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Published: Fri, 02 Feb 2018
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 powers. This doctrine states that the power of the state has to be divided between the three organs, namely the judiciary, legislature and executive. Each of the organs should operate independently and none will become all powerful. 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. Besides that, he was the speaker of the House of Lords, which is the legislative chamber. This conflict to the doctrine of separation of powers was seen to be incompatible with the independence of the judiciary.
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 6 of the European Convention on Human Rights. This Article is to ensure fair trial which requires that a judge must be independent of the government. However, one could have doubt as to whether the Lord Chancellor, when sitting as a 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 of the Constitutional Reform Act 2005 has 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, who is a member of the House of Commons, was appointed to be the first Lord Chancellor under the 2005 Act.
Before the appointment of Jack Straw, Lord Falconer, who was thought to be the last Lord Chancellor, was appointed to be the Secretary of State for Constitutional Affairs. Besides that, the Lord Chancellor’s Department was renamed the Department for Constitutional Affairs. In fact, Lord Falconer stated that he would not be sitting as a judge as the previous Lord Chancellors did.
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.
All the Lord Chancellor’s judicial responsibilities are transferred to the Lord Chief Justice. The Lord Chief Justice, who is given a new title known as President of the Courts of England and Wales, is the head of the judiciary. His responsibility includes the training, guidance and deployment of judges. Under s.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, s.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 of the 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 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. In order to be appointed as a judge sitting in the Supreme Court, s.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 s.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.
However, there was instance where the Prime Minister’s role in judicial appointments was controversial. In 2005, Tony Blair selected Lord Justice Potter as the President of the Family Division even though he had little experience of the family courts. Lord Falconer was the Bar pupil master of Lord Justice Potter and Lord Falconer was appointed to replace Lord Irvine to be the Lord Chancellor.
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 s.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. On the other hand, 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 the members of the Commission, 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.
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 misbehaviour 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 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 behaviour. 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 behaviour, 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 favour 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 misbehaviour 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 s.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 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 criticise the decisions of the courts. They may criticise the law, but not the judges. When giving statements in the public, the politicians should also keep in mind that no criticise to the judges should be made.
Quite often the media will report the cases to the public and sometimes criticise may be made against the judges. In order to avoid putting pressure on the judges, the media should refrain from criticise 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 justice, namely nemo judex in sua causa, which means no man should be judge in his own cause. This doctrine prevents the biasness in the cases before the judges. 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. This, however, raises the question of how the Lord Chancellor’s duty is to be enforced so as to ensure that the judicial standards are not being compromised. Since the personality of each Lord Chancellor is different, this question is difficult to be answered.
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