. Under this case, the Supreme Court was required to rule on the status of the asylum application of two gay people, that is HJ, and HT3. This was a human rights issue, where the court granted asylum to these people, on the grounds that they would persecuted, if deported back to their country. By closely looking at this ruling, it is important to denote that the courts were taking on new roles determining the human rights issues that the state had to adhere to. This therefore means that the courts are playing an important role in determining the kind of policies that the country should adopt, and the policies that it should not adopt4. This is an example of a judicial review. Furthermore, it is important to explain that the Supreme Court was enacted after the passage of the Constitutional Reform Act of 2005. This court was created under part three of the constitutional reform act. The constitutional reform act played a great role in reforming the judiciary, and specifically the three roles of the Lord Chancellor. These roles include his position as the speaker of the House of Lords, the head of the British Judiciary, and as a member of the cabinet5. These implied that the Lord Chancellor was a very powerful person, and there was no separation of powers, between the judiciary, the legislature, and the government. This situation made the Lord Chancellor to be vulnerable to an abuse of the executive authority of the government. Another point of concern was the capability of the Lord Chancellor, in appointing judges of the high court and that of appeal. This is because of the roles that the senior judges played in scrutinizing the various policies of the government, hence appointment by a government minister, would compromise their ability to efficiently undertake these functions. Furthermore, the presence of the judges in the legislature, and their roles in the passage of laws, amounted to conflicts of interests, and it was unethical, and this is because it is the same judges who had to scrutinize the constitutionality of these laws, and apply them in various aspects. Specifically, in regards to the human rights issues. This paper is an analysis of the major changes that were brought about by the constitutional reform act of 2005, and why they are important. The Lord Chancellor: Before the enactment of the constitutional reform act of 2005, the duties and powers of the Lord Chancellor are very controversial, and this is mainly because they were conflicting with the notion and concept of the separation of powers. Under this notion of separation of powers, power has to be separated amongst three organs of the government, and this are, the judiciary, the executive and the legislature6. Almost all liberal democracies in the world are practicing this style of governance. An example is United States, where power is shared, between the executive, the judiciary, and the legislature. The legislature has the powers and capability of checking the excesses of government and this is through denying them money that can be used for purposes of financing the issue under consideration. An example is the 2013 US government shutdown, where the members of the legislature were able to deny the US government some money, for purposes of implementing the controversial health care act, propagated by President Obama. The judiciary also has some powers and this is always exercised through the various judicial reviews that are witnessed in United States. Under this doctrine of separation of separation of powers, each of these organs of state should operate independently, and none should have authority over another one. This doctrine of separation of powers has been embraced by the United Kingdom, in the 1995 ruling of the case involving R versus The Home Secretary, ex parte of the Fire Brigades Union7. In this case, Lord Mustill agreed with the notion that the United Kingdom pursues the concept of the separation of powers. Under this concept, Lord Mustill, denoted that the legislature, the executive, and the courts have different roles to play, and they are independent from each other. This is an aspect of the doctrine of the separation of power. However, with the existence of the Lord Chancellor, this doctrine was in question. This is because he was the head of the judiciary; and also served in the House of the Lords and was a cabinet minister. This was unacceptable, and it was a direct contradiction of article 6, that governs the European Convention, on issues that deals with Human Rights. Article 6 of the EU Convention of Human Rights advocates for a fair trial, and it mandates a judge to have complete independence from the government8. Based on these facts, there were serious doubts, on whether the Lord Chancellor, while presiding over as a judge, would deliver an impartial judgment, when he or she gives a ruling concerning a dispute that involves an individual, against the government. With the enactment of the 2005 constitutional reform act, the Lord Chancellor was given the responsibility of a minister, who was in charge of the justice system9. However, he cannot sit as a judge, for purposes of hearing cases, and issuing out judgments. Part 2, of the 2005 constitutional reform act, was able to modify the roles and duties of the Lord Chancellor. For any person to be appointed to this position, it is not a must, that the person under consideration should be a member of the House of Lords. Furthermore, it is not necessary for an individual to have any legal experience or qualifications. The first Lord Chancellor, under the 2005 constitutional reform act, was Jack Straw. He was picked from the House of Commons, unlike other Lord Chancellors, who were members of the House of Lords. Before Jack Straw was appointed, Lord Falconer was the Lord Chancellor, and he was given a new role, as the Secretary for Constitutional Affairs. Furthermore, the department of the Lord Chancellor, was given a new name, that is, the department of constitutional affairs. As of the year 2007, this department of constitutional affairs, was transformed into the department of Justice. The major responsibility of this department was to ensure judicial diversity, and deal with issues that were related to human rights, criminal justice, legal services, and issues dealing with the constitution. Furthermore, all the responsibilities of the Lord Chancellor were transferred to the chief Justice. He now became the head of the judiciary. The responsibility of the chief justice includes deploying, guiding and training judges. These are as per the provisions of s7 of this act. Furthermore, s3 of the constitutional reform act of 2005 mandates the Lord Chancellor to promote the independence of the judiciary, and this is even if, he or she is not a judge, and is not responsible for delivering judgments10. These are very important changes, in the office of the Lord Chancellor, and this is because, these changes are able to promote the concept of the separation of powers. When the Lord Chancellor is not in charge of the judiciary, he does not have the capability of influencing judgments, in favor of the government. Furthermore, the establishment of a chief justice who is independent from the government helps in the promotion of this concept of separation of powers. A judicial system that is under the control of the government cannot be trusted, and hence the changes were necessary. These changes have helped in instilling confidence to the judiciary. Furthermore, the judiciary that is not under the control of the Lord Chancellor satisfies the provisions that were established in the case of R versus the Home Secretary, ex parte of the Fire Brigades Union11. This is where Lord Mustill denoted that for the separation of powers to exist, the judiciary, the executive, and the legislature must be independent from each other. This is because each of these organs of state have their own responsibilities, which is essential for the survival of the state. Furthermore, changing these roles of the Lord Chancellor helps United Kingdom, to meet the provisions that have been established under article 6 of the EU Convention, in regard to the protection of human rights12. This provision advocates for an independent judiciary that is free from the control of the government. Limiting the powers of the Lord Chancellor over the judiciary, the United Kingdom was therefore implementing this law, hence helping the country to be integrated into the European Union. Appointment to the Judiciary: Part three of the 2005 Constitutional Reform act provides for the formation of a Supreme Court that will have the responsibility of replacing the Appellate committee that comprised of the members of the House of Lords. The intention of this law was for purposes of removing the judicial roles of the House of Lords, whose main task is to preside over legislative matters13. Part Three of this act, further gives the Supreme Court the powers of acting as a court of the last resort. This means that the Supreme Court is the highest appeal court in the United Kingdom. Section 23 of the constitutional reform act, identifies the composition of the members of the Supreme Court. It would comprise of 12 judges, who have held a senior office in the United Kingdom, or an individual who has practiced law for more than 15 years. This provision is further reinforced in section 25 of the law. Furthermore, section 26(4) of the act denotes that the Prime Minister of the United Kingdom does not have the power of appointing the judges of the Supreme Court, and he must act on the recommendation by the Lord Chancellor, after which he or she would pass the names to the monarch14. This is an indication that the executive does not have authority over the judiciary, hence promoting this aspect of separation of powers. This is reinforced by the fact that the judges who are appointed to serve at the Supreme Court, are not allowed to participate in the affairs of the House of Lords. In enforcing the provisions of the EU, in regard to human rights, the Council of Europe denoted that it is unacceptable for the Supreme Court judges, to participate in the affairs of the House of Lords15. This would limit the ability of the United Kingdom to enforce and implement the doctrine of the separation of powers. This would have an effect of limiting the ability of the United Kingdom, to develop and enforce laws that are universally applicable in the European Union. Under section 10 (1) of the 1981 Supreme Court Act, the Chief Justice was appointed by the Queen, under the advice of the Prime Minister. However, this changed with the enactment of the 2005 constitutional reform act16. Part four of this law, was able to form the Judicial Appointments Commission. This commission has the responsibility of appointing judges, and other magistrates. It removes this role, from the Queen, who prior to the law, had the authority of appointing judges, upon recommendation from the Lord Chancellor. The reform act, makes it mandatory that the selection of judges must occur through pure merit, and the people appointed must be full of integrity. This is for purposes of ensuring that there would be a fair and equitable administration of justice. Furthermore, by removing limiting the ability of the Prime Minster to appoint judges, then this concept of separation of powers is very clear. This is because neither the executive, nor the legislature has any authority or influence over the activities of the judiciary. Independence of the Judiciary: Baron Montesquieu is one of the pioneers of this concept of an independent judiciary. He was able to assert that, liberty does not exist, if the authority to judge is influenced by the executive, or even the judiciary17. These assertions are in line, with the concept of separation of powers, where the executive, the legislature, and the judiciary should operate independently over each other, and none should assert authority over another. This would help in ensuring that there is equality before the law, and in the administration of justice. Furthermore, it would help in promoting equality before the law. Lord Phillips, one of the respectable members of the House of Lords, once denoted that an independent judiciary is one of the cornerstones of the British legal system. Therefore, the ministers, the Lord Chancellor, and everybody who is responsible for administering justice, have an obligation to uphold the independence of the judiciary, as per the provisions of the 2005 constitutional reform act18. The purpose of promoting the independence of the judiciary is to make sure that the judges gain the capability of protecting citizens from an abuse of power, by the government. Furthermore, it helps the judiciary to become impartial, while resolving certain issues or disputes between people, the state and non-state parties. Furthermore, an independent judiciary would help in creating a sense of public confidence on the administrative system of the government. The settlement act of 1700 was able to secure the tenure of judges. This includes Judges of the appeal court, and those of the high court. Furthermore, Section 11 (3) of the 1982 Supreme Court Act denoted that an individual, who should be appointed as a judge, should be a person who is of good behavior, and can only be removed by the monarch, through a recommendation of both legislative houses19. These are, the House of Commons, and that of the Lords. This is an indication, that the process of removing a judge is very tedious and difficult. This is specifically because, the house of lords, and that of commons, has to approve the removal of the judge under consideration. Through these laws and procedures, the legislatures believed that they were promoting and building an independent judiciary. This is because when the state found it difficult to remove senior judges, then chances are high that these judges would act with impartiality, because their positions are secure20. This is irrespective of whether their judgments would receive the support of the state, or not. Furthermore, these judges will have the confidence of administering justice in a fair and equitable manner. However, this independence of judges was only witnessed amongst the senior judges, of the court of appeals and the high courts. This is because the Lord Chancellor, who was part of the executive and the legislature, had the power and authority of disciplining the lower members of the judiciary, and this includes the circuit judges. With the enactment of the 2005 constitutional reform act, this was able to change. This is mainly because; the chief justice took over the responsibilities of disciplining these lower circuit judges and members of the judiciary. This is an indication that the executive does not have any role to play in the affairs of the judiciary, and this is in regard to the recruitment, and disciplining of the members of the judiciary21. Furthermore, section 12 (5) of the 1981 Supreme Court Act denotes that the salaries of judges and magistrates are removed from the consolidated fund22. This is able to protect the judiciary from having a review of their salaries by politicians, and other government officials. Furthermore, the 2005 act prevents anybody from suing a judge because of their statements or remarks, and this is because it may influence the administration of justice, during the time which a judge is able to handle a case. For purposes of promoting an independent judiciary, and an impartial judge, political leaders should not criticize the decisions of judges, but the law that was applied23. A critique of judges may influence the manner which these judges are able to make decisions, hence affecting the administration of justice. It is therefore prudent to denote that the 2005 act played an important role in creating an independent judiciary. Conclusion: In conclusion, the 2005 constitutional reform act has played a role in the reformation of the judiciary, and separating the influence that the executive had, towards the judiciary. The executive and the legislature were using the office of the Lord Chancellor, in influencing the affairs of the judiciary. This is because the Lord Chancellor was the head of the judiciary, the speaker of the House of Lords, and he was also a government minister. Through his position in the legislature, the Lord Chancellor played a role in the enactment of laws, and he also acted as a judge, for purposes of enforcing the same laws. This is unacceptable, mainly because there will be a conflict of interest when the Lord Chancellor is involved in the implementation of laws, that he or she played a role in developing. Under the concepts of the separation of powers, the judiciary, executive, and the legislature are equal, and none has authority over the other. Furthermore, this act was able to satisfy article six of the EU convention of human rights, which required the government to initiate measures aimed at limiting the influence of the government to the judiciary. This is mainly because it would help in the promotion of justice, and the courts will have the capability of nullifying illegal government activities, that would breach the rights of an individual. This is through the concepts of judicial reviews. 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