University of Surrey Issues in Politics Today

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University of SurreyIssues in Politics Today

• The Constitutional Reform Act 2005 Sources and
  Impact
• July 2005

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Contents

• Background the Changing Constitution
• Why a Constitutional Reform Act?
• What does the CRA do?

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The Changing Constitution

• The UK lacks a single, codified constitution,
  unlike most other states
• BUT it does have numerous constitutional texts
  and practices

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The Sources of the Constitution

• Statute Law (e.g. Bill of Rights, Parliament
  Acts)
• Common Law (e.g. royal prerogative powers)
• Convention (e.g. the PMs powers)
• Law Custom of Parliament
• International Sources (e.g. EU, European
  Convention on Human Rights)

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Constitutional Change

• Constantly changing Constitution
• 18th Century Aristocratic balanced
  constitution
• 19th Century middle-class liberal constitution
• 20th Century liberal democratic constitution
• Compare 1688 and 2005 notionally same
  constitution, but much change

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Labour Constitutional Reform

• Since 1997, Labour have engaged in the most
  significant amount of constitutional reform since
  19th Century
• Effects have been far-reaching and little
  understood

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Labours Changes (1)

• Devolution (Scotland, Wales, Northern Ireland,
  London, Elected Mayors)
• Electoral Change (European Parliament)
• New Basic Rights (Human Rights Act 1998, Freedom
  of Information Act 1999)

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Labours Changes (2)

• Institutional Reform
• House of Lords (still underway)
• Changes to Party Funding
• Modernisation of House of Commons
• Constitutional Reform Act 2005

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Labours Changes (3)

• Important to note that Labour has never has a
  grand plan of reform instead a problem-based
  approach
• Limited popular appeal, but a relic from Old
  Labour
• Currently, reform is uneven, incomplete and lacks
  a clear goal

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What happened?

• The first steps towards the CRA came in 2003,
  without any warning or consultation
• PM Blair announced a Cabinet reshuffle in June
  2003, abolishing the post of Lord Chancellor
• Quickly developed into a wider set of reforms

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The Lord Chancellor

• Originally an appointment of the Crown
• Gradually developed overlapping powers
• Member of Cabinet
• Head of Judiciary
• Speaker of House of Lords

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Why abolish the Lord Chancellor?

• Desire to increase separation of powers between
  judges and government
• Ensure compliance with Art.6 of ECHR (on judicial
  independence)
• Part of wider modernisation agenda
• BUT no pressing need for change

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The Governments agenda

• During 2003, Labour developed a Constitutional
  Reform Bill
• Abolish the Lord Chancellor and his department,
  replace with Secretary of State for
  Constitutional Affairs
• Set up Supreme Court to replace Law Lords
• Changes to appointment of judges

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Progress of the Bill

• Lack of consultation beforehand caused much
  difficulty in both Houses and with public
• Lords made many amendments
• Bill finally approved March 2005

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Constitutional Reform Act 2005 (1)

• Lord Chancellor remains, but with much less power
  over judiciary and no longer automatically
  Speaker of Lords
• Title will usually be held by the Secretary of
  State for Constitutional Affairs
• Holder can come from either House

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Constitutional Reform Act 2005 (2)

• New Supreme Court formed, with independently
  appointed members
• Will move into new buildings in Middlesex
  Guildhall in 2008
• Lords will lose its judicial functions

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Constitutional Reform Act 2005 (3)

• Creation of Judicial Appointments Commission
• Will recommend appointments to Secretary of
  State, on basis of merit
• Will work on an independent and transparent basis

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Constitutional Reform Act 2005 (4)

• Establishment in law of principle of judicial
  independence
• Government ministers now barred from trying to
  influence judicial decisions by virtue of special
  access

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What are the consequences? (1)

• On the positive side
• The CRA 2005 moves the UK towards a system of
  separation of powers
• Government control over judges should decrease
• Separation of functions should allow for better
  specialisation
• Strengthens respect of European Convention on
  Human Rights

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What are the consequences? (2)

• On the negative side
• Extra institutions and positions will make
  coordination more difficult
• The process by which the CRA 2005 was reached
  undermined public confidence in the political
  process
• Appears to set up many teething problems to fix a
  problem that was not very problematic

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The future

• Hard to see much more major constitutional reform
  occurring under Labour (although the CRA 2005 was
  itself unexpected)
• In longer run, will become another step in the
  gradual evolution of the British Constitution

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Questions for debate

• Was the CRA 2005 necessary?
• Does it solve the problems it set out to?
• How could the process have been improved?

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Further Resources

• Department for Constitutional Affairs -
  www.dca.gov.uk
• Parliament - www.parliament.uk
• The UCL Constitutional Unit - www.ucl.ac.uk/consti
  tution-unit
• The Hansard Society - www.hansardsociety.org.uk