Introduction
The 2005 Constitutional Reform Act represents a significant piece of legislation in the modern British constitution. Its core concept involves a restructuring of the judiciary and the office of the Lord Chancellor to achieve a more distinct separation of powers within the UK’s governmental framework. The technical principles behind the Act focus on modifying institutional structures and clarifying lines of authority. Key requirements include establishing a Supreme Court independent of the House of Lords, removing the judicial functions from the Lord Chancellor, and statutorily recognizing the independence of the judiciary. This reform aims to address a historic concentration of legislative, judicial, and executive roles within single bodies.
The Genesis of the Constitutional Reform Act 2005
The Act's introduction arose from a confluence of political and legal considerations. The historical fusion of powers, especially within the House of Lords and the multifaceted role of the Lord Chancellor, had generated increasing unease. The Lord Chancellor held a unique position, acting as a cabinet member in the executive, a judge in the highest court of appeal, and having a role in the selection of judges. This amalgamation appeared increasingly at odds with the principles of separation of powers and raised concerns about compliance with fair trial rights under the European Convention on Human Rights (ECHR). The intent behind the Act was to rectify these structural issues, separating the judiciary from the other branches of government and establishing a formal recognition of judicial independence. This would provide a more transparent and defensible system.
Key Changes Introduced by the Act
The 2005 Constitutional Reform Act implemented several substantial changes. Firstly, it redefined the role of the Lord Chancellor. While the office was retained, its judicial functions were completely removed. The Act established guidelines for the appointment of the Lord Chancellor, requiring the Prime Minister to recommend individuals who are “qualified by experience.” Furthermore, the Act imposed a specific duty on the Lord Chancellor to protect the independence of the judiciary, encompassing the Supreme Court, other domestic courts, and international courts. The Act also formalized the transfer of various functions previously held by the Lord Chancellor to other entities, such as the Judicial Appointments Commission.
Secondly, the Act established the Supreme Court of the United Kingdom, taking over the functions of the House of Lords as the highest court of appeal. This was a significant departure from historical norms where the judiciary operated within the legislative framework of the House of Lords. The Act stipulated the composition of the Supreme Court, including the requirement that the 12 judges should be appointed by the monarch, based on professional experience. It also included detailed procedures for the selection process and recognized the need for encouraging diversity in judicial appointments. The location of the new Supreme Court, physically separated from Parliament, affirmed its independent nature.
The Separation of the Judiciary and Parliamentary Sovereignty
The Act sought to reconcile the long-standing principle of parliamentary sovereignty with the separation of powers. Arguments had been raised that the supremacy of the legislature was incompatible with a true division of powers. However, the Act operated on the premise that a functional separation of powers could coexist with parliamentary sovereignty. This approach does not require an equal division of power. The Act affirmed that Parliament makes laws, and the judiciary interprets them. This principle is seen in Duport, where it was recognized that the constitution is based upon the separation of powers with the judiciary’s role to protect Parliament's intention from executive overreach. Furthermore, the judiciary is an independent body which prevents arbitrary executive power as Lord Steyn described in his lecture. In Bank Mellat v Her Majesty’s Treasury (No. 1), the Supreme Court demonstrated its ability to conduct closed material procedures as a further extension of its independent function in protecting national security. This shows the judicial role in safeguarding parliamentary intent and upholding the rule of law. The independent function of the courts is further strengthened by the fact that it is now in a completely separate building to parliament.
Reconciling Westminster-Style Parliament with Separation of Powers
Another core challenge was reconciling the traditional Westminster system with the functional approach to the separation of powers. Bagehot's “efficient secret” posited that partial fusion of the executive and legislative branches enhanced efficiency in the initial stages of drafting legislation. The 2005 Act does not remove this fusion, recognizing the executive’s expertise in legislative drafting. However, a subtle separation remains, such as the limit on the number of ministers who can sit in the House of Commons, preserving a function of legislative debate and rejection. The Act allows the legislative chamber to perform its debating and rejecting function more effectively in the interests of representative democracy.
The independent function of the judiciary was also reconciled with the pursuit of efficiency. The courts, with their legal expertise and triadic structure, are suited to resolve specific disputes based on pre-existing law. The case of Prohibitions illustrated the separation of judiciary and the executive not only on tyranny prevention grounds, but also efficiency. Here the monarch was deemed unsuitable to resolve legal disputes as the “law is an act which requires long study and experience”. The 2005 Act effectively codified and formalized these established concepts.
The Act and the Rule of Law
The Constitutional Reform Act 2005 formally recognizes the rule of law as a central constitutional principle. It states that judges must continue to uphold judicial independence. This formal statutory recognition is a departure from a time when judicial independence was primarily protected by convention. By prohibiting legislative or executive interference, the Act seeks to ensure that judicial decisions are made without external pressure or influence.
The Act's impact extends to cases such as Anderson, where the necessity of the separation of powers between the judiciary and other government branches was reinforced for compliance with the ECHR. The Act’s institutional reforms, particularly the creation of the Supreme Court, provide a constitutional guarantee for judicial independence. This establishes a practical division, where cases are heard outside of Parliament in the Middlesex Guildhall. By formally codifying and recognizing the importance of judicial independence, the Act has strengthened the principle of the rule of law in the UK constitution.
Conclusion
The 2005 Constitutional Reform Act is a key piece of legislation in the evolution of the UK’s constitutional arrangements. While it did not fundamentally alter parliamentary sovereignty, it has brought the idea of the separation of powers to the fore and given more credence to the separation between the three branches of government. Through its restructuring of the judiciary and the office of the Lord Chancellor, the Act provides a stronger safeguard for the rule of law and the independence of the judiciary. By implementing these institutional changes, the Act establishes a more explicit separation of powers. This, in turn, aims to increase public trust in the impartiality and integrity of the legal system. The Act represents a careful attempt to balance traditional constitutional principles with the evolving needs of modern governance, and has laid a new with many of the old elements intact as noted by Bogdanor’s view of “ The old constitution was based upon the sovereignty of Parliament, the new constitution is based on the idea of a constitutional state based upon a separation of powers”.
