The impact of the Constitutional Reform Act 2005

(a)

Introduction

In order to consider the impact the Constitutional Reform Act 2005 on the make up of the House of Lords and its expertise, we will briefly consider the situation that existed prior to the act. We will then discuss how this is proposed to change with the creation of the Supreme Court.

Background

It is important to briefly consider the House of Lords itself and then consider its judicial function. Membership of the House of Lords is very open and indeed almost anyone can be a member, except aliens (other than commonwealth citizens); undischarged bankrupts and persons convicted of treason, until they have served their sentence. A member can only be removed by statute. In 1999 there were approximately 1,349 members of the House. The House of Lords Act 1999 ejected most of the hereditary peers and reduced the total to around 750 members. The most important point to make about the membership of the House is that all of the members are not elected. They are chosen by the executive. The European Convention of Human Rights ^[1] requires states to hold elections to nominate the legislature. In the case of Matthieu – Mohun v Belgium^[2] the ECHR stated that this would require at least one House to be elected, but also the elected element must be the majority and the non-elected element must not have greater powers than the elected element. This was violated by the present House of Lords which has more members than the House of Commons.

Membership of the House of Lords is divided into four categories. Firstly, The Lords Spiritual, which are religious leaders like the Archbishop of Canterbury and other senior members of the clergy. They are not peers and can vote in parliamentary elections and their membership ceases when they no longer hold their office. Secondly, Hereditary peers are granted ranks by the Monarch, who specifies that the peerage can be inherited. It used to be wealthy landowners and people of influence, and their heirs. This group was the majority in the House of Lords until the House of Lords Act 1999. Thirdly, it consists of Life peers, who are hand picked by the executive. It was intended as a reward for long public service and served as a balance to the wealthy landowners of the Hereditary peers. Finally, the Lords of Appeal in the Ordinary, who sit on the Highest court of appeal in the United Kingdom (UK). It is the Appellate Committee of the House of Lords, which hears appeals from all the jurisdictions in the UK, except Scottish criminal cases. Its members are life peers who can sit in parliament, but in practice it is independent from the rest of Parliament. Under the Appellate Jurisdiction Act 1876, full time Lords of Appeal in Ordinary conduct the judicial business of the house. They usually sit in Appellate Committees of five Law Lords selected by the Senior Lord. They are specifically appointed as judges. The Senior Lord of Appeal in Ordinary supervises the judicial business of the House. Retired Law Lords may also sit if required. Peers who are not legally qualified cannot sit. No further appeal lies from the House of Lords but the House may refer a preliminary question to the European Court of Justice if the case involves an element of European Law. In addition a case can be brought to the European Court of Human Rights if the House of Lords do not provide a satisfactory remedy in cases where the European Convention on Human Rights is relevant.

It is important to mention the office of the Lord Chancellor. Previously, he presided over the House of Lords and was the minister in charge of Constitutional Affairs. In this role, there was an overlap in the separation of powers between the judiciary and the executive. As a minister he was bound to be democratically accountable for the department under him. This could cause a conflict when acting as a member of the legislature.

The New Act

The Constitutional Reform Act 2005^[3] and the House of Lord Reform 2007 introduce large changes to the current situation.

The long title of the Constitutional Reform Act 2005 act states the following intentions:

An Act to make provision for modifying the Office of the Lord Chancellor; ………………….to establish a Supreme Court of the United Kingdom and to abolish the appellate jurisdiction of the House of Lords……

The Bill was introduced to the House of Lords in February 2004. Initially it caused quite a controversy, especially in regard to its proposals relating to the role of the Lord Chancellor. It initially proposed to abolish the Lord Chancellor. This has now been tempered and the office still exists under the act but the role of the Lord Chancellor in relation to the judiciary is severely limited. In addition, the Lord Chancellor can now be from either the Commons or Lords. The Bill created a new cabinet position know as the Secretary of State for Constitutional Affairs (to replace the Lord Chancellors role in judicial functions). The Bill was approved by both Houses in March 2005 and received the Royal Assent on the 24 March 2005.

There are many changes affecting the House of Lords in this act. The motivation was to remove concerns of the mixed role of the Lord Chancellor, as a judicial officer with executive and legislative powers, and that this would not accord to the European Convention on Human Rights. The changes are firstly, the House has a new speaker as the Lord Chancellor is no longer the Speaker. The speaker is now known as Lord Speaker (both male and female speakers). Secondly, the Lord Chief Justice who is President of the Courts of England and Wales is now the head of the English Judiciary, instead of the Lord Chancellor^[4]. Thirdly, the Lord Chancellor is still the head of the department of Constitutional Affairs. Fourthly, the Lord Chancellor need not be a lawyer or member of the House of Lords, but must be an experienced minister or member of either houses, or a practicing academic lawyer. ^[5] Finally, the judicial function of the House of Lords will be transferred to the Supreme Court of the United Kingdom, which will be located in Middlesex Guildhall, and is scheduled to be ready in 2009.

As regards the Supreme Court, it is mainly being constituted to ensure separation of powers between the legislature and the judiciary. In line with recent European Court of Human Rights decisions, the right to a fair trial does not require formal separation of powers but does require that the court is independent and appears to be so.^[6] On closer inspection it seems that the creation of the Supreme Court is merely achieving a cosmetic goal.^[7] This is because the composition and powers of the Supreme Court will remain the same as the current Appellate Committee. It will comprise of 12 judges, although they will sit in panels of 3 (not 5). It will make its own procedural rules and therefore have some procedural independence and also it will have financial autonomy. Supreme Court judges may be appointed to the House of Lords on retirement.

Conclusion

The main impact of the Constitutional Reform Act 2005 is in establishing a Supreme Court as the highest appeal court. This will take effect in 2009. The main reasons are to restore public faith in the judicial system and to ensure separation of powers between the legislature and the judiciary in accordance with the ECHR.

(b)

Introduction

A Parliament with one chamber or house is known as a Unicameral Parliament. A Parliament with two chambers or houses is known as a Bicameral Parliament (Carroll: 30) In the UK, the two chambers are the House of Commons and The House of Lords. The House of Commons is an entirely elected house. Its main functions are legislation, scrutiny of the executive and financial proceedings. The House of Commons is regarded as having greater authority than the House of Lords. Indeed, the Parliament Acts 1911 and 1949 allow Bills to be enacted without the upper chambers consent. Until the House of Lords Act 1999, the majority of the members of the House of Lords were granted their seats by inheriting them. The House of Lords is entirely unelected. Its main function is to revise and scrutinise proposed legislation. It receives a Bill after the House of Commons Third Reading. It reviews the Bill and if necessary modifies it. Clauses not properly debated in the commons, will be considered in the Lords. After the Third Reading in the Lords, the bill will be returned to the commons if any amendments have been made. When both Houses agree on a bill, it is passed to the Monarch for the Royal Assent.

In the UK, parliament is sovereign or the ultimate source of authority. This is different from the USA, which also has a bicameral parliament. In the case of the USA, the constitution is sovereign. The US Supreme Court can therefore override the actions of the Parliament (Congress). In France (also a bicameral parliament) the constitution provides that ultimate sovereignty belongs to the people, through referendums.

Generally, the larger countries tend to have bicameral parliaments.^[8] This seems to be to enable a larger representation of opinion in the making of law and helps to maintain public confidence in the working of the political process. In the absence of a second chamber, unicameral systems rely on other procedures to ensure that the legislation is properly examined. For example, in New Zealand a specially appointed select committee is responsible for scrutinizing legislation before it is passed on for final approval. It may be useful to consider three international parliaments to best understand the most effective solution for the UK. We will consider the USA, Belgium and New Zealand.

International Comparisons

The USA

The Congress is the legislature of the United States. It has two chambers: the House of Representatives and the Senate. The Congress does not encompass the entire governmental regime. The constitution vests the legislative power of the Federal Government in the congress. It reserves all the power to the people and the States. Both houses are coequal, but each house has certain powers reserved to it. The Senate has equal legislative power with the House of Representatives, even over tax and the budget. The Senate must approve all senior civil service and judicial nominations and all treaties.

Belgium

Belgium has a Federal Parliament, which is bicameral. It consists of the Chamber of Representatives and the Senate. Although it is a federal system, the parliament is similar in make up to the UK system.

New Zealand

New Zealand has a unicameral system called the House of Representatives. The parliament consists of the Queen of New Zealand and the House of Representatives. Until 1951, it had a second chamber called the Legislative Council, but this was abolished. It is similar to the UK in that the Parliament is sovereign. Bills are proposed in parliament. They must endure three readings of parliament and pass through the Select Committee and the Committee of the Whole House.

A Unicameral Parliament for the UK?

During the debates on the parliamentary reform in 2003, George Howarth MP put the case for a unicameral parliament for the UK to the House of Commons. He was defeated. His argument is worth considering. He gave examples of many unicameral parliaments which worked perfectly well. His argument centred on the House of Lords reform. He submitted that any reform of the Upper House would cause significant problems. If it remained an appointed house, then it would have problems of legitimacy. If it was an elected house, it would be a rival to the Commons. If it was a hybrid of both an elected and appointed house it would have problems of confusion and inconsistency. Others in favour of a unicameral system used the argument that MPs might be forced to scrutinize legislation more carefully if the comfort of the second look by the Lords was taken away from them. Finally, it was argued that there is no real way to reform the Lords which would not pose a threat to the primacy of the Commons.

Conclusion

It was the conclusion of the House during the debate that although unicameral systems do work well in smaller countries, it would be a significant burden in a country the size and diversity of the UK. After looking at various countries, as seen above, Parliament is a unique reflection of a country. There seems no compelling reason for the UK to adopt a unicameral system.

Bibliography

1. 1. House of Lords Reform 2007
   2. Constitutional Reform Act 2005
   3. Alder, J. Constitutional and Administrative Law, 6^th Edition. Palgrave MacMillan; Basingstoke, 2007.
   4. Carroll, A. Constitution and Administrative Law, 3^rd Edition. Pearson, Harlow, 2003
   5. www.lawtel.co/uk
   6. www.westlaw.co.uk

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Footnotes

^[1] Protocol 3

^[2] ECHR 1988

^[3] 2005 c.4

^[4] s7

^[5] s2

^[6] McGonnell v UK (2001)

^[7]Alder, J: Constitutional and Administrative Law. 6^th Edition, Palgrave Macmillan law masters, 2007 at 181

^[8] White paper 5.7