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

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: 18 th Century – Aristocratic ‘balanced’ constitution 19 th Century – middle-class liberal constitution 20 th 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 19 th 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)

Labour’s Changes (2)  Institutional Reform: House of Lords (still underway) Changes to Party Funding Modernisation of House of Commons Constitutional Reform Act 2005

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

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

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

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

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

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  Parliament -  The UCL Constitutional Unit  The Hansard Society -