University of Surrey Issues in Politics Today The Constitutional Reform Act 2005 – Sources and...

University of SurreyIssues in Politics Today

The Constitutional Reform Act 2005 – Sources and Impact

July 2005

www.surrey.ac.uk/politics

Contents

Background: the Changing Constitution

Why a Constitutional Reform Act?

What does the CRA do?


The Changing Constitution

The UK lacks a single, codified constitution, unlike most other states

BUT it does have numerous constitutional texts and practices


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 PM’s powers) Law & Custom of Parliament International Sources (e.g. EU,

European Convention on Human Rights)


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


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


Labour’s 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)



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



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


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


The Lord Chancellor

Originally an appointment of the Crown

Gradually developed overlapping powers: Member of Cabinet Head of Judiciary Speaker of House of Lords


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


The Government’s 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


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


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



New Supreme Court formed, with independently appointed members

Will move into new buildings in Middlesex Guildhall in 2008

Lords will lose its judicial functions



Creation of Judicial Appointments Commission

Will recommend appointments to Secretary of State, on basis of merit

Will work on an independent and transparent basis



Establishment in law of principle of judicial independence

Government ministers now barred from trying to influence judicial decisions by virtue of special access


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


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


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


Questions for debate

Was the CRA 2005 necessary?

Does it solve the problems it set out to?

How could the process have been improved?


Further Resources

Department for Constitutional Affairs - www.dca.gov.uk

Parliament - www.parliament.uk

The UCL Constitutional Unit - www.ucl.ac.uk/constitution-unit

The Hansard Society - www.hansardsociety.org.uk

University of Surrey Issues in Politics Today The Constitutional Reform Act 2005 – Sources and...

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