Judiciary before the Constitutional Reform Act 2005
- Throughout the legal history of the United Kingdom, there have been constitutional
devices and safeguards aimed at preserving the independence of the judiciary, but
institutional independence of the judicial branch had not yet fully evolved.
- Why? Due to institutional ties between the three branches of government illustrated
by the role of Lord Chancellor and the Appellate Committee of the House of Lords →
this was the main argument for the creation of the CRA 2005
- What did the act actually do? It reformed the Lord Chancellor’s office, established the
Judicial Appointments Commission and created the Supreme Court of United
Kingdom
- All of these reforms contributed to the institutional independence of the judicial
branch
Who was the Lord Chancellor prior to CRA 2005?
- Incorporated three governmental branches under one office: head of the judiciary in
England and Wales (also a judge), Cabinet minister and the speaker for the House of
Lords
‘Living refutation of the doctrine of separation of powers ‘(quote from a different book but on
textbook p415 within the UK Constitution - why? Because the separation of power assumes
there will be three institutionally distinct branches of government at least and the role of Lord
Chancellor is a complete opposite of it
- How did the UK manage to uphold the position of Lord Chancellor so long which
defies the norms of the modern constitution? The UK Constitution proved once again
to be more ‘pragmatic than principled’ - the favour practicality over strict norms of the
separation of powers (why is it more practical?). The Lord Chancellor’s role was even
better defended by favouring judicial independence over the separation of powers
doctrine (what were those constitutional mechanisms that supported judicial
independence?)
- How does the Lord Chancellor demonstrate his role of protecting judges and judicial
independence?
1. Cabinet minister → connecting the Parliament and executive on one side and
judges on the other (how does this make sense?)
2. By belonging to the House of Lords (rather than House of Commons) he is
considered to be free from pressures of party politics
3. Judicial oath
- What if there was a conflict of interest between the Lord Chancellor’s executive and
judicial roles? It was mostly tolerated because he infrequently sat on the bench and
he would not sit in a case where the interests of the executive were directly involved
(p415)
- The CRA did not come out of nowhere, there had been a pressure for reform for
some time
- Last holder of Lord Chancellor’s office: Lord Derry Irvine (under Blair administration) -
controversial figure, very politically involved, abused powers granted to him (more
information on his work needed)
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