Lisa Hahn, FRS Constitutional Law SoSe 2011 How has the Constitutional Reform Act 2005 affected

the UK constitution?

13.06.2011

First of all the two parts of this question need closer examination and have to be defined: on the one hand the Constitutional Reform Act and what formal changes it introduced and on the other hand the constitution of the UK itself. 1. A constitution is generally defined as a particular document setting the framework and principal functions of the organs of government. Two functions and levels can be outlined: the horizontal relationship between the various institutions of a state and the vertical relationship between the state and the individual. Unlike other states the United Kingdom lacks a written constitution that falls within this narrow definition. However, by using a more broad definition it possible to understand the nature of the UK constitution: it refers to the whole system of government, including all the laws and rules that regulate that government. The sources of this unwritten constitution are statute law, common law, convention as well as international sources. Especially the membership in the European Union and the gradual adoption of the European Law, finally by implementing the Human Rights Act 1998, influenced the constitution of the UK and the understanding of certain structures in a democracy. 2.The Constitutional Reform Act 2005 was introduced and designed by the Labour Government to remedy the formal lack of separation of powers by reshaping the relationship between the judiciary and the other branches of government. The three most crucial changes concerned the office of the Lord Chancellor, the Judicial Appointments process and the set up of a Supreme Court. a. The Lord Chancellor The reason for introducing the Act was linked to an old principle, developed by Charles-Louis de Secondat Montesquieu in the 17th century: the separation of powers. It means that the condition for a democratic government is the division into three branches - executive, legislature and judiciary which balance their powers and control each other. The separation is an institutional as well as personnel one. The last point was exactly the point of criticism: the Lord Chancellor was

Lisa Hahn, FRS Constitutional Law SoSe 2011

13.06.2011

represented all three branches in one person. Firstly, he was speaker of the House of Lords and thus part of the legislature. Secondly he was part of the executive as a Member of Cabinet. And thirdly he was the Head of Judiciary and exercising this role appointed judges. To increase the separation of powers and to comply with the Art. 6 of the European Convention on Human Rights which demands judicial independence the reform restricted the powers of the the Lord Chancellor. He only remained Member of the Cabinet and his functions as the Speaker of the House of Lords were replaced by the Lord Speaker; his function as a Head of Judiciary by the Lord Chief Justice. b. The Supreme Court The second step into a more clear separation of powers was the set up of a Supreme Court which replaced the Law Lords. It exercise the same formal powers as the Appellate Committee of the House of Lords and the devolution powers of the Judicial Committee of the Privy Council. The new members are appointed independently and the Lords lost their judicial functions. Besides this formal change there was another, very citizen-orientated, reason for the establishment: transparency and accessibility. The reform should create a Court, in another building than the House of Parliament, to make it more accessible for the citizen and everyone who is interested and willing to explore the roots of the UK democracy. c. The Judicial Appointments Commission The third part of the reform was the introduction of a Judicial Appointments Commission which is now responsible for recommending appointments to the secretary. Under the previous judicial selection arrangements the power of appointment to the Court of Appeal and the House of Lords formally rested with the Prime Minister on the advice of the Lord Chancellor. In practice the latter had the power, who made his decision after consultation with the senior judges. 3. Positive Consequences Besides the above mentioned need for a formal separation of powers there was the hope that the separate functions would allow better specialisation and a more efficient work. Additionally the reform should strengthen the respect for human rights and symbolize a step towards the European

Lisa Hahn, FRS Constitutional Law SoSe 2011 Union.

13.06.2011

4. Critics The point which most critics brought forward was that this reform appeared to fix a problem that was never there. In fact the separation of powers was exercised and only in some cases the overlapping powers caused disputes. Moreover they warned that the extra institutions would make coordination more difficult. 5. Conclusion The critics seemed to be wrong when foreseeing a complicated net and difficulties in coordination as the reform turned out to change thins positively. Nevertheless due to the ongoing influence of the EU the voices for a written constitution do not fall silent. We will see whether the United Kingdom will adopt this European way of state organisation or whether it will just remain without a codified constitution as it has been over the last centuries.