Reforms in the Constitutional Reform Bill

Will the reforms in the Constitutional Reform Costs achieve the seeks set out in Lord Falconer's statement of 26th January 2004?

The Constitutional Reform Charge is the illegitimate progeny of the botched Pantry reshuffle of June 2003 which resulted in the hasty removal of Lord Irvine and the appointment of Lord Falconer as Lord Chancellor with a mandate to abolish himself!

Its concept limbs are:

  • The abolition of the Judicial Committee of the home of Lords and its replacement by a new Supreme Court docket (separating Legislature and Professional);
  • The establishment of your Judicial Appointments Commission payment to assume the functions of the Lord Chancellor in the appointment of judges (separating Judiciary and Exec)
  • The abolition of the post of Lord Chancellor (separating Legislature, Professional and Judiciary).

It is highly doubtful whether the proposed reforms will achieve Lord Falconer's mentioned goals principally because the intended changes are susceptible to the colloquial criticism, "If it ain't broke, don't correct it!".

It has to be admitted that the current role of the House of Lords in the judicial process can be an historical anomaly. The Judicial Committee is the best appellate court in the UK and Commonwealth but it is constantly on the be seated in the Palace of Westminster. More controversially, its participants remain an integral part of the next legislative chamber. It has resulted in the obviously plausible criticism that the arrangement symbolizes a breach of the doctrine of separation of powers and gives go up to the populist criticism that the Law Lords are making lawful restrictions which in their judicial capacity they'll then have to interpret and enforce. In reality, their Lordships have became scrupulous in refraining from debate where this is likely to generate a turmoil of interest between their judicial and legislative assignments. The Government's position is the fact that complete parting between politicians and the judiciary is vital in order to maintain public trust which is sought to emphasise this department by the relocation of the ultimate appeal court docket to a fresh and doubtless stratospherically expensive building. This is costly window dressing. Nowhere in the current debate is there any compelling evidence of general population disquiet at a system that has endured without significant criticism of the type for years and years. Further, Lord Woolf, the most mature judge in England and Wales has condemned the proposal as exchanging an initial class final appeals judge for a second class supreme judge. The Supreme Courtroom of the USA is extolled as a role model but it is effortlessly neglected that the proposed UK Supreme Courtroom would not own the power of its transatlantic cousin to punch down legislation and will therefore be bereft of a lot of the affect of the second option. At best a great deal of money will be put in in replicating for any practical purposes the existing set-up. Far from endorsing the independence of the new courtroom, Woolf doubts that it'll reduce the judiciary to "a team of the house Office" therefore of becoming answerable through the Department of Constitutional Affairs. This reform may be seen as a product of the politics dogma which dictates the dismantling no matter what of the old structure and functions of the House of Lords.

The proposal to establish a Judicial Appointments Commission without similarly politically encouraged is evenly flawed in its present form. Typically the Lord Chancellor is the head of the judiciary and responsible for the visit and supervision of judges. Admittedly there has been criticism by the general public and, specifically, users of the legal vocation of the process of appointing High Court Judges with allegations of "secret data files" and too little transparency in the recruitment process. It cannot be denied that god, the father Chancellor (at the latest upon session) becomes a job politician with a seating in the Cabinet and thus at the heart of the federal government of your day. While this is obviously unsatisfactory, criticisms of judicial visits do not contain allegations they are driven by party political considerations. That is in stark distinction to the position in america where meetings to the Supreme Judge are in the surprise of the Leader and there is powerful involvement in and scrutiny of the political structure of the court. In the lecture to the UCL Constitution Product in November 2003, the Chairman of the Pub of England and Wales, Matthias Kelly, QC, indicated concern at the proposed operational composition of the Commission payment. He argued that it should be "a non-departmental public body with a helping agency" responsible to Parliament for its activities however, not specifically in charge of the selection of particular individuals. There's a risk that scrutiny of the activities of the Commission may become akin to unseemly American-style verification hearings. The DCA Consultation Newspaper, Constitutional reform: a fresh way of appointing judges, (July 2003) suggests that "the Fee should be a recommending Commission, adding a short-list of applicants for session to the Secretary of State". It is hard to understand how the participation in this manner of the Office of Constitutional Affairs would assuage the intended public concern at political engagement in the judicial appointment process.

Every discussion of separation of powers in the UK constitution (Legislature, Judiciary and Professional) features the anomalous position of the Lord Chancellor who (with amazing physiological ingenuity!) retains a foot in every three camps. It needs to be conceded that given the rigid prohibition of judges possessing party politics affiliations, the eyesight of a member of the government of the day dispensing justice in the best appellate court is incongruous. This is a major reason why it was suggested to replace the Lord Chancellor with a Secretary of State for Constitutional affairs and remove him from the home of Lords and, in particular, its judicial function. However, again the necessity for this is doubtful. Even Lord Hailsham - a carefully political pet animal - seemed to deal with appropriate detachment from the political imperatives of the day when giving common sense inside your home of Lords. It now seems that we are to retain a Lord Chancellor but that he do not need to be a Regulation Lord or perhaps a law firm. Enter a rehabilitated previous Home Secretary perhaps?


BBC News, Lords Inflict Supreme Court docket Blow, 9 March 2004, www. media. bbc. co. uk

BBC Media, Q & A: Supreme Courtroom Row, 9 March 2004, www. news. bbc. co. uk

Constitutional Reform Invoice, www. publications. parliament. uk

DCA, Constitutional Reform: a new way of appointing judges, July 2003

Elliott, C. & Quinn, F. , British Legal System, (4th Ed. , 2002)

Kelly, M. , QC, Where are we heading with Constitutional Reform?, Lecture to UCL Constitution Device, 18 November 2003

The Guardian, Q & A: the constitutional reform expenses, 8 March 2004

www. dca. gov. uk

www. gnn. gov. uk


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