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 PM’s 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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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)

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Labour’s 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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Labour’s 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 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

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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/constitution-unit

The Hansard Society - www.hansardsociety.org.uk