The Constitutional Reform Act of 2005 - Coursework Example

The Constitutional Reform Act of 2005. On February 24, 2004, a bill was introduced in the House of Lords that sought to redefine the role of the judiciary and after amendments, has finally been approved by both Houses as the Constitutional Reform Act of 2005. The purpose of this reform is directed towards strengthening democracy and enhancing the credibility of public institutions1 while also recognizing the value of judicial independence and the need to preserve it.2 The major provisions of the Constitutional Reform Act include: (a) abolishing of the office of Lord Chancellor (b) creating a new, independent Supreme Court to replace the system of Law Lords (c) creating a new Judicial Appointments Commission. (d) Provisions for judicial functions of Lord President of the council (e) Interpretation and amendments to the Act3 This Act poses a significant challenge to the existing concept of Parliamentary sovereignty that has existed in UK law, in the absence of a written Constitution4. Instead, a collection of regulatory rules and political practices have constituted constitutional implementation, which has traditionally imbued Parliament with the right to modify the constitution on the basis of a majority in both houses of Parliament.5 However, existing provisions permit the Lords of the Appellate Committee to also participate in the legislative business of the Upper House6, thereby raising the question of validity of judicial independence, which has been addressed in the new Act. Furthermore, the separation of powers between the three branches of Government as spelt out by Montesquieu7 is unclear in the context of the British judicial process. In view of recent European legislation such as the European Convention of Human Rights8, the conflict arising between the judicial body as the arm of Government to enforce the mandates of Parliament vis a vis its role as the avenue of justice for individual rights is in the process of being addressed through the Constitutional Reform Act of 2005. The Diceyan concept of Parliamentary Sovereignty: The orthodox approach to judicial review is based upon the absolute and indivisible sovereignty of the British Parliament9. Oxford Professor A.V. Dicey set out the fundamental principles of Britain’s unwritten Constitution, and the role of judges within the context of those principles, as follows: (a) “Parliament has the right to make or unmake any law whatever”10 and (b) no person or body may be recognized as having the legal authority to set aside or invalidate the acts of Parliament, except Parliament itself.11 Thus, the indivisibility of Parliamentary power requires that all exercise of Governmental power must be authorized by Parliament, since it is the source of all valid authority.12 As a result, the British power of judicial review would not include the power to invalidate Acts of Parliament, rather the Courts may only use their powers to constrain any abuse of powers by the other arms of Government, such as the legislative and executive branches13. Therefore judicial review would constitute an invalidation of certain actions by officials of the other branches of Government on the grounds of such action being irrational, unreasonable or procedurally unfair. According to Dicey, the judicial role is to protect Parliamentary sovereignty from any encroachment by the executive and in doing so, fulfill the function that Parliament has assigned to judicial authorities. However, the division between executive and Parliamentary power is ambiguous in Britain, with members of the House of Lords also exercising a judicial function, thereby exerting indirect control over Parliament in their judicial capacity.14 This executive function of the judiciary may therefore be viewed as potentially compromising of their role as the upholders of individual rights of the public. But, as Lord Browne Wilkinson has pointed out, British judges have used their judicial power in several cases to protect what they consider as fundamental rights15 indicating their willingness to subject government initiatives impacting upon fundamental rights to “the most anxious scrutiny”16. In cases involving such rights, the Courts have adopted a common law perspective and have implied that the courts have the right to independently assess Government actions in the areas impacting upon fundamental rights and where necessary, invalidate such infringing Government actions.17 In the case of R v Secretary of State, Lord Bridge clarified that in cases involving fundamental rights, the Courts are “perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it.”18 But the concept advocated by Dicey does not visualize any separation of powers between the legislature and the judiciary, thereby presenting an acute need for reform within the evolving British judicial system.19 Therefore, the Constitutional reform proposals have mooted a separation of powers under the Act of 2005. Montesquieu’s concept of Separation of Powers: According to Montesquieu, liberty can exists only when Government is so constituted that one man need not be afraid of another.20 He believed that power needs to be so apportioned between different players in Government that minimal opportunities exist for the abuse of such power; thus such a principle of liberty will establish the rule of law. But he visualizes law making as being confined in the hands of the legislature, law execution in executive hands and the exposition of law as being the realm of the judiciary. Maximum liberty according to Montesquieu is to be obtained through a separation of powers among various Government branches. However, his view presents two serious limitations: (a) It is the system of checks and balances rather than separation of powers that may be effective in establishing the rule of law and protection against arbitrary action from any branch of Government and (b) There is also a separate common law that has formed the basis for the development of precedent in judicial actions based upon which further exposition is carried out. Therefore, in practice, UK law has also been influenced by the exposition of law that has been laid out by judicial authorities through common law precedents. Developments in European Law: Traditional notions of Parliamentary sovereignty are being challenged and found inapplicable. For example, in the recent case of Jackson and Others v HMAG21 the validity of the Hunting Act of 2004 was challenged on the grounds that it was based upon the Parliament Act of 1949, which in turn could not be construed to be an act legally implemented by the Parliament and was therefore invalid, since it did not possess the necessary Parliamentary mandate. The foundation of the British Constitution is the Parliament Act of 1911, whereby any modifications to the Act would require the consent of both Houses of Parliament.22 Section 2 of the Act of 1911 mandated that the approval of the House of Lords could be dispensed with if the Bill was passed by the House of Commons but rejected three times by the Lords with the passage of a two year period. The 1949 Act however reduced the time period to one year and the number of sessions of the House of Lords from three to two. But unlike the 1911 Act, the 1949 Act was not passed by both Houses, it was passed only by the House of Commons and was therefore challenged as invalid. However, the Court stated that its jurisdiction in such a case would be limited, since Article 9 of the Bill of Rights states that the proceedings in Parliament may not be questioned in any court of law. It rejected the argument that the 1949 Act could be viewed as delegated legislation, interpreting it constitutionally as an authentic representation of the will of Parliament. This case is important because it raises the issue of curtailment of the powers of the House of Lords, which in turn raises the issue of imbalances in the bicameral system. The supremacy of Parliament was at issue in this case, but as pointed out by Lord Steyn, the developments in European law have created a new legal order in the U.K., which mandates a reform of the existing judicial processes, to incorporate the fundamental rights guaranteed to individuals under the European Convention of Human Rights, which mandates an independent judiciary in the administration of justice23. Moreover, the English Courts are now required to read and give effect to Parliamentary legislation in such a way that will make it compatible with Convention rights24 and there is also a provision whereby the Courts can declare incompatibility of UK Parliamentary legislation with the goals of human rights.25 Therefore, the traditional invincibility of Parliamentary sovereignty in the context of judicial function is being challenged and the new initiatives proposed under the Constitutional Reform Act of 2005 would appear to be a positive step forward, in achieving the separation of the legislature from the judiciary, to ensure compliance with the goals of the European Convention on Human Rights. In fact, as the British Government has pointed out, “The fact that the law Lords are a committee of the House of Lords can raise issues about the appearance of independence from the legislature.”26 Further proposals being mooted for reform in the House of Lords also include the abolishing of the hereditary peers in the House of Lords27. The move towards the establishment of an independent and separate judiciary appears to be a certain future development as individual rights and European Law gain precedence within the UK judicial system as a consequence of the Constitutional reform Act.. Bibliography * Brazier, R, 1999. Constitutional practice: The Foundations of British Government 3rd edn. Oxford: Oxford University Press * Bradley, A.W & Ewing, K.D, 2003. Constitutional and Administrative Law, 13th edn. London: Longman, pp 79,88 * Craig, Paul, 1990. Public Law and Democracy in the United Kingdom and United States of America, pp 21-22 * Curran, Sean, 2005. Election Issues: Constitutional reform BBC News. April 5. [Online] Available at: http://news.bbc.co.uk/2/hi/uk_news/politics/vote_2005/issues/4372135.stm; accessed 2/2/2006 * DeSecondat, Charles, 1873 (First published 1748) Baron de Montesquieu: The Spirit of the Laws (Nugent Translation, revised edn). Bk XI, Ch VI, pp 175-179. * Dicey, A.V, 1902. Introduction to the Study of the Law of the Constitution, 6th edn, pp 37-38, 350-351 * European Convention of Human Rights and Fundamental Freedoms. [Online] Available at: http://www.pfc.org.uk/legal/echrtext.htm; accessed 2/02/2006 * Elliot, Mark, 2001. The Constitutional Foundations of Judicial review, 44-49. * ECS Wade, 1959. Introduction to A.V. Dicey: The Law of the Constitution 10th edn * Jackson and Others v Her Majesty’s Attorney General (2005) UKHL 56 * House of Lords Bill, 30 EN paras 3 and 6 * Human Rights Act, Sections 4 and 6. * Lord Falconer DCA: Justice, Rights, democracy Speech. Institute of Public Policy research. December 3, 2003. * Lord Falconer of Thoroton, 2003. Foreword to the Department of Constitutional Affairs Consultation Paper titled Constitutional reform: reforming the office of the Lord Chancellor * Lord Browne Wilkinson, 1992. The infiltration of a Bill of Rights. Public Law 397, at 409. * Lord Bridge (House of Lords) , in R v Secretary of State for the Home Department ex parte Bugdaycay (1987) AC 514 at 531 * Lord Bridge (HL) in R v Secretary of State for the Home Department, ex parte Brind (1991) 1 AC 696 at 748-49 * Lord Bingham, Dicey Revisited (2002) Public Law 39 * Speech on Constitutional reform, Lord Falconer, 8 December 2003. * Section 3(1) of the Human Rights Act of 1998 [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--a.htm#3 * Turpin, C, 2002. British Government and the Constitution. Text, Cases and materials 5th edn. London: Butterworths, pp 10 * Wade, Sir William and Forsyth, Christopher, 1994. (7th edn) Administrative Law at 29 * Walker, Neil, 1999. Setting English Judges to Rights Oxford Journal of Legal Studies, 133 at 145 Read More