Constitutional Reform

1. Constitutional-Reform-Act-2005
The Constitutional Reform Act 2005 came into force on 3 April 2006 after receiving Royal
Assent on 24 March 2005. Following the passing of this Act, the role of the Lord Chancellor has
been affected. Indeed, it may be true to say that the independence of the judiciary is strengthened
by the Act. The Act is divided into 7 parts which contains 149 sections and 18 schedules. The
long title of the 2005 Act states that the office of the Lord Chancellor will be modified. Besides
that, a Supreme Court will be established in order to replace the appellate jurisdiction of the
House of Lords. Provisions relating to the appointment of the judges are also being laid down
within the Act.
The Lord Chancellor
Prior to the Constitutional Reform Act 2005, the role of the Lord Chancellor is rather
controversial in the sense that his responsibilities were in conflict with the doctrine of separation
of powers1. The Lord Chancellor, who is the member of the cabinet, was the head of the
judiciary and was entitled to sit in the House of Lords to hear the appeal cases.
The Lord Chancellor is one of the most ancient offices of state, dating back many centuries. The
Lord Chancellor is appointed by the Monarch on the advice of the Prime Minister and is a senior
member of the Cabinet. They head the Ministry of Justice as the Secretary of State for Justice.
Previously the Lord Chancellor also acted as Speaker of the House of Lords and therefore sat on
the Woolsack. The Lord Chancellor was also head of the judiciary and the senior judge of the
House of Lords in its judicial capacity. However, under the Constitutional Reform Act 2005, the
Lord Chancellor ceased to be the Speaker of the Lords, and was replaced by the Lord Speaker. In
addition, the Lord Chief Justice is now head of the judiciary, and the Lord Chancellor may no
longer sit as a judge.
The fact that the Lord Chancellor was involved in all the three organs of government was said to
be unacceptable, since it contradicts with Article 62 of the European Convention on Human
Rights. However, one could have doubt as to whether the Lord Chancellor, when sitting as a
1 The power of the state has to be divided between the three organs,namely the judiciary,legislatureand
executive.
Each of the organs should operate independently and none will become all powerful .
2 Ensure fair trial which requires thata judge must be independent of the government.

2. judge, would be bias against the government. In light of the 2005 Act, although the Lord
Chancellor remains a Cabinet minister whose responsibility is in connection with the system of
justice, he no longer sits as a judge hearing a case.
Part 2, Constitutional Reform Act 2005, modified the role of the Lord Chancellor. In order to be
appointed as the Lord Chancellor, he or she need not be a member of the House of Lords.
Moreover, no legal qualifications or experience is required. Jack Straw, member of the House of
Commons, appointed to be the first Lord Chancellor under the 2005 Act. Lord Falconer was
appointed to be the Secretary of State for Constitutional Affair.
 The Lord Chancellor's Department was renamed the Department for Constitutional
Affairs.
 In May 2007, the Home Secretary, John Reid suggested that the Department of
Constitutional Affairs was to be renamed as the Ministry of Justice. The main
responsibilities of this ministry are related to constitutional issues, criminal justice,
judicial diversity, human rights, legal services and others.
Lord Chief Justice
All the Lord Chancellor's judicial responsibilities are transferred to the Lord Chief Justice. The
Lord Chief Justice, is known as President of the Courts of England and Wales, is the head of the
judiciary.
Function
 Training, guidance and deployment of judges. Under Section 7 of the 2005 Act,
he also represents the views of the judiciary of England and Wales to Parliament
and ministers.
 On the other hand, Section 3 of the 2005 Act imposes a duty on the Lord
Chancellor to uphold the continued independence of the judiciary even though he
no longer sits in the courts and deliver judgments.
Appointments to the judiciary
Part 3, Constitutional Reform Act 2005, provides that a new Supreme Court will replace the
existing Appellate Committee of the House of Lords. This is to separate the House of Lords

3. which is a legislative chamber and the Supreme Court which is the highest appeal court in the
land.
 Section 23 of the 2005 Act laid down that members of the Supreme Court will
consist of the 12 Law Lords who are currently sitting in the House of Lords.
These senior judges will be known as Justices of the Supreme Court.
 Section 25 states that the judge must have held a high judicial office for 2 years
or practicing as a qualifying practitioner for 15 years.
 Under Section 26(4) of the 2005 Act, the Prime Minister has no discretion on
whom to recommend to be appointed as the Justices of the Supreme Court and he
must pass on the recommendation made to him by the Lord Chancellor to the
Queen.
The judges who sit in the Supreme Court will no longer sit in the legislative chamber of the
House of Lords. Indeed, the Council of Europe, in enforcing the European Convention on
Human Rights, signalled to the government that if the Law Lords are allowed to participate in
the law making process, this will breach the doctrine of separation of powers. This is because the
Law Lords were also peers in Parliament and therefore able to take part in the debates.
 Under Section 10(1) and (2) of the Supreme Court Act 1981, the Lord Chief Justice,
Master of the Rolls, President of the Family Division, Vice Chancellor, Lords of Appeal
in Ordinary and Lord Justices of Appeal are appointed by the Queen on the advice of the
Primes Minister.
 The Prime Minister is advised by the Lord Chancellor before recommending the
candidates to the Queen.
 High Court judges and circuit judges are appointed by the Queen on the advice of the
Lord Chancellor.
The Judicial Appointments Commission (JAC) is established under Part 4 of the Constitutional
Reform Act 2005. This commission, which is chaired by Baroness Ushar Prashar, is consisted of
14 commissioners. Among them, 6 must be lay members, 5 must be members of the judiciary, 2
must be from the legal profession, one tribunal member and one lay magistrate. The
Commission's responsibility is to appoint the judges including the magistrates.

4. When considering appointing a Justice of the Supreme Court, a special Selection Commission
will be established. This Commission consists of President of the Supreme Court, the Deputy and
one member from each of three Judicial Appointments Commission, Scotland, Northern Ireland
and England and Wales. There must at least be a non-lawyer member in the Commission. The
Lord Chancellor can accept the selection or ask the Commission for reconsideration but the Lord
Chancellor's discretion in rejecting the selection has been limited.
Whenever there is a vacancy is the posts of the Lord Chief Justice, Heads of Division, Lords
Justices of Appeal and High Court judges, the Judicial Appointments Commission will make
selections to the Lord Chancellor. The Lord Chancellor can appoint or recommend for
appointment of the selected candidate, or ask for reconsideration or reject the candidate once. If
the Lord Chancellor has rejected and asked for reconsideration, then he must appoint whoever is
selected by the Commission. On the other hand, the Commission is responsible for the selection
of the lower judiciary, which means the circuit judges and below. This selection is a purely
matter of the Commission.
The Constitutional Reform Act 2005 makes it a requirement that the selection of the Commission
must be solely on merit and that the candidates must be of good character. The Lord Chancellor
can issue guidance in determining the appointments procedures which the Commission must
have regard. This guidance will be issued only after consultation with the Lord Chief Justice and
approved in draft by both Houses of Parliament.
Although the Lord Chancellor has the statutory powers to remove the judges below the High
Court on the ground of misbehavior or incapacity, these powers can only be exercised if the Lord
Chief Justice agrees with the Lord Chancellor. Besides that, the judges may be suspended by the
Lord Chief Justice from hearing a case if the Lord Chancellor agrees with the decision.
Independence of the judiciary
Baron Montesquieu, a French jurist, had stressed the importance of the independence of the
judiciary by stating that ‘there is no liberty if the power of judging is not separated from the
legislative and executive. This statement is in line with the doctrine of separation of powers
which requires that the legislative and executive should not interfere or have influence over the
judiciary. This is to ensure the fairness and equality of the law. Lord Phillips once stated that the

5. independence of the judiciary is a fundamental principle of the English Legal System. The Lord
Chancellor, ministers and all those with responsibility for matters relating to the judiciary are
under a duty under the 2005 Act in upholding the continued independence of the judiciary.
The main purpose of maintaining the independence of the judiciary is to ensure that the judges
can protect the citizens from the arbitrary use of power by the government and being impartial in
resolving disputes, whether between individuals or between individuals and the state. It is further
argued that such independence serves the wider purpose of maintaining public confidence in the
system of justice and in the system of government.
Senior judges’ tenure of office is secured by the Act of Settlement 1700 during good behavior.
These senior judges include the Lords of Appeal in Ordinary, Lords Justices of Appeal and
Justices of the High Court. Section 11(3) of the Supreme Court Act 1981 provides that a person
appointed to hold office during good behavior, can only be removed by Her Majesty on an
Address presented to her by both Houses of Parliament. There has not been instance where the
judges are removed in this manner. The senior judges cannot be dismissed for political reasons
and with this security of tenure; they are able to uphold the justice even though the decision is
not in favor of the government of the day.
Prior to the Constitutional Reform Act 2005, the Lord Chancellor was responsible for removing
and disciplining the lower judiciary which includes the circuit judges. However, since the
judicial responsibilities are transferred to the Lord Chief Justice under the 2005 Act, the power of
discipline is also transferred to him. The Lord Chief Justice can remove a circuit judge on the
ground of misbehavior or incapacity under the Act.
Section 12(5) of the Supreme Court Act 1981 provides that judicial salaries are charged on the
Consolidated Fund. This is to protect the judiciary from political debate about their salaries.
Indeed, the judicial salaries are relatively high so as to ensure that the judges are not being bribed
by any person in delivering a verdict in a case.
Under Section 75 of the Courts and Legal Services Act 1990, full time judges are barred from
legal practice and they may not hold any paid appointments as directors or undertake any
professional or business work. This provision probably aims at avoiding the judges from having
an interest in a particular firm or industry. Besides that, judges are not allowed to sit in the House

6. of Commons since this clearly conflicts the doctrine of separation of powers. If a judiciary
member involves in a legislation passing process, this may imply that the law is enacted, upheld
and applied by the same body or persons. A member of the House of Commons, however, may
be appointed to be a judge.
The judges cannot be sued for their remarks or statements made in the courts since this may
influence the judges' reasoning of the case. Besides that, in order to ensure the independence of
the judiciary, the members of Parliament should not criticize the decisions of the courts. They
may criticize the law, but not the judges. When giving statements in the public, the politicians
should also keep in minds that no criticize to the judges should be made.
Quite often the media will report the cases to the public and sometimes criticize may be made
against the judges. In order to avoid putting pressure on the judges, the media should refrain
from criticize them even though they feel the decision is not a good one. When a particular case
involves the government, the judiciary could have faced with pressure and interfering from the
executive. This occurred in 2003-2004 when Lord Woolf and David Blunkett were deciding
whether the judiciary or executive should decide the minimum sentence for murder and who
should decide when to release prisoners. The European Court of Human Rights and the House of
Lords held that the judges should exercise the judicial powers, and not the government.
The judiciary has to be independent in order to protect the citizens against unlawful acts of
government agencies and officials. This can be done through the process of judicial review. In
reviewing the decisions of the government departments and other public authorities, it is
essential that the judges are not influenced by the executive in coming up with a decision as to
whether the government departments or public bodies have acted unlawfully. In M v Home
Office, the House of Lords held that the ministers and civil servants were subject to the contempt
jurisdiction of the courts. The Home Secretary was held to be in contempt of the court when he
disobeyed a judge's order.
A judge is the person who is expected to deliver judgement in an impartial manner through a
strict application of the law. It is vital that he or she must not have an interest, whether personal
or financial, which may influence the outcome of a particular case. There is a doctrine of natural

7. justice, namely nemo judex in sua causa3. In Dimes v Grand Junction Canal Proprietors, the
decision was set aside because Lord Cottenham LC, who heard the case, held shares in the canal
company involved in the litigation. This case shows that even though there may not be an actual
biasness, a judge may be disqualified from hearing a case if there is some appearance of bias. In
another case of ex parte Church of Scientology of California, Lord Denning MR disqualified
himself from hearing the case as he felt that he had a bias against one of the parties.
In 1999, the House of Lords restated the doctrine of judicial independence in a high profile case
of Re Pinochet Ugarte (No.2). In this case, the Amnesty International was involved in submitting
evidence to the court. Lord Hoffmann, who was a director of the organisation, was one of the
judges hearing the case. As a result, Lord Browne-Wilkinson convened a new panel of judges to
hear the case. It was held that the mere fact of Lord Hoffmann's interest was sufficient to
disqualify him from hearing the case unless he made sufficient disclosure. This decision again
confirmed that the judges will be independent when delivering a verdict.
The need for Constitutional Reform Act 2005
Some Law Lords, notably Lord Hope, expressed the view that the funding and accommodation
of the court has to depend on the executive. It is said that the needs of the judiciary are
effectively taken care of through the budget of the House of Lords. Moreover, there is no
executive pressure on the judiciary to save money and thereby ensure the independence of the
judiciary.
 Section 50 of the Constitutional Reform Act 2005 imposes a duty on the Lord Chancellor
to ensure that the court is provided with accommodation and resources which the Lord
Chancellor thinks are appropriate.
3 No one should be made Judge of his own.