The Judiciary

Background – Motivation/The need for reform?

• It was seen as crucial that there be a clearer separation between the senior members of the judiciary and the government
• In the past the position of the Lord chancellor had been ambiguous – he was a cabinet member and a senior member of the ruling party – yet at the same time he was head of the judiciary and presided over the proceedings in the HoL = placed him in all three branches of government
• The occupant of the post might say that he/she understood the differences between the neutral judicial role and the political role as cabinet minister – this was difficult to maintain
• This perception of lack of independence needed to be addressed in a modern system
• In addition, as senior judges were appointed by the PM and the Lord Chancellor (both party politicians) = no guarantee that the judiciary would be free form political influence – this placed the principles of the Rule of Law and the independence of the Judiciary under threat
• It was also confusing and potentially unjust that the highest appeal court – the House of Lords – should be made up of judges who were also members of the legislature and who therefore had a place in the making as well as the implementation of the law
• In nearly all modern democracies it is firmly established that the judiciary, which upholds the rights of citizens, controls the arbitrary power of government and maintains the principles of justice and the rule of law should be totally independent of govt – this clearly did not exist in Britain
• It had always been an aspiration of the Labour Govt that took power in 1997 and In 2003 momentum grew for reform
• The Constitutional Reform Act of 2005 put the proposals into effect

Reforms

• There were three main reforms:
• The position of the Lord Chancellor was retained but its holder no longer presides over the House of Lords and is no longer head of the courts system
• Instead the Lord Chief Justice (a  non political post) became head of the judicial system
• The post of Secretary of State for Constitutional Affairs was created in the cabinet (to advise the cabinet on constitutional issues)
• A new Judicial Appointments Commission was set up to propose candidates for promotion to senior judicial positions – this ensures that there is no political influence over the decision
• The Govt. has the final say on who shall be a senior judge but this must be after approval by the JAC
• the commission can prevent politically motivated appointments
• The Law Lords who formed the House of Lords Court of final appeal were separated in 2009.  [opened autumn 2009]
• Instead they sit as a new Supreme Court in a different building (Middlesex Guildhall)- this removes the confusion about their role
• The new court has the same powers as the HoL – however it is symbolically important and early signs are that it will indeed prove to be a genuinely independent body
• The Supreme Court is the final court of appeal and the constitutional court for the UK
• The SC cost an estimated £32M to build

What were the effects of the reform?

• The Supreme Court opened in autumn 2009
• The principles of judicial reform – 4 fold – to increase the separation of powers between the Govt. legislature and judiciary/ to improve the independence of the Judiciary/ to eliminate the ambiguity of the role of Lord Chancellor/to bring Britain into line with modern constitutional

How successful has it been? – Praise/criticisms

• The measures were criticised at the time as they were said to have been rushed through without proper thought –
• However, thus far according to McNaughton = “the early signs have indicated that it will indeed prove to be a genuinely independent body”

Future

• The implications of the SC are far reaching – there is a possibility that it might establish itself as the SC in USA has – as a court that was able to interpret Parliamentary legislation as being against the Constitution or European legislation – this may therefore put the sovereignty of parliament into question as the judiciary moves into a new powerful position of being able to comment on parliamentary law.
• Cameron has said that he will consider proposals for local referendums to choose community punishments.